In the early days, the opposition in criminal law was a fierce debate between criminal classical school (old school) and criminal positivism school (new school), as well as objectivism and subjectivism in criminal law. At present, it is mainly reflected in the opposition between the result axiology (the theory of infringement of legal interests) and the behavior axiology (the theory of violation of norms) within the objectivism of criminal law. Understanding the basic orientation of criminal objectivism is of practical significance for understanding the opposition between today's result axiology and behavior axiology.
Before the objectivism of criminal law appeared, feudal criminal law in medieval Europe advocated that punishment was a natural retribution for past misdeeds. Generally speaking, the criminal law of this period has the following characteristics:
(1) wayward. Crime and its punishment are arbitrarily decided by judicial officials, and the clarity and stability of the relationship between crime and punishment are lost, so individual citizens cannot predict the nature of their behavior.
(2) interference. Criminal law is too involved in personal life. Criminal law sometimes comes forward to deal with matters that should be adjusted by morality. Law and ethics are indistinguishable, and civil liberties are excessively restricted.
(3) identity. Criminal law is applied according to personal status, and the possibility of being investigated by criminal law is much greater than that of aristocrats, so the principle of equality before the law cannot be realized.
(4) cruelty. The execution methods of punishment are diversified, the humanitarian concept of punishment is abandoned, and severe punishments such as death penalty are widely applied.
In view of the above characteristics of feudal criminal law, the objectivism of criminal law shows its own proposition: aiming at arbitrary judgment of crime and punishment, it puts forward the principle of legality; According to the identity of criminal law, everyone is equal before criminal law; In view of the cruelty of punishment, the humanity of punishment is put forward to limit the application of death penalty; In view of interference, the separation of France and Germany is put forward, and punishment is emphasized according to the actual damage caused by behavior.
In the field of criminology, generally speaking, the old criminal law school (criminal classical school) attaches importance to behavior, which embodies the objectivism of criminal law; The new criminal law school (criminal positivism school) focuses on the analysis of the actor, which embodies the subjectivism of criminal law.
Criminal objectivism holds that crime is harmful to society, and there is no crime without objective behavior; Taking the subjective malice of the actor as the basis of punishment will confuse the relationship between law and ethics, and may also lead to the judge's arbitrary judgment. Therefore, the basis of criminal responsibility should be the behavior of the actor.
Objectivism attaches importance to behavior (behaviorism), and the behavior as the basis of punishment is realistic behavior. As long as there is no realistic behavior, individuals should not be punished (realism).
Subjectivism of criminal law, as the opposition of objectivism of criminal law, holds that the anti-sociality of criminals, that is, the danger of repeated criminal acts, is the basis of responsibility. Subjectivism attaches importance to the concept of actors (behaviorism). If subjectivism is carried through to the end, it will be concluded that the dangerous character and inner danger of criminals are the targets of punishment.
However, because people's hearts can't be directly explored, subjectivism is the second best, emphasizing that only when the inner danger of the criminal is manifested as external behavior can the individual's heart be recognized and the punishment be determined. Therefore, the new criminal law school did not abandon the concept of behavior, but reduced the importance of behavior, that is, behavior is not decisive, but only necessary to exist in the sense of expressing the danger of criminals (expressionism).
Subjectivism and objectivism in criminal law have their advantages and disadvantages. In principle, the scope of crime under subjectivism of criminal law is wider than that under objectivism; Moreover, the subjectivism of criminal law is based on the purpose of social defense, which allows the state to correct and eliminate individuals, and also hides the danger of criminal abuse and the arbitrary expansion of the state's penalty power. Therefore, the final result of the debate of the criminal law school is the decline of the theory of criminal subjectivism, and the theory of criminal objectivism has gained the mainstream position as a whole.
Since the 1960s and 1970s, few scholars have claimed to adhere to the subjectivism theory of criminal law.
In today's criminal law circles in China, there are not many discussions about whether criminal law should adhere to subjectivism or objectivism in theory and practice, and the basic value orientation is not clear; Some cases are handled according to the subjectivism of criminal law and come to unreasonable conclusions.
Therefore, it is an urgent problem to analyze the rationality of criminal objectivism and try to handle cases from the standpoint of criminal objectivism.
Part one? Objectivism of criminal law
The representative figure of objectivism in criminal law
The philosophical basis of criminal objectivism is enlightenment and rationalism, which had a great influence in Europe from the early 8th century to the middle and late 9th century.
