Natural scientific thinking of criminal law

下面为大家整理一篇优秀的paper代写范文- Natural scientific thinking of criminal law，供大家参考学习，这篇论文讨论了刑法自然科学思维。刑法自然科学思维扬弃着唯科学主义，超脱着法律人文主义，提倡妥当适用经验法则而反对经验主义。刑法自然科学思维强调现代法治包括刑法司法要尊重和运用自然科学的规律与成果。刑法自然科学思维方法论在法律发现、刑法解释、法律推理、利益衡量等方面，都有着自身的立场，始终倡导科学立法、公正司法。刑法司法方法要遵循法治思维和法治方式，有必要破除旧观念，树立新观念。

The thinking of natural science of criminal law sublates scientism, departs from legal humanism, advocates proper application of rules of experience and opposes empiricism. The thinking of natural science of criminal law emphasizes that the modern rule of law, including the judicial law of criminal law, should respect and apply the laws and achievements of natural science. The thinking methodology of natural science of criminal law has its own position in legal discovery, interpretation of criminal law, legal reasoning, interest measurement and other aspects, and advocates scientific legislation and fair judicature. The criminal law judicial method must follow the rule of law thought and the rule of law way, has the necessity to break the old idea, sets up the new idea. Therefore, it is necessary to improve the scientific and technological judicial level and quality of judicial personnel, to deal with the technical means of crime by means of the rule of law, that is, to stop the phenomenon of "one foot higher in justice, one foot higher in evil" in the face of "scientific and technological crimes". In the judicial field involving high-tech crime, the natural scientific thinking of criminal law has a broad "use".

Internet fraud crimes, Internet gambling crimes, Internet financial crimes and other high-tech criminal crimes occur frequently and frequently, often causing heavy losses to the public inadvertently and causing great harm and public anger. But because of its criminal means rich technological, gang members across regions and dot dispersion, concealment crime method, collaborative division of labor, get quick and criminals contact quick, aggregation, quick, quick escape quickly, destroy the evidence such as features, to investigation organ investigation, capture, seizure, inspection, investigation, bring many difficulties to recover, etc, also often leads to the judicial organ about the case facts that evidence, and the applicable law is difficult. With the opening of the era of big data, how to retrieve, identify, screen, review and identify the massive data in cases also brings great challenges to criminal justice. Under this circumstance, for the criminal judicial organ, at least reveals the hysteresis of criminal law method and its thinking. Therefore, the discussion, promotion and development of criminal law approach have important theoretical significance and practical value.

"At a time when social transformation and risk diversification are deepening, China's criminal law is facing an outlet problem." For the dilemma of criminal justice, the methodological thinking advocated by the natural scientific thinking of criminal law may provide useful enlightenment for solving practical problems. The method of criminal law is historic and has different emphasis in different periods, but it is precisely these different periods of criminal law methods and their emphasis that promote the evolution of criminal law methods. If the legal discovery, legal containment, legal interpretation and interest measurement as criminal law methods have their own contributions and marks of The Times, then these marks also represent the shackles of criminal law methods in that era. The natural scientific thinking of criminal law tries to develop the dimension of criminal law method, to inherit the achievements of criminal law method and to release the shackles of The Times. The inherent spirit of the natural scientific thinking of criminal law lies in that the judicial system of criminal law should meet the requirements of modern rule of law, safeguard the authority of the constitution and laws, safeguard the rights and interests of the people, and make criminal justice contribute to the realization of social equity and justice on the whole. In other words, the thinking methodology of the natural science of criminal law has its own position and dedicated vision in many aspects of the criminal law method, advocating scientific legislation, strict law enforcement and fair administration of justice, and striving to provide some value thinking for promoting the modernization of the criminal justice governance system and governance capacity.

According to the idea of criminal law science thought: on the one hand, on the scientific and technological content of the criminal justice process, should be "in the spirit of natural science for requirements, guided by the principle of natural science, natural science and technology as the means, targeted to solve in the enforcement of the criminal legislation, criminal justice and punishment related issues, in order to make the criminal law is regular work". On the other hand, although it is not necessary to take the principles of natural science as guidance, the spirit of natural science should be followed and the value of natural science and technology to the criminal justice should be attached great importance.

The practical value essence of the natural science thinking of criminal law is to change the traditional criminal law thinking and criminal justice method with the new scientific thinking, and introduce the knowledge of social science and natural science, including the rules of natural science, principles of social science and spirit of natural science, into the methodology of criminal law. Its service target is the judicial practice of criminal law, but it is completely different from the scientism of western legal methodology. Therefore, the natural scientific thinking of criminal law holds its own basic position: to advocate respect for scientific rules, and actively use the natural scientific thinking, not only scientism; Attach importance to the logic of handling cases, apply the logical thinking of handling cases, and do not believe in logical empiricism; Look at humanism rationally, and apply its excellent achievements without deliberately elevating it.

Scientism is a form in the development of legal methodology of western continental law system. Scientism is closely related to the philosophical concept and statutory tradition of the continental law system. Since justice is an activity involving technical methods to solve specific cases, and science and technology in each era may bring some technical help to deal with cases, with the development of natural science and technology in Europe, it has attracted the attention of jurists, and has been gradually introduced and grafted into the field of legal methodology. Necessary, scientism's problem is not the natural science methods of grafting to the methodology of jurisprudence, which is the belief that social science as natural science there are immutable laws, can be found completely by the method of natural science and social science of the universal law, which brought by the natural science methods "universal method of social science. As someone said, "influenced by natural science, jurists in mainland China believe that there are rules to follow in the development of human society. As long as they find the knowledge that reflects these rules, they can solve the problem of order and development of human society once and for all."

