Boundaries Of The Penalty

Is there any dependable standard for the state to impose criminal penalties to punish some kinds of actions(criminalization) and to let some other kinds of actions not to be punished(decriminalization)? How to ensure the freedom of citizens not to be infringed unjustly because of this kind of imposition(overcriminalization)? How to define or identify the criminal punishableness of a behavior, i.e. where is the boundary or limit of the behavior that should be punished with criminal penalty?These are questions connect with the safeguard of boundaries or limits of the freedom and the indefeasible rights of citizens. Traditional criminal jurisprudence has not answer these questions satisfyingly so far and the dangerousness of overcriminalization has never disappeared. It should be the omission and the failure of criminal jurisprudence if these questions could not be answered scientifically.What sorts of couduct may the state rightly make criminal? Joel Feinberg, a towering figure of contemporary philosophy of America, touched the subject above with shch a question in 1980s. During 1984-1988, in his epic work, The Moral Limits of the Criminal Law, consisting of four volumes, Joel Feinberg, by rebuilding the harm principle of J. S. Mill energetically, set out four principles to ensure the moral legitimacy of criminalization: harm principle, offense principle, legal paternalism, and legal moralism. Feinberg believes in his books that these principle can ensure the legitimacy of the criminal law. These four principles, also called liberty-limiting principles, or coercion-legitimizing principles, are the moral limits of the criminal law.What is the concrete content of the theory of the moral limits of the criminal law? Can the theory of the moral limits define or identify the criminal punishableness of a behavior scientifically? If not, how on earth to define or identify the punishableness of a behavior scientifically? This dissertation will attempt to discuss these topics one by one.The main idea of The Moral Limits of the Criminal Law reads: The harm principle: it is always a good reason in support of penal legislation that it would probably be effective in preventing(eliminating, reducing) harm to persons other than the actor and there is probably no other means that is equally effective at no greater cost to other values; The offense principle: it is always a good reason in support of a prosed criminal prohibition that it is probably necessary to prevent serious offense to persons other than the actor and would probably be an effective means to that end if enacted. Legal paternalism: it means such a kind of view that is reasonable for the state to impose coercion to prevent harm(physical, psychological, or economic) to the actor himself with or without the consent of the actor; Legal moralism: it can be morally legitmate to prohibit conduct on the ground that it is inherently immoral even though it cause neither harm nor offense to the actor or to others. Actually, we can read these concepts in the general introduction of Volume One of The Moral Limits of the Criminal Law.It seems that research to the theory of the moral limits of the criminal law of Joel Feinberg has just start in the field of criminal jurisprudence, and in China, such researsh is even blank. It is not enough for the field of criminal jurisprudence to read The Moral Limits of the Criminal Law just as a text book of criminal law. The only way to grasp the advantages and disadvantages of the theory of the moral limits is to read the books as philosophy works, as works of the philosophy and method of criminal law, as jurisprudence of criminal law; and read Feinberg not only as an author of a criminal law book, but also as a philosopher. Feinberg says in his book that he is a normative liberalist(contrasted with radical liberalist), so the so-called normative liberalism position is the key to understand the theory of the moral limits of the criminal law of Joel Feinberg.Since liberalism is thought to be the terminator of traditional morality, why Feinberg, a liberalist, chooses moral legitimacy as a breakthrough of his theory on the limits of criminalization? We can't help asking such a question.Essentially, law and morality are impartible, and law is the lowest morality. The essence of morality is human nature. The law, including the criminal law, is made for human, so the law is an embodiment of human nature, and must be in accord with human nature. Human nature, the essential characterestics with which human knows from other things, includes two aspects. On the one hand, the need of human is boundless forever, on the other hand, each need can never be fulfiled without the support, or at least, the tolerance, of others. The law can only prohibit the conducts fulfilling the actors need by means which is intolerable to other persons. If this limit once be broken, the legal prohibition will be conflictive with human nature and will not be morally legitmate any more.Legitimacy has been a hot topic of political science ever since Max Weber. People have different understandings of what legitimacy means according to different academic paths. Jurgen Habermas analysed the shortcomings of traditional opinions on legitimacy, and pointed out that legitimacy is a kind of value universally recognized in certain political system. Habermas also built a platform for communication to find out such universally recognized value—some liberalism concepts such as human rights, personal autonomy, and so on. So it is the right way for Feinberg, a normative liberalist, to seek for the moral legitimacy of the power imposed by the state by means of the criminal law so that keep the indefeasible rights of man free from wilfully violation of the state.So far as the criminal jurisprudence of civil law tradition, the advantages of the theory of the moral limits are as follows: Firstly, the set out of the proposition of moral legitimacy has already surpassed other theories on criminalization; Secondly, the endeavors of surveying the moral legitimacy with the position and morality of nomative liberalism as the moral standard accord with the time and tide