A two track, thought

   In the history of criminal law theory, the "school struggle of the so-called". Both sides of a dispute, one for the classical school (old school), a modern school (New). The focus of controversy, the basic theory of criminal, such as the nature of the penalty, the causes of crime, crime, responsibility principle. School dispute in the late nineteenth Century early twentieth Century once sharp, but now after mutual understanding and sublation, are no longer serious opposition. Especially in Japan, after the Second World War, the theory of crime, "pay attention to the legal principle of crime and punishment, strongly rejected moral standard elements become the mainstream and easy to bring their subjective elements of form, the objective of crime, old school theory occupied the overwhelming superiority"[1]Penal theory, in trying to combine the two theories, the personality theory of liability. Generally speaking, the new theory has a full-blown recession, old school theory dominance. However, the basic thought of opposites still exist[2], to study the criminal law, will have to understand the sequence of events to struggle in school.

   The old school can be divided into early and late old school, old school. The old school is the Enlightenment thinkers as the pioneer, later developed based on negating feudal criminal law on the,, along with the development of society and the progress of science, the new rise, put forward a new theory, whereas the old scholars in the new theory of Refutation in further development of the old theory, called late old pie. The following will be the historical evolution process to describe the thinking track two.

   (a) the old school

   Thought the old school is a social contract theory, the thought of natural law, which is aimed at all kinds of evils of feudal criminal law. According to Professor Hirano Ryuichi's induction, the feudal criminal law has the following four characteristics: (1) interference. Criminal interference all areas of private life, interference in private life; (2) arbitrariness. What a kind of punishment, often without the clear provisions of the law, the judge can use of discretion, th (3) identity. The same behavior as the perpetrator, victim's identity, which led to the severity of the penalty or not; (4) the cruelty. The penalty method for physical punishment and the death penalty, execution mode is very cruel.[3]Reasons for the formation of feudal criminal law lies in the characteristics of the state power of concentration, huge and absolute nature of the relationship between the individual and the state, has become all the content of social life, so the personal rights were deprived of extremely small. So the old school advocates limiting state power, requests to realize the criminal supplementary, legality, equality and humanity.

   Early origins can be traced back to the old school, Beccaria (Cesare Beccaria). Beccaria according to the theory of social contract, that the state power is provided by the public in the minimum necessary internal freedom penalty, if more than the protection of storing the need of public interest, is essentially unjust punishment, this rejection of interference of the criminal law; Bayesian think, any officials are not ture justice the members of the society are punished, only the law to crime and penalty provisions, beyond the legal limit to exclude the criminal punishment is not justice, arbitrariness; bainite also affirmed the principle of equality of criminal law, deny the identity; and, the correct penalty strength as long as enough to discourage crime can, with the death penalty to prove the legal serious is of no profit, therefore, the penalty shall not be cruel.

   Feuerbach (Paul John Anselm von Feuerbach) established in criminal justice rule by law thinking, in order to avoid the interference of the criminal law, he advocated to limit the country's penalty in two aspects: (1) the strict distinction between law and moral, crime is not a violation of morality but violates the law, the legislator should respect the freedom of conscience, the law is not ethical judge; (2) the principle of legality, in law a clear declaration of what kind of behavior is the share of crime and punishment, no crime without law, statutory can in general are psychologically not to commit the crime of compulsory (psychological compulsion), realize the general prevention. Feuerbach lays a solid theoretical foundation for modern objectivism, known as the "father of the modem criminal law".

   Britain's Bentham (Jeremy Bentham) with social reform as the goal, to carry out the reasonable principle in the criminal law. Although Bentham advocated the general prevention, but also that, in order to intimidate the crime and punishment is not sufficient, in order to prevent recidivism, must carry on the education of criminals, correction, and, only improve, warning, economic isolation, compensation for the victim, the penalty of the five principles of harmony, to make the punishment to be legitimate. Bentham's ideology of criminal law called the utilitarian theory of criminal law.

