On The Spirit Of Freedom Of Modern Criminal Law

Criminal law is a type of authority with the highest degree of violencein peacetime, which recovers social justice by punishment on crimes andprevents offences through deterrent effects. However, a wrongful use ofcriminal law could also easily lead to infringement towards civilliberties, sometimes so seriously that it could brought irrevocable andirremediable harm. Therefore to the rule of law in the sphere of criminallaw, the essential issue is to prevent abuse of power of punishment, andto prevent state power from alienating into dictatorial interfere onpersonal liberties. This thesis is committed to establish the leading roleof the spirit of freedom in modern criminal law, discover the values offreedom, in order to reveal that it is essential for modern criminal lawto represent the spirit of freedom, and by construction of suitablesystems which shall hold the power of punishment confirmed as well asconfined, and the liberties shall be protected therefore.The Introduction Chapter will present the key points directly, whichidentifies the spirit of freedom as the foundation of modern criminal law,and regards modern criminal law as a criminal law of freedom, its purposeis to confine the rights of punishment belonging to the state, and to forge it into a criminal law protecting person liberties. The present studieson this subject and the plan of this thesis are also included.Chapter One will focus on the supremacy of the value of freedom. Itis elabrated as several parts. Firstly, the term ‘freedom’ will beexamined. In this thesis, the term ‘Freedom’ is not freewill inphilosophy, neither the ‘positive freedom’ for men to engage in acertain action (free to), but the ‘negative freedom’ for men to avoidbeing salved (liberty from). Secondly, I will try to discover theoreticalfoundations of the value of freedom. The supremacy of freedom will beestablished on humanism, utilitarianism and non-known in knowledge theory,which shall reveal that freedom is a basic need of sustainablity anddevelopment of human kind, and the ultimate purpose thereof. Lastly, Iwill introduce why currently it is necessary for China to emphasise thevalue of freedom. On the one hand, the traditional Chinese culture islacking of sprit of freedom. The Confucians and Legalists both regardedthe value of order more important than freedom, and group than individuallikewise. In modern times, under the pressure of nation security, thespirit of freedom was not promoted either, but emphasise more on unityand strength of group. After1949, there was a long duration in which thefocus on group weakened little, and individuals were still neglected, theinterests of state and group were overwhelming, and the value of freedomwas subjected to the needs of order while the individuls was subjectedto the needs of group. Therefore, the promotion of the value of freedomshall be an inevitable choise for the current civilization process ofChinese politics.Chapter Two will elaborate the effects imposed on the ideologies ofstate and criminal law by the promotion of the value of freedom. The ideaof state under the freedom maintains that individuals shall be its origin,and people shall develop themselves according to their own needs. But humans, as social animals gathered together, shall respect freedom ofothers according to the same degree for the purpose of living together.Therefore individuals voluntarily give up part of their rights to forma state in order to maintain social order and arrange public affairs. Thepurpose of state is to protect personal freedom by means of democracy andrule of law, i.e., the highest authority shall be composed ofrepresentatives selected by people, and the people rule themselvesthrough legislations of the highest authority, instead of beingsuppressed by an authority high above people. This principle of law, bythe nature of self-governance, defines the boundries between individualsas well as between public authority and personal life, and the latter onemay be considered as more important from the point of view offreedom-protection. Because from antiquity to modern time, the mostsevere injuries made on personal liberties was not coming from individualsbut public authorities, and one might plead for remedy to publicauthorities when he was harmed by others, but would find no help when thepublic authorities had been alienated into some kinds of suppressive force.As a result, the most important issue in modern political theory is thathow to protect civil liberties by confining public authorities.Accordingly, modern criminal law which is developed under suchpolitical theory maintains that the essence of the rule of law in criminalsphere is to confine the power of punishment, the purpose of a system ofwritten criminal law is to confine the power of punishment in order toprotect freedom. Thus on the one hand, as to the origin of power ofpunishment, the principle of democracy shall be insisted. The criminallaw shall not be turned into an instrument of infringing civil libertiesonly when the people make laws for themselves. On the other hand, thesetting of power of punishment shall be fit for the spirit of freedom.The modern criminal law shall insist on principles of legal interests injury, responsibility and modesty, in order to save space for civilfreedom as much as possible. Only when citizens engage in acts ofinfringement of the freedom of others in a free condition of non-slavery,and there is no other remedies for this action, the use of the power ofpunishment is then justified. And traditional Chinese criminal law is tobe criticized according to this standard. As to the origin of the powerof punishment, in ancient China the law derives from the emperor, thereis law but no rule of law, the law has long been just an instrument forthe monarchy to rule the people. Rulers are outside the constraints ofthe law, and the king is the highest legislative, judicial and executivepowers in one. The debate between Confucianism and Legalism, or the ruleof virtue and the rule of law is just a question of which part shall bedominated, virtue or punishment. As Mr. Liang Zhiping said, ancientChina’s political system is the rule of man, the basic rule model is:people�'Law�'people. Monarch standing on the top of the power torelease orders, the officials are responsible for the implementation,while the common people is always the object of legal