Transimission And Transcendance Of Becaria's Criminal Law Thoughts

Cesare Becaria is one of the most extraordinarily world widely known scholars in criminal law academic circles;On Crimes And Punishments is the most classical masterpiece with the reputation in both ancient and modern times.The spirit of Cesare Becaria and“On Crime and Punishment”have been eagerly a status of leadership for Several eras in legal science,and continued to educate academicians of criminal law in the 21st century.Cesare Becaria carried on the heartless critique agaist the feudal criminal law and constructed utilitarianism criminal law system,based on the human nature of“necessity”with the feature of“tendency of interest and avoidance of harms”,which is his theoretical foundation on Crimes and Punishments.He argues that the power of punishment results from civil rights through social contract,and historically changed the power of punishment's origin,which leads to the historical transformation in criminal law view from“nation standard“to the individual citizen standard”and realizes human liberation in criminal law.In order to protect civil rights from the harm of the willfully cruelty and uncivilized arbitrarily judge of feudal penalty,Cesare Becaria established three influential axiomatic principles:the principle of legality,appropriation of crime committed and punishment,appeal of penalty humanitarianism.But because of limitation of times and thought compromise and conservativation of Cesare Becaria,he could not know actually the strength of citizens themselves.Therefore,he always expects that the crowned head could formulate the good law to protect citizen's rights,which is just fond dream.Probing in On Crimes And Punishments, the author thinks that the standard of reasonable and justifiable criminal law should be general sense,general reason and general humanity,which can protect civil right and realize the individual citizen standard.The full dissertation altogether is divided into six chapters except introduction and conclusion.First chapter deals with the biography of Cesare Becaria,as well as production of On Crimes and Punishments.In order to better understand Cesare Becaria's thought,author also quite detailedly introduces time background,including political,economical,and humane factors,as well as main enlightenment thinkers' criminal law thoughts.Through this kind of quite comprehensive introduction,the author hopes to fully display Cesare Becaria and his book.Second chapter mainly analyzes the“necessity”human nature with the feature of“tendency of interest and avoidance of harms”.At that time,Enlightenment movement was in progress and the enlightenment thinkers had to find a new theatrical weapon to make man get out control of God and realize the human liberation,which is theory of human nature through the empirical and rational of human.And deeply influenced by enlightenment movement,Cesare Becarias's On Crimes and Punishments is based on human nature.Cesare Becaria thinks in the peril environment,lack of resource,that someone who wants to satisfy his own need infringed others results in mutual combat,and the extreme forms of the combat-crime is created which is the expression of human who wants to satisfy his need.To avoid the combat,human transfers his own right to the power of punishment in form of social contract.And punishment is the product of human common need:avoiding infringement from crime and protecting one's right.So Cesare Becaria insists on“necessity”of human nature and thinks that crime and punishment is methods to satisfy human needs.Cesare Becaria's human nature viewpoints are not a superficial analysis of behavior of good and evil,but a deep analysis on the intrinsic reason of it which breaks through the traditional human nature of“good”and“evil”or the human nature dualism.In the meantime, the“necessity”human nature features of“tendency of interest and avoidance of harms”when man acts.The reason for the humane crime is for the profit,the reason for people to establish social contract and transfer rights is to avoid harm and protect his own right.Owing to its transfer of civil right,the punishment power aims to guard the civil basic rights,and it is just,when penalty is used,to realize the goodness of the mass.And Cesare Becaria,with the aid of utilitarianism in human nature which compares the defect and advantage of behavior,carries on the critique against the feudal society's false utilitarianism thought in criminal law.Third chapter deals with Cesare Becaria's viewpoint of utilitarianism crime view.It involves two factors:reason for crime and crime yardsticks.Whether the reason for crime is free will or mechanical determinism is controversial.Classical crime school argued that free will should be a reasonable man who makes his choice freely after weighing the advantage and disadvantage without others interruption in such environment.From the connotation of itself,“will”means the capacity of deciding and choosing“do”or“not do”,and“free”means the capacity of controlling oneself.Therefore,free will means one could do or not do something according to his own will.Mechanical determinism means that man is restricted to environment and makes choice without subjective positivity.Those who think“free will”could not be influenced by environment,just a willfully choice confusing free will and willfully choice.Willfully choice is not free will and the reflection of men's reason.Cesare Becaria thinks men are reasonable,and know how to tend to advantage and avoid disadvantage,and makes choice after weighting advantage and avoid disadvantage.Therefore Cesare Becaria disapproves mechanical determinism.Though he does not use the word“free will”,he accepts the idea of enlightenment thinkers.Crime is the result of“tendency of interest and avoidance of harms,utilitarianism and the choice of“free will”.The author thinks there is not contradiction on“tendency of interest and avoidance of harms”with utilitarianism and the choice of“free will”,and they are both reasons for crimes.Utilitarianism drives man to make reasonable choice but not willfully choice.Reason is the premise of free choice and embodiment of utilitarianism.Cesare Becaria considers“social harms”as yardstick of crime.Crime was the violation of social contract which was a kind of abstract existence,so