Keywords: rationality of death penalty, penalty effect, and adaptation between crime and punishment
main body
Defend the death penalty
Penalty is an important order arrangement made by people to punish and deter crimes based on the objective needs of maintaining social life and social order. Punishment always exists correspondingly to crime, that is, it is always set and applied for specific crimes. Evaluating the rationality of a certain penalty is actually evaluating the rationality of the corresponding relationship between this penalty and some crimes deliberately arranged by people; Therefore, to evaluate the rationality of the existence of a certain penalty, we cannot ignore or subjectively separate the natural correspondence between penalty and crime.
The specific content of punishment, or its legal consequences relative to criminals, will always forcibly restrict or even deprive individuals of some important rights or life expectations. Penalties in any era can be said to be severe sanctions corresponding to crimes, which will inevitably contain some contents or legal consequences that forcibly restrict or deprive individuals of their rights, and correspondingly lead to imprisonment, hardship and pain in the material and spiritual life of criminals. This kind of penalty content or legal consequence can be regarded as an indispensable basic element of penalty, and it is also the basic premise that penalty can produce or produce some expected social effect. Only if the penalty contains such contents or leads to such consequences can it have or produce social effects of punishing crimes, deterring crimes and safeguarding justice; At the same time, only by setting and applying such punishment can we show a certain society's attitude of denying, refusing, punishing and correcting criminal acts, otherwise it will mean that society will indulge or condone criminal acts.
The so-called social utility of punishment is a positive or due function and influence of punishment on social life and social order. Compared with the social utility of punishment, the social effect of punishment can also be understood as the actual function and influence of punishment in social life. The social effect of punishment can be summarized as follows: 1, its role and influence in social emotional order and emotional life, 2, its role and influence in social value order and interpersonal communication and cooperation, and 3, its role and influence compared with those intentional or premeditated crimes. The realization of the social utility of punishment needs the setting and application of punishment, that is, the corresponding relationship between a certain punishment and a certain crime or specific crime should have or produce positive or beneficial social effects in the above aspects; Namely: 1. As far as social emotional order and people's emotional life are concerned, the setting and application of certain penalties should support and basically meet people's general emotional requirements of punishing crimes and safeguarding justice; 2. In terms of social value order and interpersonal communication and cooperation, the setting and application of a certain penalty should basically conform to people's rational value judgment, and earnestly emphasize and safeguard the basic and important value relationship of social life; 3. In terms of deterrence and crime prevention, the establishment and application of certain penalties should be able to effectively deter those intentional or premeditated crimes.
The significance of the existence of punishment comes from the social utility of punishment. People endow punishment with corresponding meaning based on its social utility, and in turn, people expect and pursue its social utility based on their understanding and understanding of its meaning.
The positive or due function and influence of a certain penalty on social life and social order should come from the coordination and balance of different effects of this penalty. Only when the effects of different aspects of punishment basically reach a harmonious and balanced relationship, can a certain kind of punishment produce or produce positive and beneficial social effects of punishment when it is set and applied. If the setting and application of a penalty pays too much attention to or pursues one aspect of the penalty unilaterally and ignores the coordination and balance of different aspects of the penalty, it is often difficult to truly realize the social utility of the penalty. On the contrary, it may lead to the following negative effects or negative effects: 1, which seriously infringes on the legitimate rights and interests of individuals and even distorts the social value order; 2. Severely punish the common feelings of crime and justice, and severely suppress or seriously hurt the people; 3, can not effectively deter and deter those deliberate or premeditated, thoughtful criminal acts. In reality, if the setting or application of a penalty leads to one or more of the above negative effects, it will no longer have and be difficult to produce the positive and beneficial social utility of the penalty.
In a sense, it is precisely because of the objective existence of different effects of punishment and the negative effect or influence of penalty setting and penalty application caused by their contradictions, conflicts or disharmony that people began to consciously pursue the coordination and balance of penalty effects, and accordingly found and established the basic and important criminal legal principle of adapting crime to punishment. The so-called adaptation of crime and punishment, its real connotation should be the coordination and balance of different effects of expectation and demand for punishment, that is, the corresponding relationship between crime and punishment that people deliberately set can produce coordinated and balanced punishment effects in different aspects, or can lead to the coordination and balance of different punishment effects, and finally realize the positive and beneficial social effects of punishment on social life and social order.
