In the book Crime and Punishment published in 1764, Beccaria criticized the cruel criminal system at that time from a sharp perspective, accused and exposed the obscurantism behind the system, which made people's understanding of crime and punishment change profoundly. In the book, Beccaria put forward the viewpoint of abolishing the death penalty for the first time, which became an unavoidable peak when discussing the issue of the retention or abolition of the death penalty in later generations. Now, when we go back to the original work again and re-sort out the views on abolishing the death penalty in the book, it is not difficult to find some problems.

The debate about the retention or abolition of the death penalty can be roughly divided into two categories in terms of methods and ideas: one is to discuss whether the execution of the death penalty is effective in regulating criminal behavior from the perspective of the utility of the death penalty; The second is to judge whether the death penalty should be abolished based on the analysis of its legitimacy. The establishment of utilitarian judgment and legitimacy judgment provides us with a more comprehensive perspective to examine Beccaria's view on the abolition of death penalty in Crime and Punishment.

On the utilitarian judgment, Beccaria discussed the execution effect of death penalty and life imprisonment. In his view, "it is not the intensity of punishment that has a great impact on people's minds, but the continuity of punishment ... Although the scene of executing criminals is terrible, it is only temporary. If the criminal is turned into a slave and let him use his own labor to compensate the society he violated, then this imprisonment without freedom is long and painful, which is the most powerful means to stop crime. " That is, the death penalty is not as effective as life imprisonment in curbing crimes, so it advocates abolishing the death penalty and changing it to life imprisonment.

The utilitarian judgment of death penalty is actually a matter of fact. Because different cognitive subjects have different experiences or empirical materials, they will make different judgments on the effectiveness of the death penalty. According to this judgment, it seems impossible to draw a conclusion whether the death penalty should be abolished effectively and comprehensively. Therefore, Beccaria's analysis of the execution effect of the death penalty in his works cannot be a reliable basis to support the argument of abolishing the death penalty.

(2)

In the final analysis, the abolition of the death penalty is still a question of value, and a claim of value nature cannot be proved by factual materials. On the basis of clarifying the essence of the problem, we can dig deeper into Beccaria's viewpoint on abolishing the death penalty on the level of value judgment.

From the perspective of value judgment, Beccaria expounded the basis for abolishing the death penalty in his works, which is mainly based on the internal logic of social contract and legislation. According to the viewpoint of social contract theory, when human beings reach a natural state that is not conducive to survival, in order to form a sum of strength and overcome various obstacles that hinder human survival, human beings seek a form of combination, which is called "social contract".

Based on this social contract, everyone should dedicate the part of his rights, wealth and freedom that is of great use to the collective and transfer it to the state, so that the state can "fully safeguard and protect the person and property of each partner."

Beccaria agreed with Rousseau's "social contract theory" and used it to explain why the state has no right to apply the death penalty to its citizens. In his book, he pointed out that people did not surrender their right to life when they concluded a social contract to form a country, so the country has no right to deprive people of their lives by death penalty. He believes: "Monarchical power and law are only the sum of a small amount of private freedoms, and they represent the universal will as a combination of personal interests. However, who wants to give their own life and death power to others? When everyone makes the smallest sacrifice for himself, how can he put his life ranked first among all wealth? "

It cannot be said that Beccaria's viewpoint is unreasonable, but the problems existing in this viewpoint cannot be ignored. It is true that according to Rousseau's idea, when concluding a contract with the state, an individual will not hand over all his rights, let alone his right to life. Therefore, the state cannot deprive citizens who abide by the contract of their right to life for no reason. However, for those individuals who break the contract, it does not mean that the state cannot deprive them of their right to life. The reason is that the social contract is by no means limited to this. In the specific case of murder by a murderer, according to the subject of the contract, it can be divided into the contract between the state and the victim, the contract between the victim and the murderer, and the contract between the state and the murderer.

