Social Sciences in China (Chinese Edition)

No.3, 2020

Reconstructing the Principle of Legality

(Abstract)

Gao Wei

The principle of legality, as the outcome of scientism and rationalism, is subject to changes in the times and in theoretical presuppositions; it has not been given full play as the protector of freedom, and constantly wavers in terms of the certainty of punishing crimes. As an important principle of the modern rule of law, the principle of a legally prescribed punishment for a specified crime should be upheld and reformed even if it is affected by constant conflicts. Firstly, the principles of positive law are affected by the theory of substantive law, while other sources that do not have a legal form become the basis of factual criminal evidence. Thus, it is necessary to reiterate the specificity of the source of positive law. Secondly, although the possible boundaries of criminal law texts cannot be clearly defined empirically, they cannot therefore be gainsaid. Instead, we should abandon the objective boundaries of empirical facts and delimit and demonstrate normative boundaries. Finally, we should recognize and accept explicit judicial responsibility as a supplement to legislative clarity, and build a two-layered system with both legislative and judicial clarity. In particular, we should construct standards for the clarity of criminal legislation in terms of the two approaches of behavioral guidance and judicial restriction. The clarity of criminal justice should start from legislative texts and specify them through the establishment of the secondary general rules, so that they can continue lessening their distance from specific case facts. Ultimately we should establish a relationship that subsumes the texts and the facts of the case.