The representative figure of criminal objectivism is Beccaria (1738- 1794), who is regarded as the pioneer of modern criminal law and published the famous On Crime and Punishment in 1764. Starting from the theory of social contract, he believes that human rights are innate, and the rights transferred by the state through citizens constitute the right of punishment. Since the power of punishment comes from individuals, it should be restrained and cannot be exercised excessively and arbitrarily. What should be punished is the behavior of individuals.
Behavior and its social harmfulness are the only basis for the initiation of punishment. In view of the rampant death penalty in Europe at that time, he put forward the idea of abolishing the death penalty. In addition, based on rationalism, he systematically expounded his legally prescribed punishment for a crime, the principle of balance between crime and punishment and the general prevention theory.
Feuerbach (Anselm v Feuerbach, 1775- 1833) is also an outstanding figure among the objectivists of criminal law, and is regarded as the "father of criminal law" by the modern west. His theoretical contributions mainly include: on the one hand, he put forward the theory of psychological compulsion. This is Feuerbach's most famous view.
He believes that any individual has the ability to compare advantages and disadvantages. When the imbalance between the income from crime and the punishment after crime is found (even a minor crime will be severely punished, and the income from crime is less than the freedom and property he lost), the coercive effect of criminal law on individual psychology will appear, and the individual will give up the evil thoughts of crime and abide by the norms. On the other hand, it emphasizes the tort theory.
He believes that crime is a violation of rights and an act that only violates social ethics, because it is not a crime if there is no violation of rights. Therefore, law should be separated from morality. It is not the evil heart that should be punished, but the external aggression. Only in this way can the scope of punishment be limited.
Later famous philosophers Kant (1724- 1804) and Hegel (1770- 183 1) also made their own unique contributions to the development of criminal objectivism. Kant and Hegel both admit rationalism, believing that individuals have freedom of will, and behavior is the only basis for punishment. There are only some differences between the two in the just basis of punishment.
Kant advocates the separation of law and morality, and law cannot involve personal morality; In the aspect of penalty theory, the theory of quantitative retribution is put forward, that is, how much penalty you should receive if you commit a crime, and the penalty should match the means and degree of the crime. In his view, the murderer should be sentenced to death and the rapist should be sentenced to castration.
Hegel borrowed the negation principle of dialectics into the field of criminal law, and pointed out that criminal behavior is the negation of normal social order, and punishment is the negation of crime and the negation of negation. Crime is the criminal's own choice, and the fact of crime already includes punishment. If an individual chooses to commit a crime, he should predict the consequences of his actions. So voluntary crime is equal to voluntary choice to be punished.
In this sense, punishing the defendant is to respect his existence and to prove that he is a rational and independent person. Hegel criticized Kant's equal retribution and advocated equal retribution, arguing that the practice of an eye for an eye and a tooth for a tooth is too old and backward to be realized. The only thing to do is to ensure that crime and punishment are equal in quality.
Second, the basic concept of criminal objectivism
According to the objectivism of criminal law, crime is an act that people choose based on their own free will, and it is an evil deed that is harmful to society objectively, and this evil deed will inevitably produce harmful results to society. Taking objective facts as the object of penalty evaluation and abandoning the social danger elements of criminals are the basis of the long-term opposition between objectivism and subjectivism in criminal law.
(a) Affirmation of free will
Both the early school of conservatism and the later school of conservatism believe that anyone who lives in the world (except mental patients and minors) has the ability to choose and act freely under the illumination of reason.
Criminals go to crime under the guidance of rational free will, and conversely, criminal behavior is an act that violates the rationality of the whole human being. Because the criminal is a member of the general public, his rational consciousness and subjective meaning are the same as those of other criminals, criminals and the general public.
In the view of criminal objectivism, criminals are abstract, so there is naturally no classification of criminals, because this classification has no substantive significance: criminal law does not extract the knowledge of this specific person with special physique, experience, personality, experience and cultural background who has been implemented or involved in judicial vision, and behavior is not a simple sign of the danger of the perpetrator.
Since the criminal law does not focus on the internal and subjective part of the crime, it does not focus on the determination of personality, character, motivation, purpose and will. There is no need to regard crime as the concrete behavior of experienced people, and crime is not simply a manifestation of criminal sentiment, danger and anti-society.
