Study Of The Ideology Of Restriction Of The Power Of Criminal Penalty From A Historical Perspective

The practice of imposing the power of criminal penalty against crime has transfixed the entire history of human civilization since sates came into being and the restriction of the power thereof is of necessity due to its mandatory, harsh and expansive nature. This dissertation studies the rise, evolution and status in quo of the approaches to restricting the power of penalty from the historical perspective for the purpose to sort out the views of the leading exponents, based on which opinion on the restrictions of the power of criminal penalty is proposed.Chapter I is Overview of the Power of Criminal Penalty, in this part, it defines the power of criminal penalty and deciphers its content followed by the analysis of the links and distinctions between the power of penalty and criminal law, punishment, and criminal policy to clarify the concepts for the ensuing texts. At the last,the necessity of the restriction of the power of criminal penalty is discussed from its inherent properties.Chapter II is about Rise of the Ideology of Restricting the Power of Penalty-Views of the Enlistment Thinkers and Those of the Classical School of Criminal Jurisprudence.starting with the introduction to historical background of the rise of the ideas of the restriction of the power of penalty, it analyses the thoughts of restriction on the power of penalty held by the Enlightenment thinkersrespectively, including Hugo Grotius, Thomas Hobbes, John Locke, Montesquieu and Rousseau, and a variety of thinking thereof proposed by the classical school scholars, such as Cesare Beccaria, Jeremy Bentham, Paul Johann Anselm von Feuerbach, Immanuel Kant and George Wilhelm Friedrich Hegel from the perspective, of protecting individual rights. Finally it shows the impact of those schools on the restriction of the power of penalty indicated:in the constitution to lay down that the state power is from the citizens (including the power of criminal penalty) so as to restrict the onset of the power of penalty; to establish the principles of separation of powers and checks and balances; to set up the principle of legally prescribed punishment to avoid the abuse of judicial power; to develop the ideas against brutal corporal punishment to promote the reform of specific types of penalties.ChapterⅢis about Evolution of the Ideology of the Restriction of Power of Criminal Penalty-Views of the Positive School. Following analysis of the historical background of the rise of the positive school, it discusses the thoughts of Cesare Lombroso, Rattaele Garofalo, Fnrico Ferri and Franz von Liszt stating that the positive school is in favor of the restriction of the power of penalty from a better perspective of social defense. It concludes that the rise of the security measures, reform of the traditional types of penalties and penal system are the outcomes of impact of the positive thinking on the power of penalty.ChapterⅣIdeology of the Restriction of the Power of Penalty Status in Quo- Views since World WarⅡ, probes into the historical background, views and practice thereof since the World WarⅡ. It expounds that with fascist abuse of the power of penalty and the voice of the protection of human rights after the World WarⅡ, schools of criminal law, whether neo-classical school or new school of social defense, following the trend of interplaying and drawing lessons from each other, advocate the protection of human rights as the basic concept to restrict the power of penalty on the basis of the balance of social order and individual freedom. Under this concept, the restriction is becoming more comprehensive, rational and scientific:states impose the restrictions on the power of penalty in the constitution, and meanwhile actively promote the decriminalization and narrow the scope of the power of penalty; states keep launching the reform of the types of penalties to make them more humane; states adjust the styles of the specific provisions of criminal law to give priority to the individuals, then society, followed by the state, highlighting the protection of individual legal interests in the criminal law.Chapter V, Thinking of the Power of Penalty, describes the two different perspectives of understanding the relationships between the people and society:individualism and social parochialism, analyzing that the Enlightenment and the classical school thinkers advocate the individualism while the positive school of philosophy favors the social parochialism. Then advantages and disadvantages of the two different concepts in the restriction of the power of penalty and the protection of the human rights are respectively discussed. In the next place, it comes to the point from the analysis of the historical development that the reason why the concept of the restriction of the power of penalty changes resides in the different relationships between the people and society of different ages, and the concept thereof is also largely affected by the historical era. Finally, with the social progress and development of human beings in China, a rational understanding of the function of the power of penalty should be developed. As the restriction of the power of penalty is concerned, we can not simply adhere to the social parochialism or purely individualism, but should balance the social order and individual freedom for the fulfillment of the protection of human rights. The concluding section shows that the power of penalty is a double-edged sword for human beings to fight against crime, therefore it must be restricted. Historically, that fact that both individualism cherished by the Enlightenment and classical thinkers and social parochialism of the positive school stress on the restriction of the power of penalty objectively reflects the concept of the protection of human rights. However, due to the different perspectives, the former stresses the restriction of the power of penalty for the ultimate goal of protection of individual rights while the latter for the better maintenance of social order, which shows that the two have different priorities.This paper argues that in the field of the power of penalty, individualism should be advocated and the protection of individual fundamental human rights should be ensured. To ultimately fulfill the purpose of maintenance of the social order and protection of human rights, effective measures should be taken to restrict the power of penalty in order to strike a balance between the protection of basic individual human rights and the public interests.