法律的公众认同、功能期许与道德承载——对刑法修正案(八)的复眼式解读

Public Recognition, Function Expectation and Moral Bearing of the Law:A Reading on the Eighth Amendment of the Criminal Law of China

刑法修正案(八)不但针对我国转型时期的社会情势和国情民意予以了很大程度的回应,而且也体现了官方和主流民意对刑法的功能期待,承载了当下社会基本的集体道德情感,但被一些刑法改革者认为立法理性不够或过多地迁就了庸俗的民粹主义,以致没有较好地摆脱传统工具主义和重刑主义的思维与窠臼。诚然,转型时期高度复杂的社会情势和大众心理基质难免使得实定刑法所蕴含的价值理念互有差别、充满悖反乃至相互抵牾。欲对这种吊诡的多重面向予以同情之理解与有效的解读,除了法学与逻辑的思维论证,更重要的可能还必须导入法律社会学、社会心理学和法律经济学等多维度的复眼化视角。

In general, the Eighth Amendment of the Criminal Law of China on the one hand made modifications for the purpose of decreasing and restricting the use of the death penalty, regulating the crime-penalty structure and adjusting the criminal penalty system, which has made the criminal law system and the crime-penalty regulation more reasonable in formality. Those modifications in some sense accord with the worldwide trend of moderate criminal penalty and the progress of the rule of law. On the other hand, the Amendment responds effectively both to the domestic situation and the voices of the general public in a transformed society. It also expresses the expectations of the authority and the mainstream public opinion for the functions that the criminal law serves, and reflects the social fundamental collective moral feelings. Therefore, the promulgation of the Amendment aroused the criticism from the academic society. They thought the criminal law should be more rational rather than simply follow the populism. Practically speaking, a modern society with highly complexity puts heavier burden on the law. A so-called legal issue may not be a pure one, yet other aspects of the social life may be involved in it. And so does legislation. The reform on legal system always takes place after the changes of the society and the collective living conditions. Therefore, to have an overall picture of the Amendment, it is more effective to take a dimensional vision, not only from the legal and logical aspect, but also from legal sociology, social psychology, legal economics and other aspects. Thus, it is possible to have a constructive reading on the said Amendment and the ideology that governs the Criminal Law of China.