(2) criminal acts
Criminal objectivism tries to grasp crime and punishment in law, and at the same time, from the standpoint of "indeterminism", it takes abstract people with free will as the premise of theoretical analysis. Therefore, criminal objectivism focuses on external and realistic criminal behaviors and their results. The objectification, typology and abstraction of behaviors directly determine its basic orientation in ontology and make its theoretical context clearer.
Criminal objectivism is based on behavioral criminal law and distinguishes the types of crimes stipulated in criminal law. Therefore, the establishment of realistic position determines the understanding and promotion of criminal behavior stereotypes in criminal law. Criminal law objectivism emphasizes that the first condition for the establishment of a crime is that the behavior conforms to the constitutive requirements stipulated in various articles of criminal law, so both behavior and constitutive requirements are crucial categories in criminal law objectivism.
The two concepts of behavior and constitutive requirements may sometimes have the same reference goal, which is of course due to their great inclusiveness, but the theoretical inclusiveness and great penetration of these two concepts are actually more due to their abstraction.
Criminal acts may be committed by specific individuals with special qualities or personal experiences, and the specific performances of the perpetrators vary widely. However, the objectivism of criminal law completely strips away the differences between acts and ignores some circumstances attached to the act itself (including the personal situation of the offender) in order to obtain the greatest common denominator that the act itself cannot accumulate.
Therefore, the objectivism of criminal law here uses the scale of "constitutive elements" to measure the nature of behavior, which is obviously rough, framed and universal. Constitutive elements naturally become the conceptual image of "abstract" provisions of certain behaviors in criminal laws and regulations. Individual acts committed by individuals meet this constitutive requirement, which is the first requirement for the establishment of a crime.
The objectivism of criminal law basically ignores the individualization of "individual" and "individual behavior", and the theory repeatedly asks whether the behavior carried out by "person" meets the generalized constant crime standard; Theoretically, it is concerned about how well the work of determining the major premise is completed in syllogism deductive reasoning.
Because the objectivism of criminal law attaches importance to the reality and independent significance of abstract behavior and emphasizes the stereotype of crime, it naturally advocates the theory of constitutive elements as the guiding concept of criminal law theory
(C) the concept of punishment
The objectivism of criminal law holds that, on the one hand, because criminals are "abstract people" with equal and free will, the severity of punishment has nothing to do with the individualization and special circumstances of criminals themselves, but only with the objective criminal facts, in other words, the "human" factor can be ignored when sentencing.
On the other hand, since criminal behavior is "abstract behavior", which is a measurable harm to the country, society or individuals caused by criminals through certain behaviors, the basis of punishment should start with external behavior and its objective harm, and the essence of punishment lies in retribution for past crimes based on the requirements of justice. The purpose of punishment is to achieve general prevention, that is, to prevent abstract ordinary people other than criminals from falling into crime by means of punishment.
The realization of punishment purpose is based on the existence of abstract behavior. The state has established a general standard for distinguishing various behaviors in the criminal law. According to the punishment prescribed by law, the abstract people in society are psychologically forced to achieve the effect of crime prevention. Or, according to the abstract behavior standard, conduct typological analysis of behavior, start the power of punishment, and achieve the general preventive social effect through the execution of punishment.
Part two? Subjectivism of criminal law
A representative figure of subjectivism in criminal law
Objectivism of criminal law has occupied the stage of western social history for nearly a hundred years, which shows the adaptability of its theory to the western social environment to some extent. However, the objectivism of criminal law emphasizes the modesty and post-reaction of criminal law, which has certain defects, so it was later criticized by the new school.
In response to the criticism of the new school, the old school theory put forward some new viewpoints in the later period to supplement the shortcomings of the previous theory. The more influential views are as follows: first, the normative theory holds that crime is an act, and an act must violate the norms of criminal law; The normative punishment of crime has become the normative retribution.
Secondly, the theoretical system of criminal law, especially the theoretical system of the establishment of progressive crimes with the constitutive elements of appropriateness, illegality and responsibility, has made criminal law embark on the road of standardization. However, these changes did not make the objectivism of criminal law escape the fate of being criticized.
After the end of 19, the ideological trend of criminal law began to turn sharply, and the subjectivism of criminal law (criminal positivism, modernism) appeared in BLACKPINK, which is "two different languages from what the classicists said" (Fili).
Subjectivism of criminal law became popular after the middle of19th century, mainly because it was too weak and out of date to deal with crimes according to the concept of "ex post facto" criminal law and negative criminal law of European criminal law objectivism at that time, which led to many negative effects. For example, the criminal law can only reward criminals for acts that have been implemented, and misdemeanors cannot be severely sentenced.
