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SOCIO-EDUCATIONAL FUNCTION OF A PUNISHMENT AND CONCEPTIONS OF HUMAN NATURE (ON THE EXAMPLE OF MICHAEL BAURMANN CONCEPTION)
SOCIO-EDUCATIONAL FUNCTION OF A PUNISHMENT AND CONCEPTIONS OF HUMAN NATURE (ON THE EXAMPLE OF MICHAEL BAURMANN CONCEPTION)
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Abstract
In the present debate on theory of positive general prevention more emphasis is put on empirical than normative issues. It is understandable since the number of empirical studies, proving the theses of moral-educational role of the punishment, carried out so far is low and the results are inconclusive and preliminary. This justifies the question if these theories have any grounds in social reality. It is even suggested that the theories are lawyers’ ideas and their greatest asset is the difficulty of obtaining an empirical proof. Because of this, one may refer to them without a fear that the claims will be rejected in empirical research (disregarding purely normative theories, that is). What is a characteristic feature of various version of positive general prevention is that it is meant to be achieved not by fear of punishment but other mechanisms which do not emphasise the element of constraint and real affliction of state-imposed punishment. It is most of all about emphasising persuasive, educational, socialising and symbolic character of criminal law impact as well as about creating a habit. In some theories, state-imposed punishment plays a role of an argument in shaping rationally motivated convictions which should favour voluntary obedience of criminal law norms. Since state-imposed punishment becomes a motivating measure which can be combined with autonomy and dignity of an individual, ethical reservations concerning it use are eliminated to a great extent. Because of this masking of the real character of state-imposed punishment, this is the point where the risk of its broader use appears. Therefore the primary task is to restate the theory of positive prevention into a general empirical theory whose claims can be verified. Previous studies have shown that these theories are available for empirical research, which belies the widespread belief that they can not be subjected to empirical verification. There is no doubt that the rearrangement of the thesis of general positive prevention and making terminology more precise would help in building an empirical theory. The biggest challenge is to develop a theoretical model of human behaviour which could support the theory of general positive prevention. The need to provide such a theoretical model of human behaviour was shown by German sociologist, Michael Baurmann, and it was him who undertook this task. Importantly, not only has he developed such a model, but he applied it directly to reformulate selected varieties of positive general prevention in an empirical theory. On an example of two models designed for different versions of positive general prevention, Baurmann showed not only how to organize the varieties of moral and educational theory of punishment, but also how to describe them in the language of empirical research. General prevention understood as general deterrence is based on a model of rational choice in the sense of homo economicus. Until recently, lack of a suitable model of human behaviour was a characteristic feature of the theory of positive general prevention. Baurmann showed an example of two models designed for different versions of a positive general prevention. These models show not only how to organize the varieties of moral and educational theory of punishment, but also how to describe them in empirical research. Baurmanns' analysis of the models in the social sciences has shown that the theory of positive general prevention is difficult to integrate with popular sociological theories and models of behaviour. That has not changed his belief that a general model of human behaviour, alternative to the model of homo economicus, must be the starting point to create an empirical theory of positive prevention. The model should explain how the state sanction can contribute to the observance of the criminal law norms otherwise than through deterrence. Since there was no suitable model, Baurmann appealed to the social theories of Max Weber, and basing on them he has created a kind of sociological "mixed theory", which combines some aspects of homo economicus and homo sociologicus models. He emphasized that Weber's typology of social action has been formulated from the start as a dual construct, which introduces two basic models of rational action, which is a familiar dichotomy: intentional rationality and value rationality. Weber acknowledged these two models to be equally important and necessary for theory building in the social sciences. According to Baurmann these two ideal types of rationality correspond to a model of homo economicus and homo sociologicus. Applying these two models to explain social action was a Webers' hallmark. For him, both models were equally important and unlike his successors he did not try to reduce any of them to the other. Since Weber's typology of social action captures only s part of the sociologically important types of behaviours, Baurmann decided to expand it, by including actions based on usability and related to the norm, into a model of behavior which in its important points deviates from the homo economicus, without a too radical departure in the direction of homo sociologicus. It is important that such an extended model of human behavior on the one hand is clearly distinguishable