罪刑法定主义的哲学视域

对刑法基本原则的深刻理解来自于探寻其生命源泉。英国1215年《大宪章》与罪刑法定主义之间的联系被过分夸大了。罪刑法定主义的道德基础是个人主义的道德观,其政治条件一个是政教分离,一个是王在法下。罪刑法定主义仅仅立足于民主主义是不够的,还须立足于立宪主义,其根基在于人的尊严和自治,而其前提是商品经济的发展。

On Prescribed Crime and Penalty from the Philosophic perspective

The deep perception of basic philosophy of criminal law depends on the pursuit of its origin. The connection between the Magna Carta,adopted in 1215 in Britain,and the prescribed crime and penalty has been exaggerated. The moral basis of the prescribed crime and penalty lies in the individuals’ moral outlook,and the political presumption of the former is separation of politics and religion; while that of the latter is sovereign inferior to law. To establish the prescribed crime and penalty on basis of democracy is far from enough,rather,it should be based on constitutionalism,taking individual’s dignity and autonomy as the basis and the development of commercial economy as the precondition.