However, in the period when recidivism, juvenile delinquency, street crimes, property crimes are increasing and crimes are prominent, excessive restraint of criminal law will make the phenomenon of "punishment does not suppress crimes" more prominent. For example, in the19th century, there were more prisoners in Japanese prisons than its standing army; /kloc-In the middle and late 20th century, the crime rate in Italy was higher than ever. At this time, a more targeted and immediate criminal law is needed.
Therefore, the subjectivism of criminal law puts forward that criminal law should not only see behavior, but also people, especially dangerous individuals, that is, people who have committed crimes and potential people who will commit crimes under certain conditions. The real purpose of criminal law is to pay attention to dangerous individuals, choose them and save, educate, correct and eliminate them according to different people.
Thus, the criminal law has realized the transformation from behavior to actor, and put the focus of punishment on the actor; Punishment is not a simple retribution, nor a aimless general prevention, but a special prevention that pursues the goal of defending society.
The ideological resources of subjectivism in criminal law are positivism in sociology and philosophy. Positivists advocate that observation is better than imagination. With the help of empirical methods, criminal subjectivists began to study criminal phenomena in combination with physics, biology, medicine, sociology and even archaeology, and put forward methods to punish crimes.
The new school pays attention to investigation, analysis and experiment, so it is also called the school of criminal positivism. The school of criminal positivism has two branches: the school of criminal anthropology, which originated in Italy, and the school of criminal sociology, which appeared in France. The former pays attention to the influence of criminals' personal qualities on crime, while the latter pays attention to the relationship between social factors, environment and crime.
Of course, there is no fundamental difference between the two in using empirical methods to analyze crimes.
An empirical analysis of crime is needed. In this regard, the Italian scholar Cé sar Lomé-Brossaud (1835- 1909) initiated this trend. After dissecting many bodies, he put forward the theory of natural criminals
He pointed out that criminals have no freedom of will, and crime is not the result of personal choice, but a last resort, because whether to commit a crime depends on natural conditions, that is, the particularity of physiological structure determines that someone must commit a crime. In "On Criminals", he discussed in detail the physiological characteristics of natural criminals, such as squint eyes and protruding back of the head. He believes that natural criminals are mainly the result of atavism.
Finally, he concluded that crime has nothing to do with freedom of will, crime has nothing to do with behavior, but only with the individual's physical particularity; Punishing criminals is related to protecting society and preventing sudden crimes. Cesare Cesare Lombroso's criminal theory and criminal concept may be biased, but his exploration spirit and contribution to the methodology of criminal law research can't be denied at any time.
Enrico Ferri, a student of Cesare Cesare Lombroso (1856- 1929), suggested that crime has nothing to do with free will, and in some cases it is related to personal physiological reasons, but it is also influenced by natural and social reasons. Therefore, the diversification of criminal causes arises. He also put forward the theory of crime saturation, that is, the total amount of crime will remain unchanged for a period of time.
In his view, the foothold of criminal law is not behavior but actor, and allowing punishment is not completely equivalent to crime, because society must nip in the bud to maintain its own survival.
German criminologist Franz von Liszt (1851-1919) is a staunch scholar of the new school. His famous views are as follows:
(1) The concept of an actor. Liszt clearly pointed out that it is not the behavior that should be punished, but the actor. Since then, criminal law has changed from behavioral criminal law to behavioral criminal law.
(2) The theory of criminal symptoms. It is believed that criminal law should pay special attention to the actor, and the behavior is meaningful only if it fully shows the personal danger of the traveler. In other words, behavior is symbolic, not fundamental.
(3) The theory of objective punishment. Conservatives believe that criminal law is retribution punishment, while Liszt believes that the purpose of punishment is correction and elimination, that is, what can be saved must be saved, and what cannot be saved or corrected must be physically eliminated, so the death penalty is applicable. Punishment is only for individuals who commit crimes, and its focus is on special prevention. From this perspective, Liszt attaches great importance to the concept of dangerous individuals.
However, it should be noted that Liszt has made a special contribution to the maintenance of the concept of constitutive requirements and the formation of the concept of legal interest, so many scholars today think that he is an objectivist of criminal law in the new criminal law school.
