Reinterpreting the principle of “nullum crimen, nulla poena sine lege” from a Rawlsian Perspective

Where should criminal law end and another area of law begin? I believe this question is the most important and a timeless topic in the criminal law. The decision to criminalize a certain conduct should not simply be made ‘on balance’ between conflicting values such as liberty of citizen vs social danger, interest of defendant vs that of victim, the academic views vs normative intuition of judges. Therefore, we need the foremost principles that could guide the criminalization functioning as if they were a kind of just principle which everyone could agree to in a certain ideal situation where no one is advantaged or disadvantaged in the choice of the principles. If we succeed in deriving such principles, they could be regarded as just principles that might carry binding force between all of us, just because they are fair and righteous in a moral sense. Although in the real world, the principles might be infringed by both decisions of the Court and legislations of the Parliament, even in such cases we can judge the moral validity of the decisions and legislations from the view of foremost principles, which means we could see if they respected and followed the principles and how far they kept apart from just principle and thus we become better able to criticize them and propose more desirable legal alternatives to them.

 Based on above fundamental question, we can ask the following questions: What kinds of foremost principles could limit the criminal law. Does the principle of legality(principle of rule of law; Gesetzlichkeitsprinzip) work enough for the full protection of rights and liberty of citizens? Are any other foremost principles necessary such as the principle of protecting ‘legally protected goods’(principle of minimalism including harm principle; Rechtsgüterschutzprinzip), the principle of guilt(principle of responsibility: Schuldprinzip), and the principle of proportionality(Verhältnismäßigkeitsprinzip)? How could the principles be derived and justified? Who should set up the principles? I believe most of these kinds of questions could be answered by Rawls’s ideas that an agreement at which the parties who participated in the social contract in order to set up the basic structure of the society arrived without being influenced by any unequal and arbitrary elements is fair, right, and thus has binding forces not only between citizens but also between citizen and the state. That is to say, we could derive the foremost principle of criminal law from the Rawlsian scheme.

Although it is true that the limits of criminal law and foremost principles are the most important topic in the modern criminal law theory even when we are now facing arduous challenges in the governance of new crime, however we still have few theoretically robust grounds that could justify and explain more coherently the foremost principles and thus make the principles have more stable status than other principles, so the reasonable justificatory grounds that have more explanatory power should be explored deeply from the liberal perspective of legal and political philosophy. We, as criminal lawyers used to face the hard question: Though there are a set of foremost principles generally known to us such as principle of minimalism along with harm principle, however some people still could easily ask what if we accept legal moralism, legal paternalism, and authoritarian principles as criminal law’s foremost principles if they can be conducive to an orderly society. Does the former have more stable status than the latter? In this vein, to overcome such arguments, I would like to address and propose the pure procedural justification that could be called ‘contractarian justification of law’. Especially, I would like to introduce the theoretical methodology mainly based on J. Rawls’s ideas and show that firstly, how the methodology could contribute to criticizing unreasonable cases and secondly, how it could be utilized to choose some other sub-principles of criminal law such as subjective test rule that guides putative defence cases in contrast to objective test rule. Besides, I would like to mention shortly that the foremost principles could work well universally not only for civil law jurisdictions but also for common law jurisdictions.