Examine The Ethics Of Criminal Law

The ethics of the criminal law is too theoretical. It is a great challenge for the author to make it the theme of his paper of Master' degree because the author has not specialized in the criminal law for a long time. The author often considers the same questions: what is the criminal law? What is the crime? Does the criminal law only include some cold articles? Is there spiritual power backing the articles of the criminal law? In the legislative and judicial process of the criminal law, is there a kind of idea which can direct the legislative and judicial personnel? The above questions have haunted the author for a long time. Having noticed the deficiencies in the legislative and judicial process, the author is determined to ponder on the ethics of the criminal law. This paper consists of three parts, about 54,000 words.The first part: the ethics of the criminal law. First, the author explores the meanings of the ethics and morality by comparing the origin of them in Chinese and other languages. The general notions of ethics and morality are the same. The author does not intend to pay more attention to the theoretic argument of the ethics. This paper discusses the ethics of the criminal law on the basis that the ethics is morality and the morality is ethics. Second, the author takes up the relationship between the law and morality in theory and social practice. The criminal law, which deprives a person of his life, freedom, wealth and reputation, can not have nothing to do with the ethics. Third, the author analyzes the foundation of the ethics of the criminal law. Because the crime is anti-ethical and anti-social, the criminal law naturally holds the responsibility for protecting the society and the basic morality. The criminal penalty is the main way the criminal liability is realized and it is a kind of necessary evil which is very essential to punish the crime, to recover the balance of the ethical relationship destroyed by the crime and to maintain the order in the society.The second part: the ethics of criminal legislation. First, the author probes into the system of the mutual concealment of offences among the kin. In the judicial practice, sometimes the criminal law conflicts with the humanity due to the lack of the principle (mutual concealment of offences among the kin), which not only departs from the Chinese legal traditions, but also differs from the legislations of the most countries in the world. From the historical experience of the ancient criminal law in our country and the criminal legislation in the different countries and regions, which belong to the continental and Anglo-American genealogy of law, the system of the mutual concealment of offences among the kin is the result of balancing the law and humanity. To avoid the direct conflict between the national power of punishment and emotions among the relatives, the system of the mutual concealment of offences among the kin, with the quality that good law should have, accords with the humanity. The legislation of the criminal law should make some proper supplements. While dealing with relationship between the national power and the humanity, the law and ethics, the fundamental humanity should be respected. Second, pondering the guilty of adultery and incest, the author does not mean to defend them, but to discuss the relationship between morality and criminal law. Even though the guilty of adultery and incest has been abolished in Chinese criminal law, they are still kept in many countries of the continental or the Anglo-American genealogy of law. (The guilty of incest is more popular and the adultery is kept in few countries in the world.) At present, since the law has nothing to do with the ethics in China, it is ironical that a father, who has raped his daughter, can defend himself at court by saying that the incest is innocent. And that could not take place in the countries with the guilty of incest. So the relationship between the criminal law and the ethics is worth studying.The third part: the judicial ethics in criminal law. First, the author ponders the criminal judicature by studying some judicial cases. The Chinese criminal judicature is more rigid than flexible and places more emphasis on the punishment of the evil than encouragement of the good behaviors. And this has become a typical characteristic. Second, this paper proves the judicial tradition combining the natural justice and national statutes and the humanity. Analyzing how to handle the revenge in ancient judicature, the author makes a deep thought about the judicial problems. If only statutes are followed and human sentiment is ignored, the administration of justice is too harsh and severe; of course, if only the humanity is emphasized but the laws are not adopted, this will make the judicature too loose. In a word, only the national statutes and humanity, the legal and social effects are equally stressed, the judicial effect can be maximized.