A Comparison Of Legal Benefit Theory And Harm Principle:Genealogy Of Ideas And Jurisprudential Structure

As the core concept of the British and German criminal law philosophy,the legal benefit theory and the harm principle also play a fundamental role in the political discourse of modern countries.From the perspective of criminal law philosophy,the legal benefit theory emerged in Germany,then extended to Japan and Taiwan(China),and has prospered in China since the beginning of the new millennium.On the other hand,the harm principle,first proposed by Mill,is both a basic principle of Anglo-American criminal law and the cornerstone of liberal political philosophy.The contrast between the legal benefit theory and the harm principle involves the controversy over the basic criminal law theory,in addition,from the perspective of jurisprudence,the countries in which these two principles emerged,although they share the same background considering the enlightenment,are quite different in terms of internal logic.Rather than analyzing the content and influence of these two principles and their implications for our country,this paper aims to examine the history of ideas and try to decipher the different "directions of rationalization" hidden behind these two principles.Therefore,after the introduction,the first part of this paper will mainly deal with a brief introduction of the legal benefit theory and the harm principle,and a brief examination of the rise of these two theories.The second part will analyze the relationship between the legal benefit theory and the harm principle from a liberal perspective.The third part will attempt a genealogical examination of the legal benefit theory,which is divided into four main parts,starting from the gnosticism and mysticism of German Christian tradition,to Luther in the Reformation period,then to Germany in the era of Romanticism and historism,and finally to Savigny’s the historical school of law as well as the jurist law,which set the ideological cornerstone of the legal benefit theory.Similarly,the fourth part will attempt to analyze the genealogy progression of the harm principle,which can be traced back to the Protestant spirit in England,passed through mercantilism and political economics,and was finally formalized by Mill,the great master of utilitarianism.In this sense,Calvin and Luther are theirs originators,while Bentham and Savigny are theirs founders.In the fifth part,returning to the fundamental question in the field of classical law philosophy,through the analytical frameworks of social theory and law philosophy,and through a comparison of the different social ontologies and adjudication theories hidden behind the legal benefit theory and the harm principle,we will see that there is both an internal tension and a tendency to integrate these two traditions.And,if our theoretical goal is to reach a coherent alignment between the typology of behavior at the micro level and the paradox of democracy at the macro-structural level,then we can find a more optimal solution made by Habermas.