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The Humanitarian Approach To The Penal Law System

Posted on:2006-06-25Degree:DoctorType:Dissertation
Country:ChinaCandidate:W H SunFull Text:PDF
GTID:1116360152485200Subject:International Law
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At the beginning of the establishment of the modern penal conceptions, **** advanced three basic principles of criminal law: legality of crime and punishment, proportionate punishment for a specific crime, and humanitarian principle of penal law. Namely, humanitarian concern over criminal law as well as the legality of crime and punishment has become an important earmark in the development of modem penal law. The essence of humanitarianism is humanism in relation to the divine power, regal power (later evolved into sovereign power) and human right. In this dimension, humanitarianism in penal law deals with humanitarianism in the fundamental relationship with divine power, penal power of the state, penal right, and the philosophic foundation of humanitarianism.This dissertation is divided into five parts:Part one: Humanitarianism in relation to the existence and development of penal phenomenaThis part starts with an introduction concerning the core of humanitarianism and its fate in contemporary China. Then, it illustrates the significance in implementing the humanitarianism through the penal jurisprudence by analyzing the conception contained in the penal phenomena in the social life. As is emphasized, with regard to its social realm, humanitarianism is within the scope of moralized ethics, which is the destination of human universal affections. With regard to its historical realm, humanitarianism is defiance against the tramping on humanity. With regard to its power domain, humanitarianism is the ultimate affirmation of right and liberty.Part two: Humanitarianism in the center of conflicting value systems of penal jurisprudence.This part tackles primarily humanitarian concern and its relevant parts in socialconstruction, including the relationship of violence and penalty, the transformation of penal law, the essence of penalty, the bottom line of ethics, the penal power of the state, and etc. Meanwhile, it is also pointed out that. In the history of puial jurisprudence development, violence, revolutionary, war and penalty itself are not in confrontation with humanitarianism. The power attempts to cover the truth of humanitarianism by confronting the former with the latter out of its own necessity. Regarding the transformation of penal jurisprudence in China, humanitarian dimension is not only the essence of western modern criminal law but also a weapon to fight against the old system if it could be integrally combined with the rich legacy of Chinese traditional penal laws.Part three: Penal jurisprudence defends humanitarianism.Firstly, nowadays it is an urgency to implement humanitarianism by the means of penal jurisprudence, which is highly demanded by the social development and civilization achievements. The most condemned and extreme atrocity is the racial extinction and massacre. Therefore it is a necessity to prevent "crime in crimes " by means of penal law.Secondly, undei the guidance of humanitarianism, humaiiiiaiian law will be the highlight of human jurisprudence accomplishment.Thirdly, despite that humanitarianism was not a regular penal jurisprudence \u the strict meaning, the development of humanitarian law has given birtn to ilu legalization of anti-humanitarianism. which ensures that the preventive measures and punishment to check the anti-humanitarian crimes became the core of international penal law and leads it into prosperity.Fourthly, the attack upon the anti-humanitarian crime has been reinforcedsubstantially. Hence, there emerges a new form of co-effort attack known asInternational Criminal Court" which focuses on crashing down theanti-humanitarianism crimes. A series of new legal consciousness has been evolved inthe international community in respect of conception and system.Nevertheless, there is still a long way to run especially when humanitarianism is faced up with inherent defects and emergent diversions. Part four: The nature of penalty and humanitarianism.Penal power, as a crucial form of state power, has been playing a fundamental role in the existence and development of a state. So, how to treat and manipulate it undoubtedly occupies an indispensable place. This part contributes to the function and dysfunctions of penalty. The author assumes that it cannot effectively eliminate theevils by merely resorting to punishment. This part contributes a lot to analyzing Michael Foucault's theory about power and punishment. The author advocates that the technique process of power, which could be deemed as the victory of humanitarianism, inevitably accompanies the process of humanitarian confines imposed upon penal rights. We are obliged to acknowledge this fact willingly or unwillingly for Foucault's interpretation about punishment and power stripped the dignifying disguise of social system.Part five: The rationality of penalty and the goal of humanitarianism Considering the improvement of legal environment and systematization, the focus of penal theoretical research should shift into the criminal investigation, which embodies most directly the interest of parties but unfortunately remains so hard-to-be-transparent areas as departments responsible for power supervision. In this light, the reform of penal power chiefly expresses itself in the remedy policy of humanitarianism. In a realistic analysis, the ill match of the nature of penal power and humanitarian concern is the legal source of the misconducts of punishment.The historic evolution of punishment technique is the landmark of human civilization of penalty, among which death penalty is most prominent. From the various ingenious methods in the ai'cient society to the relatively humane manners of injection nowadays, the penal system has experienced humanitarian change in convention and system. Furthermore, the public sentiments, which could not serve unduly as an excuse to evade punishment, should be defined and viewed in a justifiable perspective.This part is also dedicated to analyzing the humanitarian development in the treatment of convicts by placing the human right of convict in the historical context. The author assumes that human right of convict has been gradually extended along with the new awareness of humanitarian trend. The purpose of executing the penalty lies in the crime prevention by means of punishment, which is the fundamental aim and basis upon which the humanitarian treatment of convicts could be guaranteed. This process of civilizing the penalty execution indicates an irreversible tendency in international penal law. Although a minority of people could possibly be benefited, the target interest group may be not narrowed. In this sense, the humanitarian treatment of convicts is an indispensable part of human right and humanitarianism which embodies the universal right endowed to human.
Keywords/Search Tags:penalty, jurisprudence, humanitarianism, power, right
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