There are two legal cultures to treat the death penalty, East and West. Cultural Eurocentrism or Eurocentrism is biased against China's historical conservatism. Eastern and Western legal cultures are compatible. It is possible to find a balance in human rights conflicts. As scholars, we should put aside political factors and have a fair academic discussion on human rights.
Now I would like to express my views on three issues: first, the dispute over the death penalty with "benevolence" as the focus and the principle of careful punishment; Second, human rights conflicts; Third, the compatibility of eastern and western legal cultures and the balance of human rights. Please correct me.
The first is the dispute over the death penalty focusing on "benevolence" and the judicial principle of cautious punishment.
Light punishment and heavy punishment have been debated for a long time in the history of China. The earliest records can be found in books such as Xunzi and Shenzi during the Warring States Period. Light punishment theorists believe that it is a benevolent policy, "one person can rule the world without punishment", while opponents say that "the murderer dies and the injured person is punished", which is a punishment that any emperor must adopt. "The murderer will not die, and those who hurt will not be punished", even a saint can't govern the country.
Light punishment and heavy punishment are not limited to the dispute between Confucianism and law. After the Qin dynasty, there was no pure legalist school. Many people advocate heavy punishment, especially Confucianism in Song and Ming Dynasties, such as Zhu and Liu Ji. They use Confucianism to demonstrate that heavy punishment conforms to benevolent policies and opposes light pardon of capital crimes. First, light punishment does not produce deterrence, and there are many people who commit crimes, so that more people are investigated for criminal responsibility; Severe punishment and harsh laws have a deterrent effect, and the number of criminals has decreased, and the number of people who have been investigated for criminal responsibility has also decreased accordingly. Try to avoid being investigated for criminal responsibility, which is the performance of benevolent government. Second, when crimes are reduced, the number of victims is reduced, which is also a manifestation of benevolent government. Third, heavy penalties prevent criminals from continuing to commit crimes and avoid producing more victims. This is benevolent governance again. Fourth, "the murderer dies, and the injured person is punished", so that the criminals can be punished and the victims can redress their grievances. This is benevolent governance again. In a word, the death penalty conforms to the benevolent policy, and the light punishment violates the benevolent policy.
In judicature, the light penalty theorists try to exempt criminals from the death penalty. Severe punishment theorists object to this practice. It is believed that the purpose of exempting criminals from death penalty is to save lives, only knowing that criminals are pitiful, but not knowing that victims are more pitiful. Orphans and widows are helpless and grieve all day long, but they can't see the criminals being punished as they deserve.
Scholars who have not studied the history of Chinese legal system believe that torture was widespread in ancient China. Actually, it's not like this. Although there are many tyrants and political killings in history, benevolent governance is the basic political concept. "One man ruling the world with impunity" is just an ideal political model. In the history of China, the judicial principle of cautious punishment has been implemented for a long time. Although there is torture, we are very cautious about the death penalty. "Guilty is better than killing innocent people." The specific implementation method is that the suspect is given a lighter punishment, or a ransom is paid, or the sentence is reduced and exiled. Although there are many death sentences stipulated by law, not many people are actually sentenced to death. Not many people were sentenced to death and actually executed.
In legislation, the death penalty is divided into many types. During the Ming and Qing Dynasties, the death penalty was first divided into the crime of actual punishment and the crime of mixed punishment. The death penalty for miscellaneous crimes is generally not executed, and it is changed to fixed-term imprisonment, which is basically five years in prison. There are two ways to commit capital crime, one is to execute it immediately, and the other is to execute it after autumn. The criminals who execute immediately are criminals with very serious crimes and conclusive evidence. In autumn, lesser criminals are executed.
In terms of the establishment of judicial institutions, ancient China was relatively perfect. There are three judicial organs in the central government, which are responsible for trial (the Ministry of Punishment), examination (Dali Temple) and supervision (Yushitai, the Douchayuan of Ming and Qing Dynasties). After the death penalty is imposed by the local judiciary, it is reported to the Central Ministry of Punishment after being examined and approved by Shi Yu, and then to Dali Temple after being examined and approved by the Ministry of Punishment.
