What is human nature? Opinions vary. The author believes that the basic connotation of human nature is the trend of human survival, dignity, family affection, honor, freedom, development and other needs.
Rousseau said: "The first law of human nature is to maintain its own survival." Survival is the premise of human history. In a person's childhood, survival is an instinct. After childhood, a person's desire to survive exceeds his instinct, and he always lives with one or more "tasks". People value their own lives, and they also value the lives of others. For their own survival, they must allow others to survive. Human beings have lived in groups from the beginning, and the most severe punishment in primitive society was to expel people from the tribe. Today, individuals seem to be becoming more and more independent, but in fact they are not. The interconnectedness and interdependence between people are becoming more and more important.
Dignity means treating people as human beings, which is a universal need of human beings. Dignity is a unique way of life for human beings. Without dignity, especially without inner dignity, people would not be human. Human dignity is based on a person's natural attributes and has nothing to do with a person's power, money, life span, appearance, etc. Dignity is like air, although it is inconspicuous, it is very important.
Family affection is a person’s attachment and care for those close to him or her, such as parent-child affection, husband-wife affection, friend affection, racial affection, etc. The relationship between parents and children is based on blood ties and is the core of family ties and is irreplaceable. The relationship between husband and wife, commonly known as love, is based on sex, but it contains more moral emotions such as mutual respect, mutual attachment, and mutual care than sex.
Reputation is society’s evaluation of a person. Zhou Enlai once said that reputation is a person's second life, and Adam Smith said that a person's greatest misfortune is to lose his reputation for no reason. People once asked Tolstoy what prompted him to create, and he unexpectedly answered: the desire for glory. This is why the German ethicist Friedrich Paulson said: "The creators of most historical turning points, such as Alexander, Caesar, Friedrich, and Napoleon, had the strongest motivations for the highest fame and honor. In addition, , great spiritual and artistic achievements would be impossible without the longing for honor, fame and immortality in human memory." Everyone wants to have a good reputation because it is consistent with their interests and values. Children have wanted to be praised by others since they were sensible, and this hope accompanies the child throughout his life.
Freedom is also the basic nature of human beings. Human freedom is diverse and multi-level. In terms of its form of existence, it includes freedom of thought and freedom of action. Patrick Henry once loudly declared: "Give me freedom or give me death." Kant believed that freedom is the only original right of human beings. Rousseau said: "To give up one's freedom is to give up being a human being and to give up human rights." When Yan Fu translated John Mill's "On Liberty", he could not find the appropriate corresponding word for "freedom". He was so anxious that he opened the window and recited Liu Zongyuan's poem: "In front of the cliff, the jade stream flows, the poet Mulan Zhou, the spring breeze is infinitely good. The spring breeze is infinitely Xiaoxiang-like, and you are not free to pick the plum blossoms." He was inspired by this.
The need for development is a human characteristic. Human needs have one biggest characteristic: they are never satisfied. After the low-level basic needs are met, there will only be a short-term "peak experience", and people will also have higher-level needs. People are always pursuing them, and the ultimate goal they pursue is a goal that people can never achieve. Yearning for the lifestyle you want has become a unique human need: the need for self-development.
If the content of human nature shows infinite diversity, and the survival, dignity, family affection, honor, freedom, development, etc. discussed above are basic human nature, then there are also broader human nature, such as awareness, Learning, innovation, self-consciousness, self-control, etc. are all manifestations of human nature, but compared with the first column, the characteristics of the second column are the expansion and deepening of basic human nature. Basic human nature exists universally and absolutely. It is not based on the amount of property, status, religious beliefs, occupational characteristics, cultural level, geographical climate, race and skin color. As long as you are a human being, you have human nature.
3. Empirical analysis of the human standard of procedural justice
Take arrest in the Criminal Procedure Law as an example. Why set up an arrest system? According to the first paragraph of Article 60 of the Criminal Procedure Law, the purpose of establishing the arrest system is to prevent the occurrence of social harm. Social harm means that criminal suspects or defendants escape, interfere with investigation activities, continue to commit crimes, or may pose threats to victims and witnesses. Criminal suspects escape and obstruct evidence collection in order to avoid legal sanctions. Why do criminal suspects evade justice? This is to prevent your reputation, freedom and other rights from being damaged and restricted. James Wilson and Richard Hearns said in the book "Crime and Human Nature": "The benefits of crime include material benefits, sexual satisfaction, revenge, and recognition of accomplices; the consequences of crime include guilt of conscience, the victim's Revenge, censure from friends and colleagues, and possible punishment". Here, "criminal proceeds" are the main "interests" pursued by the perpetrator, and "criminal consequences" are the main "harm" that the perpetrator avoids. The "criminal consequences" are the main "harm" that the perpetrator avoids. Therefore, it is almost human instinct to avoid legal sanctions, and the arrest system is established based on human instinct, that is, the tendency of human nature. Criminal suspects or defendants may do so for the sake of their own survival, dignity, family affection, reputation, and development. To avoid legal sanctions, the role of the arrest system is to suppress the coerced person's awareness and behavior of evading legal sanctions.
