从责任伦理视角反思中国刑法中的几个基本问题

Rethinking The Fundamental Problems in Criminal Law from The Perspective of Responsibility Ethic

几乎所有的传统伦理学均建立在"自我"中心的前提下,其道德要求也得自于"自我"的主观感受和价值选择,"他者"在传统伦理学视域下沦为"自我"的附庸。现代责任伦理学试图摆正"自我"与"他者"的关系和位置,承认世界是一个多元化、差异性的存在,从而演绎出"他者"思维和"为他"责任。法律和道德之间存在着千丝万缕的联系,即使规范法学曾经一度妄图摆脱法律和道德的关系,但实践证明,缺乏道德和伦理基础的法律,不仅无法成为"善"的法律,更会因为缺乏社会认可而无法付诸实行。因此,笔者沿寻现代责任伦理学的逻辑思路,认真反思刑法基础理论问题,试图为现代刑法提供更符合时代要求的道德伦理学依据。

Traditional ethics are built on the premise of 'selfness'centered,and its moral requirements are derived from the 'self'subjective feelings and value choices. 'Otherness'in the vision of traditional ethics,becomes a vassal of 'selfness'. Modern responsibility ethic,tries to straighten the relationship between 'selfness'and 'otherness',and recognizes that modern world is a pluralistic world,from which we can deduce 'otherness'thinking and 'for otherness'responsibility. There are inextricably connections between law and morality. Even though legal norms were gotten rid of the relationship of law and morality,but it was proved that the lack of moral and ethical foundation,law only cannot become a'good'law,and also cannot be implemented well because of lacking social acceptance. Therefore,Available method is seriously rethinking the basic theory of criminal law and find ethnic basis for modern criminal law requirements of the times by logical thinking along modern responsibility ethic.