从离身到具身:刑罚威慑认知视野的转向

From Disembodied to Embodied Orientation: The Cognitive Vision of Deterrence Theory

以"理性人"为预设的威慑理论,主张通过刑罚给予损害大于犯罪所获收益来预防犯罪。本质上讲,威慑效能形成机制是一种认知机制,威慑理论是认知心理学的旗下产品。认知心理学存在抽象性、孤立性和离身性的缺陷,而威慑理论的惯性存在于这些缺陷之中,其逻辑合理性受到严峻挑战。但是,时至今日,威慑理论无论是在法学理论推进还是实际预防犯罪方面依然发挥着重要作用。以具身认知生成性、具身性和情境性三个主要特征为切入点可以在保障和发挥刑罚威慑既有功能的前提下对威慑理论进行修缮,具身认知为刑罚威慑描绘出三种预防犯罪的图景:个性化预防、身体预防和情境预防。

Based on the rational man supposition, deterrence theory claims that crimes might be prevented through the criminals＇ thought that costs outweigh rewards. In essence, deterrent effect is a cognitive mechanism occurring after ＂perception＂, and the deterrence theory comes from cognitive psychology. Cognitive psychology has the defects of being abstracted, isolated, and disembodied; deterrence theory habitually exists in these deficiencies. As a result, the logic rationality of these theories is violently challenged. However, till this day, no matter in promoting law research or in preventing crimes, deterrence theory has made and will continue to make great achievements. On the premise of guaranteeing their existing functions, deterrence theory can get optimized modification taking the three characteristics of embodied cognition（enactive, embodied, and situated） as the point of penetration. The embodied cognition presents three patterns for preventing crimes： personalized prevention, body movement prevention and situation prevention.