it is necessary to get a objective standard.Criticizing the feudal punishment thoughts,Cesare Becaria argues that social harms is the yardstick of crime and transfers the yardstick of crime from subjective to objective.It is right when scholars look on Cesare Becaria as representative of objective doctrine.But it is not ground when they neglect Cesare Becaria tolerance of human subiective,even misunderstand that Cesare Becaria excludes subjective factor from crime by use of social harms.Cesare Becaria pays much attention to objective factor when he considers social harms as yardstick of crime,but dose not neglect subjective factor and the effect of subjective factor in conviction and punishment.On the contrary,Cesare Becaria distinguishes intention,malicious negligence,slight negligence from completely innocence,allotting different penalty.Cesare Becaria distinguishes mens rea from thought of crime and thinks one with mens rea should be punished.It is ground that Cesare Becaria is not absolutely objectism,because he does not exclude the objective factor from crime when he uses social harms as yardstick of crime.Social harms as yardstick of crime makes thought of crime non-existance.Cesare Becaria's idea like spring poured into the world confused of politics and religion,making the ruler's thoughts,criticizing obscurantism,sparking the reason and humanism,and setting up a objective standard for punishment power so as to avoid innocent citizen's prosecution and protect citizen rights.On the other hand,Cesare Becaria considers social harms as yardstick of crime which manifested his protection of the goodness of the mass.Therefore,from value standpoints,social harms itself is in utilitarianism shoes.One could not be punished if not damaging others or social interest,and vice versa.Cesare Becaria thinks social harms theory could ascertain individual freedom and assure the legality of punishment imposed by state.Chapter four deals with Beeearia's utilitarianism view of penalty.Before Beccaria, the ground of punishment was authorized by God which was product of time and the result of religion's interruption in law or the close connection between religion and law,and reflected the ruler's want to use religion to cheat the mass and strengthen his ruling.In a long time,the authority of monarch was deem to be absolute and non-violated.The punishment power authorized by God finds the origin of punishment power outside humans,and under such idea,criminal law would neglect human beings,contemn human right,know nothing about human feeling,human need and human nature.Beccaria criticizes feudal criminal for its cruelty and inhumanity,which is reflected in capital punishment and cruelty of punishment. Beccaria deconstructs the just ground of feudal punishment power in lien to social contract and thinks penalty power stem from civil right and the purpose of punishment is to protect civil rights.Beccaria was the first one who introduced social contract into criminal law field and realized the transformation from status to contract,from“nation standard”to“the individual citizen standard”and set bottom-line for punishment power and restricted its misuse.There is retribution,prevention and comprise theory on penalty purpose in history.But for Beccaria's penalty purpose,scholars are in dispute.The author thinks Beccaria's penalty purpose is prevention which is shown in the expression on penalty purpose in”On Crime and Punishments”and his idea about principle of suiting punishment to crime,abolishment of death penalty,criticism of cruel punishment.Beccaria suggests that punishment should be in time,necessary and certain in order to realize the punishment purpose of prevention and he also suggests other methods to prevent crime such as moral,education.Seen from the whole paper of“On Crime And Punishment”,Beccaria insisted on not retribution but utilitarianism preventive viewpoint.Punishment cannot escape from punishing the actor,but its purpose lies in not retribution but prevention which deters actor from committing crimes again and the other people committing crimes.Chapter five involves the construction of the humanistic thought of Beccaria's punishment,and the unity of humanitarianism and utilitarianism.In feudal society,criminal law was the serving girl of religion and monarch,and punishment power was monopolized by state and a weapon on death or life which violated the origin intention of citizen.And law was product of God and monarch,the will of God and monarch was above everything.human nature was trampled.God settled the question of just and evil,impartial and partial,right and wrong,orthodox and heterodox.Under the oppression of religion and monarch,punishment was inhumane owing to the absolution of power.In fact,the essence of religion and monarch neglected the importance of human and the fact that“human is the rule of everything”.As the development of enlightenment movement,human realized the subjective of human and wavered Christian belief,and human who had his own independent personality,dignity and reason was not the toy of God.Therefore,the enlightenment thinkers approved idea of human equality,freedom,democracy and innate human rights, objected obscurantism,religion,despotism and superstition.Influenced by enlightenment thinkers,Beccaria aims at the neglection of human nature in feudal criminal law and demands the respect of human nature and construction of humanism punishment.Beccaria's humanism is based on human nature,and emphasizes the respect of human and demand mitigation of punishment.He criticizes unjust and backward feudal criminal law,and pursues certain punishment through legality of law so as to avoid the willfully criminal law,and objected cruel feudal criminal law which neglected human feeling through suiting punishment to crime and demand mitigation of punishment.Beccaria thinks the feasibility of law was the respect of human feeling and disapproves construction of law of judge so as to avoid the infringingment of legislative power and criticizes the inequality of feudal criminal law.And Beccaria also opposes ignorance and advocates education?science?human liberation.We can see from aforesaid that Beccaria respects human nature and advocates humanism punishment.Beccaria's utilitarianism and humanism are uniformed.Beccaria's utilitarianism and viewpoint