Zhang Mingkai speaks at The International Academic Forum in China 2021 on Oct. 14 in Beijing. Photo: Zhang Zhe/CSST

In recent years, China’s criminal jurisprudence in a narrow sense has made great achievements. Nevertheless, the subject has yet to be improved in its function of serving the country’s national governance. China’s criminal jurisprudence community tends to have bipolar perspectives for whether the system should become more global or national. There is also too much criticism and too few constructive proposals in the field. Meanwhile, a gap remains between the theory of criminal law and the people’s rechtsgefühl, meaning legal sentiment, or sense of justice.

Studies of facts and regulations

Criminal jurisprudence in a broad sense constitutes fact studies and regulation studies. Criminology belongs to fact studies, while criminological hermeneutics and dogmatics belong to regulation studies. Criminal policy sciences and criminal execution law cover content from fact studies, policy-science of law, and studies of regulations. For various reasons, unlike criminological hermeneutics, the other three have become interdisciplinary subjects. What’s more, all individual subjects under criminal jurisprudence in a broad sense are divided, with their research results separated from one another. Criminological hermeneutics stays within the circles of regulations, cases to regulations, and regulations to cases. It is neither able to guide crime prevention and reduce crime, or provide solid evidence for criminal legislation.

This phenomenon is related to the dispute between social sciences of law and legal dogmatics. Actually, fact studies in criminal jurisprudence in a broad sense is the equivalent of social sciences of law. It is impossible for criminological hermeneutics to develop into social sciences of law. Instead of social sciences of law, criminological hermeneutics is what is needed to deal with hard cases. In addition, criminological hermeneutics is not a simple interpretation of legal texts. It is a creative process for both discovering the true meaning of law and resolving specific issues. Therefore, it is impossible for criminological hermeneutics to reject any knowledge or method that is helpful for attaining its goal. The criminal law system must adapt to day-to-day life, where the true meaning of criminal law can be found. Meanwhile, as society changes, so does the meaning of articles of law. Thus, no interpretation or conclusion is the ultimate truth. This article proposes that fact studies and regulation studies be weighed equally important not to avoid disputes between social sciences of law and legal dogmatics, but to enhance the function of criminal jurisprudence to serve national governance.

National vs. global

Chinese criminal jurisprudence is bipolar in this regard. Some people only value nationalism, and reject any concepts originating from abroad. They pin a label of “Germanization,” “Japanization,” or “indiscriminate imitation” on any people who refer to German or Japanese legal theories. The other extreme is only valuing globalization. Some even refer to foreign theories as the standard for testing China’s criminal legislation, administration of justice, and theory of criminal law.

For instance, the fifth chapter of China’s specific provisions of criminal law refers to the object of the crime of encroaching on property as “property,” instead of dividing the objects into two categories—“property” and “interests of property.” In the criminal laws of Germany and Japan, the object of encroachment can only be property, while the objects of the crime of fraud include property and property interests. By contrast, in China, acts of theft and swindling interests of property are dealt with according to China’s criminal law and facts of real life. However, some scholars that support German and Japanese criminal laws disregard the regulations of China’s criminal law, and are convinced that an act of stealing interests of property does not constitute a larceny, while swindling property interests constitutes a crime of fraud.

Neither of these bipolar perspectives help improve China’s criminal jurisprudence, which was created to solve issues in China. However, if we stick to only local ideas, it would be hard for any creative, ingenious, and universal concept, category, or theory to be created within the arena. Likewise, if we blindly seek globalization, we are bound to overlook issues in China. Therefore, the content in China’s criminal jurisprudence that is unique to China’s local conditions should also embody mankind’s common values. If a theory fails to demonstrate mankind’s similarity, it will not be recognized by the academic community of criminal jurisprudence. In another word, mutual learning is essential. Take criminology for example, any research conclusion will prove to be meaningless for China if it is not based on criminal phenomena and causes of local cases. We also need to see the achievements in the studies of criminology made by European scholars from the perspective of law studies, as well as British and American scholars from the angle of social studies. Thus, it is necessary to balance localization and globalization when conducting criminal law studies. How can we make this happen?

First, we need to sharpen our judgment for theory and their application effects. In particular, the more vulnerable the local theory is, the more discriminative and analytical we must be. We should never blindly accept general theories from other countries or see them as absolute truth. Second, we must adapt other countries’ criminal legislation and theories to China’s current local realities, but never should we take them as the standard for testing China’s criminal legislation and criminal justice. Third, China’s traditional legal culture is not the opposite of international legal culture, nor is it equal to being historic or national. Fourth, jurists need to study China’s real-life issues while comparing with other countries, so as to achieve a dialectical unity between nationalization and globalization. Fifth, we must create new descriptive concepts by observing, and summing up, facts in real-life, while formulating influential regulative concepts by abstracting and refining, instead of adopting rigid research paradigms and discourse.

