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Approach to the Reconstruction of Criminal Wrong from the Perspective of Philosophy of Law
Einleitung in die rechtsphilosophische Begründung des Kriminalunrechts
山川 秀道 大学院社会科学研究科
Some academics from the Wolff school and Jakobs school in present-day Germany attempt to reconstruct the notion of criminal wrong from the perspective of philosophy of law. They insist that every crime means a violation not (just) of legal interests, but mainly of the lawful relationship of common liberty, which should be respected by every citizen under the law. According to this view, therefore, criminal jurisprudence attaches as great importance to the normative meaning of the connection between crime and punishment as it does the negation of law and its restoration.
With the rise of the Renaissance of Retributive Punishment, both schools above have recently attracted considerable attention. There is no doubt that criminal wrong should be constructed from the perspective of the practical and positive legal sanction of punishment, and its influences (side effects) as well. A reconsideration of criminal wrong, however, is indispensable to avoid overcriminalization and keep penal populism under control.
For this reason, this paper sheds light on the philosophical (and thus fundamental) components of criminal unlawfulness. After a review of the Wolff school, the paper attempts to indicate an approach to draw a distinction between criminal and civil unlawful conduct, and the violation of administrative regulations.