Criminal Theory Preliminary Notes

Author: (Japanese) Kōichi Takagawa / Wang Tai
Publisher:
Publishing Date: 2005-09-01
Features: "Nulla poena sine lege," a captivating statement in criminal law, rarely found elsewhere. This principle has transcended the ideological boundaries of a nation, becoming a universal tenet and standard. Many countries have declared it as an expression of human rights in their constitutions, and numerous criminal codes have included it as their preamble. On one hand, this principle is highly effective due to its concise and impactful slogan form; on the other hand, it is somewhat difficult to understand. The social legal significance of this principle lies in: regardless of how morally reprehensible an act may be, if the law does not define it as a crime, the person will not be punished, and no punishment beyond what the law prescribes for that crime may be imposed. In the sense that crime and punishment are products of law, we call this principle the principle of legal positivism. "Nulla poena sine lege" has been upheld as a principle of criminal law for the past 150 years, but in recent years, doubts have arisen about its social significance, and its status as the cornerstone of criminal law has begun to waver.
First, the 1926 Soviet Criminal Code Article 16 stipulated: "Certain socially harmful acts, if not directly prescribed in this code, may be determined as grounds for liability and scope based on provisions similar to those specified in this code." This clearly negated legal positivism. Second, the 1933 Prussian Justice Minister's memorandum, The Nazi Criminal Code, advocated: "From the perspective of sound national beliefs, for acts that morally deserve condemnation, as long as the law requires punishment, even if not explicitly defined as a crime, the authority to impose punishment should be granted to the judiciary." At the same time, to sentence the perpetrators of the "Reichstag Fire" to death on March 29, 1933, the Law on Hanging and Death of March 29, 1933, stipulated that the Presidential Decree of February 28, 1933, for the Protection of the Nation and the People should have retroactive effect, demonstrating a rejection of legal positivism. Since the fundamental system of the Soviet Union differs from that of other countries, it cannot be assumed that their rejection of legal positivism is equally applicable to other nations. Consequently, no one has advocated using the Soviet Criminal Code as a model. While there were plans to compare and study the legal phenomena and forms of various countries, this research method did not receive academic attention. However, the Nazi rejection of legal positivism drew the attention of scholars from countries with similar social foundations. Recently, as doubts about legal positivism have begun to rise in our country, it seems that calls for such skepticism are growing, possibly linked to Nazi criminal law ideology.
So, what is the significance of legal positivism in criminal law? This can only be answered by understanding the historical context of its emergence and development, i.e., its historical significance. Historically, it becomes clear that legal positivism did not arise from a unified ideological process but was formed from various, or some disconnected, ideas. The Latin form of this principle indeed gives the impression of a long tradition, but this phrase was not seen before Feurbach, and even for him, it only appeared in the Criminal Theory (Ferbuch, 1st ed., 1801). Before him, "lex" (German, same as below) was often proposed as the prerequisite for crime. The "lex" here refers to both norms and penal laws. However, in natural law literature, it was considered more a norm than a penal law. Therefore, such a "lex" did not necessarily need to be written. At that time, law was seen merely as the prerequisite for an illegal act, meaning "as long as it is not prohibited, there is no illegal act." At the same time, the idea that "the law provokes anger, and where there is no law, there is no crime" (Corpus Juris Civilis, Chapter 4, p. 45) also existed. However, the idea that "penal laws are the necessary prerequisite for punishment" had not yet become generally accepted.
However, the characteristic of this new principle lies in the fact that once it becomes "if there is no law, there is no illegal act or punishment," it naturally demands the reality of norms and shifts toward the form "if there is no definite, written penal law, there is no punishment." The first criminal code to declare the principle of legal positivism was the French Criminal Code Article 4. Legal positivism is supported by three distinct fundamental ideas.
The first is the idea of the Magna Carta, which served as the cornerstone of British freedom. In 1215, King John of England agreed with the people: "Fines and property penalties can only be imposed based on law, and must be executed after due process" (Article 39). This marked the beginning of legal positivism in constitutions. Later, this idea crossed the Atlantic to become part of the 1774 Philadelphia Convention Declaration. There, it left a record of "no right shall be deprived except in accordance with law" (Article 5), and then crossed the sea again to become the 1789 French Declaration of the Rights of Man. The declaration guaranteed that no law could prescribe punishments beyond what is necessary; no one could be punished except according to laws previously enacted, published, and legally applied (Article 8). The spirit of this declaration was enshrined in the 1810 French Criminal Code Article 4, becoming a fundamental principle of criminal law. That is, because of the of the state, especially the criminal judiciary, the ability to guarantee individual rights and freedoms truly lies in legal positivism.
