On the foundation of criminal law and the philosophy of
Created:
/Author:
Aaron Lewis
The research of criminal law this proposition was on and I wouldn't have the very deep feeling, because to understand this question, not only we have a detached sentiment for the criminal law concept, but we need to have more abundant life experience.The criminal law is such a broad and profound social science, it is not only covers the subject itself, is more important with the development of the criminal law society society constantly and other disciplines are intertwined and continue to enrich their own.It has legal positivism as example, no, more precise to positivism criminal law as an example, it is not difficult to see that the psychology, natural science, relations between medicine and many other disciplines and criminal law.So we can be sure, the criminal law of our science is in constant development.
The criminal law is the prospect of unlimited development, for the criminal law science foundation or to find by hard and thorough search is what?In the article, I have been in the initial description of the problem, only my personal ability is not discussing this problem, so for one of my problems, or more in the quoted professor Nishihara Haruo a lot of ideas, but this is not all, but a part of, because my ability is limited, and there are some I don't quite agree with that view just quoted some of its ideas.
We find by hard and thorough search of criminal law, what it is, its a bit like we dial the onion skin, layer by layer stripped of its shell.From the first level, the science of criminal law is a legal method, then, the law represents the interests of the ruling class, so from the first level, our criminal law too much will be governed by the will of the ruling class, it reflects the will of the ruling class.At the same time, I will press for the criminal law effect, the voice of the people for the criminal law effect are summarized as the first level.The second level, the national victim instead of revenge, in the primitive society, behoove acts of revenge, revenge behavior as a kind of private relief, maintenance of a tribal interests.But in modern society, why our country to replace the victim revenge instead of fulfilling its criminal right.One of the reasons: our society needs the social public order and stability, assumptions allow private revenge, social stability is destroyed, thereby affecting the rule and the management of the ruling class.Second: the national victim instead of revenge the interests of more prominent: first.The victim will cut its anger, again: for the offender to its corresponding punishment to the crime prevention, thereby stabilizing the society.Third: the concept of the natural law to pursue, is China's criminal law as an example, equality before the criminal law, the principle of equality is the extension of the natural law.In the criminal formation process, our lawmakers in the constant pursuit of the idea of natural law, the final hope it would be successful, of course, this is just an ideal.If we realize our natural law philosophy, you value pursuit may also die.
A level of the criminal law, the final solutions.Human desire.This desire is reflected in our politics, our economy, the economic base determines the superstructure, the human desire as its fundamental goal, and are reflected in the criminal law.This desire can be positive or negative, negative desire may lead to many illegal behavior, in order to suppress the better able to live our this negative desires, we need laws.People are greedy, see others, may have a negative desire, the desire to become a driving force, or is a kind of crime motive leads to crime.Then the various negative greed unchecked, the interests of the victim by the how to do?Then the positive desire can reflect the positive use of legislators in the legislation, how, how to make up for the loopholes in the law, these positive desire is also the basic elements of criminal law have.
Many scholars, what problems would be attributed to philosophical problems, the author also often willing to use this mode of thinking to think.But I have never had a clear answer to solve the basic problem of criminal law, perhaps my idea itself is wrong, or no meaning, but still hope that the wise advice.Too much analysis really can not thoroughly explored, perhaps one day in ten years or twenty years, see the topic again, there will be more of their own unique perspectives.