On The Rational Interpretation Of The Criminal Law

Rationality is the core issue of law. Historically, the repeatedly occurred Antigone-style criminal tragedy has launched the conflict between the legitimacy and the rationality.Recently, some people's distrust to the administration of justice is gradually generalized into a universal socio-psychological, which is a terrible phenomenon.This literature, on the rationality of the criminal law interpretation, is just aimed at the reconciliation to the conflict and the tragedy, the solution to the crises in the criminal justice and the fundamental way to expand the identity and enhance the credibility to the interpretation.The dialectical process, of the criminal law interpretation requests for the rationality, during which lie the dialectical relationships between the subject and the object, the objects, the legislator and the interpreter, the interpretative community and social community and so on, that are invigorated by the dialectical movement no doubt push forward by the experience and value as the "pre-understanding". The infiltration of the experience and the value highlights the creativity and will slide into nothingness once there is no rational boundary which is the community's common experiences and common values, just as the basic consensus of the members of the community. The pre-understanding, whether rational or irrational, is determined by the individual or interpreter's personal experience that is whether consistent with the whole or the common experience and shared values. The whole interpretative process of the criminal law, under the guidance of the pre-understanding, consisting of the interpretative cycle, the docking between the norms and the facts, the fusion of the horizons between the legislator and the interpreter, is soaked into by the dialectics of the interpretative cycle, of the experiences, of you-â… relationship, of the dialogue and etc, the essence or the boundary of which is to achieve rational conclusions.The dialogue and the fusion of horizons between the legislator and the interpreter mean that only the common experience and values promote the interpretative cycle as the legislator or interpreter's monologue is not to be tolerated and that a rational standard is actually put forward. Based on the rationalism, the traditional hermeneutics, the separation of powers and the formal principle of legality, "subjective theory", using legislative intent as the standard, not only does not match to the dialectical interpretative process, but also may lead to the rule of man or even despotic consequences once alienated to unrestrained judicial intent as there is no specific legislative intent nor accurately grasp. The meaning of the text or the original intent of the text as the reasonable criterion of "The text intent theory" of "the objective theory", interacts with the "legislators will" at the same strain. In this sense, the "text intent theory" and "subjective to theory" based on the same philosophy, hermeneutics, political science and criminal law theory, have no real difference and face the same dilemma. Therefore, the "objectivity" that consists in the "objective theory", is rather the objective needs of social reality than the objectivity of legal text. This can be called the "objective theory of social needs" that advocates the creative interpretation of the criminal law according to the needs of society and should be fully affirmed on account of the easement of the value tension to a certain extent.. The theory, resorts to the meaning chosen and expounded in line with the needs permitted by the text on how to prevent the arbitrary interpretation. The extent to which the meaning is permitted by the text, as the predictable criteria, the learner proposes, depends on whether it deviates from the common sense of ordinary citizens that is favored by this literature. But society needs are just a part of common experiences and shared values, and the penetration of the common sense into the interpretative process is have not yet resolved by the commentators. Thus, only by placing the needs of society within the dialectical cycle between the shared experiences and values, including the common-sense, instead of artificially separating them, can the rational interpretation be acquired. The eclectic theory, whether the objective compromised in the subjective or vice versa, is just made up, rather than organic unity, therefore cannot be refrained from the common defects laid in the subjective and objective theory that are their divorce from the interpretative process. In abandonment of the subjective, the objective and the eclectic theory, this literature, according to the latest developments in the philosophical hermeneutics, raises the "consensus theory" in the light of the dialogue feature of the interpretative process. Thanks to the dialogue happened not only between the legislator and the interpreter but also between the interpreter and the general citizens, the consensus as the basis for the dialogue, derives from both the legal community and the social community's experiences and values. Habermas'ideal scenario dialogue cannot bring about a consensus with contents, so only the common experience and shared values are the substantive basis for the consensus. The common experience and shared values, in a word, are common sense, common reason, and common humanity that are the most universal way to the grasp of the world and the human itself. A person lack of common sense, common reason and common humanity cannot survive normally. Common sense, common reason and common humanity, coming from, conforming with and applied in experiences, take shape of the world as the one of experiences. During making use of the common experiences, we gradually