How Classical School and Positive School relate to current Canadian code provisions. (Sections 462.37 & 810.)
Classical School vs. Positive School
In this paper I will be discussing the classical school and the positive school and their relations to these current provisions 462.37., 462.39.-462.41 and 810 of the Canadian Criminal Code. After briefly summarizing these provisions, I will explain which law best represents the principles of the classical or positive school. Section 462.37 relates to classical school because it is a violation of the social contract. It also displays the use of fair procedure, proportional punishment and deterrence. It focuses on the deterrence of crime in comparison to the positive school where their primary goal is to identify features that influence crime and crime prevention. Section 810. accurately represents the positive school because it focuses on how the state can prevent the criminal from doing the crime. Section 462.37 outlines the Forfeiture of Proceeds of Crime where if one person is convicted of using the proceeds of crime to purchase goods or property, the state has the authority to confiscate it.(Criminal Code, 1985). This law favors the principles of the classical school in terms of deterrence, fair procedure and a violation of the social contract. The social contract is an obligation where the sovereign has the duty to protect individuals living under their rule in return for the people to give up their individualistic powers and live accordingly. Using the proceeds of crime to purchase desired goods and property is a violation of the social contract, because the profits were accumulated through illegal criminal activity. Due to this committed offence, a proportional punishment must be applied on the delinquent. The purpose of having punishments is to deter the offender from repeating the same crime; specific deterrence. In order to have a lasting effect on the offender, punishments should be chosen so it inflicts fear on them and is equivalent to the harm done. (Beccaria. 1983).Deterrence is based on a person who seeks pleasure and avoids pain, hedonistic decisions are made using the rational calculator. (Bentham, 1789). However, deterrence isn’t justified through the severity of the punishment, but through its certainty and proportionality. In section 462.37 of the criminal code the punishment is proportional to the harm done because the state is only disposing the goods and property that he/she purchased using the proceeds of crime. (Criminal Code, 1985). Everything else will remain intact, unless proven otherwise. In any case, the punishments in classical school should be mild enough to exceed the pleasure expected from a crime. Anything beyond proportional punishment is considered as sinister and completely useless. (Beccaria, 1983).
“Crimes are more effectively prevented by the certainty.” (Beccaria, 1983) What Beccaria means is that rather than having only a handful of offenders caught and severely punished, society should catch more offenders and effectively punish them in order to protect society. In violation of this law, the convicted offender must be found guilty through a humane trial. If the offender if found guilty through the fair procedure of the court, then a punishment can be applied on the accused. In the accused’s defense a trial is held to balance the probabilities of this offender using the proceeds of crime. Once the judge has made the decision of guilty, then Her majesty can dispose of the property and goods purchased through the proceeds of crime and otherwise in accordance to the law. Moreover, this section of the criminal code has a more classical scholiast approach because it allows for deterrence of crime through fair procedure and proportional punishment all because of the violation of the social contract. This law doesn’t apply the principles of the positive school because it does not act at the “root...
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