Criminal cause system of criminal cause theory

Source: Oriental Law Eye 2004-10-28 12:08:20 (a) criminal new school and the old school of the division

The different schools of criminal law doctrine, including the theory of criminal causes for comparison, the first problem encountered is the division of the school of thought, it is the existence of different types of doctrines, we are for the sake of the study of the convenience of the division into different factions. And how to make the division, the division of different criteria, the doctrine of each school will appear different opposites and unification of the situation. Japanese scholars such as Prof. Minoru Otani, Prof. Kenichi Nakayama, and Prof. Hitoshi Otsuka have made different classification results, and our scholars also have different views. [①] Because these scholars do not have a clear division of standards, the results of the division of similarities, but still very confusing and even can not be self-explanatory.

The criteria for the division of the old school and the new school in this paper are the background of the times, academic views, and research methods. Thus, Beccaria, Bianchin, Feuerbach, Kant, Hegel and so on belong to the representatives of the classical school. This school is characterized by the emergence of the mid-eighteenth century, the period of capitalism, anti-feudal autocracy, the pursuit of freedom, rationality of the times, accept the enlightenment of the previous generation, the traditional research methodology engaged in the academic study of criminal law, advocating the law of crimes, the crime is appropriate, humanitarianism, objectivism, in particular, freedom of the will, is the theoretical cornerstone of the school of thought and an important symbol of the new school of thought in opposition to the new school of thought. It is also the focus of this paper. The new school is also known as the modern school, the empirical school, he arose in the context of the era of free competition capitalism to monopoly capitalism transition. Unprecedented development of natural science, sharp social contradictions, crime is on the rise, the school of empirical research methods, the school of thought is to emphasize the social causes of crime or innate causes, social responsibility theory, individual prevention theory and other points of view, the new school of thought can be divided into criminal anthropology, and sociology. They emphasize the role of anthropological and sociological factors in crime respectively.

Montesquieu, Locke, Grotius, Rousseau, and others are generally categorized as the enlightenment of criminal law thought, this is because their criminal law thought, although the enlightenment of Beccaria and other scholars of the classical school, but they did not form a systematic theory of criminal law. If Montesquieu, Locke, Grotius, Rousseau and so on is called the enlightenment, they enlightened the classical school of Beccaria, Bianqin, Feuerbach and other scholars, rather than the enlightenment of the empirical school. The criminal positivism is not so much inspired by the Enlightenment as by Darwin or even Galileo or Newton. It is no wonder that some scholars have categorized the Enlightenment school as a classical school as well. [②]

(ii) the concept of the cause of crime and the importance of the theory of the cause of crime

The cause of crime is the main object of criminology, ③ the theory of the cause of crime is the most important component of criminology, the difference in the penal view of each school of thought is ultimately due to the difference in its theory of the cause of crime, the theory of the cause of crime reflects the worldview and methodology of a school of thought. Whether its view of punishment and its theory of the cause of crime is self-contained system is an important criterion to test whether a school or a scholar can stand on its own in the academic material. It can be said that what kind of theory of the cause of crime has what kind of view of crime and punishment. (A) the main discussion and views

Classical school of scholars on the causes of crime, less so that some scholars called the penal school. For example, the American criminologist Jon Lewis Gilin Harry ElmerBarnes NegleyK.teedengters, etc. hold such a point of view. [③] of the classical school of criminology can be summarized as follows:

1, human nature is selfish. The school generally accepts the philosopher Thomas Hobbes (1588-1679) the doctrine of human nature evil, that human nature is selfish, and this selfishness is a kind of evil, crime is a manifestation of human nature, anyone has the possibility of crime.

2. Freedom of will. Old school scholars believe that anyone has the same freedom of will, can according to their own will out of their own behavior, criminal behavior is the result of personal choice, the offender could not have committed a crime, which is the offender's free choice of criminal behavior to assume the responsibility of the basis.

3, tend to pleasure to avoid suffering, the reason why the offender chooses to commit a crime, because, crime is a kind of enjoyment, or can avoid the pain of not committing a crime situation.

4, utilitarianism, with the minimum input, in exchange for maximum benefit, regardless of whether the means is justified, criminal behavior in line with such characteristics, criminal behavior can achieve the legitimate means simply can not achieve the purpose.

(ii) Evaluation

Garofalo argues that crime is not an infringement of rights, but an infringement of emotions, which are emotions, mainly the moral sense, every nation possesses a certain amount of morality itself, they do not arise from the reasoning of the individual, but due to the individual's heredity.

