A Contractarian Justification of the Foremost Principles in Criminal Law Based on the Rawlsian Scheme
摘要
Where are the limits of criminal law? In other words, where should the intervention of criminal law end and the intervention of other laws or social sanctions begin? Perhaps, this fundamental question is the most important and timeless theme in criminal law jurisprudence. It seems clear that we should not rely solely on “harmony and balance,” the omnipotent master key, to solve important issues in legislation and judicature, such as how to interpret and apply the existing legal provisions and rule of the precedents and what types of conduct to define as offences under criminal law. “Harmony and balance” are necessary, but they can often be used as a “universal ground” to justify the arbitrary judgment of legislators or judges. In the field of criminal law, there are often conflicts of values, such as “protection of individual freedom” and “prevention of social risk,” “defendant’s interest” and “victim’s interest,” “academic view” and “judge’s normative intuition,” and we should not always rely simply on “harmony and balance,” the “last resort,” in order to solve legal problems. A universally acceptable principle is required here. Therefore, the most important question in criminal law juriprudence is how to introduce such a universally valid principle.