Criminal Law General Theory

Author: (Japanese) Tani Minoru
Publisher:
Publish Date: 2002-09-01
Features: This book is a comprehensive revision based on the Supplementary Edition of the General Lectures on Criminal Law (4th Edition). It was initially intended for the 5th 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.
Contemporary criminal law can be broadly divided into 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 to the extent that it protects such interests. The author refers to this as the substantive theory of crime. 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, in order to avoid infringing on the freedom and human rights of citizens, it must be legally defined beforehand what constitutes a crime, and only acts that formally meet this definition should be targeted for punishment. Only a criminal justice system that coordinates the protection of legal interests with the safeguarding of human rights can earn the trust of the public and contribute to maintaining social order. The author refers to this view as the formal theory of crime.
Since the first edition of this book was published, the author has attempted to systematize criminal law from the perspective of the formal theory of crime. From 1996 to 1999, the author had the opportunity to engage in dialogues with the leading figure of the substantive theory of crime, Professor Masayoshi Maeda of Tokyo Metropolitan University, and the content of these dialogues was 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. At the same time, in the sense of thoroughly reflecting on his own theory, it holds extraordinary significance. Dialogues between scholars with differing viewpoints are, by definition, "hand-to-hand combat," intense, but precisely because of this, the differences and similarities between the two positions become clear, and the shortcomings of each viewpoint are revealed. A significant portion of this book incorporates the content of these dialogues. However, the author's view that the framework of acts prescribed by criminal law statutes should serve as the starting point for the criminal theory system—the formal theory of crime—remains unshaken, without a doubt. Conversely, it could even be said that the substantive theory of crime, which prioritizes the punishment demands of judges and then the state, raises some concerns from the perspective of human rights, which further solidified the author's conviction to adhere to the formal theory of crime.
Inspired by the above awareness, the author embarked on writing this book. However, as it is a textbook, it is essential to objectively describe the current state of criminal law and case law, so the author has made every effort to organize and cite relevant theories and cases related to each issue and then present his own perspective. Additionally, for learning purposes, the most important thing is to rigorously understand concepts or definitions, so the author has also devoted considerable effort to 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 confirm your understanding of the above content before studying, it may be even more convenient.
March 2000
Tani Minoru