No quantitative study of free will thus led many scholars of the classical school to advocate only objective harm as the basis for sentencing . Free will has been exaggerated from relative to absolute. Will tend to happiness and avoid suffering as the reason why people choose to commit crimes, but why people have different bitterness optimism, different bitterness optimism and what is the reason for the formation. Why rational people face the same choice, but also only a few people choose to sin. Even Bianchin and Feuerbach, who particularly emphasized this point, did not offer an explanation. (I) anthropological school

1, the main points and discussion

Long Brosseau, the founder of the school of criminal anthropology, believes that crime is a kind of ancestry, ancestry is due to intergenerational heredity, and for the first time put forward the classification of the offender, the first category is the natural offender, which is born with the nature of the crime already, Long Brosseau's students, Garofalo, is the criminal anthropological school of the important representative of the figure, he created the concept of natural crime, which is the most important and the most important. He created the concept of natural criminality.

2, evaluation

Longbrotherso's criminal is the actual law of the criminal, its as a sample of the criminal are incarcerated in the prison of the legal offender, and in its concept of crime also includes the mentally ill. It can be said that Lombroso's research does not strictly follow the law of unity. Long Brosseau to take the material of criminals are mostly dangerous to the security of criminals and recidivism, such as robbery, rape, theft and other types of criminals, which led to the conclusion of the theory of natural born criminals, it is difficult to escape the fatal generalization, no wonder that in its later views of the proportion of natural born criminals has been reduced again and again.

Garofalo's theory of natural criminality is a major improvement on the criminal anthropology school, but also Garofalo's best work, "There are some ideas that neither purely academic criticism, nor the self-censorship that I have done since then, have influenced me in the slightest degree to make changes. This is the idea of natural criminality as opposed only to the legal or traditional one. I recognize that it may be expressed in different forms, but I am convinced that the concept of natural crime has taken root." [4] If Imagine if there are natural born criminals, then the phenomenon can never be summarized in terms of statutory crimes, because there are bad laws and good laws laws may criminalize acts that should not be criminalized, and crimes that should be criminalized are not criminalized, and laws are always in flux, and how can the genes that define a person's traits change in response to changes in positive law? However, Garofalo's concept of natural crime transcends space and time, naturalizing and universalizing the concept of crime, which is put on the same movement as human genes governed by natural laws. In Long Brosseau's logical system, this is confused, since the offender is born, then, crime is a natural phenomenon, and its crime and the concept of the offender and there is no legal and natural difference, so that the logic of the dragon is confused, Garofalo's concept of natural crime is put forward, so that the anthroposophical school to get rid of this dilemma, although Garofalo did not fully realize this. Anthroposophical school of *** with the same characteristics is an attempt to explain the laws of high-level movement (social movement) with the laws of the lower movement (life movement), which inevitably fall into the quagmire of mechanistic, but they broke the ground to introduce empirical methods into the study of criminology, enriching the criminological research methodology is not to be faulted, and can not help but let us think about such a proposition: "Assuming that the ultimate science has the ability to 'explain' DNA and to foresee accurately the consequences of genetic defects, many unanswerable questions will arise in the law. What do criminal trial authorities do with offenders whose behavior is determined by genetic defects? Does society have the right to diagnose and isolate these individuals before they commit harmful acts? Can society prevent these people from the moment they are born?" [⑤]

I think: We can study people as crops, but we can't treat them as crops.

(ii) The Sociological School

1. Main Points of View

The Sociological School, like the Anthropological School, opposes the use of free will as a cause of crime, and even denies the existence of free will, but the difference is that the Sociological Schools are both integrative causatologists, and the Sociological Schools don't recognize only the social cause of crime, but rather, they place more importance on the social cause of crime in comparison with the Anthropological School. This is precisely why Japanese scholars once referred to the sociological school as eclectic. In his research, Philly utilized the new results of psychology, pathology, and statistics, and he divided the causes of crime into three major elements, namely, anthropological, natural, and social factors. It is believed that "crime is caused by a variety of reasons, and no matter what kind of crime, from the slightest to the most brutal, it is no more than the result of the interaction of three factors: the state of the offender's psychological factors, the natural conditions in which he comes from, and the social environment in which he is born, lives, or works."[6] This is Philly's triad of causes of crime. This is the triad theory of the cause of crime. On this basis, Philly put forward the law of crime saturation, he is a certain society than as a solvent, crime than as a solute, crime three causes than as a solution in such as temperature, air pressure and other conditions. But perhaps the reason is that Phil's knowledge of chemistry is not enough, this metaphorical name is not very appropriate, because under certain external conditions, the saturation of the solution is only a reflection of the existence of the maximum amount of solute, but in fact not necessarily saturated, saturated is only a special case, but Phil said that crime saturation is that: in a certain number of three elements of the conditions of the social society on the occurrence of a certain amount of crime, no more and no less. This is not very similar to chemical saturation. While the amount of crime is closely related to the three elements, it would be quite arbitrary to conclude that it is directly proportional to changes in the three elements.