that liberalism has been the mainstream in the western countries; Thirdly, the theory has not only set out the proposition of moral legitimacy, but also put forward material coercion-legitimizing principles, and defined the principles of ensuring the legitimacy of criminalization; Fourthly, the theory has also brought forward the ways and means of carrying out these principles——to hand the right of judgement to the jury and let the jury give a verdict according to their life experience. This is actually the most reasonable standard of judging the punishableness of a behavior. As to the criminal jurisprudence of the Anglo-American legal system, the theory of moral limits of Joel Feinberg has also surpassed those theories of criminalization based on the harm principle of J. S. Mill so that it is possible to save the "collapsed harm principle".The disadvantages of the theory of the moral limits are as follows: Firstly, the theory neither tell us that why criminal legislation must be morally legitimate nor tell us the relations between morality, law, and human nature; nor the relations between citizen and the state, citizen and the criminal law in modem society. This will inevitably lead to the vagueness of the theory. Secondly, the theory does not analyze why the judgement of the jury is so dependable that it can be the judging standard of punishableness, neglects the soul of the Anglo-American law, so it is impossible to unveil the relations between the jury, the law, human nature, and morality; Finally, the theory stresses that the principles of moral legitimacy are only the necessary conditions of criminalization, not the sufficiency conditions. This put the theory into a dilemma. The reason is that Feinberg's theory of moral legitimacy does not unveil the real legitimate boundary or limit of criminalization, so could not really unveil the culpablity of conducts. There is space for improvement for Feinberg's theory of moral legitimacy.Need is the motivity of every human behavior. On the one hand, the need(desire) of human is boundless forever, on the other hand, each need can never be fulfiled without the support, or at least, the tolerance of others. The contact of extremes(the interaction of contraditions) of the infinity of need and the finity of the means of fulfilment of need results in crimes and the criminal law. So the origin of crimes and punishments is humane nature.A crime, thus we can say, is a kind of conducts fulfilling the actors need by means which is intolerable to other persons of the society. To fulfil need is human, but not to fulfil need by means which is intolerable to other persons is also human. In fact, the means which is intolerable to other persons of the society is the very means of fulfiling the need of the actor by violating the indefeasible rights of man of the whole society. It is such a means that no instrument, including legal instrument can regulate it so that criminal penalties must be imposed, otherwise the social order would collapse, and human kind would either not be able to survive or degenerate into animals——it is of course unacceptable to all the social members including the criminal himself. So the state has to impose criminal penalties to maintain social order by depriving or restricing the indefeasible rights of the criminal. This is the Necessity Principle of criminal law. What the criminal law does is to protect the indefeasible rights of every people, including the criminal himself, of the society, and this is in accordance with the purpose of modern country.Since a crime is the behavior that deprives and violates the indefeasible rights of other persons of the society, and the criminal penalty is the punishment that deprives the indefeasible rights of a person too, it is a very thing that relates to the indefeasible rights of each person for criminalization and the impose of criminal penalties to be just or not, and it is obviously necessary to set up a standard for the judgement of punishableness. A crime is the behavior that fulfils the need of the actor himself by the means that is intolerable to ordinary people of the society, so it is ordinary people themselves that know well whether to be intolerable or not. Radically speaking, the very subject of judging whether a conduct is of punishableness or not should be the ordinary people, or ordinary citizens of society. If only law is the embodiment of the will of people, the very subject of the said judgement should be the ordinary people. It has surpassed all the theories on the boundaries or limits of criminal penalty, including the theory of Feinberg's moral limits of the criminal law to set up the position that ordinary people is the subject of judgement. Now that the judgement is made by ordinary people, the standard of judgement can but be the basic ethics, basic arguments on right and wrong, good and evil, or the common, general, and permanent values or conscience of people. That is "common sense, common reason, and common human(?)ity".How do ordinary people express their judgement of whether a conduct is of punishableness or not under their common sense, common reason, and common human(?)ity? The answer is to do that through legislation, judicature and education. As to legislation, ordinary people can express their volition by means of referendum, adequately discussion, the institution of people's representatives(e.g. National People's Congress and the local People's Congress), constitutional court, or judicial review; As to judicature, Volition of ordinary people can be expressed by means of perfecting the institution of jury and cultivating the conscience of judicial officiers; Finally, the most important means is to build up the idea that looks upon common sense, common reason, and common human ity as standpoint and methodology of rule of law and legal education.To be intolerable to ordinary people, as for the point of value, means violating common sense, common reason, and common human(?)ity, violating the indefeasible rights of all people of the society; as for the point of instrument, means that it is such a thing that no instrument, including legal instrument can regulate it so that criminal