Rethink the basic idea of preventive criminal law

ABSTRACT

Law is expected to shoulder the two-dimension values of meaning and function, and neither should be neglected. Witnessing the great changes and transformations taking place in the present society, this article attempts to explore how the doctrinal system of criminal law should respond to the propositions raised by the society and balance the two-dimension values of meaning and function. A reasonable doctrinal system should be able to not only improve its responsiveness to the external surroundings, but also maintain its autonomy itself. The basic idea of criminal law is a meta-theory which determines the direction of how to construct the doctrinal system of criminal law. From the perspective of the relationship between the dimension of function and the dimension of meaning of law, the basic ideas and its corresponding doctrinal systems of criminal law can be categorized as three schemes: the classical scheme (or autonomous scheme), the responsive scheme and the reflexive-functionalist scheme. This article put forwards the reflexive-functionalist scheme, and advocates an introduction of constitutional review in a substantive level, so as to achieve a balance between the two-dimension values of meaning and function in constructing the doctrinal system of criminal law.

KEYWORDS:

• Preventative criminal law
• reflexive law
• meaning and function of law
• constitutional review

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See Nan Lu, ‘Scientific and Technological Revolution, Philosophy of Law and the Post-Human Situation’ (2018) 2 China Law Review 102.

2 ibid.

3 See Dongyan Lao, ‘The Debate between the Formalistic Theory and the Substantialized Theory in the Interpretation of Criminal Law’ (2013) 3 China Journal of Law 122.

4 See Yushuang Zheng, ‘The Contribution of Jurisprudence to Criminal Law Theory: From the Perspective of the idea of Criminal Law’ (2018) 3 China Law Review 98–9.

5 Victor Mayer-Schönberger and Kenneth Cukier, Big Data: A Revolution that Will Transform How we Live, Work, and Think (Sheng Yangyan and Zhou Tao trs, Zhejiang People's Publishing Society 2013) 18.

6 Hongjun Gao and Xiaoli Zhao (eds), The New History of Western Legal Thoughts (Modern and Contemporary Parts, Tsinghua University Press 2015) 16.

7 See Léon Duguit, The Changes of Public Law (Ge Zheng and Jing Leng trs, Liaohai Publishing House & Chunfeng Literature and Art Publishing House 1999).

8 Bingwan Xiong, ‘Form and Function of the Law: Taking Fake Products cases as an Example of Analysis’ (2017) 2 Peking University Law Journal 320–21.

9 See Gao (n 6); Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Hu Chen and Jie Yang trs, Peking University Press 2016).

10 See Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Hu Chen and Jie Yang trs, Peking University Press 2016).

11 See Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law & Society Review 239–86.

12 See Donald Dworkin, Taking Rights Seriously (Harvard University Press 1977); Donald Dworkin, Law’s Empire (Harvard University Press 1986); Hongjun Gao, ‘An Analysis of Dworkin’s legal Theory’ (2015)2 Tsinghua Law Journal 96–138.

13 Roger B. M. Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Xiaoyu Zhang tr, Peking University Press 2013).

14 See Konrad Hese, Outline of the Federal Republic of Germany’s Constitution (Hui Li tr, Commercial Press 2007).

15 See Markus Dirk Dubber, ‘Positive General Prevention and the Theory of Legal-Goods’ (2007) 21 Criminal Law Review 457–58.