Lester, the main representative of the sociological school, critically absorbed the Belgian scholar Kate to advocate the monism of social relations and and criminal anthropology school of innate qualification monism, and that the natural factors described by Philly is only one of the social factors. This led to the dualism of the causes of crime, i.e., social and personal factors. Lister pointed out that "mass poverty is the greatest foundation for the cultivation of crime, and the incubator of the qualities of heredity that make it qualitatively different. Improvement of the situation of the working class is the best and most effective criminal policy." [7]

2. Evaluation

Philly's ternary theory and Lister's dualism are not five substantial differences, because in Lister's view, the environment and society are one and attach importance to the social causes, which in fact is close to the truth of the causes of crime, but Lister did not further argue the relationship between the two elements, is its defects . (I) the summary of the opposing views

The free will theory is the theoretical cornerstone of the classical school, Hegel pointed out that: as a living creature, man is how to be known by force, that is, his body and his external aspects can be placed under the violence of others: but his free will is absolutely impossible to be forced, [⑧]

The new school opposes the old school of the view of the freedom of the will, that the phenomenon of crime as is governed by the law of cause and effect like all phenomena in the world. That our behavior of our physical elements and the elements of our environment and the elements of the competition, and thus the meaning of the will is also based on the elements of the inevitable natural cause and effect, and we have never become the freedom of meaning. Lombroso argues that the perpetrator's innate physical constitution is alien to the norm, and thus determines that he is bound to commit a crime. Philly severely criticized the classical school's view that crime is the result of free choice based on a nature that seeks to avoid harm. He states, "We cannot recognize free will. For free will is only an illusion that exists within us, and not an actual function of human mental existence. [9] argued, "Crime has its natural causes and has nothing to do with the free will of the offender." The classical school, which predated the modern school, naturally could not give a response to this, however the neoclassical school that emerged later gave a tenacious response to the modern school. The neoclassical school, represented by Bickelmeyer, and the modern school, represented by Liszt, engaged in a two-decade-long debate over the theory of freedom of the will and the theory of the determination of the will.

(C) the philosophical reasons for the opposing viewpoints

Criminal old school of the cause of the crime theory is an idealistic worldview in the criminal view of the embodiment of the natural law and the social contract is the classical school of the starting point of the natural law originated in Ancient Greece. The ancient Greek Stoic thinker Zeno (Zeno 350-260 BC) believed that natural law was the ruling principle of the universe, and was regarded by them as God in a pantheistic attitude. The Stoics believed that natural law was the law of reason, and that reason, as an omnipotent force throughout the universe, was the basis of law and justice. They believed that divine reason resides in the minds of all men, regardless of country or race. Thus there exists a universal natural law based on reason which is valid throughout the world and whose requirements are binding on all people everywhere. [In the Middle Ages, Aquinas theologized natural law, claiming that it was subordinate to the eternal law that embodied God's reason, and arguing that rational animals were governed by divine will in a special way. [11] Although Grotius, the founder of modern natural law, de-emphasized divine will, ... Hegel and Kant as philosophers are typical of idealism, the new school's views are generally egoistic, but interspersed with a clear mechanical old school and new school of the opposition between natural law and positivism.

Both the worldview of the opposition, but also the methodology of the opposition, due to the limitations of the level of social development, the classical school's research method is mainly, by the hypothetical premise of rational argumentation, the correctness of propositions, the reliability of the propositions rely on the thinker's genius of the ability to think and intuitive feeling of the social and legal phenomena, their information is mainly the relevant treatise of the predecessors in their times the social management system did not provide them with the research. management system did not provide rich statistical information for their research, and the development of natural science did not create measurement tools for empirical evidence for their research, and they did not pay much attention to these because of the custom or tradition of social research, and the examples they cited in their writings were not so much proving their own propositions as explaining his propositions to the readers, and their doctrines were the linear continuation of the conclusions of the previous research, the Such as Beccaria, Bianchin, etc., their ideas can be found in the shadow of Montesquieu's, Rousseau and others, and can even be traced back to Plato and Aristotle. This is not an accidental coincidence, but the reason for their similar research methodology and the use of the writings of their predecessors as an important object of study.