Based on the foregoing analysis, the connotation requirements of the principle of suiting crime to punishment can be summarized as: 1, that is, the setting and application of a certain penalty should basically conform to people's rational value judgment or value balance; 2. In other words, the setting and application of a certain penalty should basically conform to people's general feelings of punishing crimes and safeguarding justice; 3, that is, the establishment and application of a certain penalty can effectively deter or even deter a corresponding intentional or considered criminal act. If the setting and application of a penalty can meet the above requirements at the same time, it means that the setting and application of a penalty conforms to the legal principle of adapting crime to punishment. The principle of adapting crime to punishment can be described as the basic premise and guarantee for punishment to realize its social utility; At the same time, the connotation requirement of the principle of suiting crime to punishment is also the basic basis or standard for evaluating whether a certain punishment is reasonable.
The social utility of penalty depends on the coordination and balance of penalty effect. Fundamentally speaking, the coordination and balance of penalty effect required by the principle of adapting crime to punishment should depend on the specific development of society, production conditions and people's objective living standards. People's concept of retribution and sense of justice relative to crime, people's rational judgment on crime and punishment, and the deterrent and deterrent effect of a certain punishment on a certain intentional crime all come from the specific social situation, production conditions and living standards in which people live.
To analyze and discuss the retention or abolition of a penalty is actually to analyze and discuss the rationality of the establishment or existence of a penalty as a statutory penalty, that is, to analyze and discuss the rationality of the corresponding relationship between this penalty and some crimes stipulated in criminal legislation. To analyze and discuss the abolition of a certain penalty requires people to analyze, consider and judge whether the establishment and application of a certain penalty can coordinate and balance different aspects of penalty effects.
The death penalty is a kind of punishment that forcibly deprives criminals of their right to life, and it is also the most severe and cruel punishment in modern civilized society. As a legal punishment, the establishment or existence of death penalty must correspond to some particularly serious crimes in social life and their social harm; If the corresponding relationship between a specific crime and the death penalty stipulated in criminal legislation has or realizes the penalty effect, it can meet the connotation requirements of the principle of suiting crime to punishment, that is, 1, which basically conforms to people's retribution concept and justice emotion relative to some specific crimes; 2, it basically conforms to people's rational value judgment or balance relative to some specific crimes and their social harmfulness; and 3, it can effectively deter or even deter those who are intentional or premeditated. Then the establishment or existence of the death penalty as a statutory penalty at this time should be reasonable and necessary. On the other hand, if the legal correspondence between the death penalty and some specific crimes and its social effects exceed the necessary scope or limit required by people's common feelings of punishing crimes and safeguarding justice, or seriously violate people's rational value judgment and balance, or in reality, they simply do not have the function or effect of deterring corresponding crimes; Then at this time, the establishment or existence of the death penalty as a statutory punishment is unreasonable or unnecessary, so it needs to be adjusted or even abolished.
Unconditional and complete abolition of the death penalty means that criminal legislation should abolish and no longer set the statutory penalty of the death penalty for any real or possible crime, but can only choose and distribute the penalty among freedom penalty, property penalty and qualification penalty under the death penalty. The abolition of the death penalty requires people to analyze, evaluate and weigh it seriously, objectively and rationally according to the basic and important criminal legal principle of adapting crime to punishment. Specifically, the abolition of the death penalty should depend on analysis, evaluation and balance, that is, whether the social effect of making the death penalty a statutory punishment can meet or satisfy the connotation requirements of the principle of suiting crime to punishment relative to any real or possible crime in social life. By analyzing and comparing the connotation requirements of the principle of suiting crime to punishment, we can see that the idea of abolishing the death penalty is also established if any of the following conditions is established: 1, the establishment or existence of the death penalty as a statutory punishment, relative to any real or possible crime and its social harm, has definitely violated people's rational value judgment or value balance; 2. As a legal punishment, compared with any real or possible crime, the death penalty has definitely exceeded the necessary scope or limit required by people's common feelings of punishing crimes and safeguarding justice; 3. Compared with any premeditated and considered crime, the establishment or existence of the death penalty as a statutory punishment has absolutely no or lost its deterrent effect.
