Basic Theory of Criminal Law: Deterrence by Norm in Liberal Democracy

This book examines the underlying principles of criminal law, both substantive and procedural law. In continental law countries, the analysis of substantive criminal law has relied heavily on concepts such as "retribution" and "free will" under the strong influence of German legal thought. However, these concepts often lack a scientific basis and mean little for the function of criminal law in the real world. Norms prohibiting criminal conduct are not mere "ideas," but intersubjectively existent objects that affect human behavior and function in unique ways. As such, their force naturally depends on their enforcement. These norms function as a determinant factor in the decisions made through human consciousness; otherwise, criminal law would have no deterrent effect. However, this does not mean that the freedom guaranteed in liberal democracy can be violated arbitrarily; its protection must be the second principle of criminal law. Based on these discussions, this book proposes to take normative determinism and utilitarianism as the basis of analysis, and to establish normative deterrence and the protection of freedom as the two pillars of criminal law. With regard to procedural criminal law, this book argues that we should look at the adversarial and inquisitorial systems in their actual function, rather than focusing on their respective ideological doctrines, and try to identify the common practical principles to be followed from a utilitarian point of view.

In these discussions, the book extensively examines the historical background of the two systems and examines, as an example, the serious deficiencies of the current criminal justice system in the United States. What is argued and proposed in this book is a creative application and development, in the field of criminal law, of the theory elucidated by H.L.A. Hart and Jeremy Bentham.