The Moral Limits Of Criminal Law

The relationship between the criminal law and moral is of great importance in the criminal theoretical fields, which broadly touches on many issues .The author clearly knows it is difficult to probe into such an issue of great theoretical worth. After reading and analyzing the works on it ,the author discusses on the issue of the moral limits of the criminal law .There exist many works on the relationship between the criminal law and moral, but few of them involves such an issue .As it is known to us ,China is a country with a long history and with a deep soil of moral .If we neglect its role in the criminal theory ,it is difficult to innovate the criminal law and we can not get perfect results in constructing the criminal theory ,even get a harsh setback At present, we must pay more attention to the moral limits of the criminal law .By doing so ,we can make the criminal law get recognition from the public .Based on this ,the author discusses the issue of the moral limits of criminal law. The treaties is divided into four parts with more than 39,ooo words.Part One: the relationship between moral and the criminal law. In this part ,the author analyzes the definition of moral ,Lists the 5 definitions of moral and holds that moral is a none-rights regulation system which is formed though a long history ,has popularity ,guides individuals how to act and regulates the relationship between individual and individual, individual and society, society and nature. Next, the author discusses the levels of moral. The moral has different levels, basically two levels of lowest moral (duty moral as Fuller calls)and highest moral(willing moral as Fuller calls).The author thinks the moral to limit the criminal is the former one. Third, the author probes into the unity and opposite relationship between moral and criminal ,and briefly discusses the development of them.Part Two: The scholarship thinking of the limits of the criminal law. In this part, the author analyzes the content of the lowest moral, holding the lowest moral is the moral with common sense ,common theory. and common feelings ,which makes the lowest moral more concrete .Second, the author thinks me limits of the criminal has a degree, further to discuss the issue. Third, theauthor analyzes and deems that the criminal law is the need of the human nature ,thinking the human nature has no distinction between good and evil ,and it is at all the satisfying some social need by some actions.Part Three: the general need of the limits of the criminal law. First, the author discusses the necessity of the issue: to protect the human rights of individuals ,limit the abuse of the state power, get the rationality and propriety, and to get the recognition of the public. Second, the author discusses the formal rationality and substantive rationality ^holding we have to uphold the latter one in the eye of the rule of law so as to avoid that the criminal is only the tool.. Third, the author analyzes the criminal punishment from the limit of the criminal law. Punishment is a kind a evil ,so how to make this kind of evil to be a necessity is a problem. The author thinks either Unitarianism or retributionism can not leave the moral evaluation. The author thinks that only adherence to the lowest moral can make the criminal punishment a necessary evil.Part Four: the practicability of the issue. In this part,, the author discusses the practicability of the limit of the criminal law, holding that it is worthy to add a regulation that an individual doing a good deed from a good will with no practical damage or loss can not be punished ,to the General Provisions of the criminal law.