from the economic model, and on the other hand raises the prospect of finding a new explanatory theory, which can be still understood model a behaviour following individual interests. This new type of behaviour, combining the motive of "subjective utility" with the "bound by norms" rule Baurmann called homo sapiens. Extending the economic model by the actions based on the utility and the associated standard equipped individuals with two additional capabilities: 1. They do not need to function in each situation according to the rule of considering alternatives in a single case, but in their actions the can be bound by a norm. They can acquire the disposition to choose a normatively marked alternative, regardless of the consequences to respect a norm in a particular case; 2. They can gradually adapt their decision behaviour to their interests. Dispositional model of utility maximization expands the possibilities of acting also by allowing to reduce the choices. What is crucial in the model of behaviour presented by Baurmann is a claim that in the model of behaviour in social sciences action on the basis of predisposition must play a central role in contrast to the action on the basis of the decision. This means that people acquire effective features and habits, which regularly lead to specific behaviours, for a long time without considering their consequences in all situations. Such "mixed" models, proposed by other authors, depart to a lesser or greater degree from homo economicus. Baurmann did not stop on the development of the model of human action based on the predispositions, but also applied it to two versions of the positive general prevention: a general positive prevention in the broad sense (integrational prevention) and a general positive prevention in a narrower sense. In the broader sense of the general positive prevention it is crucial to assume that the same predispositions to act are acquired and stabilized only by the perceived social pressure of the environment. Thus, if one wants to keep these predispositions, one cannot waive the external sanctions and their verification. In this perspective the criminal law is part of our social environment which, through various forms of gratification and sanctions, awards particular personality structures and predispositions to act, while charges other ones with costs. State punishment as an external means of coercion is basically not an unknown concept in this understanding of the process of education and socialization. Baurmann argues that the state prosecution, together with other external factors, initiate the learning process, which leads to internal controls through the acquisition of predispsitional ties to the norm. In the integration prevention, the impact of state punishment is manifested by this particular feature beaing a real ailment. In the general positive prevention in the narrow sense, the state punishment plays a role of the argument in shaping rationally motivated convictions and thus encourages voluntary obedience of criminal law norms. Such a model may be a part of the general model of human behaviour only, which explains behaviour compliant with the norms by convictions of rightfulness and legitimacy. Baurmann refers to Weber in this case as well in his claims that the social action participants may be oriented towards representation of existence of certain lawful order. According to this model, the recipient of the norm has a reason for compliance if he believes in lawfulness of the norm (norm acceptance). According to Baurmann’s opinion criminal law leads to the acceptance of a norm either by a symbolic demonstration of effectiveness of the law or by securing a confidence in law. It might involve confidence in compensatory justice, or in norm enforcement. "Mixed" models of human action presented by Baurmann not only facilitate reformulation of the theory of general positive prevention into an empirical theory but also indirectly confirm that they are anchored in social reality. They reveal the complex and multiple impacts arising from the existence of the state penalty and application thereof. "Mixed" models vary to the degree of departure from the model of homo economicus. In contrast to the abstract model of a human in the economic approach, in the "mixed" model of an individual has individual features, history, and its actions are not detached from the socio-economic factors. Baurmann took up the general positive prevention theory because he saw it a partial answer to the question how modern liberal societies can provide adequate degree of obeying law which is necessary to maintain social order. The overwhelming criticism of liberal society by communitarians compels to seek an urgent response to this criticism. Do positive theories of general prevention may be this answer? Baurmann, just like Max Weber, takes the position of methodological individualism. Thus, the models fail to capture the impact of collective consequences of punishment, emphasised strongly by Emil Durkheim. The role of habit in the observance of legal norms is also omitted. Baurmann’s models and their direct application to the general positive prevention are an encouragement and a model for his followers.
Identifiers
journal ISSN : | 0066-6890 |
Authors
![](/resources/portal/images/person.png)
Barbara Szamota-Saeki
- Akademia Pedagogiki Specjalnej im. Marii Grzegorzewskiej, Ul. Szczęśliwicka 40, 02-353 Warszawa, Poland
Additional information
Publication languages:
Polish
Data set: CEJSH
Publisher
Instytut Nauk Prawnych PAN
Fields of science
article
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