Study On Humanism Interpretation Paradigm Of The Criminal Law

It is generally believed that one of the basic functions of modern criminal law is to protect human rights, and the most basic requirement for the protection of human rights is to implement the principle of "legally prescribed punishment for a specified crime" to prevent "tyranny in conviction and sentencing". The basic requirement of the principle of "legally prescribed punishment for a specified crime" is that it should be clearly prescribed in the criminal law what are criminals and what punishments are to be imposed on convicted criminals, and that judges should convict criminals and sentence convicted criminals according to law. However, as the text of the criminal law is constituted by languages, and that languages are featured by polysemy and ambiguity, coupled with the variability and unpredictability of the social situation, it is required that the criminal law should be interpreted when it is applied. Nevertheless, there are a variety of theories on how to interpret the criminal law, and some of them are even opposite with each other, for instances, with regard to the subject of interpretation, there are the theory of elites subject to the interpretation of judges or legal elites and the theory of popularization subject to the understanding of the public; and with regard to the interpretation object of the criminal law, there are theory on formal interpretation that adheres to the literal meaning of rules and the theory on substantial interpretation that explores the substance and spirit of the text of the criminal law; particularly, in respect to the expressing of views and opinions on cases of the public through the media, there are opposing views on whether it is a legitimate right of the public or an interference to justice and so on. As for different interpretation theories, there are different philosophies, perspectives, frameworks and methods, which determine the differences between the interpretation results. And as different interpretations to the criminal law have different effects on personal property, personal freedom and even lives of the citizens, and are also concerned with the suffering and death of citizens, the establishment of correct interpretation philosophy and the structuring of a scientific interpretation theory is the core and foundation of the interpretation and application of the criminal law. Based on this logic, although there are a variety of interpretation theories on the criminal law and the research has been done to a certain depth, it is still necessary to be further studied. In this paper, Kuhn’s paradigm theory is introduced to analyze the existing interpretation theory on the criminal law upon classification and advocate the humanism interpretation paradigm of the Criminal law.In addition to the preface, this paper is divided into five chapters.Preface:The preface mainly classifies the interpretation theory on the criminal law and clarifies the necessity of the study on humanism interpretation paradigm of criminal law.Paradigm is a concept brought forward by Thomas Kuhn in his classic work "Structure of Scientific Revolutions". Understanding from a broad view, paradigm refers to beliefs, concepts, models, theoretical framework, value orientation and research methodologies assumed, accepted and adopted by the scientific community. A particular paradigm can be understood as a theoretical framework. The essence of "scientific revolution" is the "paradigm shift", namely, to replace an old paradigm by a new paradigm. According to Kuhn’s paradigm theory, the criminal law interpretation theory can also be divided into two main paradigms, namely, the rule doctrine interpretation paradigm and the humanistic interpretation paradigm. The rule doctrine interpretation paradigm is an interpretation theory that follows the rule doctrine and gives interpretation in strict accordance with the literal meaning of provisions of the criminal law and disregards the objectives and the results of the interpretation to the criminal law. At the same time, the humanistic interpretation paradigm of the criminal law refers to a theory on the interpretation of the criminal law that takes the humanism as a philosophy and the promotion of all-round human development as the starting point and the ultimate goal, focusing on the objectives and results of the interpretation to the criminal law to explain the and emphasizing that the interpretation to the criminal law should safeguard human rights, respect the human dignity, reflect the humanity and compassionate human feelings, so that the results of the interpretation to the criminal law conforms to the basic feelings of the public. China’s contemporary interpretation paradigm of the criminal law belongs to the rule doctrine interpretation paradigm of the criminal law, the defects in which results in confrontations and conflicts between the interpretations and decisions of the judges in criminal justice and the public opinions, seriously affecting the judicial authority and the social harmony. Therefore, it is necessary to introduce new criminal law interpretation, namely, the humanistic interpretation paradigm of the criminal law.Chapter I Characteristics and Origins of the Humanism Interpretation to the Criminal Law Humanism is a kind of western philosophic ideological trend opposite to the scientism, the core content of which shows that:human, as an element value, is the subject and purpose; in human’s practical activities, all activities are originated from and for human. Based on animadversion on Feuerbach’s theory on non-objective human, Marxism builds up its humanism. The Communist Party of China, in the light of the theory on the all-round development of human of the Marxism, refines the humanistic though in western philosophy to the "human-oriented" in line with Chinese language context, while absorbing the essence of humanism in Chinese traditional culture. The primary characteristics of the humanistic interpretation paradigm of the criminal law are:adopting the promotion of all-round human development as the basic concept; taking the understanding of the human as the perspective of the interpretation to the criminal law; incorporating subjective factors into the framework of interpretation; recognizing the subject and inter-subjectivity of the interpretation to the criminal law and introducing in new methods of interpretation. In short, the humanistic interpretation paradigm of the criminal law, in essence, is actually a paradigm grander and more scientific than the rule doctrine interpretation paradigm. Although the humanism, as an ideological trend, only emerged in modern times, it has germinated and developed along with the arising and development of the human history. At the same time, the interpretation to the criminal law based on the humanistic philosophy develops along the development of the criminal law and the interpretation thereto; and there is a trend of "this eliminates while that emerges" between the humanistic interpretation paradigm of the criminal law and rule doctrine interpretation paradigm of the criminal law.ChapterⅡIdeas and Perspective of the Humanism Interpretation