A Jurisprudential Analysis Of The Retention Or Abolition Of The Death Penalty

Since Beccaria challenge the death penalty on behalf of the humanitarian in its book "On crime and punishment", a warm debate about the retention or abolition of the death penalty has been launched in the world, as a whole, the debate focused mainly on value of human life and if the death penalty is deterrent, unconstitutional , humane, in line with the principle of the crime, contribute to the cruel psychological, meeting the purpose of the penalty or consistent with historical trends. The viewpoints is different, but all scholars are basically standing the position of repealing or retaining the death penalty to start their own views, both insist on their opinions and draw a conclusion difficultly. Retention or abolition of the death penalty is long-standing dispute in China, but because our unique political, economic, cultural, and other relevant factors, scholars on this issue basically reached the following consensus—restrictions on the death penalty at this stage, the ultimate realization of total abolition. On the paper I try to come to this conclusion - the retention or abolition of the death penalty will inevitably hovering between utilitarian and humane, ethical convictions and ethical responsibility ,the public recognition and rational choice, pragmatism and idealism by showing both opinions on the paper. On this basis, I proposed restrictions on the death penalty in theory and taking on the form of a policy-oriented line of the death penalty in practice, and that led to what is the real problem of the law in China.In this paper, I first expounded on the focus of the retention or abolition of the death penalty and the development, and respectively expounded on the both opinions of abolition of the death penalty and o retention of the death penalty. Several scholars who advocated the abolition of the death penalty hold following views: first, the death penalty is not the legitimate retribution to the life, but the state plans to kill people; secondly, the death penalty do not own a general preventive function. They believe that although the death penalty should have a general preventive function theoretically, , the function of the death penalty has not been truly realized by the application of the death penalty in all countries in the world; third, the death penalty is a torture penalty because of trampling human rights, contrary to the purpose of the penalty ; fourth, criminal justice itself is not perfection and difficult to avoid the erroneous application of the death penalty; fifth, the death penalty is the product of retribution theory, which has been incompatible with the times and so on. From the above perspective, we can see most supporters for the abolition of the death penalty is holding a humanitarian viewpoint, they strongly oppose the utilitarianism and insist that the abolition of the death penalty is a inevitable result of the development of human civilization. Compared with this, the supporters for retaining the death penalty believe that: first, the death penalty is just and based on the ethics of justice ;for the second, the death penalty has a effectiveness of crime prevention; third, both trial and judgment of the death penalty are carefully for avoiding false killed; fourth, the objective reality of serious crimes and the voice of the majority of people need the death penalty; fifth, compare to life imprisonment, the death penalty has small risks and little price.Over the years, the retention or abolition of the death penalty abroad has been to have major differences, although the progress of the civilization and the humanity make higher concern voice of abolition of the death penalty, and more countries on the abolish the death penalty truly on entities, supporters of retaining the death penalty are never disappeared, even are still mainstream status in some countries. Although in reality more countries joined the ranks of the abolition of the death penalty, a long way to go to abolish the death penalty. As is shown that a materialistic concept of retribution, guilt own ethics and the recognition of the death penalty of public have become the difficult obstacles on the road of the abolition of the death penalty. In China, although the two sides have been deadlocked, it appeared that the academic retention of the death penalty has reached a basic consensus - the death penalty should be abolished, but only restrict the application of the death penalty now, which is so-called limitation of the death penalty.Through the views and the actual situation the retention or abolition of the death penalty, the article followed disintegrate the debate of retention or abolition of the death penalty from the powers and ethical, showed that the death penalty is a manifestation of state power, the reason of some countries choose death penalty while others not is because different ethical values of the root causes of the social history of the formation by Weber. Some countries persisted in Ethics on the belief to caused decision of retention or abolition of the death penalty, while other countries due to the lack of transcendental religious beliefs, led to the deletion of ethical beliefs (such as China), and eventually the extreme pursuit of ethics which emphases one should be responsible for his own acts, and demonstrated acceptance to death penalty, approval even worship.Next, the article analysis the main philosophy root of scholars with different viewpoints on the retention or abolition of the death penalty, and pointed out that the retention or abolition of the death penalty is to see the deterrent effect of the death penalty for the criminal prevention from a utilitarian view, utilitarianism was accepted by many scholars because of concerned about their reality. And the humanitarian concept of the death penalty is more concerned about the beyond to existing laws and its own, as well as the pursuit for the highest value on the life of the natural. However, the full social utilitarianism might override the public interest above personal life, and eventually led to violate the right of life as an excuse of a state power and the overall interests of the community. And the completely humanitarian often divorced from social reality, which eventually led to the implementation of the system. At the same time, because the concept of the death penalty based on the utilitarian think the human rights as a relative and can be sacrificed for the interests of greater things ideal, which leads to serious violations of humanitarian stance. Therefore, it can be said that pursuing any one of the theories often leads to the loss of another theoretical value , the death penalty system will inevitably hovering between utilitarian and humanitarian dilemma.The fourth part of the paper point out the public agreement, rational choice and the death penalty control with the death penalty. The public's collective consciousness of the death penalty fanaticism and preferences contributed to the current status of the death penalty to a certain extent in China, which has become our biggest obstacle to abolition of the death penalty. However, we must recognize that the public's collective consciousness to a certain extent has an emotional, non-rational side. Since this collective consciousness with the fluctuations is not really rational public will, then, the death penalty legislation and policies would not be directly reflected the collective consciousness, but can not be completely separated from the public's collective consciousness. This requires that the criminal policy should take into account the premise of the collective consciousness, the political, economic, cultural and other related fields and our specific conditions, promote gradual reform of the system of the death penalty, until eventually abolish the death penalty. Due to the above reasons, the article should be followed by a criminal policy towards the legal concept, and the death penalty in light of our current development, put forward three aspects of the proposal from the legislature, the judiciary, restrictions on the death penalty proceedings.Finally, the paper point out what is the real problem of our law from the debate on the retention or abolition of the death penalty in China, which is the Chinese issue with local characteristics followed restructuring and social transformation of the legal system. Specifically, the must get out of the misunderstanding of measures law and speculative law; research on law must adopt a scientific empirical methods; there should be a comprehensive approach on law research. Only fully understanding this problem, can we truly solve Chinese retention or abolition of the death penalty.