By further analyzing the above conditions, we can see that the key to the decision of the death penalty is whether the law has completely deviated from or violated the rational value judgment; Because, from the analysis of the other two conditions, it is obviously impossible to draw a conclusion that supports the abolition of the death penalty. First of all, people's general feelings of punishing crimes and upholding justice have never been supported, and they will not support the unconditional and complete abolition of the death penalty in the foreseeable future; On the contrary, compared with some insane or extremely cruel crimes, people's concept of retribution and sense of justice have always strongly demanded the death penalty for their criminals. Secondly, from the social effect of deterrence and crime prevention, compared with those premeditated and considered crimes, the death penalty always has an undeniable powerful deterrent effect; As the most severe and cruel punishment in modern civilized society, if the death penalty can not produce or lose the social effect of deterring crime, it will inevitably mean that all penalties set and stipulated in the criminal law no longer have the social effect of deterring crime; Fortunately, such a situation has not yet become a reality in any slightly orderly society. The most important basis or reference for the deterrence or deterrent effect of a penalty is to examine the degree of inner fear of criminals in reality and their subjective desire to escape or bear the penalty; The reality in criminal justice is that compared with life imprisonment or life imprisonment, most criminals are often more afraid of the death penalty and have a stronger will to escape. Since criminals are willing to waive the death penalty at the expense of life-long free punishment, where does the argument that the deterrent effect of death penalty is not as good as free punishment come from?
As far as the realistic social conditions and social development of China and even most countries in the world are concerned, the establishment or existence of the death penalty as a statutory punishment can be said to have not exceeded the concept of retribution and sense of justice that people generally hold relative to some particularly serious crimes; At the same time, the establishment and existence of the death penalty, as a statutory punishment, is still a necessary and effective order arrangement compared with deterrence and deterrence of some intentional or considered serious crimes. In this way, the key to the abolition of the death penalty can be further attributed to whether the criminal's right to life should transcend any real or possible crime and its social harm, and whether setting the death penalty as a statutory penalty for any real or possible crime has and does violate people's rational value balance.
The idea of unconditional and complete abolition of the death penalty always implies a cognitive premise or foundation, that is, in human social life and social order, the individual's right to life is supreme and absolutely inalienable. This cognitive premise or foundation correspondingly determines the judgment and balance between crime and punishment. Any real or possible crime and its social harm are not comparable to the criminal's right to life. No matter how serious the crime is, how serious social harm it has caused, and what kind of guilt the criminal needs to bear, the criminal's right to life is absolutely not allowed to be forcibly deprived. In a word, no crime and its social harm in human social life and social order can adapt to the death penalty that deprives criminals of their right to life.
People's understanding, judgment or thinking about certain things, once divorced from the actual social conditions and social life, will often be mixed with a lot of emotional paranoia or falsehood. The individual's right to life is supreme and absolutely inalienable. As a value concept or value judgment, it can be said that it is always based on utopian ideas such as natural human rights and social contract. But in fact, no matter at any time or in any society, it is impossible to surpass and override the value of individual life over others and even the public because of people's rational value judgment and evaluation. Compared with those particularly bad and serious criminal acts that annihilate conscience and humanity, ignore the value of others' lives and even hate society and their corresponding social harm, setting the death penalty and even applying it are not only in line with people's just feelings, but also do not violate any rational and objective value balance. Based on the internal requirements or objective needs of real social life, it is often reasonable and necessary for some special and important social interests and public interests to occupy a higher rank or higher priority than the individual's right to life in social order arrangement. For a simple example, the existence of armies and their military service systems around the world is like this; If any country confirms that its citizens' right to personal life is supreme, then at the same time, it must abolish its military service system and dissolve its army, because as long as any citizen is drafted into the army, it means that his right to personal life must be subordinate to the public interest and national interest of a better position or a higher rank.
