刑法思维的理论分野及其思想资源

Theoretical Differences of Criminal Law Thinking and Its Intellectual Resources

形式刑法观与实质刑法观,其学术标签虽似对立,其自我证立的思想资源却是共享的,二者都是在"形式理性"与"实质理性"的交织下展开的。而在两种刑法观的历史论辩中,双方最终都不自觉地将自己的论辩导向实践理性。如果说形式理性致力于寻求法律的确定性,实质理性渴求于彰显法律的灵活性,那么,实践理性则倾心于构建法律的适应性。以"适应性"理论来检视两种刑法观的学术论争,我们会发现,形式刑法观与实质刑法观真正的分歧其实并不在于是否坚持刑法的形式要求,而在于对"形式"的具体判定。求同存异之下,"适应性"理论似乎能够解释两种刑法观共同的努力与贡献。

Though concepts of formal and substantive criminal law seem mutually exclu sire in their academic tags, yet they actually share same intellectual resources. Both of them evolve with the interaction of formal rationality and substantive rationality. In the history of debates of these two concepts, both of them have ultimately directed their respective arguments to practical rationality unconsciously. If formal rationality aims at certainty of law, and substantive rationality seeks flexibility of law, then, practical rationality devotes itself to the establishment of adaptability of law. When examining academic debates among the two schools on the basis of doctrine of adapt ability, one can find that the real difference between them lies in the concrete determination of ＂formality＂, rather than whether to stick to the formal requirements of criminal law. In seeking common ground while reserving differences, it seems that we can rely on doctrine of adaptability to explain contribution made by two concepts of criminal law.