Classical School and Modern School of Criminal Law

Legal Literacy - Criminal law is one of the main pillars in maintaining social order. However, behind the articles and sanctions, there is a fundamental philosophical question: What is the real purpose of punishment? Is it to provide appropriate retribution, or to rehabilitate the perpetrator and prevent future crimes? The answer to this question becomes a dividing line between two major schools of thought in criminal law: the Classical School and the Modern School.

Understanding the difference between the two is not just a matter of theory, but also the key to reading the direction and face of a country's criminal law. This article will thoroughly examine the two schools, from their philosophical foundations to their manifestations in the new Indonesian Criminal Code (KUHP).

Classical School: Focus on Actions and Retribution (Daadstrafrecht)

The Classical School was born from the Age of Enlightenment (Aufklärung) in the 18th century as a reaction to the arbitrary, cruel, and uncertain legal system of the monarchy.

• Philosophical Basis: This school is rooted in the idea of a social contract and indeterminism, the view that humans are rational beings who have free will (free will) to choose between doing good or evil. Crime, therefore, is the result of a conscious choice.
• Key Figures: Cesare Beccaria, through his monumental work, Dei Delitti e Delle Pene (On Crimes and Punishments), became the founder of this school. He fought for the principle of legality, proportionality of punishment, and rejected cruel punishments.
• Main Focus: Because everyone is considered to have the same free will, the focus of criminal law should be on the act (daad), not on the perpetrator. This is known as Daadstrafrecht.
• Purpose of Sentencing: The main purpose is retributive, where punishment is an absolute consequence in return for the perpetrator's actions. In addition, punishment also aims for general deterrence(general deterrence

), which provides a deterrent effect for the wider community.Modern School: Focus on Perpetrators and Prevention ()

Daderstrafrecht

• Philosophical Basis: As a critique of the rigidity of the Classical School, the Modern School emerged in the late 19th century, influenced by the wave of positivism and the development of sciences such as sociology and criminology.
• Key Figures: This school is based on the view of determinism. According to this view, crime is not purely a free choice, but rather the result of various factors beyond the individual's control, such as biological, psychological, and social environmental factors.
• Main Focus: This school was pioneered by the Italian School Triumvirate: Cesare Lombroso, Enrico Ferri, and Raffaele Garofalo. This idea was later developed by Franz von Liszt in Germany, who emphasized the influence of social factors.Because crime is caused by factors inherent in the perpetrator, the focus of criminal law must shift to the perpetrator (dader Modern School: Focus on Perpetrators and Prevention (.
• Purpose of Sentencing: ) to understand and address the root of the problem. This is what is called
  • The aim is preventive and rehabilitative. Punishment is no longer seen as retaliation, but as a means to: Specific prevention(special deterrence
  • ): Preventing the same perpetrator from repeating the crime. Rehabilitating and fostering offenders to be able to return to being productive members of society.
  • Community Protection: Protecting the community by rehabilitating offenders.

Synthesis in Indonesian Criminal Law: From WvS to the New Criminal Code

Indonesian criminal law is a real stage for the struggle and fusion of these two schools of thought.

1. Legacy of the Classical School in the Old Criminal Code (WvS) The old Criminal Code, a legacy from Wetboek van Strafrecht The Netherlands in 1881, is very thick with the nuances of the Classical School. The focus is on the act, with criminal sanctions whose gradation is based on the severity of the offense, without giving much room to consider the perpetrator's personal conditions.
2. Partial Infiltration of the Modern School Over time, the ideas of the Modern School began to seep into the Indonesian legal system through laws outside the Criminal Code. The clearest example is:
   • Law Number 35 of 2009 concerning Narcotics: Mandates rehabilitation for users, a modern approach that focuses on recovery.
   • Law Number 11 of 2012 concerning the Juvenile Criminal Justice System: Prioritizes diversion and restorative justice, which aims to rehabilitate child offenders rather than punish them.
3. New Criminal Code (Law No. 1/2023): A Conscious Synthesis Effort The birth of Law Number 1 of 2023 concerning the new Criminal Code marks a new chapter. This Criminal Code consciously and explicitly synthesizes the two schools of thought into a coherent system. This is clearly reflected in the formulation of the Objectives of Criminalization in Articles 51 and 52:
   • Article 51 reflects the spirit of the Modern School, with objectives such as preventing criminal acts (prevention), carrying out self-improvement (rehabilitation), and resolving conflicts (restorative justice).
   • Article 52 accommodates the spirit of the Classical School by affirming that punishment is not intended to cause suffering, but still has a fair aspect of retribution as a complete settlement (afdoening').

By formulating these dual objectives, the new Criminal Code no longer rigidly chooses one school of thought, but rather balances it with a strong commitment to fostering perpetrators and protecting society.

Conclusion

The debate between the Classical and Modern Schools has shaped the evolution of criminal law worldwide. Indonesia, through its new Criminal Code, does not take an extreme position, but rather weaves together both traditions of thought. Thus, the face of Indonesian criminal law in the future is one that seeks to balance legal certainty, retributive justice, and rehabilitative humanity.

FAQ (Frequently Asked Questions)

• What is the Classical School of Criminal Law? The Classical School is a school that focuses on actions (Daadstrafrecht'), based on the view that humans have free will, and aims to provide proportionate punishment as retribution.
• What is the Modern School of Criminal Law? The Modern School is a school that focuses on the perpetrator (Modern School: Focus on Perpetrators and Prevention ('), based on the view that crime is caused by biological/social factors, and aims to rehabilitate the perpetrator and prevent future crime.
• How are the two schools applied in Indonesia? The old Criminal Code was heavily influenced by the Classical School. However, the New Criminal Code (Law No. 1/2023) consciously combines (synthesizes) the two schools, by recognizing the retributive, preventive and rehabilitative purposes of punishment.

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