of the Criminal Law This chapter mainly emphasizes the defects of the concept of fairness and justice that gives supreme to rules in the rule doctrine interpretation paradigm, in view of the rule doctrine interpretation paradigm. The humanistic interpretation paradigm establishes the "human-oriented" concept, emphasizing the understanding of the criminal law from the perspective of human and that the ultimate aim of the criminal law is to guarantee the survival and development of human. Thus, the interpretation to the criminal law under the humanistic concept not only attaches importance to not only the rules but also their ultimate goal and consequences. According to the humanistic interpretation concept, respecting humanity has become the primary requirement for the interpretation to the criminal law; the protection of human rights has become a modern value goal of the interpretation to the criminal law, and meeting the human needs has become the basic function of the criminal law. The establishment of concepts and perspectives for humanistic interpretation has special advantages:the ultimate goal of the criminal law is clearly defined, namely, promoting the all-round development of human; the source of knowledge in the interpretation to the criminal law is resolved, that is to say, the knowledge of human is composed of scientific knowledge and knowledge in aesthetic, moral and other humanism field; furthermore, the integration of legal logics and rational sense as well as the unity of formal justice and substantial justice can be achieved; and the value concept of humanistic care may be reflected.Chapter III Subjective of the Humanism Interpretation of the Criminal Law Upon the analysis on the causes and defects of the rule doctrine in eliminating its subject of interpretation, it is determined that there is not only subjectivity but also inter-subjectivity in the interpretation to the criminal law, and that the subject of interpretation should be incorporated into the interpretation framework. The establishment of the position of the subject of interpretation in the interpretation to the criminal law is not only of significance in perfecting the theoretical framework of interpretation to the criminal law but also of particle significance in clearly recognizing the impact of the inter-subjectivity of interpretation on the judicial system. The subject of interpretation to the criminal law includes legislators (the authors of the text of the criminal law), the judiciary organ and judicial officers and the public. The difference among the social roles of different subjects of interpretation has different impacts on the interpretation to the criminal law, which causes different opinions in the interpretation course. Therefore, there should be effective interaction among the interpreters and their visual fields of interpretation should be adjusted as appropriate, for instance, judicial personnel should act from the standpoint of the general public and interpret criminal law pursuant to general knowledge, logical thinking and common sense, so as to achieve the integration with the visual field of the public.Chapter IV Standard for the Humanism Interpretation to the Criminal Law This chapter, according to the fundamental humanist point of view, analyzes the defects of two standards, namely doctrine of original intent and the doctrine of objective meaning and brings forward that the standard for the interpretation to the criminal law is the common understanding among the subjects of interpretation. This standard is not only the necessity of the inter-subjectivity of interpretation to the criminal law but also has profound philosophic and legal logic basis. The criminal law is expressed by language, which is a communication tool of human. The meaning of language is the result of common understanding. As the norm for adjusting behaviors of human, the content of the criminal law is also the common understanding among social members. The common understanding is the standard for the interpretation to the criminal law, which establishes the legitimacy basis of the interpretation to the criminal law; reduces the differences and conflicts between the judiciary organ, judicial officers and the public, limits the arbitrary interpretation of the judges and solves controversial issues in the theory on the interpretation to the criminal law. The common understanding in the interpretation to the criminal law can be divided into four types, namely, common understanding concerning facts, common understanding concerning the value judgments, common understanding concerning the consequences of acts and common understanding concerning objectives of the interpretation. In fact, it is far from usual to reach common understanding in all of the four aspects mentioned above in interpreting the criminal law, but we should not deny the common understanding for this reason. Two points on common understanding of Rawls, namely, the theory of "overlapping common understanding" and the theory of "incompletely theorized agreement" have important revelation on the theory on the standard of common understanding in the interpretation to the criminal law.Chapter V Methods for the Humanism Interpretation to the Criminal Law This chapter, surpassing the concept of logical positivism adhered by the rule doctrine, transferring from the dimension of semantics-morphology to the dimension of semantic-pragmatism dimension, brings forward four kinds of humanistic interpretation, namely, literal meaning interpretation, systematic interpretation, sociological interpretation and communication & consultation, among which, literal meaning interpretation, systematic interpretation and sociological interpretation belong to text interpretation, reflecting the subjectivity of interpretation to the criminal law,while communication & consultation is a method for achieving common understanding, reflecting the inter-subjectivity. Literal meaning interpretation is a fundamental method for interpretation, and the literal meaning is the foundation for interpretation rather than the boundary of interpretation. Systematic interpretation is a method for clarifying the accurate meaning of a certain provision in the whole legal system based on the requirements of unity and coordination. Sociological interpretation refers to an interpretation method for weighing the social effects of interpretation to the criminal law by integrating various social factors. Communication & consultation means that the interpreters communicate with each other for the understanding of and the interpretation to the text of the criminal law to increase mutual understanding, and eliminate different opinions in interpreting, so as to achieve common understanding. There are two channels for communication & consultation, namely, institutionalized communication & consultation and non-institutionalized communication & consultation. Typical institutionalized communication & consultation method mainly includes the direct communication mode (such as the jury system and the defense system) and the indirect communication mode (such as sentence reasoning), and it should be improved to regulate the humanism interpretation.