   The German philosopher Kant (Immanuel Kant) station in the metaphysics of freedom theory, the absolute retribution. Kant thinks that the penalty is not realize the public purpose means, but the demands of justice. Sentencing is the principle of equal retaliation. The criminal Kant's concept of liberalism, individualism of the criminal law, he was opposed to the people as a policy tool, claims the balance. Hagel (Georg Wilhelm Friedrich Hegel) in accordance with the rational analysis of the criminal law of Kant's ideas. But Hagel, unlike Kant emphasized the individual rationality, but it argues that nationalism dialectic retribution. Hagel think, the crime is the negation of the law, the penalty is the negation of negation of crime, criminal law through the negative to the restoration of justice. Based on the meaning of crime free and committed a crime, if the country does not deny the meaning of criminal crime, reason cannot recover. Therefore, even in the presence of illegal behavior objectively, not as long as the meaning of performance, it should not be punished, at this point, Hagel's theory can limit the national penalty power. Hagel's ideology of criminal law has great influence on the German criminal law, objectivism, liability theory, can be traced back to Hagel.

   It is worth mentioning that the Japanese criminal law scholars Takigawa Yuki (TA, as close paint and paint). Takigawa Yuki in his early years studying in Europe, deep influence by liberalism, Takigawa is still largely accepted the Marx doctrine, the ideology of criminal law is quite radical, at that time, therefore, Takigawa had the Japanese education faculty in 1933 by authorities[4]. Takikawa life times although later than the previous old scholar, but the criminal law point of view is typical of the old school. Takigawa advocates the separation between law and morals, customs, exclude the interference of the criminal law on the lives of the people. He also advocated strict legal principle of crime and punishment, to limit the scope of criminal penalties. Because according to takikawa view, in class antagonism of the capitalist society, if you do not comply with the legal principle of crime and punishment, criminal law will become a tool of class oppression, if really, the legal function can be attributed to the rights of criminals, the guarantee of freedom, the criminal law is the criminal's great charter. Takigawa opposed the severe law, advocated the abolition of the death penalty, he thinks, the death penalty is the product of barbarism, rather than national conviction, the death penalty is not a deterrent force, the necessity of any studies do not prove that the death penalty should be abolished the death penalty.

   The old school's point of view, can be understood as: the formula of free will (non determinism), behaviorism, moral responsibility, retribution, general prevention. The specific content is: people have free will, the objective of the illegal acts implementation based on free will, to blame, for moral responsibility; in order to investigate this responsibility, retribution for behavior is punishment, punishment is the evil consequences of crime, to inflict pain for the content of retribution; to the crime person, can warn people, to achieve the purpose of general prevention.

   (two) new

   After the mid nineteenth Century, great changes have taken place in European society, science and technology progress by the industrial revolution, the rapid development of modern industry, a substantial increase in worker, intensified the class conflict and struggle, mass poverty, unemployment is rampant, the collapse of the family, the imperialist war phenomenon which seriously affect the social situation, recidivism, often custom made, juvenile crime phenomenon appeared in large numbers, called for the strengthening of social defense, whereas the old criminal law have will be at a loss what to do. In addition, the progress of natural science to social science prevalent scientism, positivism research method of thinking, old school metaphysics criticism by many scholars. These changes are prompted new theory produced.

   First, the impact of the old theory scholar Kettler (Quetelet), Kettler developed the criminology in statistical field, expounds the social causes of crime, the crime is the negative product of free will. In nineteenth Century seventy time, Cesare Lombroso (Cesare Lombroso) from anthropology, genetics angle to study the cause of crime. Physical features more focus on the offender's especially the characteristics of the skull, it is considered that the physical characteristics of the person is bound to be a crime, namely "born criminals". Born criminals is not yet complete biological evolution, with bad characteristics, can not adapt to the society, so the inevitable fate into crime. Lombroso's theory on the conclusion is not necessarily correct, but he was before the abstract understanding of human behavior as a critical methodology, attempts to use the scientific method to analyze crime, has the epoch-making significance of methodology.

