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2013 3. Szám 2013 Október Jogelméleti Szemle 20132013////3333.. szám TARTALOM Tanulmányok Bodnár, Zsolt: The interrelationships of segregation and its impact on crime .................................... 2 Frivaldszky János – Frivaldszkyné Jung Csilla: Az öngyilkosság és az abban való közrem űködés a természetes erkölcsi törvény és természetjogi gondolkodás szempontjából ....................................... 7 Hamza Gábor: A magánjog fejl ődése és kodifikációja Mexikóban .................................................. 34 Lázár Nóra Kata: Egy európai kormányzás lehet ősége a nukleáris kérdések területén ..................... 44 Németh Zoltán György: Az orvos szakért ői bizonyítékok jellemz ői a büntet őeljárásban ................ 55 Nótári, Tamás: Legal and historical remarks on Carmina Salisburgensia ......................................... 63 Pokol Béla: Értelmi konkretizálás: Az Alaptörvény alkotmánybírósági értelmezésének vitái ......... 71 Szabó Judit: Az angolszász büntet őeljárás ideológiai alapjai és jellemz ői a kontradiktórius modell tükrében ............................................................................................................................................ 112 Vértesy László: Bankok vs. Alaptörvény ........................................................................................ 123 Vörös Imre: Az állami támogatások uniós jogi megítélésnek hatása a bels ő jogra ......................... 131 Recenziók Nótári, Tamás: Quintus Tullius Cicero kampánystratégiai kézikönyve angolul ............................. 163 Interjú Varga Csaba: Egy jogtudós útkeresése. Kulcsár Kálmán emlékezése Egerr ől, katonai ügyész pályakezdésér ől, az akadémiai jogtudomány-művelésben révbe érkezésér ől ............. ……………167 Életrajz Hamza Gábor: Andrés Bello, a humanista gondolkodó és kodifikátor és a magánjog fejl ődése Chilében ........................................................................................................................................... 205 Bodnár, Zsolt 1 The interrelationships of segregation and its impact on crime Both the representatives of natural and social sciences proved that someone cannot make a difference between two different human beings based on their genes. In this study I will inspect hypotheses concluded in studies about gipsy crime which lack the modern criteria of a scientific work and tend to judge people’s behaviour on stereotypical characteristics. Throughout history it always has been a question what motifs incentivize people to commit crimes forbidden by the law. Are the causes that make people turn against their fellow companions to strip them of their possession or inflict severe harm on them social, biological or stem from some other sources? I will try to find an answer for the question that we are destined to stand either side of the prison bars from birth or a later phase of our life. In line with this question I will investigate if a segregated group, a nationality or minority can get into a trap of its biological inheritance or other factors, for example the Gipsy population who were stigmatized with the coined phrase of “Gipsy crime”. Since one of the most important tasks of the law is resolving conflicts, I think, this social conflict should be examined from a scientific perspective. Furthermore, we should explore the causes of this social tension to find and apply solutions. In the first part of my study I will investigate if we can prove that someone will break the social rules simply based on his appearance and genome. I think (my presumption) that free will dominates biological determination which can be constrained only by certain limited social conditions. When we are born nor our cells neither our appearance can refer to that that we should stand either or the other side of the law since free will enables us to live according to our decisions. Of course, these decisions can be confined by outer uncontrollable events. Related to this I will examine if my hypothesis is right or I have to throw it away. During the course of the 19 th century a lot of studies asserted that they find the answer for the question who would be criminals and who would be a threat to the society due to their physical- genetic inheritance. First let us review the result of Lombroso’s research, who is the founder of criminal anthropology. Lombroso stated that criminality was inherited; and he tried to prove this assertion by scientific research. He thought that criminals represented an evolutional reversion of primitive humans characterized by physical features reminiscent to apes due to their ancient genes and they cannot avoid their inherited destiny. They are savage by nature . They behave like lower primates, are not able to abide the laws; and so, committing crimes is nothing sort of a problem for them. These natural born criminals can be identified by certain physical stigmata. For example criminals have a nose hooked like an eagle’s beak, thick eyebrows growing together above the nose or ears of unusual size. 2 What was Lombroso’s profession and how did he come to this conclusion? He became an army surgeon in 1859. In 1868 he was appointed as a visiting lecturer at the University of Pavia and in 1871 he took charge of the insane asylum in Pesaro. 7 years later he became the professor of forensic medicine at the University of Turin. 3 So he had all the chance and opportunity to collect enough evidence for his theory. For this purpose he created a method described below: “He measured the skulls of the criminals. He used all the tools and equipments of anatomy and physiology to make measurements and observation in a very big quantity. And these scientific data 1 Széchenyi István Egyetem Állam-és Jogtudományi Doktori Iskola, Büntet ő Tudományok Tanszék, doktorandusz 2 Gould, Stephen Jay: Az elméricskélt Ember (The mismeasure of man). Typotex, Budapest, 1999, 133-134. o. 3 Cesare Lombroso. http://hu.wikipedia.org/wiki/Cesare_Lombroso (2012 . november 1.) 2 were completed with notes about the social and psychological life of the criminals. He collected all kinds of minor things related to the criminals including writings and drawings by them, even proverbs carved on the prison walls. He created his theory from this pile of material collected uncritically but with steady persistence.” 4 The conclusions referred above proved scientifically unfounded and his theory was confuted. In the following examples I will shed a light on some of the mistakes and defects of his theory. Mónika Mátay in her study drew the attention to some cases. Lombroso and his associates disposed some of their processed data where they did not underpin the pre-conceptualized theories and sorting out the ones proving their presumptions to support their theses. For example, it occurred that the brain size of some of the criminals was as big as some of the most excellent scientists’ or statesmen’s; or it turned out that some agents considered to be an inferior species had staggeringly big skulls. 5 It is severely unethical for scientists that when they create a hypothesis during their research they change the facts and data as they wish in order to make their theory seem to be more genuine contrarily to contributing to the progress of science with the publication of the real results and scientific conclusions even though they would have to rethink their original hypothesis and should formulate a new theory which can be completely contrary to the original one. Alfred Binet recognized the significance of prejudice in doing experiments. He realized during an experiment in which they were measuring the skulls of psychotic and insane people with one of his apprentice Simon that Simon’s results were much smaller verifying his hypothesis about the interconnection of the size of a skull and intelligence. Binet got different results and since he was annoyed because of the different results he measured all the underlying skulls again. It turned out that due to a miraculous contraction all the skulls became smaller by 3 centimetres except one. According to Bine this difference between his two measurements can be easily explained. At the first measurement he only focused on the precision of measuring, but at the second time he tried to adjust his results to Simon’s subconsciously. 6 Binet admitted it that at the second measurement he adjusted the measurement data to the preset results, so he pointed that out honestly, that it was possible that in order to get to the set goal the measurements might not reflect reality. 7 Lombroso had a very similar case. The police captain of Paris sent him some pictures of prostitutes to conduct a survey on them. Lombroso stated that prostitutes share some common physical characteristics, mental and inherited marks just like criminals which serve as an evidence for their profession. Later it turned out that by mistake the police commander sent another pack of photos of women who had asked for permission to open a business. However, Lombroso did not bother to rethink his theory with the help of data based on facts. So far I have pointed out some of the deficits of Lombroso’s theory. In addition I will rely on some empirical research to confute his theses. Charles Buckman Goring, who was the medical officer of various British prisons (e.g. Parhurst), ultimately concluded that Lombroso’s hypotheses are baseless. He conducted his research on a huge control group including 3000 criminal convicts, university students from Oxford and Cambridge, hospital patients and soldiers. Goring examined 96 characteristics
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