The second is the "balancing theory" of Karl Binding, one of the representatives of the German classical school of criminal law. Binding's theory ultimately boils down to psychological coercion: the pleasure of committing a crime should be overcome by the discomfort of punishment, which arises from the clear threat of suffering during punishment overcoming the pleasure of the act. At the same time, Samuel Pufendorf, another major representative of the classical natural law school, had also regarded the fear of punishment as the driving force behind purposeful behavior. By the 18th century, this idea had manifested in various forms, but most powerfully in Feurbach. According to the theory of psychological coercion, penal laws are weapons against the criminal tendencies of offenders. The commission of a crime means the failure of penal laws, and thus all responsibility should shift from the offender to the lawmakers and their imperfect weapons. Therefore, logically, criminal legal nihilism should be the outcome of this theory.
No matter what, as long as penal laws aim to balance with criminal tendencies, the existence of legal positivism is a natural consequence.
The third idea is the theory of separation of powers, represented by Montesquieu: to combat the confusion between making and applying law, clear boundaries of authority should be established. According to this idea, judges are merely mechanical tools for applying law, and legal interpretation entirely belongs to the legislative authority, with no room for judicial involvement. Judges must transform from their traditional all-powerful status into slaves of the law.
In summary, the theory of separation of powers primarily demands clear, understandable, and complete laws, making legal positivism a necessary principle in criminal law.
The ideas of protecting human rights, balancing theory, and separation of powers were combined in the French National Assembly. Since then, the principle of legal positivism has dominated legal scholarship, legislation, and judicial practice. Through long historical development and academic belief, it has been given a firm guarantee. However, today, the fundamental ideas that laid the foundation for legal positivism are no longer fully recognized. The idea of human rights undoubtedly remains the most powerful driving force behind the principle of legal positivism. The French Revolution was a political struggle to eliminate feudalism and end bureaucratic autocracy. The drafting of the constitution was the banner of this revolution, and the people fought until they achieved complete victory. The abolition of autocratic rule and the establishment of national freedom and equality are inherently linked. This demand was reflected in criminal law, inevitably forming the principle of legal positivism: "Any act shall be deemed a crime and any punishment imposed only if it is determined by existing law." As long as the various opposing forces within the state have not been overcome, legal positivism should remain as a defense weapon for the weak against the strong.
The theory of psychological coercion based on balancing theory is a controversial theory in criminal law, but it provided motivation for drafting a criminal code that achieves a balance between crime and punishment. It had a significant role in liberating the people from autocratic trials. This theory indeed established the principle of legal positivism in criminal law, but it is a superficial view to consider balancing theory as the foundation of legal positivism. The theory of psychological coercion based on balancing theory assumes that everyone is familiar with penal laws. Only those who understand specific crimes and the corresponding punishments can compare the pleasure of committing a crime with the discomfort of punishment. However, most people are not familiar with penal laws; what they know are the "orders" (equivalent to Binding's norms) that include penal laws, and even legal obligations based on these orders. The failure of criminal legislation based on psychological coercion is due to the fact that, from the outset, it confused whether the criminal should recognize "orders" or penal laws.
It is even less sufficient to base legal positivism on the theory of separation of powers. The theory of separation of powers ultimately completely blocks judges from interpreting law and treats any contact with law as a crime. Demanding perfect laws from lawmakers is tantamount to expecting divine power to be realized. No one can guarantee that lawmakers can fully understand all the nuances of the lives of offenders. Precisely because of this, there is a need and space for legal interpretation and legal scholarship.
At the time of the French Revolution, both scholarship and legislation agreed that judges were mere mechanical tools for executing existing law. This later evolved into the view of the author of the book The Valuelessness of Jurisprudence as a Science (J.H. Kirchmann, Die Wertlosigkeit der Jurisprudenz als Wissenschaft, 1848), who argued: "Jurists are merely insects that feed on rotten wood due to the execution of existing law." This view is a rhetorical exaggeration of its time.
