Penalties For Individual Study

This paper reviews the concept of individualization of punishment at the angle of history, in light of the clue of times, with an attempt to discover the dynamic development process of the concept, and investigates and explores some relevant academic and pragmatic problems. This paper consists of five parts, including introduction and four chapters of the main body.The aim of the introduction is to prepare some background knowledge for further discussion, which is the classic theory of crime and punishment and its practice. The author believes, it was the absolute freedom of will concept and absolute nullum crimen sine lege under the principle of strict regulation in classic theory of criminal law that provided opportunities for, and even begot the rising of the concept of individualization of punishment.The first chapter differentiates the meaning of individualization of punishment and ascends its historical origin. The author believes there are two different kinds of meanings of individualization of punishment basically, which are rooted in different theoretic sources and logical reasoning processes, and have different pragmatic contents. The first is the concept of individualization of punishment based on moral responsibility hold by the neoclassic school. This concept is simply the inevitable logical outcome of individual liability and result of thorough carrying through the nullum crimen sine lege and the principle of suiting punishment to crime. The second is the concept based on the doer and his personal dangerousness sustained by the positivism school. This is individualization of punishment in nature. This paper ascends the ideological origins of the two concepts respectively and draws a conclusion that the foundation of the first concept based on liability is Roman law and the source the second concept is canon law. An in-depth analysis of their different appearance in history is given in this part.The second chapter discusses the positivism school's concept of individualization of punishment, which is the emphasis of this paper, after the meaning of individualization of punishment is made clear. The rising of the second reform movement of criminal law guided by the positivism school's theory which takes individualization of punishment as its main requirement, had its special background of the time, shouldering the exigent requirement to resolve realistic problems. The first section of this chapter attempts to describe and analyze this background and the requirement of the society. The second section summarizes and concludes the theory of positivism school, which is the academic foundation and logical premise of individualization of punishment, and shows the comprehensive and ultimate differences between positivism school and classic school in the aspects of many important problems such as investigation orientation of criminology, thinking methods and liability, etc. The requirement of individualization of punishment can be deduced logically from the positivism school's series of propositions of crimes and countermeasures against crimes. Although the scholars classified as positivism school varies from each other and it is difficult to give a uniform explanation of individualization of punishment, we can still summarize their general requirements and guidelines of individualization of punishment from their dissertations. The third section attempts to complete this work. Extreme individualization of punishment will get stranded in practice like absolutely definitive legally prescribed punishment, therefore, the efforts to compromise between the concept of individualization of punishment and classic criminal law theory never stops from the beginning. The fourth section of this chapter investigates and puts emphasis on the introduction of these efforts and 萨莱叶' ideas, who is considered as a great contributor to the systematization of the theory of individualization of punishment.The third chapter reviews the practices and the circumstances of individualization of punishment in different cou...