force, receivingrewards or punishments. As to the settings of power of punishment,criminal law is generalized, the criminal law is the most commonly usedmeans of society-control, punishment confused with rites, there is nodifference between criminal and civil rules, and the punishment isexcessive, heavy penalties are prevalent. In the process of lawenforcement, substantive rationality is emphasized over formalrationality, as the example of the “judgement according to Spring andAutumn”, the attention is paid to the judgement on motives, law isenforced with arbitrariness, punishment is flourished, and individualfreedom is infringed greatly.The third chapter is on the legitimacy of the source of the power ofpunishment required by the spirit of freedom of modern criminal law, and the institutional realization of the legitimacy of the settings ofpunishment power. On the one hand, the modern criminal law formallyrequires criminal legislation to be “preserved for the parliament”, topresent the maximum expression of the public will, and the criminal lawenacted by legislature must be clear to ensure that the public will beable to get truly demonstrate and implement. Modern criminal law, on theother hand, from a substantive reasonableness position to limit theintervention of the criminal law of the social life, setting up a “Lawof Protection” status of the criminal law in the system of norms, toensure that the criminal law is only used as a last resort. On therelationship of the criminal law and the code of ethics, the criminal lawshall not intervene in the field of pure morality which does not infringelegal interests of others. On the relationship of criminal law and otherlaws, it shall adhere to priority of principles of civil law, economiclaw or administrative law, and that can be solved using other legal norms,the criminal law should not intervene. This shall be deemed asmanifestation of both justice of penalty, and the principle of thestatutory guilty which is required by social stratification governanceand the clarity of criminal rules. Contransting to our current criminallaw, although the principle of “conviction and penalty according to law”has been enacted, and the power of punishment subject to certainrestrictions, but the democracy of the criminal legislation is yetinsufficient, the legislative power of the National People’s CongressCriminal is often overstepped and dissolved by the Standing Committee ofthe National People’s Congress in the exercise of the amending right ofcriminal law. As to the economic crimes and other legal transgressions,the Criminal Code does not keep due modesty character, often rushed tothe forefront of combating social anomie behavior without appealing toother suitable legal rules. The fourth chapter deals with several kinds of theories and practicesof criminal law which pose a threat to the spirit of freedom of moderncriminal law. The first thing to be wary of is the opinion of takingcriminal law as a tool. For thousands of years Chinese imperial traditiondeemed Criminal Law as a tool for ruling of people. After the foundingof China PR, though the old regime is overthrew and the old law systemis abandoned, the traditional values still play a dominant role inpeople’s attitudes and actual life. We had painful experiences of takingthe criminal law as weapon of the class struggle and even some times oflawlessness. Under the influence of the theory of class struggle, thecriminal law has become a tool of suppress the enemy, in needs forpolitical ends, penalties could be imposed without regards of provisionsof the law, and even call upon large-scale, frequent movements of themasses instead of serious judicial activities, therefore the criminalrule of law suffered destruction unprecedently, the power of punishmentlost its effective control, civil liberties suffered greatly, even livesjeopardized. The rule of law in the process of re-opened after the endof the "Cultural Revolution" is still not easy, the concept of criminallaw as a tool is still lingering. In the vast-scope “strike hard”operations, criminal law’s function of protection of human rights is nolonger be overlooked or even forgotten, the punishment powers easilycrossed the boundaries of the criminal law and infringed civil liberties.Even into the21st century there are still many rulers take authority asa private thing, and mistake the rule of law for merely rule by punishment.Secondly there is the problems of risk-control criminal law and “enemycriminal law”. Today, the theory of social risk is popular, social senseof security is lacking, and the utilitarian value of criminal law isamplified improperly, thus the risk-control criminal law even “enemycriminal law”, which put order and security as its leading orientation, constituted new challenge for the spirit of freedom of modern criminallaw. Therefore, the modern criminal law requires the merge of concept offreedom into itself, always keeps vigilant, refuse to forget that the truecharacter of criminal law is to protect civil freedom, or criminal powersmight devour us, arbitrary dictatorship might reincarnated, and advancesin technology might bring more appalling social control.In the conclusion part, this thesis reiterates that in therelationship between freedom and order, the former should be first, andstresses that the law should not be the exclusive means rule of state,but a covenant between the citizens, a covenant between the citizens andthe state, both “my State” and “my People” shall be bound by it. Theconstraint of citizens is to avoid doing what prohibited by law, whilethe constraint of the state is to only implement what expressly authorizedby law. Further more, the criminal law should not be deemed as a tool ofmaintaining order or even a tool of suppression, the state shall use itspower of punishment according to that law expressly provides, and criminallaw should take on a mission to stabilize and balance the criminal powers.The true meaning of the criminal rule of law is to protect civil libertiesby limiting the power of punishment. As if the criminal law is identifiedas a tool of maintaining order, it is always difficult to get rid of itssubordination to the political purposes as a tool, and will inevitablybecome mere an skill of the rule of man bearing a name of law, while thestate will no longer be a commonwealth that people could live and workin peace and contentment, but only the courts and prisons.