On the criminal cause in the criminal cause system

Source: Oriental Law Eye 2004-10-2812: 08: 20 (1) The division between the new and the old criminal schools.

Comparing different schools of criminal law theory, including the theory of criminal causes, the first problem we encounter is the division of schools. Because there are different types of theories, we divide them into different schools for the need of research. However, how to divide and the standard of division are different, and there will be different situations of unity of opposites for the theories of various factions. Japanese scholars Professor Otani, Professor Kenichi Zhongshan and Professor Otsuka have all made different classification results, and China scholars also have different views. [1] Because these scholars have no clear criteria for division, although the division results are similar, they are still confused and even unable to justify themselves.

The criteria for dividing the old school and the new school in this paper are the background of the times, academic viewpoints and research methods. Therefore, Beccaria, Bentham, Feuerbach, Kant and Hegel represented the classical school. This school is characterized by opposing feudal autocracy, pursuing freedom and rationality, accepting the enlightenment of predecessors, engaging in academic research of criminal law with traditional research methods, and advocating a legally prescribed punishment for a crime, humanism, objectivism, especially the theory of free will, which is the theoretical cornerstone of this school and an important symbol of opposing the new school. This is also the focus of this article. The new school, also known as the modern school and the empirical school, was born under the background of the transition from free competitive capitalism to monopoly capitalism. With the unprecedented development of natural science, social contradictions are sharp and crimes are on the rise. This school adopts empirical research method, and its viewpoint emphasizes the social or congenital causes of crime, the theory of social responsibility and the theory of individual prevention. The new school can be divided into criminal anthropology school and social school. They emphasize the role of anthropological factors and sociological factors in crime respectively.

Montesquieu, Locke, Grotius, Rousseau and others are generally attributed to the enlighteners of criminal law thought, because although their criminal law thought enlightened scholars of Beccaria and other classical schools, they did not form a systematic criminal law theory. Such as Montesquieu, Locke, Grotius, Rousseau, etc. Known as enlighteners, they were inspired by Beccaria, Bentham, Feuerbach and other classical scholars, rather than the empirical school. The school of criminal positivism was inspired not so much by the Enlightenment as by Darwin and even Galileo and Newton. No wonder some scholars classify the Enlightenment as a classical school. [②]

(2) The concept of criminal cause and the important position of criminal cause theory.

The cause of crime is the main research object of criminology. ③ The theory of criminal cause is the most important part of criminology. In the final analysis, the differences of penalty views of different schools are due to their differences in the theory of criminal causes, which embodies the world outlook and methodology of one school. Whether his concept of punishment and theory of criminal causes are self-contained is an important criterion to test whether a school or scholar can stand on its own feet in academic materials. It can be said that what kind of theory of crime has what kind of view of crime and punishment. (1) Main discussions and viewpoints

Scholars of the classical school seldom discuss the causes of crime, so that some scholars call it the penalty school. For example, American criminologist Jon Lewis Jilin Harry Elmer Barnes Negleck. Dentes holds this view. [3] The theory of criminal causes of the classical school can be summarized as follows:

1, selfish. This school generally accepts the evil theory of human nature of philosopher Thomas Hobbes (1588- 1679), and thinks that human nature is selfish, and this selfishness is an evil. Crime is a manifestation of human nature, and anyone can commit a crime.

2. Freedom of will. Old-school scholars believe that everyone has the same freedom of will and can act according to their own wishes. Criminal behavior is the result of personal choice, the criminal impossible crime, which is the basis for the criminal to take responsibility for his freely chosen criminal behavior.

3. Pursuing pleasure and avoiding pain. Criminals choose to commit crimes because crime is a pleasure or can avoid the painful situation of not committing crimes.

4, utilitarianism, with the minimum investment, in exchange for the maximum income, regardless of whether the means are justified, criminal behavior conforms to such characteristics, criminal behavior can achieve the purpose that legitimate means can not achieve at all.

(2) Evaluation

Garofalo believes that crime is not an infringement of rights, but an infringement of emotion, which mainly refers to moral sense. Every nation has its own morality, which does not come from individual reasoning, but from individual inheritance.