understand the common, reasonable and sensible "truth" embodied by them. Why do the common sense, common reason and common humanity must be followed as a minimum consensus by the law interpretation? Because the legal relationship is essentially a relationship between the people and the general people can only take their actions in accordance with common sense, common reason and common humanity due to not understanding the specific provisions of the law. As to criminal interpretation, the criminal law norms as referee specification is in uniform with the human behavior standards, while the human behavior standards in turn stem from the actually followed standards, common sense, common reason and common humanity in which lies the fundamental criteria of the rational interpretation. Not only to "justice" as the primary value of the social system, but to "nature of things" as the synthesizer of the specific natural law, the determined baseline of which is the consistent experience and value. Thus, common sense, common reason and common humanity are easier to be understood and operated. Applying the common sense, common reason and common humanity in the interpretation of the criminal law is to define the characters and expound the rules with principium, in essence, to take the necessity of punishment and the balance between crime and punishment into account, by any means not to interpret the provisions too literally.The essence of criminal law interpretation consists in the unity of understanding, interpretation and application, so the standard of rationality must be put into use to solve practical problems. In other words, the common experience and shared values or the common sense, common reason and common humanity must be converted to the criminal law discourse into the "professional slot", otherwise we will scratch an itch from outside our boots and tell our own stories forever that do not contribute to the solution of problems. As criminal law interpretation, from a certain position or point of view, based on the criminal law regulations, is to ascertain the conduct truly worthy of punishment and the appropriate penalty without violating the premise of the human rights of the prisoners, the rational interpretation, can be divided into rationality of the range and the degree of the punishment. As to the former, we must first establish a "last resort" philosophy to the criminal law, technically speaking judged, by the criteria as follow:(1) Other legal systems can not adjust the conduct; (2) if the criminal law does not adjust or intervene it, the corresponding legal system will be confronted with a fundamental threat. The value standard of which is the common sense, common reason and common humanity due to the criminal acts on contrary to them generally acknowledged by all the community members. The technical standard must be unified with the values. In judicial practice, China and the foreign countries on the one hand interpret the constitution of the crime substantially, the other hand, establish a mechanism to exclude crimes to achieve the reasonable scope of the punishment. The ultimate standard of the real explanation and the excluding mechanism is only the common sense, common reason and common humanity. The reasonableness of the scope of criminal penalty can be achieved only by being integrated into the process of conviction that is not the syllogism purely from the standard to the facts, but is the analogy and circulation promoted by the "justification" contained in the common sense, common reason and common humanity. As to the latter, the cruel, non-balanced sentences are .prohibited and the punishment must be suited to the crime. Since the crime and the punishment are products of historical development, the balance between them is determined historically by general human values also the common sense, common reason and common humanity in specific times, places, fields, but must not be constructed abstractly and hollowly broken away from the specific historical conditions. This is from a value point of view. In technical sense, the punishment is adapted to the objective danger, the offender's subjective malignant and the social risk that are unified into the subjective malignant. Can the principle of punishment suiting to the crime be realized only through specific methods and sentencing process which is also the cycle and analogy between the rules and the facts driven by the pre-understanding, thus excluding the experience and values, or the common sense, common reason and common humanity will be nothing but fruitless that implies the empirical method has always been a major sentencing approach and the quantitative method in a supportive position. As the criminal process is the actualization of subjective culpability, conviction and sentencing is to identify the presence or absence, the content and the extent of subjective guilt, therefore, from the normative and technical point of view, to realize rationality of the scope and the degree of criminal penalties, the subjective culpability should be cut into and broken through. To presume both the awareness state such as the understanding of the nature and the results of their actions, of the development process and the control state, you should follow the "ordinary person", adhere to the common sense, common reason and common humanity and deal with the perpetrator belonging to ordinary people in the field of parallel evaluation. Presumption of guilt beyond reasonable doubt are required, the criterion of which is also the common sense, common reason and common humanity! Finally, the reasonableness of the degree and the range of punishment, and the legitimacy are inextricably linked. Owing to the unfolding of sin as not only subjective psychological facts, but also