The newly promulgated draft amendment to the Criminal Law abolished nine crimes for which the death penalty applies, which is not unexpectedly a huge progress, and shows the cautious attitude of our country's laws towards the death penalty. Use the death penalty with caution, I don't think anyone will disagree with this concept. It has two obvious advantages. In theory, the law emphasizes the principle of "comparability of crime and punishment", which means that the crime committed by a person and the punishment he has received should be equivalent, neither too heavy nor too light. So for some crimes, the death penalty is obviously too heavy. It is in line with the justice of the law to remove the death penalty for these crimes. From the practical effect, the prudent use of the death penalty is an effective means to reduce unjust cases. Unlike other unjust cases, the unjust cases of the death penalty are irreversible, so one must be cautious.
Of course, the prudent use of the death penalty has always retained the death penalty, while the goal of many scholars and the public is to abolish the death penalty. And the debate on the retention and abolition of the death penalty seems to never be able to reach a conclusion. When criminals with heinous crimes appear, the views that support the death penalty will prevail; and when there are unjust cases, the views that oppose the death penalty will prevail. This debate exists not only in countries and regions that have the death penalty, but also in countries and regions that abolish the death penalty. In 2010, Taiwan's former "Minister of Justice" Wang Qingfeng was forced to resign after refusing to sign the execution order, causing huge social controversy. In 2011, Breivik, the Norwegian murderer who killed 77 people, once again made the Norwegians call for the restoration of the death penalty.
The concept of the death penalty stems from the ancient and simple concept of revenge. And this idea of revenge, rooted in human nature, is a necessary condition for human existence. Just imagine, if a person lacks the content of resistance and revenge in his genes, wouldn't he be slaughtered by others? According to the principles of evolutionary psychology, such genes are not destined to be passed on. In ancient times, revenge, of course, did not have any concept of legal principles, but paid attention to the inexorable "revenge of blood relatives". This kind of revenge has two forms. One form is to pay attention to revenge and revenge from generation to generation in terms of time, which is the so-called revenge; the other form is to pay attention to cutting weeds and rooting, fearing that some fish that slip through the net will grow up and come back to seek revenge. Needless to say, there are too many literary and artistic works. With the development of society, people's concepts are also progressing, and the cruel "revenge of blood relatives" is replaced by the more principled "revenge of homomorphism". The so-called "homomorphic revenge" means that the victim gives equal revenge to the other party, with life for life and injury for injury. In the words of the Bible, it is a tooth for a tooth and an eye for an eye.
Compared with the "revenge of blood relatives", which is when the grievances are repaid, "homogenous revenge" is obviously more principled and is a limited kind of revenge. And this method of revenge is more easily accepted as a law. With the birth of the state, the power of punishment began to be brought back to the state, and lynching was limited. The principle of law, of course, comes from the simple psychology of people, and the concept of "homogenous revenge" has become an important theoretical source of law, the so-called killing to pay for one's life and debt to pay. Jefferson, the founding father of the United States, even believed that there should be complete homomorphic revenge, and the law should treat him as the criminal treats others. For example, if someone breaks someone else's leg, the punishment is to break his leg as well. Behind this approach is the absolute justice advocated by Kant.
With the development of human civilization, the concept of humanitarianism has been carried forward, and the first manifestation of the law is the abolition of corporal punishment and the restriction of freedom, that is, prison. In this way, Jefferson's idea can not be realized. And the ultimate punishment of the law, the death penalty, has finally begun to suffer a strong challenge.
There are also two aspects of thinking about the abolition of the death penalty, both practical and theoretical. At a practical level, opponents of the death penalty have two views. One is that various big data show that in those countries that have abolished the death penalty, the crime rate has not changed significantly, and it is roughly the same as before the abolition of the death penalty. This means that the death penalty does not have the deterrent effect we imagined. Whether there is a death penalty or not, the criminals should do what they should do. The second is that human capacity is ultimately limited, and no matter how careful we are, injustice will never be avoided. There is only one way to put an end to unjust killings, and that is to abolish the death penalty across the board. It is better to misplace one thousand than one.
