Judging Penalty By Ethics

The ideal of penalty is to prevent and till annihilate crimes. The relation between morality and law is dialectic, i.e. unified and opposite. The penalty must have its ethical value. The perfect penalty should possess three important and essential properties, that is, justice, utility and equity.The penalty must be righteous. The penalty is righteousness because it is nemesis to the crimes. The penalty should have the practical efficacy of preventing crimes. The penalty should be fair, namely, the punishment to a criminal should be equal to his crimes.Analyzed from justice, the original form of retribution theory, i.e. archaic theory of divine will, consists theory of punishing in name of God and expiatory theory. Kant agreed with the theory of moral nemesis. He thought that the punishment for a criminal has the function of counterpoising morality. However, Hegel agreed with the theory of legal nemesis. He thought that the basis of the retaliation is estimation to a criminal's uncontrolled intention or sense.The historical people who agreed with the theory of nemesis greatly misunderstood the definition of justice. The justice possesses distinct characters of class, history, otherness and mobility. There is no absolute and ever-lasting impartiality. The justice includes equity of universality, chance, distribution and effect. It is embodied, in penalty, as cognition of the bases of precondition, modality and substance.Analyzed from the utility, penalty includes defending effect both for the general and the particular. The general defending theory undergoes a process, developing from the intimidation of serious punishment to classical utility and finally to multi-containment. The particular defending theory also undergoes aprocess, developing from the abruption among rectification and deprivation of the guilty ability and finally to integration of the particular and the general.The penalty intents to control and annihilate crimes. Therefore, estimating the value of penalty with the standard of utilitarian concept and considering the basic orientation of penalty from the angle of utilitarian effect are of great practical value.Analyzed from the equity of penalty, Kant's theory of nemesis with equal quantity pursues the equity between the penalty and the crime in seriousness. Hegel's theory of nemesis with equal quality seeks the equity in value. Bentham sums up two principles that are applicable to penalty.In fact, equity of penalty is the concretion of the principle of righteousness during the guilty relation. It mainly concludes standard of distribution of entity and the rationality of distributing procedure. It requires the equity of penal and judicatory legislation and the equilibration between the crime and the penalty. The equity also belongs to the fundamental content of Marxist criminal law.Three basic properties of penalty are fairly embodied in the ethical estimation of the execution. The scholars who protest keeping or abolishing the death penalty make vehement controversies from three aspects, i.e. whether it corresponds to justice or not; whether it can achieve the aim of preventing crime; and yet whether it agrees with the criminal's penal responsibility.Analyzed from the relation between execution and social justice, death penalty is not in accordance with social justice. Analyzed from the social virtue of execution, the effect of death penalty should be admitted, but should not be apotheosized. Analyzed from the justice of death penalty, to put a criminal to death means estimation to life.Theoretically, execution should be abolished immediately. However, actually, our nation does not possess the integrant condition of abolishing execution in present. From the angle of the development of law, the abolishmentof execution should precondition the alleviation of penalty. Thereby, execution should be restricted in the maximal degree and finally abolished.