Academic journal article Canadian Social Science

On Rational Response of Criminal Law to a "Risk Society"

Academic journal article Canadian Social Science

On Rational Response of Criminal Law to a "Risk Society"

Article excerpt

Abstract

Currently, on the basis of a generalized understanding of " Risk Society Theory" by Ulrich Beck, the notion of responding to "risk society" through expanding criminal legislation and judicature to attain risk control and prevention is put forward by Chinese scholars. This notion, however, will definitely break through the traditional concept of culpability and shake the foundation of traditional criminal law in such respects as legal interests infringement, causal relationship and doctrine of liability fixation, leading to a risk in criminal law application. In consequence, the priority now is to truly grasp the definition of "risk society" and rationally deal with social risks. In the face of risk, the criminal law shall not only face up it, but also rationally strike a balance between risk prevention and protection of human rights, scrupulously abiding by the fundamental philosophy of criminal law.

Key words: Risk society; Risk criminal law; Responding; Sentencing

INTRODUCTION

In the 1980s, German sociologist Ulrich Beck put forward the concept of "risk society", on which basis the theory of "risk criminal law" was built. Since then, "risk society" has gradually become the theoretical foundation for Japanese and German scholars of criminal law to testify the preposition of legal interests protection and strengthen punishing potential damage offense. It might be the coincidence of Beck's "criminal law risk" with some particular social phenomena in China and its enormous explanatory power for some criminal law interpretation and construction that brought about its immediate attention among Chinese scholars upon its introduction. A series of debates on whether the risk society has come, whether China is in this state and how criminal law should respond to it have been unfolded, with three camps of favor, opposing and neutrality rapidly formed. However, before furthering this discussion, a series of questions have to be systematically answered, i.e., a. What is "risk society"; b. Is there any difference between the social risk China faces and the risk proposed by Beck? c. In order to deal with the social risk we are facing, shall we adjust our concepts in criminal legislation and judicature? d. Are the adjustments we made to criminal law through amendments in recent years in coincidence with some notions of "risk society"? e. How to properly balance the relationship between risk response and human rights protection?

1 . BAS I C CONNOTATION AND CHARACTERISTICS OF "RISK SOCIETY"

In the book Risk Society, Beck has summarized the characteristics of contemporary society, pointed out that the society we are now living in is a risk society and detailed the its substantive characteristics. He believed that the risks in this society are different from those in previous times, as the former are imbued with the two distinguishing features. Firstly, these risks are imperceptible and their consequences are uncertain. For instance, the risks of added toxin in our food, pollution of air and water as well as radioactive substance are usually beyond what we can perceive and furthermore, their consequences cannot be assessed by traditional calculating methods. Secondly, these risks usually appear in wholeness. While risks in a traditional society often came from some particular person or social groups and some people were able to keep out of the affair based on their individual reasons, the risks in a modem society stem from modem social system or can even be labeled as the by-products resulting from the mutation process in the internal development of this society, imposing a threat to the humans as a whole. Therefore, risks in this modem society bear the qualities of equality and being global, unlimited by nation boundaries, thus demanding institutionalized measures by the whole society in their efforts of prevention and control. Consequently, we can conclude that the risks by Beck are the ones associated with the social industrialization process, mixed with such elements as modem social politics, ethnics, technology and culture and directed at social and ecological risks brought about by modern civilization system and technological development. …

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