There is no quantitative research on free will, which makes many classical scholars only advocate objective harm as the basis of sentencing, exaggerating free will from relative to absolute, and taking pleasure and avoiding pain as the reasons for people to choose crime. But why do people have different bitter optimism? What are the reasons for different bitter optimism? Why do rational people face the same choice, and only a few people choose to commit crimes? Even bentham and Feuerbach, who particularly emphasized this point, did not explain it. Anthropology school

1, main points and discussion

Cesare Cesare Lombroso, the founder of the school of criminal anthropology, thinks that crime is an atavism, and the reason of atavism lies in atavism. He first put forward the classification of criminals. The first kind is a natural criminal with criminal nature. Garofalo, a student of Cesare Cesare Lombroso, is another important representative of the school of criminal anthropology. He founded the concept of natural crime.

Step 2 evaluate

Cesare Cesare Lombroso's criminals are criminals with definite laws. As a sample, the criminals are all legal criminals in prison, and their concept of crime also includes mental patients. It can be said that Cesare Cesare Lombroso's research did not strictly follow the unified law. Most of the criminals transferred from Cesare Cesare Lombroso are criminals who endanger public security, and most of them are recidivists, such as robbery, rape, theft and other types of criminals. Therefore, the conclusion of the theory of natural crime cannot escape the fatal point of generalization. No wonder it recurred in his later views.

Garofalo's theory of natural crime is a great improvement of the school of criminal anthropology, and it is also Garofalo's most proud work. "Some ideas, whether pure academic criticism or my later self-review, can't affect me to make any changes. This is a natural crime thought that is only opposite to law or tradition. I admit that it may have different forms of expression. But I am convinced that the concept of natural crime has taken root. " [4] If you imagine that there are natural criminals, you can never generalize this phenomenon by legal criminals, because there are two kinds of laws: evil law and good law. The law may define the behavior that should not be defined as a crime as a crime, but the behavior that should be defined as a crime is not defined as a crime, and the law is constantly changing. How do the genes that define human characteristics change with the changes of actual laws? However, Garofalo's concept of natural crime transcends time and space, naturalizing and universalizing the concept of crime, and putting the genes of people dominated by natural laws on the same movement. In the logic system of Cesare Cesare Lombroso, this is confusing. Since criminals are born, crime is a natural phenomenon, and there is no difference between the concept of crime and the concept of criminals, so the logic of dragons is chaotic. Garofalo's concept of natural crime freed the anthropology school from this dilemma, although Garofalo was not fully aware of it. The anthropological school is characterized by trying to explain the laws of advanced sports (social sports) with the laws of low-level sports (life sports), which inevitably falls into the quagmire of mechanism. However, for the first time, they introduced empirical methods into criminology research, which made great contributions to enriching criminology research methods, and also made us think about such a proposition: "Assuming that ultimately science has the ability to' explain 'DNA and accurately predict the consequences of genetic defects, how can criminal judicial organs deal with criminals whose behavior is determined by genetic defects? Does society have the right to diagnose and isolate these people before they commit harmful acts? Can society stop these people from being born? " [⑤]

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

(2) Social schools

1, main points

Social school, like anthropological school, opposes taking free will as the cause of crime, and even denies the existence of free will, but the difference is that social school is a comprehensive cause theorist. Sociology school not only recognizes the social causes of crime, but also pays more attention to the social causes of crime than anthropology school. This is why Japanese scholars once called social school eclecticism. Philip used the new achievements of psychology, pathology and statistics in his research. He divided the causes of crime into three elements, namely anthropological factors, natural factors and social factors. It is believed that "crime is caused by many reasons, no matter what kind of crime, from the slightest to the most cruel, is nothing more than the state of the criminal's psychological factors, which is the result of the interaction between the natural conditions of his birth, life or work and the social environment" [6] This is Philip's ternary theory of criminal reasons. On this basis, Philip put forward the law of crime saturation. He compared a certain society to a solvent, compared crime to a solute, and compared the three causes of crime to the temperature and air pressure of the solution. But maybe it's Philip's lack of knowledge of chemistry. This figurative name is not appropriate, because under certain external conditions, the saturation of a solution only reflects the maximum amount of solute, but it is not necessarily saturated. Saturation is only a special case, but Philip's crime saturation means that a certain amount of crimes will occur in society under certain three-factor conditions, neither more nor less. This is not very similar to chemical saturation. Although the number of crimes is closely related to the three elements, it is very arbitrary to draw the conclusion that it is directly proportional to the change of the three elements.

