The Principle Of Legality In The View Of Human Rights

The principle of legality, with more than 200 years development, is the principle of rule of law formed in the field of criminal law by the call of the classical human rights theory. It is concerned about the implement scope of the State’s punitive power and the freedom margin of citizens. It is likely to interpret the principle of legality mechanically, partially and dogmatically if people are used to taking the conclusive opinions directly, forgetting its more ample background information and prerequisites, neglecting to probe into its development track in the past two centuries, paying no attention to focusing on the system design which supported this principle to exert the beneficial function. If the legislative and judicial activities are guided by such principle formed in this way, it is certain that it cannot produce the guarantee effect of human rights as we have been expecting.This dissertation intends to find out the authentic and accurate understanding thoroughly about the principle of legality, with an effort to restore its original meaning against the complete and all-side historical background by changing the research methods of "breaking apart the history" and "taking the conclusion only" which are applied in the field of criminal law. The principle of legality would be placed in the tremendous historical background of human rights evolvement, with the broad view to survey its development features in the past two centuries, and conclude the merits and wrongs in the process of realizing the objective of human rights guarantee. Based on above materials, this dissertation continues to clarify theoretically those so-called "common knowledge" and "general theory" concerned with this principle in the field of criminal law, and analyze and explain the relationship between the principle of legality and those vital categories in the field of criminal law theory in our country. It also demonstrates and pictures how to realize the predicted value of human rights guarantee from the perspective of notion safeguard, legislative and judicial systems respectively.This dissertation is composed of 5 chapters. The first chapter is the introduction part in which the issue to be discussed in this paper is raised by presenting the wavy track like "N" that the principle of legality experienced in its historical development and the sharp contrast between the ideal and reality it encountered in our country. Based on the demonstration, it defines the scope of the principle of legality, introduces the integrated thoughts and structure, and illustrates the present theories related to this principle in a comprehensive way in the end of this part.The second chapter is a panoramic description of its birth and development of the principle of legality, which points out that this principle is the principle of rule of law formed in the field of criminal law by the call of the classical human rights theory. Because of the route that the human rights theory had experienced in the history, it has followed the same track of "Two ups and One down", like the letter "N". At the very beginning of its birth, which pursued the certainty of the law as the only means to guarantee the human rights, the principle of legality concealed the dangerous weakness that had not enough strength to cushion against the "legislation tyranny" because it was based on the reason constructivism, the positivism of state law and the principle of strict separation of powers, which is related to philosophy, legalism and politics respectively. That this principle could keep along together with the evil law containing crimes during the Nazi period and even degraded as the tool for the tyranny is due to the uproar of evolutionary theory of human rights, which caused the joint outbreak of the two sides and the hiding dangers of the principle of legality. After the World War II, with the restoration of natural law and the establishment of prevailing human rights theory, rule of law has become the fundamental rule of human rights, which is on the ethical basis showing respect for human nature, hence, the principle of legality has been admitted and stressed many times in the international human rights conventions and human rights documents. In order not to repeat the same history tragedy, the Europeans countries in succession made the rigid constitutions, focusing on the protection of the basic human rights, created the different judicial review systems of constitution, and expanded the courts rights to interpret the law by publishing and citing the judicial precedents so that the method that the same case gets the same judgment has been sustained by the ordinary courts. All these means effectively surmounted the inner limit that the principle of legality cannot prevent the evil legislation. Hence, it obtained the new life.The research in this chapter lays the foundation for the following analysis as it clears up those misunderstandings in theory formed by people’s strong expectation for the principle of legality.The third chapter of this dissertation mainly deals with distinguishing the relationship between the principle of legality and the due process of law. This part advances the complete different view aimed at those general ideas:that the criminal law field holds the view that article 39 of the Magna Charta(1215) in Britain was the earliest origin of thought of this principle of legality, that this principle in the civil law system is the mode of the due process of law in the common law system, that this principle not only has the aspect in the form but has the aspect in substance. It goes on arguing that article 39 of the Magna Charta (1215) did not mean that the conviction