   In France, criminologists, SANA (Alexandre Lacassagne) Lyon School as the representative of the emphasis on the social causes of crime, the crime of Cesare Lombroso attributed to the personal qualities of the theory of the intense criticism. Italy criminologist Feeley (Enrico Ferri) absorption of the Lyon School's point of view, fixed born criminal said, this crime has the biology, physics and sociology reason reason reason, freedom is the natural fantasy, retribution is meaningless, to the dangerous offender based crime prevention measures to take, instead of penalty sanctions. The concept was drafted in 1921 Italy draft criminal code does not use the traditional sense of responsibility, penalty, the risk concept, sanctions.

   The new theory and the synthesizer, the German criminal law scientist Lester (Franz von Liszt). Lester put forward the "intention in criminal law concept", that penalty is not instinctive impulse, reward, penalty shall be governed by the necessity and objective of the (purpose theory of punishment). The penalty must be based on the purpose of preventing the crime, we should adopt different penalties for different crimes, namely to make, make the occasional opportunity threatening punishment, punishment by improving on may improve the criminal punishment, the death penalty for life or not may improve the criminals make it harmless. The object is dangerous, human behavior but, modern science can't judge risk, people before the crime and penalty, confined to the dangerous character of criminals to sign as criminal acts, and the law clearly stipulates that the sign of the table (the table said crime syndrome). In this sense, the criminal law is the criminal's great charter.

   The new point of view, can be understood as: determinism, behavior, social responsibility, improve the doctrine of punishment, the special prevention. The new deny that there is no reason that free will, causes of the crime must be based on some kind of reason; only Condemnation does not prevent crime has occurred, the reason must study the crime behavior; personality is an important cause of crime, crime prevention, elimination of sexual risk behavior depends on the character of man; the penalty is a means of improving the the character, the main purpose of punishment is to prevent crime again; for the dangerous character of people, no matter the road sense of responsibility, need based on social life, but also to undertake responsibility, this is the social responsibility.

   (three) the late old school

   The new point of view, the old scholars made a fierce counterattack. In this background of the old theory, called late old school. Representatives of late old school, with Germany's Binding (Karl Binding), Bellinger (Ernst Beling), Beek Maier (von Birkmeyer), Meyer (M.E.Mayer), Japan's Ono Shinichiro (and it's robe of it UTI u). The old school and the old school late stage has a lot in common in the basic position, such as that free will, claim retribution punishment. But in nineteenth Century forty to the Prussian nationalism as the background for the formation of the Hagel school, the German old school of criminal law has changed greatly, leading to the existence of many differences between the old school and the old school late. For example: (1) the old school advocated strict distinction between law and ethics, the late old school will be legal and ethical equally; (2) the old school said free will, refers to the ability based on reasonable consideration of free will and the implementation behavior, while the late old school said the will is metaphysics, not the cause of free will; (3) the old school said retribution is general prevention for the purpose of psychological compulsion, and later the old school say with absolute retribution retribution retribution, the color of sin. In general, the late old school has obvious tendency of nationalism, authoritarian, but later the old school is still based on liberalism. Nationalism and liberalism seem contradictory, but some scholars believe that, "in the backward countries, in order to fight against the advanced capitalist countries, economic development, must pay attention to the role of the state, at the same time, the protection of individual freedom of movement. The results, a state is considered to be the highest moral, on the other hand, the state to state power of self-made"[5].

   The late old school scholars and the new school scholars launched a fierce debate, to highlight the performance of Beek Maier and Lester debate, the debates between the narrow sense, refers to this debate. It was argued that: (1) Beek Maier to free meaning theory discusses the crime of criminal responsibility basis, Lester argues that whether liberty is a philosophical problem, criminal law science mission is to seek the reason of crime, take the method of social defense against it; (2) Beek Maier argued that punishment originated in revenge in many countries, long-term maintains its essence has been convinced for retribution, unshakable legal, but Lester believes that instinctive retribution should translate into intentional penalty, replace the retribution idea with the purpose of social defense theory of punishment; (3) of the criminal law reform, Beek Maier, the classical school not in legislation and the modern school compromise in modern times, the theory of the school means waste vast criminal law itself, but Lester think, without compromising the science, but the legislation must compromise.

