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现代西方刑法学以理性为其特征,这一点无论大陆法系还是英美法系皆然。然而,被普遍视为愚昧落后的中世纪刑法却与现代西方刑法学有着内在的传承关系,这意味着中世纪刑法已孕育着理性的因素。在公正、全面的视角观察之下,本文发现中世纪早期盛行的“神明裁判”制度与日耳曼刑法中都蕴藏着(罗素式的)“个人理性”的要素;而纠问式审判、教会刑法体系中则更多体现出(韦伯式的)“形式理性”的要素。本文认为西欧中世纪刑法的发展总体上体现了理性主义上升的趋势,但在部分问题上也体现了理性的“自负”。最后,本文分析了中世纪刑法中理性因素的闪光点在现代各法系中的不同的“投射”方式,认为英美法系与大陆法系刑法均是中世纪刑法理性主义的继承者,但各自存在不同的侧重点;相对而言,我国刑法则在“形式理性”方面存在历史性的不足。
Modern Western criminal law is characterized by its rationality, both civil and common law systems. However, the criminal law of the Middle Ages generally regarded as ignorance and backwardness has an inherent inheritance relationship with modern western criminal law, which means that the criminal law of the Middle Ages has developed rational factors. From a fair and comprehensive perspective, this article finds that the elements of “personal rationality” are embedded in the system of “the god referee” and the Germanic criminal law, which prevailed in the early Middle Ages. However, The church criminal law system more reflects the (Weberian) “formal rationality ” elements. This paper argues that the development of criminal law in medieval Europe generally embodies the upward trend of rationalism, but also embodies rational “self-confidence” on some issues. Finally, this article analyzes the different “projection” ways of the bright spots of the rational factors in the modern criminal law. It holds that the common law criminal law and the civil law criminal law are the successors of the criminal law rationalism of the Middle Ages. However, There are different emphasis points; in contrast, the criminal law in our country has historical deficiencies in the aspect of “formal rationality”.