對預防理論刑罰正當化論據之批判

Abstract

綜上所述，本文認為，所有的預防理論只提及刑罰的效果而無法正當化刑罰制度。刑罰制度似乎必須完全根據「新」應報理論才能獲得正當化。

Traditionally, the idea of prevention comprises two concepts: the concept of “negative prevention” (negative Generalprävention) aims at the deterrence of potential perpetrators, while the concept of “special prevention” (Spezialprävention) sees the purpose of punishment in correcting the perpetrator in order to prevent him from committing future crimes. Discussion in recent years, however, has circulated around a third variation of prevention: the theory of “positive prevention” (positive Generalprävention). According to this concept, punishment is a means to confirm the moral convictions of integer citizens. The article reveals that all theories mention important effects of punishment, while none of them offers a convincing legitimization for punishment. The concept of negative prevention conceives members of society as individuals that are foremost interested in personal advantages. While all individuals have an interest in the reduction of crime rates, the rational approach fails in view of the “free-rider” who acts most rational by demanding rules he himself does not abide. As the execution of punishment is not in the rational interest of the delinquent, the central act of criminal law is not covered by the fundamental premise of negative prevention. Additional considerations seeking to close this gap in reasoning fail: concentrating on the interests of the integer citizens would mean to exclude the perpetrator. Exclusion, however, is diametrically opposite to the idea of legal punishment. Pointing out that those who enjoy the advantages of an institution must also tolerate punishment as a sanction would mean to refer to the idea of retribution. Since negative prevention cannot legitimate the execution of punishment, it cannot be used as a concept to justify the threat of punishment: the standards for assessing threat and punishment must be identical. In the wake of the “reform euphoria” the concept of special prevention received a virtually medical shape according to which the purpose of punishment is to heal social defects. The state thus has to adjust “curing treatments” to the future dangerousness of individuals, thereby giving up the main characteristic of punishment: passing judgment on an unlawful act. In order to achieve optimal prevention the remedial treatment should even begin before an individual has actually committed a crime. This however would not be accepted by individuals who do not only seek protection by means of the law, but also protection against the law. A legal system is unstable as long as individuals conceive rules as mere items of calculation; hence, criminal law requires citizens who in general accept its rules as legitimate. The conceptualization of punishment therefore has to correspond with the normative convictions of the citizens. Surveys, however, suggest that the majority of the population has a preference for retributive punishment. The integrative effect of punishment would hence depend on an element situated beyond the concept of prevention. While the concept of general prevention is a theorem that—from the position of an external observer—describes a crucial function of punishment, legitimating punishment requires rules which—from an internal point of view— provide for a just execution of punishment. The concept of positive prevention itself, however, does not provide for such rules. As all prevention theories evince fundamental conceptual deficits, a legitimization for punishment has to be found on the ground of a retributive concept.