Of course, this consideration based on practical interests cannot shake the absolute justice of homomorphic revenge. Therefore, those who oppose the death penalty still need to interpret it theoretically. There is also a naive "absolute justice" here, that no one has the right to take the life of another. Of course someone who kills someone else must be punished, which is justice. But justice does not give the punisher the power to take the life of the criminal, otherwise, what is the difference between the two? In the words of Taiwanese writer Zhang Juanfen: "Only in this way can we keep the little difference between good people and bad people."
Another theoretical consideration comes from the limitation of state power. People build states to maintain order and provide services, for which people have to cede some of their power to the state. But this power should not include the power of life, because no one will hand over the right to dispose of his own life. So the state has never had the power to decide the life of its citizens. This theory was put forward by the 18th-century Italian jurist Beccaria, who believed that when the huge state apparatus began to target the individual, it was difficult for the individual to compete. It's okay if justice is done, but what if it's an abuse of power? The only way to stop the abuse of power is to deny the state that part of it. This is a firm reason why many are calling for the abolition of the death penalty.
Such a sonorous and powerful theory makes those who support the death penalty a little overwhelmed. It seems that the simple justice of killing for life is not so convincing, and a more principled interpretation is needed. This principle is individual rights. In the words of the American Declaration of Independence, a person's right to life and property rights are sacred and inviolable. From the standpoint of rights, the purpose of punishment is not the so-called deterrent to crime, otherwise, would it be more deterrent to "steal a piece of bread and sentence to ten years in prison"? The purpose of punishment should not be to "reform prisoners". As the old saying goes, it is difficult to change the nature of the country, and it is difficult to change the human nature that is vastly different. Can an impulsive criminal be punished lightly? Can a habitual offender of petty theft be severely punished? Such laws are clearly unfair. In the words of the economist Jingchengzi: "Punishment should only consider justice, otherwise it will become a distorted tool in the hands of tyrants, politicians, people of conscience, and charity ambassadors." Therefore, the purpose of punishment is only one, that is, justice. Its principle That is, the penalty we talked about earlier must be adapted to the crime. And murder is compatible with the death penalty.
These two views on the retention and abolition of the death penalty may not be able to overwhelm each other. So isn't there an option that is acceptable to both pros and cons? On this issue, the famous economist Rothbard put forward a mind-blowing point of view. Of course, Rothbard's new point of view is not intended to reconcile contradictions. As an economist, his views are based on individual rights.
We say that a person's property rights cannot be violated by others, and on the premise of not infringing on the rights of others, a person has the right to dispose of his own property. If we regard life as a person's property, then based on the previous point of view, we will draw the following conclusion: a person's right to life is inviolable, otherwise the death penalty will be used as punishment. But the owner of the right to life can claim to give up this right. That is to say, the power to give up the death penalty can only be in the hands of the victims, not the society or the state. It is not even in the hands of the victim's family, because it is difficult to guarantee that the victim's family can truly uphold the victim's rights.
But the victim is already dead, how can he claim his power? Rothbard's answer was: "Do things the same way you would obey any wishes of the deceased: follow his will. The deceased can signal his heirs, the courts, and other interested parties how he wishes to kill him. murderers. In this case, pacifists, liberal intellectuals, and others can leave clauses in their wills that law enforcement agencies will not execute or even prosecute the killers in murder cases against them Law enforcement agencies must comply with the execution.” Thus, things have become the best of both worlds. Those who advocate the abolition of the death penalty can give up their right to use the death penalty, while those who support the death penalty continue to have the power to punish the death penalty. Both sides have their own place, and they have nothing to do with each other. Aside from all other factors, only from the perspective of rights, you will find that the choice between the existence and the abolition of the death penalty becomes not difficult.
In the latest issue of "Luo Ji Thinking", host Luo Zhenyu talked about his views on the death penalty. At the end of the program, he said, "The death penalty is not a question of right and wrong at all, because it does not have a clear boundary. It is right to abolish the death penalty, and it is wrong to maintain the death penalty. The abolition of the death penalty must follow the evolution of the morality of a country and a nation. , and what happens naturally." Then if Rothbard's point of view can be carried out, and if more and more people really give up their right to use the death penalty, the death penalty will be effectively abolished.
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