Second, the basic concept of criminal subjectivism
Generally speaking, the basic ideas of criminal subjectivism based on social standard, cultural country concept and scientism are:
(A) the theory of criminal symptoms
Subjectivism of criminal law holds that the subjective meaning, personality, motivation and personality danger of the actor are the basis of punishment, but the modern scientific level can not provide an "instrument" to detect the inner evil of prisoners. Only when the inherent danger of criminals is manifested as external behavior can we realize its inherent danger. Therefore, crime is a manifestation of the criminal's dangerous character, and it is the criminal who should be punished rather than the criminal act itself.
In criminal law subjectivists, due to the different personalities of criminals, their observation is individual and specific. Therefore, criminals are divided into various types, such as opportunistic offenders, recidivists, female offenders and juvenile offenders. In this sense, it is also called behaviorism, expressionism and individualism.
Since individuals don't have free will as described by criminal objectivism, people are always determined by social, environmental and personality factors (social and personal reasons) and are dominated by inevitable laws, then the essence of crime exists in social and personal reasons, and the change of criminal concept will inevitably lead to the change of penalty concept.
Subjectivists of criminal law have repeatedly stated that a criminal act is a sign of criminal malignancy or criminality, and it is meaningless to attach importance to the stereotype of a criminal act. The key to the problem is to consider the danger of behavior, and even the objective elements of crime can be completely replaced by the danger or aggression of behavior.
Under this premise, all the research on criminal subjectivism is centered on criminals, among which the school of criminal anthropology pays attention to grasping the individual characteristics of criminals from the aspects of physiology, psychology, pathology and genetics; The school of sociology of crime combines the special character of criminals with social factors and natural factors, and believes that crimes will inevitably occur under the interaction of the three factors.
(B) Social defense theory
Subjectivists of criminal law advocate the need to defend society, so applying punishment to criminals will give society an opportunity to reflect, reflect and adjust and improve social policies on the one hand; On the other hand, it can eliminate the causes and habits that lead to individual crimes, reduce the possibility of accidental crimes, prevent their recurrence, and preserve society.
The third part is the significance of the theoretical opposition of criminal law.
First, clarify the misunderstanding
The theoretical basis of the old school and the new school are different, and the emphasis and method of evaluation are also very different, which fully reflects people's different understanding of society and social conditions in each era. If the same case is handled by the same school and the new school respectively, different conclusions may be drawn. Especially in the theory of crime establishment, the determination and punishment of attempted crime, the scope of accomplice, theft and perjury, the differences between the two factions are more obvious.
However, after 1930s, the integration of old and new schools has gradually become a trend. For example, the theory of stopping crime was first put forward by the new school and later absorbed by the old school. Another example is the concept of crime constitution, which was originally put forward by the old school and later accepted by the new school.
It should be noted that the old school attaches importance to behavior, which embodies the objectivism of criminal law, but it is not the responsibility of result; The new school focuses on the actor, which embodies the subjectivism of criminal law, but it is not a subjective sin.
It should be pointed out that the old and new theories have their own advantages and disadvantages. In principle, the crime scope of the new school is wider than that of the old school; Moreover, for the purpose of social defense, the new school allows the state to correct and eliminate individuals, which also hides the danger of abuse of punishment and arbitrary expansion of the state's penalty power. Therefore, the final result of the school dispute is the decline of subjectivism in criminal law and the mainstream position of objectivism. Since the 1960s and 1970s, basically no scholars have insisted on completely adhering to subjectivism.
Second, the main points of criminal law theory debate
To sum up, the debate between objectivism and subjectivism in criminal law involves all aspects of crime theory and penalty theory, but the most important issues are as follows:
(1) The criminal image, a criminal in the eyes of criminal objectivism, is an abstract ordinary person with free will and rationality; The criminal in the eyes of criminal subjectivism is a concrete person, who is determined by quality and environment.
(2) Criminal objectivism holds that criminal acts are decisive as reality; Subjectivism of criminal law holds that criminal behavior is only a sign of the criminal's personal danger and has no independent significance.
(3) Punishment thought. The objectivism of criminal law holds that punishment should correspond to the evil of crime (retribution, general prevention), and it is expected that the application of punishment can prevent the general public from going to the road of crime (general prevention); Subjectivism of criminal law holds that the application of punishment should promote the perfection and re-socialization of criminals (objective punishment theory, educational punishment theory and special prevention theory).
Repeated debates on these issues have won opportunities for the development of criminal law. China's criminal law lacks this kind of school opposition, so there is no platform for discussion on many issues. Criminal law scholars all have their own reasons, so it is difficult to study them in depth.