Value Construction of Criminal Law

Author: Chen Xingliang / Country: Mainland China
Publisher:
Publish Date: 2000-11-01
Features: The criminal values of the classical school of criminal law are oriented toward the individual. The essence lies in limiting the scope of crime, providing ample space for individual freedom. One of the important contents of criminal values is the standard by which crime is evaluated. The classical school of criminal law, starting from the individual value, advocates liberalism, thereby establishing the standard for evaluating crime. However, within the classical school of criminal law, it can be divided into the early classical school and the late classical school. The former is represented by figures such as Beccaria, Feuerbach, and Bentham; the latter is represented by Kant, Hegel, Bingding, Pickmayer, and Bellinger. The early classical school, centered around Enlightenment criminal law thought, is characterized by individual liberalism, while the late classical school, centered around retributive criminal law thought, is characterized by state liberalism.
I. The Criminal Values of the Early Classical School
The early classical school is characterized by the ideology of individual liberalism, where "individual liberalism" refers to the supremacy of the individual or the primacy of the individual. From this perspective, the criminal view established is that the sacrifice of the smallest individual freedom is exchanged for greater social freedom. Therefore, crime is limited to acts that are harmful to society. It should be said that the establishment of the harmfulness principle is a significant contribution of the early classical school to the standard of evaluating crime. Under these circumstances, crime is no longer a shackle that can be arbitrarily imposed on citizens, but an objective legal standard. Therefore, the criminal view of the early classical school, represented by Beccaria, has the following characteristics.
(1) Secularization makes the standard of evaluating crime secular, which is one of the important efforts of the early classical school in the issue of crime. The significance of this effort lies in: eliminating the subjective arbitrariness brought to the concept of crime by the religious factors in the medieval feudal criminal law, thereby establishing objective standards for the determination of crime. In the medieval feudal society, due to the dual opposition of ecclesiastical and royal authority, crime was also divided into religious crimes and secular crimes. Here, religious crimes refer to crimes handled by the church, mainly referring to offenses against the divine, heresy, and other violations of religious doctrines, and even including certain violations of religious ethical concepts. These religious crimes used vague concepts of guilt to distinguish between serious and minor crimes. The church considered those with severe guilt to constitute serious crimes and imposed severe punishments, while those with lighter guilt were considered minor crimes and received lighter penalties. The standard of the church in judging the severity of guilt was vague and uncertain religious doctrine, which fully demonstrated the subjective arbitrariness of church criminal law. This so-called religious crime was largely an ideological crime. During the Enlightenment, the status of religion declined, and religious crimes began to be strictly restricted, marking the historical process of the secularization of crime. In Montesquieu's classification of crime, there were also crimes against religion, and the other three types of crimes were: crimes against customs, crimes against the peace of citizens, and crimes against the safety of citizens. However, Montesquieu's so-called crimes against religion referred only to crimes that directly infringed upon religion, such as all simple offenses against the sacred. More importantly, Montesquieu proposed the principle that "punishing crimes according to their nature is beneficial to freedom," believing that the penalties should be prescribed according to the nature of each type of crime. If the nature of the crime of sacrilege was punished according to its nature, then the penalty for this crime should be: depriving the benefits given by religion, such as being expelled from the temple; temporarily or permanently prohibiting contact with believers; avoiding the criminal, not meeting them; spitting on, hating, and cursing them.①
It can be seen that although Montesquieu still affirmed religious crimes, they were completely different from those in the medieval church criminal law, especially Montesquieu advocated distinguishing between thought and action, opposed subjective attribution of guilt, and emphasized that criminal law should benefit citizen freedom. Moreover, Montesquieu proposed an important principle: the prosecution of "witchcraft" and "heresy" must be handled with extreme caution. Montesquieu believed that the prosecution of these two crimes could extremely harm freedom and could become a source of endless tyranny. If the legislator did not limit such prosecutions, they would be. Because this prosecution does not directly accuse a citizen of an act, but is mostly based on the perception of the character of the citizen to make accusations, the more ignorant the people, the more dangerous this accusation becomes. Therefore, a citizen is always in danger, because even the best behavior, the purest morality, and fulfilling all duties cannot guarantee that a person will not be suspected of committing these crimes. Montesquieu also pointed out that when people believed that witchcraft was a power that could arm the devil, and based their thinking on this, they would regard those they believed to be witches as the most capable of disrupting and overthrowing society, and would be willing to impose unlimited penalties.③
Therefore, although Montesquieu did not say that heresy should absolutely not be punished, he clearly had great reservations about such punishment. The famous Italian criminologist Beccaria, while still acknowledging that divine revelation is one of the sources of moral and political principles for regulating human behavior, believed that divine revelation, like natural law and the social contract, also contributes to the happiness of secular life. Beccaria pointed out: In the human mind, divine revelation and natural law—although both are sacred and unchangeable—have long been desecrated by false religion and countless arbitrary concepts of good and evil. Therefore, it seems necessary to study separately the products of pure human agreement based on common needs and utility. This view is one that every sect and every moral system must agree with; it is commendable to compel the obstinate and the irreligious to adhere to the principles that promote social life. Therefore, Beccaria emphasized more the social contract, believing that it is the foundation of social life and is not contradictory to natural law and divine revelation. Beccaria pointed out that it seems wrong to accuse those who explore the social contract and its results of violating natural law and divine revelation, because such discussions do not involve the latter. In essence, divine justice and natural justice are eternal and unchanging, because the relationship between two identical objects is the same. However, human justice, or what is called political justice, is only the relationship between acts and the ever-changing social conditions, and it can change according to the degree to which acts are necessary or beneficial to society. If people do not analyze the complex and easily changing social relationships, they will not be able to distinguish this clearly. Once these essentially distinct principles are confused, it is impossible to make correct interpretations of public issues. The task of theologians is to determine the boundaries of justice and injustice based on the inherent goodness or evil of acts. The task of legal scholars is to determine the relationship between political justice and injustice, that is, the relationship between acts and their benefits or harms to society. Since everyone sees that pure political virtue will yield to the eternal religious virtue decreed by God, the above objects can by no means interfere with each other.①
Here, Beccaria made a clear distinction between religion and law: the former evaluates the inherent goodness or evil of acts, while the latter evaluates the external benefits or harms of acts to society. Therefore, Beccaria denied the religious nature of crime and understood crime from a secular perspective. In this sense, crime is merely an infringement on the social contract. It should be said that Beccaria's secular understanding of the nature of crime is of great significance. It shows that people no longer define crime based on mysterious religious doctrines but understand crime from the perspective of human realistic social interests, thereby laying the foundation for a secular criminal view based on social interests. Beccaria's views were highly praised at the time for their religious protection.