Social Sciences in China (Chinese Edition)

No. 7, 2023

Value Judgments in Criminal Law Interpretation

(Abstract)

Jiang Tao

Criminal law interpretation relies heavily on value judgments, and this is at the heart of the development of a high-quality criminal justice system. China’s interpretation of criminal law is subject to a double dilemma in terms of value judgments. In the interpretation of normative criminal law, one sees the phenomenon of circular argumentation and a lack of reasoning. As the interpreters of applicable criminal law, judges fail to assume the role of issuing value judgments; they do not have sufficient ability. The traditional hermeneutics of criminal law is deeply rooted in the binary opposition of subjectivity and objectivity, which creates a rupture with China’s present interpretative goal of “legitimacy and reason.” To comprehend the modern transformation of the traditional hermeneutics of criminal law, it is essential to draw on philosophical theory and to pursue the intersubjectivity of value judgment arguments based on the premise that subjectivity is aligned with objectivity. Criminal law interpretation relies on professional and public demonstration to ensure the integrity of the value judgment, and this involves constructing systematic standards and adhering to legal value judgment principles. The former requires clarifying internal and external standards of value judgment, constructing rules to resolve conflicts between different standards and paying attention to the practical significance of “prohibiting extrajudicial conviction and allowing extrajudicial exemption.” The latter involves the three perspectives of logical reasoning and principled rationality, positive and negative judgments, and formal and substantive rationality. It needs to be developed from four dimensions: normative orientation, drive by individual cases, reverse exclusion and constitutional guidance.