Liszt, the main representative of the social school, critically absorbed the monism of social relations advocated by Belgian scholar Kate and the monism of innate qualifications of the school of criminal anthropology, and thought that the natural factors mentioned by Philip were only one kind of social factors. Therefore, the duality of criminal causes, namely social factors and personal factors, is put forward. And pay special attention to social factors, Liszt pointed out: "The poverty of the masses is the biggest foundation for cultivating crime, and it is also a cultural solution to the qualitative change of gene quality. Improving the situation of the working class is the best and most effective criminal policy. " [⑦]

Step 2 evaluate

Phil's ternary theory is different from Liszt's dualism in essence, because in Liszt's view, environment and society are unitary, emphasizing social reasons is actually close to the truth of criminal reasons, but Liszt did not further demonstrate that this binary relationship is its defect.

The theory of free will is the theoretical cornerstone of classical school. Hegel pointed out: As a creature, why is man known? In other words, 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's view of free will and thinks that crime, like all phenomena in the world, is governed by the law of cause and effect. People think that our behavior is influenced by the competition between the elements of our body and the elements of our environment, so its significance is that we have never become free-will things according to the inevitable and natural causal relationship of these elements. Cesare Cesare Lombroso believes that the actor's innate body composition is different from that of ordinary people, which determines that he must commit a crime. Philip severely criticized the classical school's view that crime is the result of free choice based on the nature of seeking advantages and avoiding disadvantages. He pointed out: "We cannot recognize free will. Because free will is only an illusion in our hearts, not the actual function of human psychological existence. [9] thinks: "Crime has its natural causes and has nothing to do with the free will of criminals. "The classical school is earlier than the modern school, so it is naturally unable to respond. However, the neo-classical school that rose later gave a tenacious response to the modern school. Liszt, the representative of neoclassical school and modern school, represented by Bi Ke Meyer, has been arguing about libertarianism and determinism for twenty years.

(C) philosophical reasons for opposing views

The theory of criminal reasons of criminal conservatism is the embodiment of an idealistic world outlook in the concept of crime. Natural law and social contract theory are the starting points of classical school, and natural law originated in ancient Greece. Zhi Nuo (Zhi Nuo, 350-260 BC), an ancient Greek Stoic thinker, believed that natural law was the dominant principle of the whole universe and was regarded as a god by them in the form of pantheism. Stoicism believes that natural law is rational law, and rationality, as an omnipotent force in the universe, is the foundation of law and justice. They believe that sacred reasons exist in everyone's heart, regardless of country or race. Therefore, there is a universal natural law based on rationality, which is effective all over the world and its requirements are binding on people all over the world. ⑩ In the Middle Ages, Aquinas deified natural law, arguing that natural law was an eternal law that was subordinate to law and embodied God's reason. It is believed that rational animals are dominated by God's will in a special way. [1 1] Although Grotius, as the founder of modern natural law, no longer emphasizes the will of God, Hegel and Kant, as philosophers, are typical idealists, and the view of the new school is solipsism in general, but there is obvious mechanical opposition between the old school and the new school, which is the opposition between natural law and positivism.