   War on school contend for Beek Maier and Lester to the climax, but entered in twentieth Century after twenty years, Lester and Beek Maier died, the school contend for sharp cooling. Finally, establish the Nazi regime led to the end of the form of struggle in school. Of course, ideological shackles and cannot make the two together, opposite basic position and specific views still exist. However, extreme theory one of the now rare, fusion, discard the two theories is the trend of development of criminal law since the second world war. For example, Metzger (Edmund Mezger), founded by Dleto Shigehikaru (cancer u a first Zu) further unfolding of the personality theory of liability, as well as Welz M (Hans Welzel) objective behavior advocated the theory, including the integration of viewpoints thought.

   (four) the old school and new school basic opposition

   The 1 meaning of freedom and determinism

   Behavior person why crime? The old school answer libertarianism (meaning freedom, non determinism). That is, people are rational, can be arbitrarily divide some allure as behavior or not as motivation. Free will is not subject to the law of cause and effect and choice behavior. Think this absolute libertarianism, everyone can not be influenced by the quality, environment, and act rationally. Feuerbach's theory of psychological compulsion, is based on the absolute freedom of the will theory.

   The new against libertarianism, advocated determinism. Philip thought, free will is just a hypothesis, the empirical method of modern has denied the existence of free will, human behavior is the interaction of personality and the environment. Garova Lo thinks, free will is not true, at least there is no evidence that free will exists, based on free will, moral responsibility is impossible to establish the criminal system. Lester further pointed out, the purpose of criminal law is to prevent crime, it is necessary to study the crime itself, not only limited to the abstract concept of interpretation; crime is a product of social and individual, is caused by the inherent character criminal surrounding social relations as well as criminals, rather than because of will freedom beyond the causal laws in effect; freedom will not prevent the crime, to prevent crime, we must take effective criminal policy according to the causes of crime.

   2 personal standard and social standard

   The old school based on liberalism, individualism, advocate world to human existence as the basis, existence itself is the aim of people, in order to protect individual freedom, must try to limit state power, to limit the scope of criminal law. The criminal law is not the purpose but a means, not punishment, not against the interests of people. The late old school because of too much emphasis on social ethics, requires the state to protect the social ethics, tendency and therefore prone to nationalism, authoritarian, but the foundation is still the individualism, liberalism.

   New school is society oriented, exhibit anti individualism, anti liberal position. New claims that countries not only protect the personal interests, but also to protect the interests of society, people are social people, only to protect the society to protect the interests of individual interests. Thus, the new proposed the theory of social defense, against too much emphasis on individualism.

   3 the objectivism and subjectivism

   On the establishment of conditions of crime, objective elements and subjective elements in between, what pay attention to which on the one hand, will come to a different conclusion, so the formation of the objectivism and subjectivism. But should notice, objectivism and subjectivism is different from the objective and subjective blame blame, objectivism and subjectivism requires the unity of subjective and objective, just on this basis or on the objective elements, or pay attention to subjective factors.

   We think, the foundation of criminal responsibility is expressed in the external criminal behavior and its harm. If only the subjective evil as a basis for punishment, easily lead to interference of criminal law and arbitrariness, therefore, must define the concept of crime from the objective, to prevent arbitrary judgment, adhere to the principle of legality, limiting the scope of punishment.

Subjectivism, the foundation of criminal responsibility is a dangerous character criminal is repeated crime risk. The purpose of criminal law is the realization of social defense, so we must carry out the special prevention policy, to eliminate recidivism crime person. But not dangerous sex offenders directly identified, crime is dangerous to sign a crime, therefore had to external behavior as the elements of the establishment of crime.

   Opposing objectivism and subjectivism throughout the whole theory of crime, but also has a certain impact on the theory of punishment.

   4 strict interpretation and flexible interpretation

   In the constituent elements of the interpretation of the old school, respected the principle of legality, advocated a strict interpretation of the constitution, especially the exclusion of analogy to explain, among them, there are people oppose all the analogy to explain, others that are only allowed to explain the favorable analogy to the defendant. New claims flexible interpretation, purpose interpretation, many modern scholars agree with the analogy to explain, even like Makino Echi that ease and the abolition of the principle of legality of the scholars.

