The Utilitarian Foundation Of The Legitimacy Of Punishment

In view of the fact that the penalty is related to the most fundamental interests of every social member’s life, liberty, property and dignity, Plato and Aristotle in ancient Greece, Roman Stoics until contemporary European and American scholars, without exception, the justification of penalty problem as one of the most important ethical and philosophical questions of law. So far, scholars have not agreed on the answer to the question of the legitimacy of punishment, but formed a "retribution doctrine" and "utilitarianism" two kinds of punishment view of the position differences and theoretical opposition. Previous research for "punishment legitimate" the problem of the analysis and the explanation of the concept of "retribution" and "utilitarianism" two penalty filled with all sorts of chaos, for this ancient and major issues of the research only stay in a rather superficial extent. "Chaos" and "shallow" these two major defects in the previous relevant research "on the field", "argument" and "conclusions" are reflected in three aspects. Academic circles currently accepted conclusion is two kind of theory "have their own advantages and disadvantages, complement each other", and a "retribution restricting utility" for the principle of so-called "comprehensive theory" or "one theory" as a general theory, leading to the current research on the philosophy of punishment almost become a pool of stagnant water. On the other hand, in practice, the judicial officials in the brain is filled with guilty must be punished, punishment, retributive punishment idea to become the lead to one of the most important causes of crime and punishment. This article believes that the foundation of the legitimacy of the criminal punishment ethics lies in, and only in utilitarianism.First, to defend utilitarianism"Happiness", which is emphasized by utilitarianism, is not the subjective feeling of happiness, but the objective condition of happiness. Utilitarianism requires the community to protect and promote the basic good things that are beneficial to the happiness of every member of the community, such as the basic freedoms and rights, wealth, all kinds of equal opportunities and so on. Utilitarianism can be a comparison of utility computing and interpersonal utility. In particular, utilitarianism considers II that the foundation stone of happiness is freedom, and full freedom is the necessary condition for every person to fully realize his or her own happiness.Utilitarianism slogan "to promote the true meaning of most people the greatest happiness" refers to the is "maximally improve every member of the society of happiness", namely its emphasis is equal to happiness, and happiness is not the total, utilitarianism is not to increase the happiness of the total allowing the huge gap between members of different social happiness. Therefore, utilitarianism is not for specific minority interests and damage specific most people’s interests nor for specific most people’s interests and damage the interests of specific minority people, utilitarianism is only allowed to promote the interests of most people are not specific to the impairment is not specific to the minority interests, or in the interests of the vital interests of the most specific and specific minority people is difficult to be allowed to sacrifice the interests of a small number of people.Justice and morality come from utilitarianism. Passage of the rules of justice and moral obligation is the history of the formation of such a thing: if every social members are generally comply with it, from the overall perspective will be for each member of society’s well-being is favorable. Therefore, to comply with and respect for the passage of the rules of justice and moral obligations, in general, is the most conducive to the greatest happiness of most people. Therefore, utilitarianism and will not lead to unjust and immoral(for example "punishing the innocent"), utilitarianism only in extreme cases are allowed to break traffic rules of justice and moral obligation, and this breakthrough only is for greater justice and more real moral. And, for such a breakthrough, the breakthrough should bear the burden of proof of utilitarianism, and to the passage of justice rules and moral obligations of the breakthrough may lead to confusion and other adverse consequences, such as taking into account.Therefore, utilitarianism, as a kind of moral philosophy which aims at the theory of "the pursuit of universal happiness", should be fully and can also be the ethical foundation of the justification of criminal punishment.Two, the legitimacy of the punishment of the utilitarianismMust first distinguish the penalty legitimacy under two different levels of sub problems, one is "the penalty exists legitimacy" problem, namely the existence of "penalty" is such a thing as why is legitimate; "distributing punishment legitimacy" problem, namely, how the punishment is justified. The most about the legitimacy of the penalty theory confuse the two different levels of problems, "general prevention III will lead to punish the innocent and severe punishment. Therefore, the prevention of as penalty due to" belong to the typical domain of confusion, because of the broken only illustrate general prevention is not suitable for as a punishment legitimate distribution principle of right, but does not mean that it is not as a legitimate basis for the existence of a penalty.From the standpoint of utilitarianism, the legitimacy of any public institution, rules and actions can only be confirmed by the greatest happiness which is most beneficial to the protection or promotion of each member of the common body. Crime is the act of serious harm to the greatest happiness. Penalty is in individual conscience and the community sentiment, moral opinion strength is not enough to effectively prevent people crime will translate for the criminal acts inform people once the crime will pay their life, liberty, the largest elements of happiness in the price and after a person guilty of a crime do make it to pay the price and compel people dare not criminal intention into action of the crime, and crime by the sanctions and the effectiveness and authority of the "greatest happiness norms" to be confirmed and to prevent the effect of crime of a system. The legitimacy of the existence of punishment is an effective and necessary tool to prevent crime in order to protect and enhance the maximum happiness. The crime prevention mechanism