The empirical school as a school of thought is a recent affair, it is the development of modern natural science for the study of social science provides empirical ideas and means, such as the heavy observation, measurement, statistics, verification and so on, against the guess of thought. The conclusions of his research are usually different from the intuitive feelings of people, for example, the theory of born criminals of Lombroso caused a furor in the criminal law world is no less than Galileo's theory of falling bodies and Einstein's theory of relativity had been caused by the vibration of the world of physics, the empirical method of the natural sciences in the field of the great achievements, can not help but make a part of scholars will be empirical approach to introduce into the field of society, the revolution of the method will inevitably bring about the conclusions The revolution of the method necessarily brings about a difference in the conclusions; otherwise, the method is not pioneering, but nothing more than the left evidence of another method. The contribution of the empirical school is not only to add new bricks and mortar to the edifice of criminal law doctrine, but also to contribute new methods of construction.

Aristotle's doctrines on the natural sciences seem absurd today, yet his doctrines on the humanities are still regarded as classics, and if the new school's method of study is called the empirical method, the old school's method of study is not yet known for a moment what to call it, but one thing is certain, it is the traditional method, in the same line as Aristotle's, a method which would seem to be eminently suited to the study of the the study of the humanities.

Without clarifying the difference of concepts, without contextual unification, but rendering the opposition and debate between the various schools of thought, it is inevitable that there will be jokes like Guan Gong war Qin Qiong, can not be confused with the constituent elements of crime and the cause of crime, free will is only the constituent elements of statutory crime, not the cause of crime, since in the classical school of thought free will is a fundamental attribute of man, is a criminal and a non-criminal * * * Have the attribute, how can he become the cause of crime, say have free will is the cause of crime is the same as saying that people have the brain is the cause of human crime is as absurd. Criminal behavior is governed by free will, how to use free will, as well as for free will to choose the possibility of crime is the cause of crime, the concept of crime of Lombro shrinkage, Garofalo's concept of crime is different from Bianqin's concept of crime and the concept of crime of the positivist school of thought, and there is a difference, which is one of the reasons why their theory of the cause of the crime of the antagonism. A person with normal human development is cognitively capable of his own behavior, both in the sense that he knows what his behavior means and what consequences it will or may have, that his behavior is directed by his will, and that his will controls his behavior, and that he is the decision maker of his behavior, (both the old school's theory of freedom of the will). But this freedom is relative, because the innate factors of each of his people, as well as the social environment in which he lives, for the preparation of the material for his free choice, his freedom is limited to the choice of the range of available material, the choice of what, although completely free but the range of material is destined to (the new school of the freedom of the will negativism), for example, in the face of the choice of whether or not to rob the choice of a thousand dollars in cash, whether the will of the pauper or the aristocrat are is free because the decision maker is himself and both run to the principle of choosing what is most favorable to them, so their wills are equally free, but they face the other side of the contrast is different, which is not determined by their free will, the pauper is more eager to get the one thousand dollars than the nobleman, and the nobleman is more fearful of the criminal prosecution than the pauper. This state of affairs is not determined by will.

The unity of the old school and the new school's theory of the causes of crime lies, objectively speaking, first of all in the complexity of the causes of crime themselves, both in the form of one effect and many causes and many fruits. Even the most stubborn end of the Lombroso in its later works "crime: cause and cure" pointed out that: the causes of crime is a lot of reasons, and often entangled disputes. Without examining each one, it is not possible to draw any conclusions about the causes of crime. The complexity of the causes of crime is common to human society, and it must not be assumed that there is no relationship between the causes, much less that one of the causes can replace all of them. [12]

The unity of the old school and the new school also lies in the unity of methodology. The necessity of methodological unity lies in the unity of the form of movement which is the object of study. Crime is a social phenomenon, and social movement is the highest form of movement, which contains mechanical, physical, chemical, vital and other forms of movement,[13] so that the empirical method, which has been so successful in the study of the natural sciences, cannot fail to take its place in the study of the problem of crime. But the higher forms of motion is not a simple combination of lower motion, has its own specific provisions, is the empirical method of force can not be, become the classical school retreat castle,[14] the classical school of methodology is not so much as the antagonism of the empirical method of withdrawal from the stage of the history of the doctrine of criminal law.