penalties must be imposed, otherwise the related legal institutions would fail and the social order would collapse. So the combination of these two aspects means just the punishableness of a conduct, that is the boundries or limits of criminal penalties. Every human behavior which satisfys these two conditions is of punishableness. Had the state not done his best to protect the indefeasible rights of all the people but the actor if no penalty imposed to such a behavior, and that should be a breach of duty or an omission of the state. So it is time to criminalization; On the other hand, every human behavior which does not satisfy these two conditions is of no punishableness. To make such a behavior criminal is in fact overcriminalization, is actually violation of the indefeasible rights of citizens and violation of human nature. So it should be immroal, illegitimate, and should be decriminalized. This judgement comes from human nature, relys on the standard of common sense, common reason, and common human(?)ity, and aims at the need of society, the need of the state, i. e. the need of man, and the development of man. So far all the theories of the limits of criminal penalties including Feinberg's theory of the moral limits of the criminal law have not unveiled the human nature base of punishableness, not realized that crimes and criminal penalties are determined by the contact of extremes of the two aspects of human nature, not found out the essential root of crimes and criminal penalties, therefore not been able to unveil the real limits of the criminal law. These are their common shortcomings. The standard of judging whether a conduct is of punishableness or not set out in this dissertation has in fact surpassed Feinberg's theory of the moral limits of the criminal law and all the theories of the limits of criminal penalties through unveil the real connotation of punishableness from the dimensions of value and instrument. Human nature is the base or root of all modem jurisprudence, all modem legal systems, all modern constitutional administrations, and all legal communications and legal transplants between different countries and different baekgrounds of culture. This conclusion is the real moral limits of the criminal law, the real limits of criminal penalties.Proceeding from the essence of human nature, we can make a harmonious and consistent interpretation to the general introduction of criminal jurisprudence such as the aim, basic principles, and interpretation theories of the criminal law; the theories of the constitutions of crimes such as the essentials of the elements of the constitutions of crimes, culpability(schuld), legal defense, necessity, reasonableness(zumubarkeit), consent, permitted dangerousness(erlaubtes Risiko), actio libera in causa and so on; and the theories of punishments such as the necessity, aim, humanism, and permanence of criminal penalties, the inevitability of death penalty, and the deservedness of the abolishment of death penalty.Resumptively, the contributions of this disseration are as follows:1.The paper introduces Feinberg's theory of the moral limits of the criminal law entirely and firstly to Chinese mainland after a systemtic research.2.The paper unveils the common shortcomings of all the theories on the essence of crimes so far, constructs the concrete content of punishableness, and redefines or identifies the limits of criminal penalties: To be intolerable to ordinary people, as for the point of value, means violating common sense, common reason, and common human (?)ity, violating the indefeasible rights of all people of the society; as for the point of instrument, means that it is such a thing that no instrument including legal instrument can regulate it so that criminal penalties must be imposed, otherwise the related legal institutions would fail and the social order would collapse. As regards intolerable or not, the very subject of judgement can but be ordinary people, or ordinary citizens; and the standard of judgement can but be the common, general, and permanent values or conscience universally recongnized by ordinary people. That is "common sense, common reason, and common human: (?)ity". This provides a basis for the judgement of punishableness, and an unambiguous standard for criminalization and decriminalization, makes the legislation of criminalization and decriminalization done as one likes no longer, and provides value-oriented and instrumental guarantee. These are theortic bases of preventing abusing legislation right and protecting human rights maximumly.3.This paper, according to the new definition of the material content of punishableness, redefines the essence of a crime: a crime is the fulfilment of the need of the actor by the means which is intolerable to other persons, i. e. the means that violates the indefeasible rights of all the people. The paper thereby re-interpretates the criminal jurisprudence entirely and finds out a red line to unite the three parts----the general introduction, the theories of the constitutions of crimes, and the theories of punishments, which are arranged by rote----of the criminal jurisprudence harmoniusly and consistently.4.This paper applicates a new methodology----a new theory on human nature and rule of law. Contrasted with the methodologies applicated in the past, this paper transforms the standard of judgement of punishableness from those ones such as society, legal good, norm, duty and so on to human, the feeling of human. It is simpler, easier for application and harder to make mistakes.Because materials I have collected on Feinberg's theory are quite inadequate and I am not so good at English, it may be a question that whether this paper has grasped exactly the spirit of Feinberg's theory of the moral limits of the criminal law. Furthermore, Feinberg's context is the Anglo-American law, especially American criminal law, and there is great differences between the culture of China and America, so it is quite a problem that how to compare the theories come into being from different context. Besides, it may effect the strictness of reasoning of the paper since I have not mastered the new methodology freely.