What is the purpose of criminal punishment? What are the principles to be considered in the legislation and interpretation of substantive criminal law in a liberal and democratic society? What theoretical system should we construct on the basis of these principles? These are the first questions to be answered in the study of substantive criminal law. In order to answer these questions, this chapter examines the nature of legal norms, analyzing the two aspects of the legal norms of criminal law, i.e. the behavioral norm and the judicial norm, and the concepts of retribution, determinism and utilitarianism. From the perspective of normative utilitarianism and determinism, it proposes a theoretical framework based on two pillars, “normative deterrence” (deterrence by behavioral norm) and the protection of constitutional freedom, and describes applications of this theory to major problems in the general principles of criminal law, such as mistake, intent and negligence, and causation.

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Basic Theory of Substantive Criminal Law

  • Michiaki Ozaki

摘要

What is the purpose of criminal punishment? What are the principles to be considered in the legislation and interpretation of substantive criminal law in a liberal and democratic society? What theoretical system should we construct on the basis of these principles? These are the first questions to be answered in the study of substantive criminal law. In order to answer these questions, this chapter examines the nature of legal norms, analyzing the two aspects of the legal norms of criminal law, i.e. the behavioral norm and the judicial norm, and the concepts of retribution, determinism and utilitarianism. From the perspective of normative utilitarianism and determinism, it proposes a theoretical framework based on two pillars, “normative deterrence” (deterrence by behavioral norm) and the protection of constitutional freedom, and describes applications of this theory to major problems in the general principles of criminal law, such as mistake, intent and negligence, and causation.