normative values, it is also complementary to legitimacy. Legitimacy has two dimensions of form and substance. Formally speaking, the legitimacy refers to "legality"; in essence, the legitimacy is equal to rationality or reasonableness. The two dimensions determine the two aspects, formal and substantive, of the principle of a legally prescribed punishment for a specified crime. The former, as the technical requirements, aims at achieving clarity and certainty meanwhile the latter claims the reasonable contents for only the formality of crime and punishment is not enough. To sum up, as rationality is the substance and content of the legality, they should be an organic unity. In value, only reasonable interpretation is legal; in the actual process, you should employ the principium to interpret and rules to explain; on the subject and object, there is nothing but people that do not understand the principium just as there are no laws that are unreasonable and irrational.Reasonable interpretation of the criminal law must be analyzed and demonstrated with specific methods meanwhile the analysis and the demonstration can be recognized and accepted by the social community and they are in line with the most fundamental consensus-common experience and common values-the common sense, common reason and common humanity. The reasonable range and degree of punishment, the judgment of subjective guilt are carried on through the cycle between norms and facts. In the circulation process, criminal law norms and the facts of the case are mutually adjusted, assimilated and compared with each other. This "equivalence" between the stipulation and the fact means that the criminal law interpretation is fundamentally the comparison and analogy and analogy is the fundamental process of criminal law interpretation. The other methods have analogical characters and can operate only by analogical program. If so, it is impossible to prohibit the analogy in that prohibition of analogy amounts to prohibition of the interpretation and the criminal law themselves. Analogy, as the combination of subjectivity and objectivity, of certainty and uncertainty, manifests itself formally between the criminal provisions and the facts, normatively between the subjective sins, and in value between the legal principle and the common sense, common reason and common humanity. The process of analogy represents the interpretation process of criminal law. As a result, Reasonable interpretation of the criminal law, guided by the common experiences and values or the common sense, common reason and common humanity, is essentially the judiciary identification of the content and degree of subjective guilt. It is the last resort option against the human rights between the perpetrator and all citizens. The common experiences and values or the common sense, common reason and common humanity originating from people, to realize a reasonable punishment by subjective guilt as normative standard being out of respect for the people and the last resort option between the perpetrator and all citizens being in order to protect people, "People" are active in the whole process of the criminal law interpretation. Through this process, a new concept of the criminal law interpretation, one from the people, out of respect for the people, in the protection of the people can still be seen, which is tentatively called as "people-oriented" interpretation concept or interpretation concept based on common sense, common reason and common humanity, subjective guilt, human rights, human nature and even conscience that are concordant and interconnected. From a historical point of view, the construction of the new concept interpretation is inspired by the Greek tragedy "Antigone" that brings to light that once the criminal law is in conflict with the common feeling and carried out absolutely, it will cause more punishment and encounter the common people's objection, not only bringing the party concerned and others miseries, pains and sufferings, also resulting in disasters for the state. The operation of the criminal law is not only the operation of the rules, but also of the common sense, common reason and common humanity, so it is realistic choice for us to draw upon our conscience to communicate the criminal law with common sense, common reason and common humanity. Only in this way, can the real freedom be acquired. The tragedy, in this sense, may also be read as the tragedy of the criminal law. The aesthetic merits that lie in the tragedy of the criminal law are the permanent brilliance of human nature, revelation of life's purport and contradiction and the answer to the metaphysical problem, "what is the criminal law". "Antigone" is a mirror through which can be reflected the expectations of the "people-oriented" harmonious society to the rationality of the criminal law interpretation as follow, (1) protecting the basic human rights of all citizens including the perpetrators (the rationality of purpose); (2) injecting into the form of the law the living soul with the recognized and accepted "rationale" by the community (rationality of value) and (3) adhering to the principle of culpability and utilizing its content and the degree of realization as foundations in conviction and sentencing(rationality of specification).The rationality of the purpose, the value and the specification, are all based on the people, for people, thence there is no sharp line between them. In view of the historical revelation and the real expectations, the "people-oriented" new concept interpretation requires in judicial practice:(1) the interaction of the judicial elite and the community; (2) the unification of the social effects and the legal effects; (3) the combination of the business education and the conscience education.