Coincidentally, the classic American film Lord of the Flies, released in 1990, is also based on the assumption that a group of children were stranded on a desert island because of a plane crash. After losing the constraints of secular social laws, they finally lost control and killed each other for power and profits.
Both films believe that human nature will become selfish, barbaric and irrational after it is out of the control of the government and the law.
As a legal person, I often think about the following questions:
How big is the role of laws that take maintaining order and justice as their responsibility in the social management system?
If one day, there is no legal constraint in the world, will society get out of control? Will people return to the primitive jungle society?
Professor paul robinson, a famous American criminal jurist, in his book Pirates, Prisoners and Lepers: Twelve Lessons about Justice (translated by Li Lifeng, Peking University Press, 20 18), studied dozens of illegal examples in the history of human social development, thinking the same question with readers: If the law of the jungle becomes the only common rule among people, is there still room for justice?
Thomas Hobbes, a famous British political philosopher, once drew a famous conclusion in his famous political work Leviathan: "When no one has the same power to subdue everyone, there will be a situation of" all at war with all. "
Under this idea, Hobbes proposed that peace and security can only be guaranteed if everyone gives up the right to manage himself and gives him the "living god"-the great Leviathan.
Under the support of Hobbes' "contract" theory, the legitimacy of state establishment has been confirmed and strengthened, and relying on the army and the law to manage the national coercive force of society has become an acceptable constraint for every natural person. Because of this compulsion, every natural person has a peaceful and peaceful living environment.
However, in Professor Robinson's book Pirates, Prisoners and Lepers, Hobbes' terrible scene that "people are constantly in fear and danger of sudden death, and people's lives are lonely, poor, despicable, cruel and short" is not recognized in the jungle state where nature is at large.
In addition to the famous "Cave Mystery", Professor Robinson has studied dozens of "inspiring cases of the rule of human survival experience without law" through years of collection and collation.
These cases include the forced isolation of leprosy patients to isolated Molokai Island in 1960s, the crash of the Andes in 1972, the prisoner riot in Attica prison in northern new york in 197 1 and the autonomy rules of the pirate world.
These natural people trapped in isolated islands, snow-capped mountains, prisons and pirate ships do not have the desperate situation of "everyone at war with everyone" discussed by Hobbes in the face of the invalidation of all government laws.
On the contrary, in the illegal state, although people have early riots, they will soon establish a solidarity model of mutual assistance and mutual benefit, and try to formulate corresponding group management rules to ensure the realization of order and justice in the crowd.
Leprosy patients who were isolated by the government on a desert island and left to their own devices did not rob each other of food and kill the weak in despair. Instead, they organized a division of labor and established a system of mutual cooperation to ensure that every patient survived.
Passengers trapped in the snow because of the plane crash did not fight each other for limited food, but chose to discuss food distribution rules and action rules, thus establishing an orderly group, in which the weak such as the elderly and children are taken care of and the strong are responsible for finding food.
The criminals who established the pirate kingdom, killing and robbing, are lawless, which is precisely the product of losing the government and legal constraints.
However, they still established a series of fair and strict pirate management rules, including elected pirate leaders who can be replaced at any time, the distribution of looted goods, the compensation for injured pirates and the punishment for illegal pirates.
In the state of lawlessness, why don't people degenerate into the savage living state of the jungle? Why do people still rationally choose to ensure the maximum survival possibility of the group through institutional constraints and reward and punishment rules without government and legal constraints, and win?
Professor Robinson believes that this cooperative nature can be traced back to the early stage of human social development.
Early humans living in the Serengeti Plain had neither laws nor government and social institutions.
But at that time, people learned cooperation and mutual benefit, and did not fall into the jungle law of the jungle.
From the perspective of evolution, only humans who know how to cooperate can capture large prey and resist the invasion of other tribes, thus continuing in species evolution to this day.
In the classic book "The Holocaust" describing the Nazi Holocaust, the author Terrence de Price described the cooperative instinct of human beings like this:
"Organisms have the function of preventing disintegration and inhibiting chaos. This function is beyond the control of the government, nor can it reasonably enforce the laws of nature. On the contrary, the cooperative mechanism sprouted in the long crisis can play a role to maintain the social foundation of life. Order, this is produced. "
As a famous American criminal jurist, Professor Robinson also studied the role of criminal law in protecting and maintaining justice in this book.
