The abolition of death penalty is an inevitable conclusion from the perspective of penalty humanitarianism. If we only proceed from utilitarianism, the death penalty is reasonable. Although the deterrent effect of the death penalty on crime is often exaggerated by the existentialism of the death penalty and superstitious by most politicians. However, compared with other lighter punishments, the death penalty, as the heaviest punishment, has an incomparable deterrent effect. The question is: does the death penalty have a deterrent effect that other penalties do not have, so it must be justified? If the answer is yes, then any cruel punishment, including the amputation of thieves, the castration of traitors, and the corporal punishment that once existed widely in history, is justified. If a punishment is appropriate as long as it can curb crime, it is only a utilitarian punishment. This kind of penalty utilitarianism often leads to severe punishment doctrine and falls into the ideological misunderstanding of immoralism that as long as the purpose is just, you can do whatever it takes.

During the Spring and Autumn Period in China, the judge kept saying that "killing people depends on killing, although killing can be done; The idea of "punishing with punishment, although severe punishment is acceptable" is an extreme example. Indeed, the pursuit of the deterrent effect of punishment has not changed since ancient times. However, with the development of social civilization and the promotion of humanitarian thought, the means to achieve this deterrent effect have changed greatly. If it is natural and natural to obtain the deterrent effect of punishment through severe punishment in barbaric and backward ancient society, then humanitarianism has not allowed to pursue the deterrent effect of punishment through severe punishment and severe law since the development of social civilization today, otherwise it will be unfair. It is in this social and historical background that the death penalty has evolved from the natural legitimacy in the past to the fact that it is about to withdraw from the historical stage because of its cruelty. Therefore, human nature is beyond utility, and human nature is the inevitable choice of human beings. The death penalty is also the same, facing the fate of being tried in a humanitarian court.

Another logic to defend the death penalty is that the murderer is dead. This is a concept of retribution, which used to be the theoretical basis of the existence theory of death penalty. The famous retribution theorists in history, such as Kant and Hegel, are mostly staunch death penalty existentialists. Penalty retribution advocates using E Lai to control evil, so as to realize the goodness of punishment, and using the inhumanity of punishment to deal with the inhumanity of crime, so as to realize the humanity of punishment. In fact, these retribution views are specious. Retribution itself originates from homomorphic revenge in primitive society, and pursues the equality of crime and punishment, thus embodying the fairness of punishment to some extent. But there is still an emotional and irrational residue in the concept of retribution. In a society dominated by reason, the concept of retribution is gradually weakened and restricted. The humanitarianism of punishment inevitably requires transcending utility and retribution, thus providing theoretical support for the theory of abolition of death penalty.

In reality, the abolition of the death penalty is a long and tortuous process, which cannot be achieved overnight. Therefore, the abolition of the death penalty should not be limited to abstract discussion, but must be combined with the actual situation of a country. As Japanese scholar Masada Tansaburo pointed out: "The death penalty as an idea should be abolished. However, it is of little significance to discuss the abolition of the death penalty in an abstract way. The key is to pay attention to the reality of a historical society and decide it according to the current situation and cultural level of society. " [5] So, in reality, does China currently have the social conditions to abolish the death penalty? The author's answer is no, because the abolition of the death penalty requires two conditions: the level of material civilization and the level of spiritual civilization, which China does not have at present.

As far as material civilization is concerned, China is still a developing country. Although China is building a well-off society in an all-round way, it is still far from this goal. Under this backward material condition, the value of life also stays at a lower level corresponding to the material condition. Crime does great harm to society. It is conceivable that the same theft of 1000 yuan of property is different in economically developed areas and economically backward areas. In economically developed areas, if the monthly income is 5,000 yuan, this 1000 yuan is only a week's income. In economically backward areas, if the monthly income is 1000 yuan, this 1000 yuan is the income in January. Therefore, the same theft of 1000 yuan is five times as harmful in economically backward areas as in economically developed areas. This shows that the harm of crime to society is inversely proportional to the degree of economic development to a certain extent. Furthermore, economically developed societies are more tolerant of crime. Moreover, after the improvement of material civilization, the material conditions for resisting crime have also been greatly improved, and society can take conditional measures other than punishment to effectively prevent crime. In fact, it is easy to understand that crime prevention is better than punishment. However, punishing crime is far more labor-saving and money-saving than preventing crime. Therefore, in a society with a low level of material civilization, people often put the punishment of crimes in the first place, and the death penalty is regarded as the most cost-saving penalty expenditure, so it is repeatedly abused. When the material civilization of a society has not developed to a certain extent, it is impossible for those in power to give up the death penalty.