The so-called order of human society is actually the orderly coordination of various rights or interests of different subjects in society; The enjoyment and exercise of any rights, as well as the realization and satisfaction of any interests, need to be based on a certain order arrangement, and all need to be adjusted or regulated by a certain order. In real social life, based on limited resources and complex human nature, any rights that individuals can enjoy and exercise are bound to be restricted and restrained by others, society or nature, and cannot be realized or satisfied unconditionally and without restrictions. The so-called priority or higher rank of individual specific rights or interests should be the value balance when some specific rights or interests are in opposition or conflict; That is to say, the so-called priority or higher level of individual specific rights or interests has practical significance only in specific social environment, living conditions and even specific interpersonal relationships, and only when it competes or compares with other specific rights or interests. Rational social life and social order, whether in the past, present or foreseeable future, cannot be the absolute priority and supreme utopia of a certain right or interest. As long as there are those particularly bad and serious crimes in real social life, and as long as human beings have not completely got rid of bad behaviors that endanger others and society, then as a reasonable expectation, arrangement, adjustment or construction of real social order, its desirable goal can only be to seek the greatest happiness of the greatest number of people.
The disadvantage of the death penalty in reality usually lies not in the existence or reservation of the death penalty as a penalty, but in the lack of reasonable and necessary sympathy and forgiveness in criminal law practice. As a penalty, the death penalty has its rationality and necessity, which does not mean that criminal legislation can abuse the death penalty simply by retribution or deterrence, nor does it mean that criminal justice can abuse the death penalty without due guilty verdict and sympathy. On the one hand, the abuse of the death penalty system lies in the abuse of the death penalty in criminal legislation, that is, deliberately emphasizing and excessively pursuing the retribution or deterrent effect of punishment in criminal legislation, and distributing the death penalty to crimes that should not be distributed, which deviates from the principle of adapting crime to punishment; On the other hand, it lies in the abuse of the death penalty in criminal justice, that is, due to the lack of necessary or reasonable guilty verdict and due sympathy in criminal justice, judicial discretion has made unreasonable criminal responsibility for specific criminals, and then the death penalty has been applied to criminals who should not have applied the death penalty.
Lighter punishment and humanitarianism are the basic directions of criminal policy and penalty reform in the tide of historical development and social progress. However, while advocating and pursuing the light punishment and humanitarianism of punishment, people must also pay attention to and seriously think about such a question, that is, whether the adjustment of penalty setting conforms to the legal principle of adapting crime to punishment, and whether it has or can produce the social effect that punishment should have. Only on the premise of ensuring that the social utility of punishment and the setting of punishment conform to the principle of suiting crime and punishment can we talk about the lightness and humanitarianism of punishment, and we can't unilaterally emphasize and pursue the lightness and humanitarianism of punishment at the expense of losing the social utility and even social justice of punishment.
The death penalty is indeed a very severe and even cruel punishment. However, to evaluate the rationality of the penalty and even decide whether to abolish it, we should not only consider the severity or cruelty of the penalty itself, but also consider the specific charges corresponding to it, and we must resort to the legal principle of adapting crime to punishment. The purpose of the previous analysis, statement and defense is to support the conclusion that the death penalty should be retained and not completely abolished.
The disadvantage of the death penalty lies in its indiscriminate setting or abuse, which violates the principle of suiting crime to punishment; To avoid and abolish the drawbacks of the death penalty, we must follow the legal principle of adapting crime to punishment and strictly regulate the establishment and application of the death penalty. Criminal legislation can only allocate the statutory punishment of death penalty to those crimes with particularly bad nature and serious circumstances that are suitable for the death penalty; At the same time, in view of the special seriousness of the application of the death penalty, criminal legislation also needs to make principled and even special provisions on crimes involving the death penalty, such as guilty judgment of criminals, mitigation of guilt and even lenient sentencing, so as to make judicial discretion in cases involving the death penalty necessary, practical, reasonable and effective. In the specific adjudication process of death penalty cases, criminal justice should strictly follow the principled or special provisions of criminal legislation on judging criminal responsibility, reducing criminal responsibility and lenient sentencing, and at the same time, give full play to the normative or guiding role of relevant precedents with the help of precedent system to minimize the application of death penalty.