以法治的名义——评《罪刑法定本土化的法治叙事》

In the Name of the Rule of Law:Comment on Research on the Legality Principle from the Perspective of Rule of Law

借助民族国家的研究进路和复线式的历史叙事模式,中国在建构东方族群式民族国家图景愈发清晰的同时,国家强力的压制性特征使个人自由的取得遭受限制。问题在于,对重构民族国家并进行现代化进程的中国而言,一个宏大而具体的现代化计划的落实尤为必要。于是法治作为改革的工具,成为现代化计划的一部分,而法治自身的价值则受到一定程度的削损。作为刑事领域彰显法治精神的罪刑法定原则,其价值长期得不到应有的重视。要想真正落实法治和罪刑法定,除了做到严格解释刑法规则之外,更重要的是构建权威的宪政秩序和精致的法治运作体制,有效提升刑法保护法益和保障个体自由的认识。唯此,现代社会中个体的自由才能成为刑事领域的价值核心。

Based on the nation-state approach and double-track-historical narrative mode, China is constructing a picture of the Oriental ethnic nation-states which becomes increasingly clear. Meanwhile, the repressive state＇s power limits the acquisition of personal freedom. The question is that, for China, who is in the process of reconstruction modernization, a large and specific plan for the implementation of the modernization is quite necessary. Law, served as a tool in reform, becomes an essential part in the course of modernization. However, to some extent, the value in rule of law has been impaired. The legal principle of crime and punishment, which demonstrates the spirit of rule of law, is not given much attention in the past. To achieve the complete implement of the rule of law and the legal penalty, besides the strict interpretation of criminal rules, we should construct the authority of the constitutional order and sophisticated legal operation system. In this way, we can effectively improve the criminal law protection of legal interests and guarantee the understanding of individual free understanding. Only by this, individual freedom can be a core value of the criminal field in modern society.