In addition to the level of material civilization, the level of spiritual civilization is also very important for the abolition of the death penalty. Facts have proved that in a society with a low level of spiritual civilization, the stronger the concept of retribution, the stronger the sense of identity with the death penalty. Only when the level of spiritual civilization reaches a certain level can the humanitarian thought of punishment surpassing retribution have social soil. At present, the level of spiritual civilization in China is still at a low level, and the abolition of the death penalty still lacks widespread social recognition. Especially in the traditional legal culture of China, the concept of retribution such as the murderer's death has a long history, which has become an important part of the social psychology of the Chinese nation and played a powerful role in preventing the abolition of the death penalty. Therefore, from the perspective of material civilization and spiritual civilization, China does not yet have the conditions to abolish the death penalty. China should not abolish the death penalty at present, but it should be strictly restricted. Therefore, limiting the death penalty is a top priority for our country. The abolition of the death penalty is based on the mitigation of punishment. Only after the criminal law reform, the mitigation of punishment is gradually realized, and the abolition of the death penalty can really be put on the agenda.

In European countries, by the middle of the19th century, the punishment had basically been reduced, thus creating conditions for the further abolition of the death penalty. For example, one of the important contents of British judicial reform in the19th century was to reform the harsh criminal law. As early as 1826, Robert Peel called for the revision, arrangement and compilation of the cruel and chaotic criminal law to make it clear and codified. Regrettably, the government did not accept this request. However, in the next few decades, criminal offences, especially the death penalty, decreased. 1837, the parliament passed a number of bills, further limiting the number of crimes of death penalty, abolishing torture such as neck and hand flail that violated humanity, and ending the history of imprisonment for debt. 186 1 year, Parliament passed six bills in succession, which greatly revised the criminal law, and they formed the core of modern British criminal law. These bills stipulate that only treason, murder, armed piracy, arson and the crime of burning royal shipyards, armories or ships can be sentenced to death, and criminals sentenced to death may not execute the death penalty in public places. The above reforms have greatly reduced the severity of the criminal law. [6] In France and Germany, the criminal law reform was largely completed during this period, which was marked by the French Criminal Code 18 10 and the German Criminal Code 187 1 respectively. Although the two criminal codes still retain the death penalty, the number of crimes of death penalty has been greatly reduced, and the cruel execution method of death penalty has also been abolished. During this period, China was at the end of Qing Dynasty, and the severe punishment that lasted for thousands of years was still the main content of China's punishment at that time. As Shen Jiaben said: During the Shunzhi period, there were 239 capital crimes and 36 mixed crimes in the written law. By the end of the Qing Dynasty, there were more than 840 capital crimes, an increase of 78% compared with the Shunzhi period, which not only shocked outsiders, but also was not as numerous and important as China for thousands of years. [7] At this time, there is a sharp contrast between China and the West in the cruelty of punishment, which also provides an excuse for foreign powers to implement extraterritorial jurisdiction in China. In the criminal law reform in the late Qing Dynasty, Shen Jiaben presided over the revision of the laws of the Qing Dynasty, reducing more than 800 kinds of capital crimes to more than 20 kinds. After the reform of criminal law in the late Qing Dynasty, China gradually realized the modernization of criminal law and shortened the distance with western countries on the issue of death penalty. More than a century has passed since the late Qing Dynasty. During this period, it experienced two worldwide climax of abolishing the death penalty. Especially on June 5438+0989 65438+February 15, the 44th UN General Assembly adopted an international convention to abolish the death penalty, which further promoted the development of the movement to abolish the death penalty. Up to now, nearly half of the countries have abolished the death penalty in law or not executed it in fact. Even in countries that retain the death penalty, its application is strictly restricted. At the same time, the death penalty in China is increasing instead of decreasing. There are 28 capital crimes in 1979 criminal law, which increased to 68 in 1997, accounting for almost one seventh of all crimes. It can be said that the severity of punishment in China is almost equal to that in the late Qing Dynasty. In this case, it is very urgent to limit the death penalty. In my opinion, the number of capital punishment crimes should be reduced to about 20 in a relatively short period of time, especially economic crimes and property crimes, and those capital punishment crimes that are reserved for use should also be abolished. After a period of hard work, the death penalty will be limited to individual crimes that need to be reserved, such as intentional homicide, and the dependence of society on the death penalty will gradually decrease. When social conditions are met, the death penalty will eventually be abolished.

To sum up, the author's answer to the question of the abolition of the death penalty is: in terms of necessity, I am an abolitionist; In fact, I am a death penalty existentialist. Specifically, he is a death penalty limiter.