The arrest system is established to prevent the evils of human nature, not only for criminal suspects or defendants, but also for judicial organs and their staff, because there may be evils of rights. After all, staff are ordinary people and have the characteristics of ordinary people. "People with power will not stop exercising their power until they encounter a boundary." If power has no boundaries, it will lead to power corruption. In order to prevent the judicial organs and their staff from acting arbitrarily and protect the legitimate rights and interests of the coerced person, the Criminal Procedure Law also stipulates more procedural requirements for the arrest system. If Article 61 is targeted at the coerced person, then Articles 59 and 59 Articles 60, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, and 77 are directed at judicial organs and their staff. strip.
Therefore, it can be said that the arrest system is based on the basic human nature of criminal suspects and judicial personnel, specifically, human survival needs, dignity needs, family needs, freedom needs and development needs.
IV. Theoretical analysis of human standards of procedural justice
(1) The subject of procedural law is human beings
It seems a bit naive to raise this question, because from a legal perspective In fact, this is common sense, but real life shows that this common sense is often misunderstood. We tend to only see countries, political parties, societies, classes, collectives and abstract people, and forget about real people. The subjects of procedural legal relationships include not only countries, governments, political parties, and economic organizations, but also natural persons, who are the most common subjects. In actual judicial practice, we must realize that the state is not the only subject of procedural legal relationships. All social subjects are subjects of procedural legal relationships, but class is not the subject of the rule of law.
However, why can’t we see people? One is the negative role of traditional legal culture, and the other is the egotistic orientation of the country's current laws. The third is the supremacy of the rule of law. The supremacy of law has been alienated to some extent in today's society. Without the law in the eyes of people, the rule of law has degenerated into the slavery of the law. In legal activities, only the legal norms themselves are seen as isolated and static rules, but their connection with the purpose and value of the law is not seen. Looking at the law as a whole fails to see the original intention of the law to use human beings as its purpose and object, and turns legislation, law enforcement, and judicial activities into inhuman mechanical movements. Under the influence of this concept, people tend to separate people from the law, only considering things and not people, making legal norms far away from human nature, let alone giving more care to people legally as the times progress. and respect.
(2) Outline laws are made by people
In the final analysis, the subject of legislation is people, not God, not the country, and not the ruling class. Who will legislate? The oldest ideas of divine revelation are no longer worthy of debate.
Procedural rights and obligations constructed in accordance with human nature should be able to become the procedural relationship between the subject's conscious will and behavior. Why do we need laws to stipulate it, especially the mandatory protection of criminal law? There are two types of reasons. First, people can survive and develop according to human nature, but the alienation of capital, market and other material forces and the intensification of class struggle and national struggle have distorted human nature. In certain periods and places, the human nature of the rule of law has been diluted or even annihilated. At a certain period of time, the evil of the masses will also harm human nature. Secondly, human nature has its evil side. Xunzi said, "The nature of human beings today is that those who are born with good interests and benefits to the country should obey the truth, so those who live in strife will perish if they quit; those who are born with ills and evils for the country should obey the truth, so those who are cruel and thieves will be born and those who are loyal and faithful will perish. Immortal; those who are born with a good voice in the country are obedient, so the licentious are born and the literary meaning is immortal. "Plato said: "People must have laws and abide by the laws, otherwise their lives will be like the most savage beasts. Just as bad. ""Don't trust the wisdom and conscience of the ruler too much. Even if you are a young and wise ruler, power will turn him into a tyrant." Plato illustrates this point thoroughly with The Ring of Gyges. Montesquieu, Madison, and Jefferson all believed that there were "potential evils" in power holders, so vigilance and prevention of power holders and power are practical needs. The existence of flaws in human nature determines that this kind of "vigilance" and "prevention" cannot rely on people themselves, but must rely on the objectification of human nature, that is, the human nature of systems and laws.
Since human nature has its inherent evil attributes, why can it be overcome? There are also two major forces. One is the essential power of human kindness. People's pursuit of a healthy body, social respect, sincere feelings, freedom of behavior and opportunities for development are all forces in line with social progress and a "good" force. The second is the power of society. In the face of social forces, the power possessed by individuals is always weak. People have to face social forces and be dominated by society.
People act according to their behavior, and the rule of law takes the evil of human nature as the logical starting point and the goodness of human nature as the driving force for implementation. In a certain sense, the emergence of the rule of law is the inevitable result of human nature leading to good and evil behaviors. Good and evil are the basis of human nature for the existence of the rule of law. Human viciousness and evil deeds give the law an object to suppress and make the law inevitable. The goodness of human nature and the behavior of good human nature make the law necessary and possible. Even the existence of the law itself is a manifestation of the goodness of human nature. The function of procedural law is to promote good and suppress evil. If good is truly promoted and evil is suppressed, procedural justice will be achieved.