The theory of separation of powers played a role in opposing autocratic trials at that time, but for legal positivism, it remains only a superficial justification.
As a result, the basis of legal positivism recognized by modern criminal law should be attributed to the idea of the Magna Carta, which originated in Britain, that is, the state explicitly guarantees the inviolability of people's rights and freedoms through legal positivism. Modern criminal scholars almost without exception recognize this point.
The principle of legal positivism has been the pillar of criminal legislation and the highest principle of criminal law since the late 18th century, through the 19th century, and up to the present. However, the 1926 Soviet Criminal Code abolished it, and after the Nazi party took power, it strongly sought to expel legal positivism from the field of German criminal law as a relic of conquered history.
However, the value of legal positivism should only be determined by its relationship with the social foundation on which it exists. In this sense, studying the Soviet Union, which has a fundamental difference in basic organization from other countries, is not necessary. Therefore, let us briefly examine the relationship between the social foundation and our country (Japan) in Germany, where there is little difference.
First, what is the legal basis of legal positivism in Germany? The German Criminal Code (1870) Article 2(1) states: "Acts subject to punishment are limited to those for which the penalty has been prescribed by legislative acts before the act is committed." This is interpreted as a provision that has declared the principle of legal positivism. Roughly the same as this, the Constitution (1919) Article 116 simply replaces "the penalty has been prescribed by legislative acts" with "punishment has been prescribed by legislative acts." Generally, the constitution does not intend to abolish the provision of the Criminal Code Article 2(1) and replace it with a new one. On the contrary, it maintains the provision of the Criminal Code while providing greater protection through the constitution (Hippel, Strafrecht, Bd. 2, 1930, s. 34, 5).
As long as this view is considered correct, even though the constitution's effect was suspended on March 24, 1933, by the authorization law, removing the constitutional guarantee of the Criminal Code, it cannot be denied that the Criminal Code Article 2(1) still retains its effect.
In summary, in Germany, the legal basis of legal positivism can still be found in the provisions of the Criminal Code.
Where is the argument of Nazi legal scholars in rejecting legal positivism? I summarize their claims as follows: Legal positivism is an enlightenment-era legal view that originates from the conflict between individuals and the state, representing a utilitarian ideology that sacrifices state interests for individual interests. This idea—that offenders do not protect the interests of the people and the state but should instead be protected by the judiciary and execution—is Marxist and Jewish. This enlightenment-era legal state ideology, which aims to maximize individual rights and freedoms, has been overcome and has become a relic of history. Today, the "collectivist state," where all individuals bear collective obligations for the benefit of the whole people, has replaced the old legal state. The essence of this new state is the normalization of overall state life, and thus criminal law must necessarily be a "Magna Carta" for the interests of offenders, not a "Magna Carta" for the state and the people.
Offenders lack the ability to be valuable collaborators of the "collectivist state" and are merely proven lower-class individuals by their actions. The environment does not produce offenders; offenders are those who are compelled to become criminals due to hereditary traits, and criminal law has no power to change hereditary traits. Overall, criminal law is ineffective, and the more lenient it is, the less effective it becomes. The view that "humane criminal law reflects a high cultural state" is not only false but also morally questionable.
Of course, cruel punishments should be avoided, but it is necessary to impose the death penalty, life imprisonment, and eugenic sterilization to eradicate the hereditary traits of offenders. To defend the "collectivist state," the principle of legal positivism should lose its reason for existence.
The above are the arguments of Nazi legal scholars (e.g., H. Nicolai, Die Rassengesetzliche Rechtslehre, 3rd ed., 1934; H. Henkl, Strafrecht und Leistungsneuer Staat, 1934).
Let us examine whether the denial of legal positivism by Nazi legal scholars in Germany is correct. It is true that legal positivism originated from the legal state idea, and the enlightenment-era views that served as the source of this idea have become historical facts. However, it cannot be concluded that all its institutions have lost their reason for existence. Whether a system is correct should be determined after evaluating its role and its connection to the social foundation on which it exists.
Legal positivism is constrained by two tasks: One task is its function of guaranteeing the rights and freedoms of citizens within the state. Acts that disrupt social order are not necessarily crimes; only those acts defined as crimes in the criminal law are crimes. The other task is its function of guaranteeing the rights and freedoms of offenders. Offenders must be punished, but their punishment must be limited to the penalty explicitly prescribed by the penal law.
