Social Sciences in China, 2021

Vol. 42, No. 3, 2021

Reconstructing the Principle of Nullum Crimen Sine Lege

(Abstract)

Gao Wei

As a product of scientism and rationalism, the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions. In practice, therefore, it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments. Even though it has been constantly challenged, the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modern rule of law. First, the principle of de lege lata is being questioned by theories of substantive law, and sources not in the form of law have become the de facto basis of criminal punishment. For this reason, it is necessary to reaffirm the nature of de lege lata as an exclusive source of law. Second, although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically, one should not therefore reject the possible boundary of this meaning. The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified. Finally, the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity, and a two-tier system of legislative and judicial clarity should be developed. Here, the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions, and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific, bringing it ever closer to specific and particular case facts, and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.

Keywords: principle of nullum crimen sine lege, de lege lata, boundary of the text's meaning, clarity