includes two aspects, one is through the deterrent action(causes the human not to commit the crime), two is through the confirmation standard(causes the human not to be willing to commit the crime).Utilitarianism demands punishment allocation process must give full consideration to every factor of influence on the maximum happiness goals must be will prevent the crime objective and other happiness related factors of balance in order to achieve a higher purpose: protection and promote the common body of every member of the greatest happiness. Therefore, utilitarianism and advocates will distribute the criminal penalty in the crime prevention to decide everything, utilitarian requires distributing punishment must take to the most advantageous to protect and promote common body of every member of the greatest happiness of the best scheme. So the utilitarianism is bound to support the principle of culpability, because the principle of responsibility to protect and promote the greatest happiness for the most people the most favorable. Utilitarianism must not allow penalty, because of the cruel or too harsh penalties for most people the greatest happiness of the cause of adverse effects inevitable in absolute value is greater than the punishment deterrence can get revenue to prevent crime. The basic spirit of utilitarianism penalty allocation is "forced", distribution principle is "punishment rather than not" and "punishment rather light not heavy", this and retribution "deserved" and "do not light not heavy" formed contrast.Three, criticism of the theory of retribution penaltyThe two types of retribution: Philosophy of retribution and intuition. The former refers to the Zhaoyuan based on Kant’s philosophy, which is based on the theory of social justice and the basis of the theory of retribution. The similarities between the two are far less than the difference between the two. There are two types in the philosophy of the philosophy of retribution: strong retribution and weak retribution. The philosophical foundation of strong retribution is Kant’s transcendental idealism of the categorical imperative, and Kant’s categorical command is actually a resort to experience and consequences of Hypothetical Imperatives, because according to Kant to categorical logic to prove the command, "why of crime must punish" will eventually to be answered from the perspective "if the crime is not punished what will happen. Therefore, it is difficult to be the theoretical basis of the legitimacy of the existence of the punishment. In the field of validity of distributing punishment, strong retributive theory argues for the guilty must be punished and foot expiatory punishment, will inevitably lead to the tendency of serious punishment of theory and practice. Therefore, the strong retribution doctrine can not be the moral foundation of the legitimacy of punishment.The two proposition of the weak retribution is(1) the penalty can only be imposed on the guilty person(2) the penalty shall not exceed the necessary limit. Weak defect retribution doctrine has three aspects: first, the weak retribution penalty should only guide how to allocate, and cannot prove why the penalty should exist, therefore the weak retribution is a kind of incomplete theory, it cannot be "to provide theoretical support for complete justification of criminal penalty" this general problem; second, vulnerable and retribution there is a strong retribution logic break, from the strong retribution of crime must be punished "cannot be derived" guilty can be punished "and" punishment shall not be excessive, so no matter from a logical point of view or from the semantic perspective, the theory of retribution is classified as vulnerable camp "Nemesis" doctrine; third. Weak retribution is really only to advocate punishment being punished "justice", and justice is a prior to and independent of retribution and the weak In the category, justice is not built on the basis of weak retribution. On the contrary, the weak retribution is built on the basis of justice. Therefore, it is a useless theory.Claims of the intuition of retributivism is "because the public need to punish and punish" or "punishment is in order to meet the public’s needs". Intuition of retributivism defects have four points: first, intuitive retribution can only illustrate the existence of a penalty of practical necessity, not that punishment, the existence of the ethical justification; second, the intuition of retribution will establish public retribution emotional satisfaction in the penalty bring punishment great pain based on, which itself against ethics; third, intuition retributivism unable to for those who are not most of the social members will be to produce the demand of retribution of the administrative crime punishment exist to make reasonable explanations. The three points above determine that the theory of the principle of the intuitive retribution can not be the legitimacy of the existence of the punishment. Fourth, in penalty allocation problem, especially in criminal judicial field of distribution, public opinion is often unstable, will be affected by the influence of the media and politicians, so intuitive retribution also cannot be used as a penalty distribution proper guidance.Above strong retribution and the logical proof and inferior retribution justice requirements, intuition of retribution retribution need can be from the perspective of utilitarianism has been demonstrated, so retribution can completely covered by the utilitarianism, so relative to the utilitarianism, retributivism does not exist independently of the necessary. The so-called retributive justice complements or restrictions, is completely determined by the utilitarianism, any form of retribution, finally is going to utilitarianism, where to find the answer, any form of retribution can utilitarianism to explain-- rather, they are originally utilitarian, but consciously or unconsciously put on the legitimation of retribution only.In summary, the foundations of the justification of penalty shall is and only is utilitarianism, utilitarianism, also only the utilitarianism can provide comprehensive and sufficient basis of justification of criminal penalty related to various problems. Retribution in theory or incomplete, or wrong, or is redundant, in practice is harmful, which resulted in the tendency of heavy, and prevent us from what is more reasonable punishment related elements for further consideration, and should therefore be accessary penalty penalty theory was completely removed out.