When there are various opposing forces within society, and when the strong exert pressure on the weak, and when this pressure is unlimited, it manifests as autocracy. Legal positivism is the result of a painful history of how the people finally overcame feudal autocratic trials, and it was obtained after "painful experiences and hard struggles" to cut off its roots. Legal positivism is an expression of enlightenment-era and natural law ideas of human rights, but its main spirit lies in protecting the interests of the weak from the oppression of the strong. As long as there is an opposition between the strong and the weak within society, legal positivism must remain an iron principle of criminal law.
The "collectivist state" used by Nazi legal scholars to replace the legal state is the old cliché of the "state of power." But what is the social foundation of the "state of power"? Nazi scholars failed to provide a clear answer. People are accustomed to using language like "Volk" (nation), "Nation" (nation), and "Gemeinschaft" (community), but these have no meaning in explaining the social foundation of the "state of power."
If there can be no opposition between the strong and the weak in the social foundation of the "state of power," then perhaps individual interests must be sacrificed for the benefit of the nation, the people, or the community. However, the social foundation of the "state of power" remains unclear.
Simply shouting "authoritarian criminal law" and its inevitable conclusion of rejecting legal positivism will be accepted only by those who agree with Nazism.
Professor G. Radbruch commented on the "state of power" and "authoritarian criminal law" as follows: "This is nothing more than a capitalist state of view. Capitalism may regard this view as a sign of its victory in the final showdown with the proletariat and populism, but in reality, it has retreated to the extreme of autocracy." If this criticism is correct, then under the rule of the "state of power," the abolition of legal positivism would merely mean the revival of autocratic trials.
What is the legal basis upon which legal positivism is established in the criminal law of our country (Japan)? The old Criminal Code (Meiji 13?1880) Article 2 stipulated: "No act shall be punished unless it is explicitly prescribed by law," which is exactly the same as seen in criminal codes around the world. Our scholarship has affirmed the principle of legal positivism based on this provision. Although the current Criminal Code (Meiji 40?1907) does not contain such a provision, no theory has yet emerged that claims the current Criminal Code negates legal positivism.
Because the constitution (Meiji 22?1889) Article 23 stipulated: "No Japanese subject shall be arrested, detained, tried, or punished except according to law," some interpretations of the current Criminal Code argue: "There is no need to reiterate this, as it is already considered a natural requirement today" (Katsuzō Kishimoto, Criminal Law Practice, p. 61). (Yasushi Miyamoto, Essentials of Criminal Law, p. 114). Therefore, the current Criminal Code does not repeat this provision.
Between the implementation of the constitution (Meiji 23, November) and the implementation of the current Criminal Code (Meiji 41, October), that is, during the period when the old Criminal Code was still in effect, the question of the relationship and effect between the old Criminal Code Article 2 and the constitution Article 23 arose. That is, whether the principle of the later law (constitution) abrogating the earlier law (old Criminal Code) applies, and whether the constitution further guarantees the effect of the criminal law? It is likely that the general view in our country is the latter, that is, the constitution again ensures the effect of the criminal law.
Legal positivism, although not directly appearing in the current Criminal Code, is a principle guaranteed by the constitution, and this view is consistent in Japanese criminal law scholarship.
Recently, debates about the principle of legal positivism have been rising in our country, as "legal positivism is, of course, a fundamental principle of criminal law" (Yasushi Miyamoto, Problems of Criminal Law Amendment, p. 29). Therefore, there has been no opinion yet that advocates abolishing this principle directly. However, "legal positivism has fulfilled its historical mission and appears too old to serve as a social defense warrior in the modern era." As a result, calls for its retirement have emerged.
Professor Miyamoto's views can be said to represent this opinion. He argues: "Legal positivism has played a huge role in saving individuals from the tyranny of the police state," but "the criminal law, based on legal positivism, although logically coherent, has little effect in suppressing crime." The modern state is the "traditional legal state idea" that "opposes the punishment of the state and protects individual interests," and it is a "state that rules over the criminal, including the criminal, and stands above them," that is, a "state thats and cares for both the majority and the minority, the strong and the weak, the fortunate and the unfortunate, and uses this method to ensure that everyone finds their place and lives in peace." This is an ideal, peaceful, moral, and even a civilized state, and can be interpreted as a "state in line with the new concept of civilization." Therefore, legal positivism should be revised.