After the mid-Ming Dynasty, the joint trial system was implemented, that is, several judicial institutions tried cases together. Autumn trial is the most important form of joint trial. Autumn trial is a retrial of death penalty cases executed after autumn. If the evidence is conclusive, the crime and punishment are equivalent, and the law is correctly applied, the death penalty shall be executed; If the facts are suspicious, the applicable law is doubtful, and the circumstances can be forgiven or sympathized, the death penalty shall be exempted and exile shall be used instead. I am responsible for sorting out judicial materials. This reflects the cautious attitude of the Qing dynasty towards the death penalty, which is deeply shocking. It is often possible to go back and forth many times in the application of the law and the fact check of the case, some as many as seven or eight times.
Second, the conflict of human rights.
Citizens have the right to freedom and freedom from crime. Victims and their families have the right to demand that criminals be investigated. Citizens' right to life, property and personal rights should be truly protected. Criminals have been investigated by law for violating citizens' right to life, property and personal rights. Excessive protection of criminals' rights will inevitably conflict with the protection of citizens' rights.
Abolishing or restricting the death penalty and improving the treatment of criminals have no deterrent effect on criminals. Moreover, if they commit more crimes, they will be investigated for criminal responsibility and lose their freedom. The increase in crime has seriously violated citizens' right to life, property and personal rights. Freedom has also been seriously violated. For example, American citizens have the freedom to walk in the streets of new york in the middle of the night. For fear of committing crimes, the exercise of their freedom rights is restricted. Restricting or abolishing the death penalty limits the right of victims and their families to investigate criminals.
Protecting the human rights of criminals is the most important content of western human rights view. There is nothing wrong with treating criminals humanely in theory. But if human nature is abused, the extension of human nature to criminals will continue to expand, which will lead to the opposite of human nature. It is the biggest inhumanity to let citizens often suffer from crime and be in fear of crime.
Third, the compatibility of eastern and western legal cultures and the balance of human rights.
Mencius said: fish is what I want, bear's paw is what I want. You can't have your cake and eat it. You can't have your cake and eat it. There is no doubt that the state has an obligation to protect human rights. It is an ideal to protect the rights of criminals and ordinary citizens at the same time. However, due to mutual conflicts, it cannot be achieved. In the case of conflict and not having both, we should choose between them. This requires defining the purpose and standards of human rights. Whose human rights should be protected first, which creates a balance problem.
The view of human rights in western legal culture failed to solve this problem. Although the concept of benevolent government is controversial in ancient Chinese legal culture, its mainstream thought has answered the priority protection object. However, the concept of benevolent governance itself is not suitable for modern society. Therefore, the legal cultures of the East and the West are compatible. Incorporate the concept of priority protection in eastern legal culture into the concept of human rights. Therefore, the priority of requesting the protection of human rights has emerged.
Criminals were investigated for violating citizens' right to life, property or personal rights. The essence of criminal investigation is to deprive criminals of their rights according to law. Criminal law protects the rights of ordinary citizens by depriving criminals of their rights. Therefore, the rights of citizens are absolute rights, and the rights of criminals are only relative rights. When there is a conflict between the two, citizens have the priority to request human rights protection.
Starting from the jurisprudence of protecting vulnerable groups, citizens also have the right to request human rights protection first. Some scholars believe that criminals are weaker than the state, so criminal law should protect criminals. This is obviously a misunderstanding. The state is more important as the subject of law enforcement. The rights of criminals and ordinary citizens are protected by law. Criminals become criminals because they violate the rights of ordinary citizens. Relatively speaking, ordinary citizens belong to vulnerable groups. Therefore, the law should give priority to protecting citizens' human rights.
Because citizens have the priority to request human rights protection, and the protection of citizens' rights is realized by depriving criminals of their rights, then the deprivation of criminals' rights should reach the level of curbing crime. Therefore, the death penalty is inevitable. After meeting the priority of citizens' demand for human rights protection, other rights of criminals should also be guaranteed. This is the balance of human rights conflicts.
The rights of criminals mainly include: not being punished for exceeding the crime and not being illegally abused. The former means that the punishment for criminals should be commensurate with the crimes committed. The latter means that criminals should not be deprived of their legitimate rights and treatment, and they should not be punished outside the law. In western legal culture, there is the right to defense and the defense system. However, only the right of defense and the defense system are still not enough to effectively protect the human rights of criminals. The principle of cautious punishment and the judicial institutions and litigation system established in the eastern legal culture can make up for its shortcomings. The judicial data of the Qing Dynasty reflected that the cautious attitude towards the death penalty at that time far exceeded that of modern justice.