On October 29, 2022, Kimmo Nuotio, Global Faculty of Peking University Law School, Professor of Law at the University of Helsinki, Finland, and Director of the Institute of Criminology and Legal Policy,conducted an online academic lecture on the topic "Methodology of Criminal Law Research: Art, Politics, or Science?" The lecture was presided over by Jiang Su, tenured associate professor of Peking University Law School.

 

 

Wang Huawei, assistant professor of Peking University Law School, and Zhang Zixian, assistant professor of Peking University Law School, served as reviewers. More than 100 teachers and students participated in the lecture online through the Tencent Meeting, the response was overwhelming.

This article presents the core points of the lecture in the form of text records.

One year ago, I co-authored a book on theoretical methodology of criminal law with Professor Shin Matsuzawa from Japan. I think this is a good topic for discussion., and I will introduce the story behind this book in this lecture .

More than 30 years ago, when I went to Germany to study criminal law, there was very little discussion in Finland on the theoretical doctrine and dogmatics of modernization of the criminal concept. Finland's Criminal Code of 1889 was quite old, and many of its provisions were still based on the thoughts of the European classical school in the 19th century. Since the 1990s, Finland began to reshape the general provisions of the Criminal Code, and the principle of legality of criminal law has received greater attention. Finland did not directly adopt the latest German theoretical thinking, but combined it with Anglo-American common law and Nordic criminal law theories, trying to create a real Finnish theory.

A few years ago, I learned from Professor Shin Matsuzawa that Japan had been studying Scandinavian legal realism in the 1940s and 1950s. I think that Scandinavian legal realism take an obvious anti-metaphysical thinking which focus on actual legal operation and how judges make decisions rather than deterministic perspective.

When writing this book, we invited scholars from Germany and many other countries to discuss. On the basis of normative methodology, we shared how we understood and established our own systems based on the criminal law theories of many other countries, which is much more delightful than solely depicting the concept of crime or the theory of criminal law.

The research on criminal legal theory and dogmatics of Finland began in the 19th century, and was closely related to the idealism of Kant and Hegel. It also became the ideological basis of the Finnish Criminal Code of 1889, and its influence still exists today. At the end of the 19th century, retributivism was challenged by naturalism,and scholars began to pay more attention to the needs of the society for law, focusing on considering criminal law from more perspectives.In the 1930s, Finland began to introduce the idea of special prevention, and the idea that criminal law should be used as a means of rational control to protect society began to prevail. In the past 40 years, Finland has returned to the general prevention theory, emphasizing the guidance of balance of value measurement and personal norms.

Interestingly, the study of the concept of crime seems to have retained a certain degree of independence, which is reflected in the former socialist countries of Eastern Europe. I am also very interested in Professor Liang Genlin's discussion on the evolution of China-related research from Peking University Law School. He believes that China's understanding of the concept of crime is still influenced to a certain extent by the social harm theory of the Soviet model. Some scholars maintain this way of analyzing the elements of crime, while others want to introduce German thinking.

A major conference was held in Helsinki, Finland in 1990, and we invited many German criminal law scholars to comment on the draft general provisions of the Finnish Criminal Code. It is undeniable that German criminal legal theory had a considerable influence on the formation of Finnish criminal law doctrine, but in the end we still wrote a different definition of mens rea. (criminal intent). Doctrinal criminal law will be referenced by lawyers and judges, which will profoundly affect the judicial practice of a country. The law must conform to the case law of the country. In the process of legal transplantation, we cannot jump out of the reality of our own country to copy the criminal law theory of another country. The law must be our own, it is always closely related to the social environment.

At present, we need constantly to adjust the localized crime theory to adapt to new realistic challenges. For example, in Finland, corporate criminal liability has aroused a wide range of discussions, resulting in legal subjectivism, the subject of criminal law and many other topics. As scholars, we not only need to build a holistic framework for criminal law regulation, but also dig out the social value behind the system. I am glad that the principle of legality in criminal law has been enshrined in the Finnish constitution as a fundamental right of the individual. In addition, criminal law theory is often associated with criminal procedure law, which is also an important aspect that criminal law scholars need to pay attention to.

Wang Huawei:

Professor Kimmo told us about the history of Finnish criminal law and the evolution of German criminal law theory. He also talked about the influence of German theory on Finland and Finland's subsequent reforms, so as to inspire everyone to understand how to create our own national theory, which is quite educational. I also have a few observations on the subject of the influence of German doctrine.