of crime and punishment is based on human nature with intention to respect human need,strengthens human happiness and avoids unhappiness.Humanism could satisfy individual need and respect human nature,so the basis is concord.The purpose of utilitarianism was prevention of crime,realizing the goodness of the mass,the purpose of humanism is to protect civil rights.It seemed the two purpose are different.The goodness of the mass is not pubic interest but the goodness of the mass according to social contract including the committer.Punishment is transferred by the civil rights,and it must protect the goodness of the mass including the committer according to social contract.It obviously does not exclude the protection of people.Of course,punishment must protect people from crime and protect the goodness of the mass,but it must be just.When Beccaria considers social harms as crime standard,civil right is limited.Citizen should not infringe other's just right when he make use of his own right as a member in society.If he infringes,he should be punished which is just and agreed by all when they established the social contract.Except that,Beccaria demand the necessity of punishment which is in line with the just and utilitarianism of punishment.And it means maximum of utilitarianism of punishment and minimum of input.That is,minimum of input of punishment can get maximum of utilitarianism,and the humanism means mitigation of punishments,so the purpose is the same.Chapter six deals with the reflection and surpass of Beccaria's punishment thoughts. His thoughts have great influenced in each country so far,but there was a lot of questions left unsolved.Firstly,what was the citizen's fate when the law was false utilitarianism law. Secondly,how to solute the conflict between the probation of judge's explanation of criminal law and the must of criminal law should be construed.Thirdly,how to break the deadlock between legality principle and reality.Fourthly,how to protect civil right and who make the standard of protection.Lastly,how to acquire the common will of people in the law.The questions left unsolved is due to the defect in“On Crime and Punishment”.Firstly, the supposal of social contract makes the premise and conclusion of his theory doubtful. How can a supposed social contract protect the civil rights.Even social contract dose exist, how to guarantee the equal participation of citizen when they established the social contract. Secondly,the limit of human nature.Beccaria knows the tendance to interest and avoidance harms of human nature and the need is satisfied with crime and punishment.This kind viewpoint of human nature surmount disadvantages of the theory of good nature,the theory of bad nature and the theory of double nature,but does not find the concreteness of human nature-never satisfied human need and the way to meet human need should be agreed by others which resulted no limit to monarch legislative power.Beccaria hopes that the monarch made good law and does not realize the feasibility of law made by monarch depending on the citizen agreement.Thirdly,the tendency toward compromise and conservativeness of Beccaria's thought,According to social contract,monarch punishment power is transferred by civil right,and monarch should act on citizen demand and follow value appealed by citizens and protect civil right.After signing social contract,Beccaria just hopes the monarch could make perfect law to protect citizen,does not demand citizen make law.It is obvious that he does not see the power of people,and comprises with the monarch.His changed standpoint makes us doubt of the effect of law made by monarch to protect citizen.Fourthly,Beccaria pursues definite punishment which leads to literal superstition.He trusts monarch and doubts judge and wants to limit judicial power by text through legality principle.But overemphasis on definite text would lead to absolute legality principle and formalism overflowing and law could not embody justice.We should solute the problem left by overcoming the limit of Beccaria's thought.By virtue of social contract,Beccaria illustrates citizen has surpass power and determined punishment power.The legal relationship is“citizen and monarch(legislators)”in social contract.Legislators regulated common behavior and performed task of objectification and substantiation of law.And judges taking new step was authorized and limited by legislators whose task was exercising judicial power and implementing law and formed a basic structure:“citize-monarch-judge”.in the triangular relationship,if law was correct and legislators and judge were good,perhaps the result was justifiable;if law was not good,and legislators and judge were not good,the result was bad,and the purpose for citizen transferring civil right could not be realized.Envision and good word should be realized by practice.If we want to guarantee the citizen standard and realize the purpose of social contract,we should guarantee citizen supervision on legislation,judicial activity and law enforcement.The citizen protective structure should be:citizen-monarch(legislators)-judge-citizen which guarantees criminal law express citizen will and protect civil right,and law should follow the common sense?general knowledge and general reason which conform with human nature and forms for a long time and stand trial of practice and is rooted in human conscience.And this kind of law is not false utilitarianism,avoiding the concreteness of“social common will”,truly protecting civil right.When law expressing citizens will is made,it perhaps occurs the nervous relationship between abstractness of criminal law and complexity of reality,the limitation of human knowledge and boundlessness of life.Therefore,law must be explained and judges have to explain law.In order to protect civil right and human basic value and alleviate contradiction between criminal law and reality and prevent judicial infringement to legislative power,we have to explain law in accordance with common sense?general knowledge and general reason. And in the practice,jury is a good sytem.It is a new breakthrough to Beccaria's criminal thought when judicial loyally abides the spirit in law made by people,protects the civil right and realizes“citizen-monarch(legislators)-judge-citizen”and“the individual citizen standard”thought.