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Abstract
As a product of scientism and rationalism, the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions. In practice, therefore, it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments. Even though it has been constantly challenged, the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modern rule of law. First, the principle of de lege lata is being questioned by theories of substantive law, and sources not in the form of law have become the de facto basis of criminal punishment. For this reason, it is necessary to reaffirm the nature of de lege lata as an exclusive source of law. Second, although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically, one should not therefore reject the possible boundary of this meaning. The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified. Finally, the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity, and a two-tier system of legislative and judicial clarity should be developed. Here, the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions, and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific, bringing it ever closer to specific and particular case facts, and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.
Notes
1 See the Criminal Judgment of Sichuan Higher People’s Court (2012) C.X.Z.Z. No. 840.
2 See the Criminal Judgment of the Yongren County People’s Court, Yunnan Province (2000) Y.X.C.Z. No. 61.
3 These include the Circular on Managing Paintball Guns as Firearms (G.Z. [2002] No. 82); the Approval Document on the Identification of Imitation Guns That Are Powered by Gas, etc. to Fire Metal Pellets or Other Substances (G.F.Z. [2006] No. 5); the Approval Document on Issues Related to the Management of Blanks (G.F.Z, [2011] No. 3); and the Judgment of the Court Scientific Appraisal of the Lethality of Firearms (GA/T 718-2007).
4 Hu Yan, “Judicial Interpretation: Its Past and Present State.”
5 See Robert S. Summers, Lon L. Fuller, p. 24.
6 Zhang Xiang, “Formal Rule of Law and Legal Dogmatics.”
7 Karl Engisch, Einführung in das juristische Denken (Introduction to Legal Thinking), p. 47.
8 Robert Alexy, Recht, Vernunft, Diskurs: Studien zur Rechtsphilosophie (Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy), p. 216.
9 China’s 1979 Criminal Law allowed the application of analogy, but the 1997 Criminal Law replaced the application of analogy with the legal principle of crime and punishment, reflecting the progress of the criminal rule of law.
10 See Claus Roxin, Strafrecht. Allgemeiner Teil I (German Criminal Law General Part: I), p. 89.
11 See Timothy A.O. Endicott, Vagueness in Law, p. 232.
12 See Ludwig Wittgenstein, Philosophical Investigations, pp. 39-40.
13 Ulfrid Neumann, Juristische Argumentationslehre (Legal Argumentation), p. 58.
14 Jerzy Stelmach and Bartosz Brozek, Methods of Legal Reasoning, p. 179.
15 Leonard Bloomfield, Language, p. 229.
16 See Jiang Yi, “Context and Meaning.”
17 See Andrei Marmor, Philosophy of Law, p. 161.
18 Ernst A. Kramer, Juristische Methodenlehre (Legal Methodology), p. 290.
19 The case goes like this: the purchase of fish oil was subject to inspection under New York law at the time, and the defendant in the case, Samuel Judd, was fined for purchasing three barrels of whale oil and avoiding the inspection. Judd refused to pay the fine and was sued by Maurice. At the time, the scientific community had just confirmed that whales were mammals and not fish for scientific classification purposes. See D. Graham Burnett, Trying Leviathan, pp. 4-8.
20 Maurice v. Judd (New York 1818).
21 Karl Engisch, Einführung in das juristische Denken (Introduction to Legal Thinking), p. 117.
22 Lothar Kuhlen, “The Legal Principle of Crime and Punishment and German Practice,” p. 124.
23 Zhang Mingkai, “The Implementation of the Principle of Clarity in Criminal Justice.”
24 Timothy A.O. Endicott, Vagueness in Law, p. 255.
25 Claus Roxin, Strafrecht. Allgemeiner Teil I (German Criminal Law General Part: I), p. 102.
26 Günther Jakobs, Handlung Schuld Strafrecht: Funktionale Deutung (Action Guilt Criminal Law: Functional Interpretation), p. 118.
27 Robert Alexy, Theorie der juristischen Argumentation: Die Theorie des rationalen Diskursesals Theorie der juristischen Begründung (A Theory of Legal Argumentation: The Theory of Rational Discourse as a Theory of Legal Justification), p. 204.
28 Ding Jianfeng, “The Problem of Vagueness in Legislative Language.”
29 Hwai-Tzong Lee, Legal Methodology, pp. 172-173.
30 Robert Alexy, Recht, Vernunft, Diskurs: Studien zur Rechtsphilosophie (Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy), pp. 6-7.
31 Aulis Aarnio, Robert Alexy and Aleksander Peczenik, The Foundation of Legal Reasoning, p. 56.