and sentence must abide by the substantive criminal law promulgated by the King in advance, but meant that the criminal proceedings must apply the formal prosecution procedures and to guarantee that the accused shall have the right to be tried by the jury, that only the investigating team formed with the neighbors who had the same social status with the criminal and pledged could institute the charge, that the judge could not start the prosecution and trial process according to his own personal opinion (this rule was mainly used to protect the rights of the feudal nobles and the missionaries in the criminal proceedings.) Therefore, the principle of legality, which emphasizes that conviction and sentence must be subject to the substantive law promulgated by the legislator, and the article 39 of the Magna Charta, which emphasizes criminal proceeding must be started and carried out in accordance with the provided procedures, in fact are affiliated to the criminal substantive law and the criminal procedural law respectively. The thought of the due process embodied in the article 39 of Magna Charta actually is the earliest source of the idea of justified process. No matter from which perspective, either the historical source, the specific content, the view of philosophy, the view of law, the view of human rights, or the attitude of the legislator, the role of the judge, the relationship between the person to the state and the practical effect, the due process grown up on the basis of the Magna Charta can not arrive at the conclusion that it is the developed mode of the principle of legality in the common law legal family, though in the U.S., there is the difference between procedural due process of law and substantive due process of law. Accordingly, the requirement of due substantive criminal law is only one part of the substantive due process of law, not the added aspect of the principle of legality after the World War II.The forth chapter analyzes its founding background, interpretation and the problems in practice when the principle of legality with Chinese characteristics is under the influence of human speech rights. The author states that the thawing of the human speech right is the essential notion to the legislation of this principle in China, while, on the other hand, the reversible expressions of it are against the mainstream spirit of the concept——human rights, so it is likely to lead to the value of pursuing power standard and the active expansion of the punitive power, which would exert the side-effect both in theory and in practice. Since from its birth, the principle of legality only had the negative guarantee function for the freedom, without the active protection function for the society. The mixed concepts of crimes in China do not betray the requirement of the principle of legality, but also the theories in respect of endangering society and the existence of proviso can help to conquer the default that the formalism principle of legality is vulnerable to prevent legislation for the evils, so that all the behaviors which should not be punished are eliminated out of the scope of crimes. In order to realize the substance rationality at once when sticking to this principle, it is necessary to interpret in substance that the components of crime shall get the punitive punishment. From the standing point of the criminal law interpretation, it is impossible to realize the protection of the personal freedom if the legislator’s intention which is difficult to confirm is firmly defended. Only in the scope of the whole context of the criminal law to interpret the objective needs for the society in a reasonable way, can the legalized demands of the principle of legality be followed and also, realize the correct choice of the justice in substance for punishment. At present, in judicial practice, the facts of the mechanical interpretation of this principle and of the unreasonable pursuit for the certainty in the criminal law seem to be recurring the mythology that reason is almighty. The absolute belief in the idea of legislation supremacy will make the enforcement rigid, dropping into the perilous trap too.The fifth part provides the answers to these questions:Is it necessary to stick to the principle of legality? What idea and system can act as the guidance so as to guarantee the predicted value of this principle to effectively play in the process of application so that this principle can become the real Magna Charta for the innocent citizens and the criminals? This dissertation holds the view that though the principle of legality displays the formalism aspect of the rule of law principle, the value of which is worthwhile for us to adhere to. But, at the same time, it should be observed that the principle of legality has the major defects inside that cannot be overcome by it. Only if the two sides of this principle are clearly recognized, can the value of human rights guarantee be realized in the process of sticking to this principle, avoiding the lawful infringement on the personal freedom. The modern rule of law is the fundamental rule of human rights. If the two mechanisms, freedom guarantee and maintenance of order, will be balanced in the criminal law, it is necessary to modify the defects of the principle of legality with some special means. At the same time, making the rigid constitution, establishing the judicial review system of constitution, improving and perfecting the people’s assessor system and strengthening the education on the judges conscience, from both the legislative and judicial aspects to put a curb on the power for evils, then the pre-designed value of human rights guarantee by the principle of legality can be turned into reality in a better way.