Criticism and constructiveness

Academic criticism is a way of conducting academic research. However, criticism alone is not enough. In particular, it is meaningless to conduct rule-less academic criticism. For China’s criminal jurisprudence to move ahead, it is a must to condense local experience in criminal legislation and justice while also recognizing our theoretical achievements. This is what this author refers to by “constructiveness.”

First, it is essential to sum up China’s experience and lessons learned in criminal jurisprudence, so as to guide dynamic legislation for criminal laws. For that to happen, we need to sort out China’s legislative policies that are sound and guiding, before we can spread and develop them. Criminal theory should also provide empirical evidence and basic theory for legislation. It is necessary to both listen to the call of the public and refer to evidence and theory. Currently, it is common for articles of criminal law to be written based on individual cases or logical reasoning, which may cause these articles to lose vitality. Instead, the theory should not simply identify the features of various kinds of danger and the legal interests that need to be protected, but also serve as the justice and principles for the new era.

Second, it is necessary to draw conclusions from our criminal judiciary experience and lessons learned in criminal jurisprudence, and foster a positive interactive relationship between the theory and judiciary so that the two can advance in tandem.

Third, we need to work on the existing theoretical results and come up with new ones based on consensus. We must select, improve, and test the theoretical achievements gained in the past 40 years since the reform and opening up, and sort out what was originally created by China, so as to establish a mutually supported theoretical framework. It is also necessary to sort out disputes, and reach consensus on certain issues as much as possible. Next, jurists should never innovate for innovation’s sake, nor criticize for the sake of criticizing. Only those theories that truly help solve problems are creative theories. Last, theory must properly handle the relationship between replacement and accumulation. The author believes it is more important to accumulate theory than to replace existing theories, such as in prioritizing accumulating over replacing some of the current anti-crime measures.

Professionalism and popularization

The norms of criminal law are, first and foremost, the norms of adjudication. The application of criminal law is a particularly professional task, and criminal jurisprudence is inevitably professional. But it is not sufficient to focus only on the professionalism of criminal jurisprudence; criminal law theories that cannot be understood and accepted by the general public are not good. Criminal law is a literal expression of justice, and the application of criminal law represents fulfilling the justness of criminal law. However, “civil justice is at the heart of the legal system, at least in open societies.” The authority of criminal law is undermined if it is applied contrary to popular notions of justice. Therefore, there is a need to integrate civil justice and legal justice. The performance of the penal functions depends on the recognition of public awareness at the present stage. “If the penalty does not conform to the citizens’ ‘normative consciousness’ and ‘sense of justice,’ the penal system cannot effectively play its functions.” Achieving this requires a criminal jurisprudence that understands and respects civil justice.

In order to integrate civil justice and legal justice in criminal jurisprudence, it is necessary to obtain genuine public opinion. Criminal law scholars can neither assume their own views represent public opinion, nor can they dismiss public opinion that differs from their own views as dross.

Second, criminal law scholars should be adept at communicating with the public so that the public will accept legal concepts that are universal and advanced. Currently, some views of criminal law scholars are in clear opposition to public opinion. When internet users form an overwhelming opinion on a case, some criminal law scholars largely remain silent in order to avoid being scolded, even if they believe that the internet users’ opinions do not conform to the true meaning of criminal law. While it is impossible to assume that the views of criminal law scholars are correct, it should be acknowledged that the public has yet to embrace universal and advanced concepts of law in some respects. Therefore, criminal law scholars need to communicate with the public. For example, the public is often particularly averse to crime and therefore advocates a strong crackdown on all types of crime. A purely doctrinal argument for the flaws of severe punishment practice would not only be unhelpful, but also cause public resentment. In this regard, criminal law scholars can only justify cases with facts and data.

Third, criminal law scholars should write articles for popular reading and hold lectures on criminal law for the general public to popularize universal and advanced legal concepts.

Criminal jurisprudence scholars should also write more accessible books that are in-between textbooks and monographs, and are suitable for undergraduate students. The core of law studies should be education instead of research, and legal education should not focus on only a few people, but the majority of the people (in particular, education should prioritize undergraduate students).

Zhang Mingkai is a professor from the School of Law at Tsinghua University. This is an excerpt of his paper submitted to The International Academic Forum in China 2021.