These three contracts have different rights and obligations. For example, when the state concludes a contract with the victim, the victim surrenders certain rights, wealth or freedom to the state, which is the victim's obligation to the state; Accompanied by it is the right to life protected by the state. When the victim's life is deprived, the state should fulfill its obligation to protect the individual's right to life, so as to take measures to punish the murderer. From this, it can be concluded that it is justified for the state to deprive the murderer of his right to life according to the principle of contract.

On the other hand, different rights and obligations will be established according to the different contents of the contract. Therefore, as far as the contract between the offender and the state is concerned, when concluding the contract, if the offender wants to obtain the protection of his right to life by the state power, he should make a guarantee to the state not to infringe on the right to life of others. Therefore, once he commits the crime of homicide, it means that he has violated the agreed obligations and the state has given up the protection of his right to life according to the contract. According to this line of thinking, it can also be concluded that the state deprived individuals of the legitimacy of their right to life in a murder case according to the contract concluded with them.

In the internal logic of legislation, Beccaria thinks that it is contradictory and absurd that the state punishes murder on the one hand and carries out murder through the death penalty on the other. He pointed out: "the law that embodies the public will hates and punishes murder, but he is doing such a thing;" It prevents citizens from becoming murderers, but arranges a public murderer. I think this is an absurd phenomenon. "

At this point, Beccaria only looks at the similarities between criminal homicide and capital homicide on the surface, but ignores the essential differences between them: the former is illegal homicide and the latter is legal homicide; The former is to kill for despicable purposes, and the latter is to kill for crime prevention; The former is to kill people for their own self-interest, while the latter is to kill people for the protection of public interests.

(3)

Ernest Dan Wen Haig, an American scholar, pointed out: "When a criminal is legally arrested and imprisoned, we don't say' legal kidnapping'. Arrest and kidnapping are indistinguishable in the natural sense. However, statutory punishment is not necessarily different from crimes in the natural sense. Punishment is different from crime, because it has social support and legitimate purpose ... If, as Beccaria thinks, it is absurd to punish murder with the death penalty-to punish criminals for what they have done to their victims-then it is equally absurd to impose a fine on a corrupt criminal or deprive a person of his freedom. The difference between robbery and taxation, murder and execution, gift and theft lies not in natural behavior, but in its social significance. "

On the analysis of the internal logic of legislation, because Beccaria did not distinguish between the social significance of criminal acts and punishing crimes according to law, he thought that the view of punishing homicide by the state was one-sided.

By combing Beccaria's views on the abolition of the death penalty in Crime and Punishment, we find that his views are more or less one-sided in utilitarian judgment and legitimacy judgment, but we can't deny the ideological value of his views in analyzing the abolition of the death penalty. At the same time, we should also clearly see that the discussion of these issues actually broadens our thinking for us to discuss the retention or abolition of the death penalty more deeply.

With the development of society, the criminal punishment system has developed from cruelty in the past to humanization. Restricting and abolishing the death penalty is a general trend in the world. After the Criminal Law Amendment (VIII) reduced 13 death penalty charges and retained 55 death penalty charges, after three deliberations, the Criminal Law Amendment (IX) was voted by the the National People's Congress Standing Committee (NPCSC) Conference on August 29, 1965, reducing 9 death penalty charges again, which took a solid step to implement the death penalty policy of killing fewer people, killing them cautiously and gradually reducing the death penalty charges.

Nowadays, social values are becoming more and more diversified, which requires us to examine the issue of the abolition of death penalty from a more open perspective. "Killing people for their lives" can't simply be completely denied, because considering the soothing effect of the execution of the death penalty on the injured party and the social people who pursue fairness and justice, we should see the reasonable elements in this view.

When thinking about the abolition of the death penalty, we need to make a careful value balance, analyze and judge: what factors are involved in the execution of the death penalty, and how we should weigh these factors.

Nowadays, abolishing or restricting the application of the death penalty is increasingly regarded as a significant sign that a country or region truly respects and guarantees human rights, which requires the country to pay close attention to the prevailing or universal standards in the world today and establish its own clear attitude and position in time, instead of becoming a vassal of people's emotional catharsis and public opinion orientation.

(Author: Law School of Renmin University of China)