It is not only the opposition of world outlook, but also the opposition of methodology. Due to the limitation of social development level, the research method of classical school is mainly rational thinking based on hypothetical premise. The correctness and reliability of the proposition depend on the genius's thinking ability and intuitive feeling of social and legal phenomena. Their data are mainly related works of predecessors, and the social management system of their time did not provide rich statistical data for their research. The development of natural science has not created an empirical measurement tool for their research. Because of their habits or traditions of social studies, they don't attach importance to these. The examples they quoted in their works are not so much to prove their propositions as to explain them to readers. Their theory is a linear continuation of previous research conclusions, such as Beccaria and Bentham. Their thoughts can be found in Montesquieu, Rousseau and others, and even can be traced back to Plato and Aristotle. This is not an accidental coincidence, but their similar research methods and predecessors' works are important research objects.

As a school, positivism is a modern thing. It is the development of modern natural science that provides empirical ideas and means for social science research, such as emphasizing observation, measurement, statistics and verification, and opposing hypothetical speculation. His research conclusions are usually different from people's intuitive feelings. For example, Cesare Cesare Lombroso's theory of natural criminals caused an uproar in criminal law, no less than Galileo's theory of falling body and Einstein's theory of relativity in physics. The great achievements of empirical methods in natural science have forced some scholars to introduce empirical methods into social fields, and the revolution of methods will inevitably lead to differences in conclusions. Otherwise, these methods have no groundbreaking significance, but are only the legacy evidence of another method. The contribution of positivism school is not only to add new bricks and tiles to the building of criminal law theory, but also to contribute new building methods.

Aristotle's theory of natural science is absurd today, but his theory of humanities is still regarded as a classic. If the new research method is called empirical method, the old research method is unknown for the time being, but one thing is certain: it is a traditional method, which is in the same strain as Aristotle's method. This method seems to be very suitable for the study of humanities.

If we don't clarify the differences of concepts and unify the context, but exaggerate the opposition and debate between factions, it will inevitably lead to jokes like Guan Gong and Qin Qiong War, and we can't confuse the constitutive elements of crime with the causes of crime. Free will is only a constituent element of statutory crime, not a cause of crime. Since in the view of the classical school, free will is the fundamental attribute of human beings, and it is the attribute of criminals and non-criminals, how can it be the cause of crime? To say that free will is the cause of crime is as absurd as to say that people with brains are the cause of crime. Criminal behavior is dominated by free will, and how to use free will and the possibility of free will choice is the cause of crime. The concept of crime of Lombraud and Garofalo is different from that of Bentham and Positivism, which is one of the reasons why their theories on the causes of crime are opposite to each other. A person with normal development has cognitive ability to his own behavior, that is, he knows what his behavior means, what consequences it will have or may have, and his behavior is under the command of will, which can also control his behavior. He is the decision-maker of his own behavior (all old-school libertarianism). But this freedom is relative, because of his innate factors and his social environment, in order to prepare materials for his free choice, his freedom is limited to the choice of existing materials. Although he is completely free, the scope of the material is doomed (the new school's theory of free will negation). For example, in the face of the choice of whether to rob 1000 yuan in cash, the will of the poor and the nobility is free, because the decision maker is himself. They all choose according to the principle that is most beneficial to them, so they have the same freedom of will, but the other side they face is different, which is not determined by their free will. The poor are more eager to get this thousand yuan than the nobles, and the nobles are more afraid of punishment than the poor. This situation is not determined by will.

Objectively speaking, the unity between the old school and the new school lies in the complexity of the criminal cause itself, which is both a fruit and a multi-cause. Even the most stubborn Cesare Cesare Lombroso pointed out in his later book Crime: Causes and Treatment that there are many reasons leading to crime, and they are often entangled in disputes. If we don't study them one by one, we can't judge the cause of the crime. The complexity of the causes of crime is common in human society. We must never think that there is no relationship between the reasons, let alone replace all the reasons with one of them. [ 12]

The unity of the old school and the new school lies in the unity of methodology. The necessity of the unification of methodology lies in the unification of sports forms as the research object. Crime is a social phenomenon, and social movement is the highest form of movement, which includes mechanical, physical, chemical, life and other forms of movement. [13] Therefore, empirical methods that have achieved great success in natural science research cannot but occupy a place in crime research. However, the form of advanced sports is not a simple combination of low-level sports, it has its own unique stipulation, which is beyond the power of empirical methods. It has become a retreat castle of the classical school. [14] The methodology of the classical school will not quit the stage of the theoretical history of criminal law because of the opposition of empirical methods.