The author discusses the criminal judicial dilemma faced by American society through some criminal legal rules that have been reserved for many years but are obviously inappropriate.
These laws will cause obvious injustice, including the "fruit of poison tree" theory, "three strikes out" law, "felony murder rule" and so on in the illegal evidence exclusion system.
In Professor Robinson's view, these criminal legal systems, which should have been learned from the outside world, are full of loopholes and even lead to some extremely unfair cases.
In 2003, American youth Ryan Holly attended a party hosted by a friend. After getting drunk, Holly went back to her room to rest. She lent her car to her roommate Allen. Later, Allen, who had been drinking and taking drugs, and two other friends went out in Holly's car, robbed a drug dealer's home and killed the drug dealer's daughter with a gun butt.
Later, Holly was arrested by the police for lending her car to a robbery murderer, and was charged with the same serious crime as the robber, such as "felony murder with a gun".
Holly insisted that she was innocent and rejected the plea bargain proposed by the prosecution.
The court finally convicted Holly, 20, of felony murder, and sentenced him to life imprisonment without parole according to the "felony murder rule" in the United States (any murder in the process of committing a felony will be regarded as murder, even if the death result is purely accidental).
The most important thing in the "felony murder rule" is to assign the responsibility for murder, which is not only applicable to the criminals who cause the death of others, but also includes any accomplice who participates in felony. No matter how deeply involved he is in the crime, even if Holly just lends her car to a robbery murderer.
Because of his sexual orientation and violent personality, Larry Eller fell into masochism and eventually killed many men.
In a spot check, the police detained Eller because he was suspected of abetting prostitution.
During the detention, the police found that Aile was a major suspect in many murders, so they launched an investigation and seized a number of important evidences such as the crime knife, the victim's blood and communication records.
However, at the court hearing, defense lawyers suggested that the police detained Ai Le on suspicion of abetting prostitution, but then they launched an investigation on suspicion of murder, so it was illegal for the police to detain him for longer than necessary.
The court finally recognized the lawyer's defense opinion and ruled out all the evidence seized by the police after detaining Eller according to the "fruit of the poison tree" illegal evidence exclusion rule. Elle, the murderer with conclusive evidence of murder, was finally released in court.
Just a few months after his release, the murderer Eller committed another crime and brutally killed a boy who was only 15 years old. This time, Eller was finally sentenced to death by the court because there were witnesses and conclusive evidence.
The above-mentioned obviously unfair criminal judgment makes the justice standard of "punishment for crime" vague, which conflicts with the simple justice intuition of ordinary people, and leads to the reduction of moral credibility of American criminal law in the eyes of the public.
At the end of this book, Professor Robinson puts forward his own five "suggestions" in view of this judicial dilemma in American society.
For example, we should clean up the excessively heavy criminal judicial rules and practices, clear up the judicial rules that hinder the realization of justice, re-enact modern legislation, formulate sentencing guidelines and other ways to ensure that defendants are convicted and sentenced according to the guilt of their actions, and create public organizations such as judicial committees to promote justice and combat injustice.
A country's criminal law should reflect and follow the public's just intuition, but it should also avoid the extreme exception of blindly following social conditions and public opinion like the American "prohibition of alcohol".
Because the moral credibility of criminal law is of great significance for leading social justice and shaping the public's awe of the law.
Every criminal judge sitting on the trial bench should strictly abide by the law and apply the law fairly, but at the same time, he should always keep his simple intuition about justice.
We should be wary that our habitual practices in the long-term application of the law will become mechanical, will become a "coagulant" that rigidifies our moral conscience, and will eventually isolate ourselves from the simple view of justice of the public in the name of the law.
In the past two years, some cases that aroused strong public opinion and were eventually corrected and commuted just showed the importance of a simple sense of justice for judges to remain wise.
After reading this book, both the case study of human rational choice in the first half of the book and the realistic dilemma of the American judicial system in the second half have deep thoughts.
The law is not omnipotent, but it can never be separated from the law.
We can neither overestimate the omnipotence of law in all social fields, thus ignoring the instinct of individuals to pursue order, nor belittle the law and ignore its great role in leading social justice.
Criminal law is so important, as Professor Robinson said at the end of this book, "In a pluralistic society, when the influence of traditional social mechanisms such as religion, social groups and education is gradually weakening, criminal law may become the only social mechanism that can talk to everyone and become a special mechanism for the public to defend justice and ensure safety without hesitating to authorize them to interfere in citizens' personal lives. "