He also: "If legal positivism hinders the amendment of criminal law, then even if we abandon legal positivism, we must complete the amendment of criminal law." (Ibid., pp. 29—36).
I, like Professor Miyamoto, also look forward to a state thats the majority and the minority, the strong and the weak, the fortunate and the unfortunate, and cares for them, ensuring that everyone finds their place and lives in peace. Such a state would naturally be justified in abandoning legal positivism. But the problem is not simply solved by theoretical concepts. I believe that if the social foundation of the so-called "civilized state" and its relationship with the real state are not discussed and explained, it cannot be understood.
The opinions in our country that reject legal positivism do not claim to follow the German model, but their arguments cannot be considered to have many similarities with Germany.
"In peacetime, if a judge is in a free position in all political struggles and highly educated, although he has unlimited absolute power in judgment, it will not cause too much harm. However, in an era of intense political and social struggles, it is necessary to maintain the 'uniqueness' of criminal court judgments. Law and the principle of 'nulla poena sine lege' should become an irreable boundary for judges." (Introduction to Criminal Theory follows the iron principle of legal positivism in explaining criminal theory, so this book naturally concludes the concept of crime as: "、 that meets the constitutive elements and constitutes a crime").
Recently, the practice of dividing criminal behavior into "constitutive elements," "unlawfulness," and "responsibility" has been criticized (Georg Dahna and Friedrich Schaffstein, scholars belonging to the Kiel school, for example). It is criticized as being stuck in the abstract meaning of discussing crime without capturing its vivid and concrete nature.
However, I believe that within the scope of "the establishment of criminal responsibility is both the starting point and the endpoint of criminal law," the above practice of separating explanations is still meaningful.
Criminal responsibility is the blame directed at the criminal based on the crime. The severity of the blame undoubtedly depends on the severity of the crime. The question of what determines the severity of the crime is one answer: it is determined based on the legal interest harmed. This answer should certainly be taken seriously.
Determining it based on constitutive elements is also a type of answer, but this type of answer itself includes the severity of the legal interest harmed. Murder is more harmful to legal interests than theft, and arson is more harmful than the destruction of property. Unlawfulness is a concept that carries a degree, but the severity of unlawfulness is accompanied by the severity of legal interest harmed, and the severity of legal interest harmed is accompanied by constitutive elements. In this range, the statement that constitutive elements are the types of unlawfulness is correct.
Recognizing the distinction between constitutive elements and unlawfulness and their correlation is very important for the construction of the crime concept. Moreover, since unlawfulness is also the harm to legal interests, it is not the thing that determines the criminal's responsibility. It is only after being reflected in the subjective aspect of the criminal that it is elevated to the concept of responsibility. In this sense, distinguishing between unlawfulness and responsibility is not only useful but also precisely because of this distinction that criminal responsibility becomes clear.
If one discusses the criminal responsibility of the criminal without distinguishing between constitutive elements, unlawfulness, and responsibility, it is like describing a castle in the air.
Starting from this understanding, based on the traditional criminal theory, I regard crime as a、 that meets the constitutive elements and constitutes a crime, and I will study the construction of the crime concept on this basis.
This book is the result of some modifications to the part of criminal theory in my criminal law lectures at Kyoto Imperial University during the Showa 7—8 academic years (1932—1933). It was serialized in Journal of Public Law, and it has now been compiled into a book. I believe that although it does not go beyond traditional criminal theory, it may still play a role in reflecting the level of criminal law in our country. The title is Introduction to Criminal Theory because it only stays at the general theory of crime and the specific issues of crime still await the future efforts of new criminal law scholars.
Professor Sazaaki Mitsuichi celebrated his 60th birthday on March 28 this year. Since I entered the Faculty of Law at Kyoto Imperial University as a student, Professor Mitsuichi has always taught me to study hard and taught me the attitude that a scholar should have. Now that Professor Mitsuichi has reached the age of 60, I am particularly pleased to dedicate this insignificant research to express my gratitude and admiration. I am afraid that this book may contain many errors, failing to live up to Professor Mitsuichi's cultivation.
Kōichi Takagawa Showa 13 (1938) March