The contributions and shortcomings of various schools have been discussed in the last article. These contributions have established their position in the history of criminal law theory, and their shortcomings have also left an interface for the unification with other schools.

The theories of the old school and the new school are considered to be complete and correct. In Hegel's view, Feuerbach's theory of psychological compulsion assumes that human will is not free. In fact, Feuerbach, as an old-school scholar, has the same side as the new school. Whether in Feuerbach's view or in the view of social school, punishment is an external factor that affects the choice of actors.

Scholars from all walks of life in the history of criminal law theory are presented to us with their faces. We don't seem to divide their factions according to all their viewpoints, but according to their contribution to the theoretical construction of criminal law. No matter how to reduce the proportion of natural criminals, no matter how to consider the social causes of crime, Cesare Cesare Lombroso is still in the ranks of criminal anthropology. Because the theory of natural criminals is his unique contribution to the criminal law theory building, which is exactly what he lacked in the previous building. In a word, they are not so deadly. We are willing to let them hit the face on the historical stage, but they exist and are unified in the building of criminal law theory of truth. Every scholar's thought has a process from one-sided to comprehensive, but the characteristics and contributions of this scholar are still his one-sided thought, which he insisted on at first, revised later and criticized by later generations as the target. This is his own contribution to the architecture of truth for scholars, and it also sets a very popular target for academic criticism. Throughout the development history of the theory of criminal causes, the whole ideological construction has a process from incomplete to complete, from one-sided to comprehensive. As long as the contribution is valuable, you can always find and keep your place in the building. As far as scholars' personal thoughts are concerned, later thinkers did not make greater contributions to the previous generation, which seems to be inconsistent with the theory of evolution. The masters of these thoughts all build the edifice of truth in different ways.

Social cause is one of the causes of crime, but it is not the basis of punishment. As a punishable crime, it pays attention to personal reasons instead of social reasons. Criminal law is aimed at individuals who commit crimes, and not all people with the same social reasons commit crimes. For example, poverty is the social cause of theft, and the poverty of criminals is caused by unfair social distribution. Of course, society should bear certain responsibilities, but not because of criminals' crimes, but because its distribution policy is unfair. It should bear the responsibility of improving the distribution situation, not for criminals but for people in the same situation. This has actually formed a new policy, which is a social policy, not a criminal policy. If the society is only responsible for the criminals, then the social cause is the cause of the crime and cannot be used as the basis for punishment. It is valued by sociologists, but not by professional criminologists. This is the reason that classical professional criminologists seldom mention.

Personal danger is one of the causes of crime, but it is not the basis of punishment. When someone commits a crime, we explore the causes of the crime, which have their own physiological or psychological factors. With the development level of natural science and social science, who can judge whether a person must commit a crime according to his personal danger? Regardless of the crime that has occurred or the crime that has not occurred, we must adhere to the principle of no doubt. This was not a crime before it happened, so it cannot be used as a basis for punishment. The problem is that personal danger cannot prove that the crime before the occurrence is an inevitable crime, and the crime before the occurrence can not be used as the basis for punishment, but can be used as the basis for social defense measures. Such defensive measures should not deprive the relative person of any rights and interests, or even the relative person does not know at all. Otherwise, he is no different from the nature of punishment, and the state is only wary of such people. This is no longer the concern of the judge. If crime is regarded as a personal disease, the treatment of criminals can be compulsory, but this is based on the premise of certainty.

System theory of criminal cause: the cause of crime is a complex system. From the causal chain, there are direct causes and causal causes; In terms of the role played by causes, there are internal and external causes. In terms of species relationship, there are reasons for general crimes, some reasons for crimes, and some reasons for individual crimes. The conditions of crime and other related factors are also regarded as broad criminal reasons by some scholars. [15] In this way, the system of criminal causes is very huge, and both the old school and the new school can find their respective positions in this building.