(5) Humanity is the fundamental criterion for measuring the value of procedural justice
It is generally believed that there are four main traditional legislative value principles. The "General Principles of the Legislative Law" clearly stipulates that they are constitutional principles, rule of law principles, democratic principles and scientific principles. Strictly speaking, the first two principles are only technical principles, while the last two principles are both technical principles and value principles.
But in the author’s opinion, democratic principles and scientific principles cannot accurately summarize the value of legislation. Socrates was a victim of democracy. Will the tragedy of Socrates happen again? Possibly, as evidenced by Hitler and the Cultural Revolution; will it happen again in the future? Possibly, because democracy itself has insurmountable flaws. First of all, when the truth is just "unearthed", only a few people who pay attention to the truth can see the truth. The truth is only in the hands of a few people at the beginning, and the power to know the truth is in the hands of the people. At this time, the truth may be denied . Second, the essence of democracy is the principle of the majority, not the principle of all people, and the evil of the majority may occur. Third, democracy is, after all, a means and a tool. It is not something people are born with and cannot explain their value. Therefore, democracy as a legislative principle deserves reflection.
Are scientific principles the basic principles of legislation? Scientific legislation inherently contains the legislative elements of human nature and is legislation based on affirming the natural and social attributes of human beings. However, science is a science at a historical stage, because what we grasp is relative truth, and what is labeled as science is not necessarily science and technology or incomplete science. To take a step back, although legislation is based on scientific laws, the alienation of human nature by science also exists objectively.
Marx said: "The result of all our discoveries and progress seems to be to give rational life to material power, while human life is transformed into dull material power." This shows that although science is omnipotent and can bring great benefits to mankind, it does not necessarily bring happiness and beauty to mankind. Einstein warned future scientists and engineers that if you want your life's work to benefit mankind, it is not enough to understand applied science itself. Concern for humanity itself must always be the main goal of all technological endeavors, attention to the organization of human labor and the distribution of goods, to ensure that the results of our scientific ideas can benefit mankind, rather than become a curse for monsters and monsters. Never forget this when you think about graphs and equations!
In view of the above analysis, it is the principle of human nature that truly embodies the value objectives of legislation. Because human nature is definite, concrete, comprehensive, and general. "Reason declares that all laws that go against people's natural emotions are useless and ultimately harmful." "The fate of all laws that go against people's natural feelings is like a dam directly across a river. It will either be washed away immediately and submerged, or it will be eroded by the vortex of its own creation and gradually collapse." "The designer and conductor of legal procedures The authors must not forget that they are dealing with autonomous subjects with free will." Justice William Brennan once said: "I have always believed that one of the most important responsibilities of the court is to defend everyone's legitimate desire to realize their self-worth.
Procedures that are consistent with human nature are justice A procedure that goes against human nature is an unjust procedure. It should be affirmed that our procedure design is basically just, but it also has flaws, such as Article 48 of the Criminal Procedure Law. The wife knows that the husband has indeed committed a crime. , will she testify or not? Will she tell the truth or lie when she testifies? One of the values ??of the law is to maintain the mainstream value system of society, such as unity, security, order, family affection, friendship, etc. There will inevitably be conflicts between people, and then there will inevitably be legal demands for value and balance. Family love cannot be sacrificed for social security, nor can social security be sacrificed for family love, because both are conditions for social existence, especially the development of social subjects. Necessary conditions. In an environment where husband and wife are loveless, father and son are at odds with each other, and brothers are at odds with each other, human nature will be distorted and vitality will be strangled. The law should be implemented, but laws that force relatives to testify will generally not be implemented, and laws that cannot be implemented legally will not be implemented. It is better not to enact it. Laws are used to solve conflicts, not to create them. Article 48 is to create conflicts. Professor Zhu Suli once said: "National laws are backed by state coercion and seem to be easily implemented effectively." In fact, the laws that are truly effectively implemented are those provisions that are consistent with or similar to prevailing customs and habits. I think the customs here refer to human nature. "The law does not force people to make things difficult" is an old legislative maxim. What does the law affirm? , what society should affirm and what the law denies, society should deny, that is, what ordinary people can do. Rawls said: "The behaviors required and prohibited by the rule of law should be what people are reasonably expected to be able to do or be able to do." "Avoidable behavior..., it cannot impose an impossible obligation". Why? Because law is the reflection and fixation of social relations, and law and society are the relationship between form and content. The role of jurists It is to study and determine what society is and what legal form it takes. Therefore, Marx said: "Society is not based on law. This is a jurist's fantasy. On the contrary, the law should be based on society." Jurists do not make laws, but discover laws. The laws discovered by jurists should be what people generally hope and can do. Fulfilling the obligation of relatives to testify is something that ordinary people are unwilling or even opposed to , is forced
Reference: www.law-lib.com/lw/lw_view.asp?no=5576 Legal Paper Database