The contributions and shortcomings of each school have been dealt with separately in the preceding paragraphs; the contributions are fundamental to their place in the history of criminal law doctrine, and their shortcomings leave an interface for unification with other schools.

The old school and the new school of the theory of the cause of crime are each unified as a piece of the complete and correct theory of the cause of crime. Feuerbach's psychological coercion theory, in Hegel's view, assumes that the human will is not free, which in fact Feuerbach, as an Old School scholar, has a side in line with the New School, where punishment, both in Feuerbach's view and in the view of the sociological school, serves as an extraneous factor that influences the choices made by the perpetrator.

The various scholars in the history of criminal law doctrine are presented to us with faces, and it seems that we divide them into factions not according to all the views they hold, but according to their contribution to the edifice of criminal law doctrine, Lombroso, no matter how much he diminishes the proportion of natural born offenders, and no matter how much he takes into account the social causes of crime, is still in the ranks of the criminal anthropology school. For the theory of the natural born criminal is its unique contribution to the edifice of criminal law doctrine, which was lacking before him. In short, they are not so incompatible. We are willing to let them fight with their faces on the stage of history, yet they ***exist and are united in the edifice of truthful criminal law doctrine. Each scholar's thought has a process from one-sided to comprehensive, but the scholar's characteristics and contributions, but still he insisted on and later made amendments to the later as a target for criticism of one-sided thought, which is the scholar of the truth of the edifice of the contribution of the bricks and mortar belonging to their own, but also for the academic criticism of the erection of the target is extremely welcome, looking at the development of the theory of the cause of the crime of the history of the whole idea of the edifice of the idea of the complete to complete, from one-sided to comprehensive process. The whole edifice of thought has a process from incomplete to complete, from one-sided to comprehensive, as long as the contribution is valuable can always find and retain their own place in the edifice, as far as the scholars' personal thoughts are concerned, the later thinkers do not have a greater contribution than the previous generation of thinkers, which does not seem to abide by the theory of evolution, these masters of thought, are in different aspects of the construction of the truth of the edifice.

Social causes are one of the causes of crime, but are not the basis of punishment, and crime as punishable is not concerned with social causes, but with individual causes, and the criminal law is directed against the individual who commits the crime, while those with the same social causes do not necessarily commit all crimes. For example, poverty is the social cause of a person committing theft, the poverty of the offender is due to the unfairness of social distribution, of course, society has to bear some responsibility, but not because of the offender's crime to bear responsibility, but because of its unfair distribution policy to bear responsibility, should bear the responsibility of improving the distribution situation, but not for the offender but for the people in the same situation have to bear, which in fact form a kind of This in fact creates a new policy, a social policy, not a criminal policy, and if society is responsible only for the offender, this is tantamount to encouraging crime. So the social cause is a cause of crime which cannot be used as a basis for punishment. It is valued by sociologists and not by professional criminal lawyers. This is the reason why it is seldom mentioned by the professional criminal lawyers of the classical school.

Personal danger is one of the causes of crime, but it is not the basis of punishment. When someone commits a crime, we investigate the cause of the crime, and there is its own physiological, or psychological factors in it, and at the present level of development of the natural and social sciences, who can judge that someone must have committed a crime or must not have committed a crime on the basis of the danger of his person? Whether the crime is already or not yet, should adhere to the principle of the principle of the benefit of the doubt. It is not that the crime that has not yet been committed can not be used as a basis for punishment, the problem is that personal danger can not prove that the crime that has not yet been committed is a necessary crime, the crime that has not yet been committed or is not a necessary crime can not be used as a basis for punishment, but it can be used as a basis for social defense measures, and this kind of defense measures should not deprive the relative of any rights and interests, and even if the relative does not even know it at all. Otherwise, he would be no different from the nature of the penalty, and the State would simply be on the alert for such persons. This is no longer a matter of concern to the judge. If crime is treated as a personal disease, treatment for people who commit crimes can be mandatory, but only if there is certainty that it will seep through.

Crime cause system theory: the cause of crime is a complex system, from the perspective of the chain of causality, there is a direct cause, there is the cause of the cause of the cause; from the cause of the role played by the speakers, there are internal and external factors, from the relationship between the species of the cause of the general crime, the cause of a certain kind of crime, and the cause of the individual crime. The conditions of crime and other related factors have also been regarded by some scholars as the causes of crime in a broad sense,[15] so that the system of causes of crime is very large, and the views of both the old school and the new school can find their respective places in this edifice.