Criminal Law General Theory

Author: [Japan] Tatsuo Otani
Publisher:
Publish Date: 2003-09-05
Features: This book is a comprehensive revision based on the Supplement to the Fourth Edition of General Theory of Criminal Law. It was initially intended for the fifth edition, but finally became a new edition. The author's fundamental considerations on criminal law have not changed, but since the book's first publication in 1986, the theory of criminal law has undergone significant changes. Based on these changes, the author has thoroughly re-examined his own criminal law perspectives, which is the reason for his enthusiastic writing of the New Edition.
In contemporary criminal law, there are broadly two schools of thought. One school holds that the purpose of criminal law is to protect individual life or property—such life interests or legal interests—and that crime or punishment only has meaning and justification within the scope of protecting such interests. The author refers to this as substantive criminal theory. The other school argues that the role of criminal law is not only to protect legal interests but that maintaining social order through the protection of legal interests is the true purpose of criminal law. According to this view, while protecting legal interests is important, since punishment is a harsh sanction, it is essential to legally define what constitutes a crime in advance to avoid infringing on the freedom and human rights of citizens. Only by coordinating the protection of legal interests with the safeguarding of human rights can criminal justice gain public trust and contribute to maintaining social order. The author refers to this perspective as formal criminal theory.
Since the first edition of this book was published, the author has attempted to systematize criminal law from the standpoint of formal criminal theory. From 1996 to 1999, the author had the opportunity to engage in dialogues with the leading figure of substantive criminal theory, Professor Masayoshi Maeda of Tokyo Metropolitan University, which were serialized as Exciting Criminal Law in the Legal Studies magazine. This dialogue not only helped the author understand Professor Maeda's theory but also provided him with a valuable experience. From the perspective of thoroughly re-examining his own theory, it also holds extraordinary significance.
Dialogues between scholars with differing viewpoints, by definition, are like a "hand-to-hand fight," intense and gripping. Yet, precisely because of this, the differences and similarities between the two perspectives became clear, and the shortcomings of each were identified. A significant portion of this book incorporates the content of these dialogues. However, the author's view that the framework of conduct prescribed by criminal law statutes should serve as the starting point for a criminal theory system remains unshaken—this is without a doubt. Conversely, it could even be said that from the perspective of respecting human rights, the substantive criminal theory, which prioritizes the demands of judges and then the state for punishment, raises some concerns. This further solidified the author's conviction to adhere to formal criminal theory.
Inspired by the above awareness, the author began writing this book. However, as a textbook, it is essential to objectively describe the current state of criminal law and case law. Therefore, the author has strived to organize and cite relevant theories and cases for each issue before presenting his own perspective.
Additionally, for learning purposes, the most important thing is to rigorously understand concepts or definitions. For this reason, the author has also put considerable effort into this aspect. Especially in this textbook, to facilitate learning, the table of contents has been further subdivided, and "notes" have also been included as important content. If you first confirm your understanding of the above content before studying, it may be even more convenient.