First, what can we learn from German dogmatic criminal jurisprudence? I think for China, the introduction of German theory has profound changes to our own methods on criminal law research. In the past 30 to 40 years, what we have been taught in class is the "four elements" theory from the Soviet Union, and from about 2000, the German and Japanese "three-class" theory has become more and more influential in China. The hierarchical system is very systematic and logical, providing us with an accurate and verifiable basis for judging the composition of crimes, thereby ensuring the realization of the principle of legality in China's criminal law. This accounts for the rapid development of Chinese criminal law theory in the past 20 years .

Secondly, Professor Kimmo shared with us the valuable experience of how Finland developed criminal law theory. On the basis of drawing lessons from German dogmatics, it does not pursue the ultimate conceptualization, but pays more attention to the practical function of the doctrine. In the process of localizing German theory in China, we also need to face up to and analyze China's historical and judicial conditions. For example, how to understand Article 13 of the Chinese Criminal Law, how to arrange the systemic status of the amount of crime in the stratification. All these require us to further reform on German theory to solve them.

Finally, the criminal pattern changes rapidly nowadays, and new crime methods emerge endlessly. For these issues, the German theoretical experience available for reference is extremely limited. We need to learn from economics, sociology, psychology and many other subject to develop a more diversified criminal law research methodology and strengthen two-way communication and collaboration with other countries, sharing legislative and judicial experience to create a doctrine of criminal law that best suits our own.

Zhang Zixuan:

First, I would like to share my thoughts on the spread of criminal law methodology in Asia. From my research experience, whether Asian countries are also trying to gradually accept the functionalism, pragmatism or exhibitionism of crime research model is worth pondering. Many Asian scholars have done more research on German, British and American criminal law theories, but we lack the knowledge system of criminal law methodology. Therefore, I am very happy to see the latest research on Nordic criminal law methodology by Professor Kimmo and Professor Shin Matsuzawa. In recent years, with the efforts of scholars, Nordic criminal law theories and theoretical issues have gradually spread to Asia. In this lecture, Professor Kimmo mentioned Scandinavian realism. This theory emphasizes that criminal law responds objectively and scientifically to real life, and opposes metaphysical legal concepts, but this is actually not a widely studied criminal law theory model in Asia.

In addition, it is necessary to point out that Asia also has the disadvantage of over-systematic introduction of German criminal law theory. This has caused a considerable deviation between judicial practice and theory, and it has also inspired us to change our thinking from theory to problem solving. At the stage when Asian scholars have not yet fully understood Scandinavian realism, the equally experienced Anglo-American criminal law theory has become an alternative object. Therefore, Nordic criminal law is very important for us to observe and study pragmatism and realism.

As Professor Kimmo said, the academic research on criminal law is still going on. Through the joint discussion and efforts of the criminal law academic circle, drawing on many criminal law theories from outside region and comprehensively considering the local legal traditions, a country's own legal theory should suits its own judicial system. Therefore, Asian countries should pay more attention to their own traditions in the future development of criminal law theory.

 Kimmo Nuotio:

Concept construction plays an extremely important role in social change and doctrine inheritance. The influence of German doctrine on Nordic criminal law theory is also reflected in the commonality of concepts to a large extent. Elaborating concepts is to construct our own national system in our minds, and I am not only writing the laws of other countries in English or German, but also writing an unfinished theory for Finland with its own characteristics. Although the German theory has its theoretical power, it still needs localized power to make it truly compatible with the hard laws of other countries.

Professor Shin Matsuzawa has brought pragmatism to Asian academic discourse, and this is also an extremely important ideological influence of the school of realism. The discussion on Scandinavian realism has also continued. For example, in the Nordic countries, because of its attractive anti-metaphysical thinking, the research on probability theory models has made some progress.

Jiang Su:

There is indeed a language barrier in the field of criminal legal study between China and Northern Europe, which makes the exchange of theoretical knowledge of criminal law less, and it is indeed necessary to establish a broader and interoperable academic exchange platform.

China has a long way to establish its own criminal dogmatics. We need to go deep into judicial practice, localize beneficial case experience, and turn it into theory and rules for the academic circle to discuss and further summarize and refine. At the same time, the constitutionalization of criminal law principles and the modernization of criminal law norms are also important development directions of China's criminal law.

Brief introduction to lecturer:

Professor Kimmo Nuotio is the chairman of the Strategic Research Council of Finland, Dean of Department of Law of University of Helsinki and researcher of Jean Monnet Fellow of the European University Institute. His central research topics include: Theoretical Foundations of Penal Liability, Modernization of Criminal Law, Nordic, European, and International Criminal Law, Transnationalization of Criminal Law, European Legal Integration, Criminal Law and Cultural Diversity.