刑法契约化的概念辨正——以社会契约论为切入点

Study on the Conception of Contractualization of Criminal Law

将刑法视为契约,是以社会契约论为思路,对刑法领域中公民自由权利保障问题,从国家与公民关系的角度所开展的分析。追溯社会契约论,从社会实践和理论体系上,都能发现其虚拟性。而考察民主制度的发展和政治现代化的过程,可以看出,政治和法律理论早已远离社会契约论,从现实寻找逻辑合理性的根据。后现代社会中,现代民主政治制度受到了强烈的批判,但仍然没有给社会契约论留出再阐发的可能性,当代政治法律理论将理论点从社会转向公民本身,以政治参与作为解决现代民主所面临问题的路径,为刑法上更好地贯彻和实施罪刑法定主义,提供了有益的思路。如此,刑法谦抑性原则就是必然要考虑具体实施的问题。

Viewing Criminal Law as contract is an analysis,from the perspective of the relationship between the nation and the citizen,on the citizen rights protection issue within criminal law theory,of which the view is based on the Social Contract Theory. In fact,virtuality can be found when people look back on the Social Contract Theory in both the social practice and the theoretical system. Investigating the development of democracy and the process of political modernization,people are aware that the political and the law theory has already turned to seek the basis of logic rationality from the reality rather than the Social Contract Theory.Modern democracy has also received strong criticisms in the postmodern society,leaving a slim chance for the Social Contract Theory to revive. Contemporary political and the law theory veers to citizens themselves,relying on the political participation to solve the problems that modern democracy encounters,which is beneficial for Criminal Law to implement and carry out the principle of legality. Thus,the modest and restrained practice of Criminal Law becomes a must to be considered in practice.