   5 the moral responsibility of the social responsibility theory

   The old school said liability, is refers to the behavior of people. The so-called responsibility, is to meet the violations constitute elements of the criticism or condemnation of acts of. In particular, has the responsibility of the person, have free will, based on the implementation of free will and criminal activities. Can be subject to moral condemnation, in this sense, the penalty is justified. Behavior of people who could choose not to sin, but the implementation of crime, this would violate the human ethics, moral requirements. So the moral responsibility.

   The new advocate social responsibility theory. The so-called responsibility, refers to the social danger man was sentenced to social legal status as a means of social defense penalty. Crime is a result of the quality of the people and the environment, people do not have the choice whether crime crime free meaning, not the crime to blame for the behavior. The criminal law is the social defense means, because the offender is dangerous character, defense disposition so must bear the society, this is the social responsibility. However, the theory of social responsibility that dangerous character to act only in form, with intent or negligence of the psychological facts, to be punished, this also is not that too aggressive. The difference between the theory of social responsibility and moral responsibility theory is how to deal with people without responsibility. Think the new theory of social responsibility, children, mental patients, drunk, noctivagant person should bear social responsibility.

   The moral responsibility of the social responsibility, the responsibility on the basis of performance for the opposition, the act of responsibility and character of responsibility theory. In order to reconcile the two liability theory, Dleto Shigehikaru put forward the personality formation liability theory, that if the personality formation can be attributed to human behavior, personality formation can be used as a basis for liability. For example, habitual offender, if the formation of the habit is often by quality, environment, it is not punishment, but security measure object, if the formation of habits is often caused by themselves, have responsibility blame may, shall be punished by the penalty. At the same time, personality is reflected in the specific behavior, so first responsibility is the responsibility, the second is the responsibility of personality formation. In particular, the object of liability judgment, first is consistent with the elements of the act itself, to consider is whether the behavior is responsible, but crime is behavior person personality reality, personality dominates the crime, criminal behavior and personality can not be separated, the formation of personality has also been affected, subject to therefore, the personality attitude to censure.

   On the responsibility, also exists between the mental liability and responsibility theory. The psychological theory of liability, liability entity is the behavior of human psychology, psychological relationship based on the different responsibility, will be divided into intentional and negligent behavior in the premise, has the behavior ability, but also has the intent or negligence, shall be investigated for the responsibility of the perpetrator can. Think of responsibility theory, law is in the form of a command or prohibition, to accept the command of the people, must be able to implement legal action in accordance with the command, the command is justified. Therefore, to carry out responsibility blame, only has the intent or negligence is not enough, must also have the possibility of implementation of legal person can expect behavior in specific situations. The theory of anticipated possibility, is considered to be the core of responsibility theory. The present criminal law scholars basically all take responsibility theory, but in the expectant possibility, there are some differences between the old and the new factions.

   6 retribution and purpose theory of punishment

  Think retribution penal theory, on the basis of the justification of punishment is justice retribution. Retribution first means a kind of psychological reflection, then form the moral and legal retribution. Said the retribution retribution, is the legal concept of rational later, refers to the principle of distributive justice is based on the equivalent, given responsibility for the unlawful acts of punishment. Good for good karma, evil for evil, karma is the idea of justice is deeply rooted in human nature request.

That purpose theory of punishment, the penalty is based on the justification of the legitimacy of the purpose of punishment. Lester think, the purpose of punishment is the special prevention, the penalty system must have the flexibility, variability and security, criminal personality is the basis of punishment standard, with special prevention for the purpose of criminal law, we must seek for effective behavioral adjustment and personality research methods, change the criminal personality, to respect the norms of criminal law in future life.

   Retribution and purpose theory of punishment is not absolute opposites. Because the two are legitimate ground elaborates the penalty from a different point of view, fully integrated, foster strengths and circumvent weaknesses. Relative punishment is now widely accepted theory, combination theory, are formed based on both.