On the Application of Criminal Precedents in Accordance with the Principle of Legality
The application of criminal precedents by judges does not violate the principle of legality(PL)in the trial of criminal cases.The belief that the application of criminal precedents violates PL of crime and punishment is main-ly influenced by two perspectives.Firstly,the statutory doctrine of PL.This viewpoint interprets the"law"/legal source of PL as enacted law,confuses the legal source and legal form,neglects the existence of PL in case law,and the commonality between the theory of legal source as a general legal theory and PL that does not vary with changes in legal systems.Secondly,case analogy reasoning belongs to analogy.This viewpoint places analogical reasoning on a par with analogical interpretation and errors in the application of analogies;However,the formal and substantive tendencies of PL do not necessarily oppose the application of precedents.On the contrary,the application of criminal precedents can be integrated with PL in methodology to promote the application of criminal precedents,attaching criminal precedents to criminal law and its legal interpretations,attaching analogical reasoning to deductive reason-ing,and solving the universality problem of case application based on the similarity of factual points between formal justice principles and cases.
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