Is the Judgment of Criminal Illegality Necessarily Constrained by the Evaluation of Other Areas of Law?——Debunking the Myth of"The Principle of the Unity of Legal Order"
The extent to which the judgment of criminal illegality is constrained by the content of other areas of law depends on how to correctly understand the requirement of systematization for judgment of criminal illegality.Many versions of the so-called principle of unity of legal order can be regarded as different interpretations of the requirement of systematization.To judge which is correct,it is necessary to return to the nature of criminal illegality judgment itself.The judgment of criminal illegality contains three claims:the claim of coherence of principles,the claim of moral correctness and the claim of publicity.Among them,the principle coherence claim is an inevitable claim of any legal judgment,because the concept of law inherently implies an ideal dimension towards the rule of law.The claim of moral correctness and the claim of publicity are the unique claims of the judgment of criminal illegality.The former means that the criminal law must assert that the essence of criminal illegality is not a violation of the criminal law,but a violation of the moral norms that exist before the criminal law;the latter means that the criminal law must assert that it represents the public position of the political community rather than any private position.The combination of the above three claims means that the judgment of criminal illegality is essentially a semi-institutional judgment of the civic morality system,and criminal illegality is civic wrongness.This will lead to a unique internal system position of criminal law:criminal law is not a post-law,and the judgment of criminal illegality is not directly and rigidly constrained by the content of other areas of law.On the contrary,other areas fo law should respect the internal system position of criminal law,but at the same time the civic morality of the political community limits the boundaries of the criminal law.
criminal illegalitycoherence of principlesinternal systemexternal systemcivic morality
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