刑法类型思维的评价与反思--基于语言哲学概念理论的新认知

Evaluation and Reflection on Typological Thinking in Criminal Law:New Ideas Based on the Conceptual Theory of Linguistic Philosophy

类型思维支持者常通过批评概念思维具有封闭性、固定性、抽象性、割裂性与价值无涉性特征为证成类型思维存在适用优势的依据。在引入语言哲学概念理论考察刑法问题后可有如下新认识:其一,类型思维并不排斥概念思维,其竞争对手应为基于二值逻辑的经典概念思维,而非概念思维,且其同现代概念思维都以家族相似性为语言哲学基础;其二,类型思维并不优于概念思维,两者都是单向度思考思维,现代概念思维同样可具有开放性、层级性及意义性。

The proponents for typological thinking tend to criticize conceptual thinking for its characteristics of closeness, fixedness, abstractness, discontinuity, and value neutrality, and use it as a basis to prove the advantages of typological thinking in application. After introducing the conceptual theories of linguistic philosophy to the study on issues of criminal law, we have some new insights. First, typological thinking does not exclude conceptual thinking, and its competitor should be classic conceptual thinking based on binary logic, rather than conceptual thinking. Like modern conceptual thinking, its linguistic philosophy is based on family similarity. Second, typological thinking is not superior to conceptual thinking as both are unidirectional thinking, and modern conceptual thinking can also be open, hierarchical, and meaningful.