Criminal Policy Basis Of Explanation Of Criminal Law

If we look close to the present argument between the formal interpretationdoctrine and the substantial interpretation doctrine in criminal law through casesreviewing and theories comparison, it’s not difficult to come to a conclusion that nomatter the formal interpretation doctrine, which gets its justification from the radicalcritiques on theories of former Soviet Union, or the substantial interpretation doctrine,which constructs its theory system by using German and Japanese theories forreference, both have their limitations in developing the dogmatic theory of criminallaw. The former prefers to confirm its viewpoint in a metaphysical way while thelatter sticks on some much more micro and technical details, but neither of them everhits the embarrassing situation that the dogmatic theory of criminal law faces today.Those detail-meticulous and self-consistent interpretation doctrines, which have beenhighly praised by the academic world for long, could prove the conclusions of suchinterpretation comply with the norms only, but incapable to make them self-evidentwhether these conclusions are reasonable in real practice. The classic interpretationdoctrines are continually laying undue stress on the decisive role played by thesyllogism in logic, ignoring that the conclusions reached by interpretation doctrinesfinally rely on the pre-judgments on criminal policy. We shape the interpretation toconform it with logical form only because we have to make out a good reason for ourpolitical intention hidden behind, but not for any other formalism concerns. In thisbasis, hereby switch to a pragmatism approach is considerable. Comparing with theother three main approaches, the dogmatism approach, social harmfulness approachand public consent approach, in criminal law interpretation, the pragmatism approachwith its result-oriented character has indispensable advantages of its own. It looks atthe dogmatic theories with suspicious eyes, and always weary of those metaphysicalthoughts, also it never feels steady when facing any irrefutable conclusions acquiredfrom the tedious demonstrations or distinctive value judgments, for it shall never everbe self-bonded. Because, as we are trying to look for the criminal policy basis in the criminal law interpretation, we shall always look outwards, that is, pursuing thehidden political elements that could substantially justify our conclusions. Theseelements are open, not only could be found in relevant laws and regulations, but alsorequire us to look for in daily life. Hereby I try to clarify the misunderstanding inpragmatism, emphasize the common sense in literary interpretation and elaborate howto carry out this ideal thorough cases reviewing. The pragmatism approach need us tolook forwards, as the necessities of the developing time and different cases that keepon emerging always endow criminal law with new connotations. To follow the historyof legislation shall not be used as an excuse to perform slack in interpretations. Thefact is that our criminal law practice would never gain the consent of the life until itcould respond the need of the life. Therefore, we ought to be much more empirical instudying cases and excise more caution in balancing the systematic results that maybe brought out by our interpretations. This approach is desirable not only because ournation is familiar with the pragmatism ideal, but also the necessities of nowadayssocial circumstances. When the interpretations of criminal law are gradually divorcingfrom the common sense of public life, then changes are expected to happen.