The meaning of criminal law: Three tenets on American and comparative constitutional aspects of substantive criminal law.

摘要

This thesis discusses the constitutional grounds of substantive criminal law in American law. Addressing touchstone cases of the U.S. Supreme Court on substantive criminal law, the thesis proposes that the Court has consistently failed to provide a theory of substantive criminal law. In addition, the thesis criticizes the Court's superficial understanding of fundamental principles of criminal theory, namely those that deal with the meaning of crime, guilt, punishment, mens rea, wrongdoing, attribution and others. More specifically, in highlighting the inherent nexus between constitutional law and substantive criminal law, the thesis examines the American Supreme Court's reluctance to entangle with the constitutional aspects of substantive criminal law. The thesis rejects the argument that the American Constitution includes no language of substantive criminal law. Focusing on the meaning of 'criminal prosecution' and 'crime' of the Sixth Amendment, the Due Process Clause, and the Equal Protection Clause, the thesis suggests that the Constitution provides an obvious language of substantive criminal law. Inquiring into the possible interactions between constitutional law and criminal law, the thesis offers a complete theory of the fundamental principles of substantive criminal law. In accordance, the thesis suggests three basic tenets on which criminal law theory stands: guilt, crime, and wrongdoing. Understanding the meaning of these three pillars provides a wider and deeper panorama of the whole theory of criminal law, thus providing the vital legal tools for addressing many other criminal law questions in future. The dissertation consists of three chapters entitled: "The Meaning of Guilt: Rethinking Apprendi;" "The Meaning of Crime: Is Terrorism a Crime or an Aggravating Factor in Sentencing?;" and, "The Meaning of Wrongdoing: A Crime of Disrespecting the Flag: Grounds for Preserving 'National Unity'? An introductory essay precedes these chapters, thus explaining the theory I seek to delineate through this dissertation. In the Conclusions, I endeavor to highlight the overarching themes of the theory underlying the thesis.