Some say, "legal methodology hardly provides such a thing as' standard writing '." In the thinking of scientism, the law is regarded as or equivalent to the natural law, then the legislator will rise himself as the discoverer and controller of legal truth, thus making the law in the hands of a few people. As the framers of the code, especially the jurists, have produced the plot of "law omnipotence" which can promote the social scientific knowledge to scientism, they are extremely superstitious to the codification of law and gather into the "law omnipotence doctrine". In this regard, the natural scientific thinking of criminal law negates the scientism theory, and clearly points out that the code and its rules cannot replace and assume the social governance functions of rationality, experience, system, policy, morality, custom and tradition, and simply use the natural scientific methods to understand and serve social governance will eventually backfire. The "crisis of legitimacy" in the legal system of continental European countries is caused by the "colonization" of scientific and technological knowledge that is supposed to be the purpose of legitimacy.

When the natural scientific thinking of criminal law restrains and reverses the scientism, we should pay attention to avoid the excessive anti-scientism. After all, western scientism also contains reasonable value factors, so we should not give up eating for fear of choking. With the rapid development of high technology and the profound changes of social life, laws and legal methods should be open to accommodate the space of natural science in their own development. At present, business transactions and financial exchanges based on the Internet, taobao, WeChat, TV and phone, video live broadcast and other communication methods are extremely active, and related cyber crimes are also spreading day by day. Crimes committed through the Internet have been and continue to increase at an alarming rate. Corresponding network police has become an important new part of the police force. Therefore, the criminal law should make use of natural science to enrich and strengthen the means of combating scientific and technological crimes, so as to deal with crimes and protect society in accordance with the rules, rules and spiritual requirements of natural science.

From the perspective of our criminal justice practice and legal research, the research and application of natural scientific thinking are not too much, but too little. The method theory of criminal law lags far behind the development and application of science and technology in the absorption and application of scientific and technological achievements. Compared with the endless emergence of modern science and technology crimes, the techniques and methods of criminal justice seem to be "reluctant" and "inadequate". In recent years, the senior political and legal officials of the central government have paid close attention to this issue. They have conducted frontier training of science and technology for the police in charge of political and legal affairs throughout the country through teleconference and other means, enhanced their awareness of science and technology, and discussed the methods and theories of dealing with high-tech crimes. Of course, at the level of criminal legislation, criminal law is not indifferent. However, in the judicial level of natural science thinking method is still lagging behind, too silent.

Since it is recognized that scientism is the root of the crisis of legal legalization, the view that the way out of the crisis lies in a fundamental transformation of the whole culture of the west has received more and more attention and support. But the question is what kind of culture is responsible for the fundamental transformation. Jurists reflect on law from various aspects and seek for the change of legal concept. In this process, the legal concept of humanism was gradually established, and the legal method began to turn from scientism to legal humanism. When the status of legal humanism is established, it becomes a legal methodology opposite to scientism. According to the legal humanism, scientism only sees the subject status of the person who does not see the object of law but only sees the knowledge of natural science, and thus is wrong in the research method and object. Because the legal method belongs to the human science, it certainly belongs to the human method in the research method, so it completes the transformation from the legal ontology to the legal ontology, thus subverting the attribute and position of scientism.

From the perspective of the natural scientific thinking of criminal law, legal humanism, which regards law as a means of protection and regards man as the end of law, seems to go to another extreme opposite to scientism. On the one hand, legal humanism completely negates scientism and declares that "the particularity of human society determines that the cognition and study of human society cannot use natural scientific methods". However, in fact, the study of human society, in any case, is inseparable from the method of natural science. The study of ancient humans and paleontology by archaeology is exactly using a variety of natural science knowledge and scientific and technological equipment, which promotes the development of archaeology and promotes the understanding of human beings to a new height. This shows that humanism can not be separated from the natural science and get good development alone, but is deeply affected by the development of science. Because people develop science, and through the creation of science and technology to serve people, including the use of science and technology to make and abide by the law, and the legal activities have shown the shadow of science everywhere. Therefore, science and technology serving law and law using science and technology seem to have completed the Mosaic between them, which is difficult to give up. At present, it seems hard to imagine how the law would survive and develop without technology.

On the other hand, legal humanism advocates that the handling of cases should be carried out exactly the same way in the same case and the same sentence in the same case, which makes it paranoid to understand that everyone is equal before the law. The natural scientific thinking of criminal law points out that the same treatment of the same situation is a judicial consensus and principle, which is established on the basis of general concepts, and in essence is similar treatment of similar situation, so as to exert the uniform standardization of law and ensure the fairness and justice of law implementation. Moreover, equality before the law means that different people should be treated equally before the law, not equal rights or powers. However, there are no absolute similarities in judicial activities, but only similarities. Scientific legal view should be the same situation roughly the same treatment, should not go beyond the general tolerance of the public bottom line, the conclusion of the judgment should abide by the principle of legally prescribed and equally prescribed punishment, and make a judgment within the legal discretion range of punishment.

According to humanism, people in the concept of law are completely free, autonomous and self-determination. Is that really the case? The natural scientific thinking of criminal law takes issue with this, believing that people in the eyes of law are actually normal people, who should obey the social order and public interest. The humanistic legal concept of human freedom, autonomy and self-determination is actually the romance of western liberalism, which unconsciously regards human freedom as being above the rules of social life. However, it neglects the point that the law, as the norm of social life, is not the order, harmony and dispute settlement rules designed and regulated out of the air, but the group freedom and its norm beyond individual freedom achieved by people on the basis of enjoying freedom. It can not only protect individual freedom, but also prevent individual freedom from going too far, or it will be subject to certain restrictions or sanctions. At the same time, this norm also guarantees the overall freedom of the social life of the regional community.

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