四時充美

• Beccaria’s name is today inextricably associated with what is often dubbed the ‘Classical School’ of criminology. This is something of a misnomer, as Beccaria was neither a criminologist (the idea of a discipline focused upon the systematic study of crime did not emerge until a century or so after Beccaria’s death), nor was he a part of any clearly defined ‘school’ that held to a consistent set of views. Nevertheless, On Crimes and Punishments (1764), Beccaria’s major work, exerted a wide-ranging influence both upon reformers and academics, and continues to be seen justifiably as a landmark in modern scholarship and intellectual development where it comes to the understanding of crime, law and punishment.

• Broadly speaking, Beccaria’s position can be seen as an interesting synthesis of utilitarianism, social contract theory, and the doctrine of inalienable natural rights. For example, from Helvetius in particular, he takes the utilitarian idea that society should be rationally organised so as to benefit the greatest number and to avoid unnecessary pain or suffering, something that detracts from rather than contributes to the overall well-being and happiness of a society and its members. From Hobbes he took the idea that an ordered society must be established through a ‘social contract’ that bound its members together. Citizens agreed to give up some of their freedom to do as they pleased, and in exchange were protected from arbitrary impositions from others. Under such an arrangement, individuals agreed to respect the property and physical integrity of their fellow citizens, thereby ensuring that all were secure from the fear of theft and violence. For Beccaria, those who committed criminal acts stood in breach of this contract, and so punishment must inevitably follow. Only in this way could the contract, which worked in the ultimate interests of all, be maintained. Second, Beccaria took from Hobbes the view that human beings are basically ‘hedonistic’ in nature. They are driven by a search for pleasure and satisfaction and a corresponding desire to avoid pain and discomfort. Individuals will rationally assess possible courses of action, and will act in a way that they believe will maximise the satisfaction of their wants and desires. Bringing these two points together, Beccaria believed that in order to be socially effective, criminal justice must be organised so as to make the punishment of crime inevitable, consistent, proportionate and swift. The inevitability of punishment would serve to convince the potential offender that the pain of punishment would always follow any criminal act, serving therefore as a deterrent. Equally important was the principle of consistency. This would ensure that the same kind and severity of punishment would always follow a particular crime. In this way, potential offenders would be made certain that they could not count upon arbitrary leniency from judges – it would be clear beforehand what kind of punishment would follow any particular offence. The principle of proportionality maintained that in order to be effective punishments must be of a severity that reflected the seriousness of the offence and the harm caused. Finally, the swiftness of punishment was held to be essential if it were to have a proper deterrent effect. This idea Beccaria based upon the philosopher David Hume’s theory of the ‘association of ideas’. Hume held that particular phenomena and experiences became linked together in the human mind because one followed closely upon another (for example, we associate fire with pain because upon burning ourselves pain immediately follows). Consequently, Beccaria felt that crime and punishment could only become firmly associated in the public mind if the latter followed the former as swiftly as possible. On the basis of these principles, he criticised the organisation of criminal justice in that it was typically characterised by inconsistency, arbitrariness, disproportionality and delay. Such a system could not use punishment efficiently to secure pubic order, and so would have to be radically reformed.

• Another significant feature of Beccaria’s work is his repudiation of both judicial torture as a means of extracting confession from suspects, and of the use of the death penalty as a criminal sanction. Both of these positions can be attributed to the influence of natural rights theories, which hold that all individuals enjoy certain inalienable rights whose violation cannot be morally justified.

貝加利亞在其著作《論犯罪與刑罰》提出之思想與主張：

一、哲學思想：其哲學結合了功利主義 (utilitarianism) 和「社會契約論」 (social contract theory)

     1. 功利主義：人以自由意志 (free will)行為，而功利自我會趨樂避苦，犯罪利益往往高於犯罪代價，要嚇阻犯罪，懲罰的痛苦需超越犯罪所得的快樂。

     2.社會契約：為了避免社會紛爭及不安，人們犧牲部分自由，換取契約自由，法律是社會契約具體內涵，違犯法律者國家有權依契約處罰之。

二、刑罰主張：

     1. 刑罰平等：執法應平等為之，且應追求最大多數人的最大幸福為目的；刑罰代表正義懲罰犯罪，保障社會成員自由權利。違法者不問年齡、動機、地位、或環境，應受同樣處置。

     2. 罪刑法定：此為貝氏最大貢獻。他主張人民愈了解法律，犯罪就會愈少，對犯罪之懲罰，法律應明確規定，使成員確信犯罪必受懲罰，懲罰程度應以能預防犯罪及維持正義為原則，防止法官擅斷 (arbitrariness)，奠定日後「罪刑法定原則」的根基。

     3. 罪刑均衡：刑罰應以犯行惡害輕重為依據，並符合比例關係(Proportionate)，懲罰應注意迅速性 (Promptness; swift)與必然性 (inevitable）；反對過度嚴厲，懲罰以達到影響犯罪人及他人想法的最低程度即可，過量懲罰乃無效且殘暴。

     4. 公正審判：重視證據，無證據則無刑罰，強調證據的質量與可信度，要求證據公開，不採污點證人供詞，要求廢止嚴刑逼供、公開審理、採用陪審制，讓被告有辯護的機會。

     5. 廢除死刑：認為死刑不當亦無法抑制犯罪。重大犯罪與輕微犯罪應有不同懲罰。重大犯罪應求制止他人犯同一罪行，故強調一般預防；輕微違法者則重視改正其犯罪性，重視個別預防，兩者應分別監禁。

     6. 強調教育：以教育達到犯罪預防效果。

三、貝氏的貢獻：

     1. 建立懲罰必須以法律為基礎的觀念，並強調刑罰必須符合必然性(inevitable)、一致性 (consistent), 比例原則 (proportionate) 、和迅速性 (swift)，奠定後世「罪刑法定」(no punishment without a law) 與「罪刑均衡」(balance between crime and punishment) 兩大刑罰原則之基礎。

     2. 其思想促成中古世紀的「人治國家」轉變為「法治國家」。完成近代刑法理論的奠基工作，後人尊其為「刑法學之父」。