刑罚的正当性——以保障人权为视角

报应主义和功利主义对刑法正当性的回答支配了近现代的刑法理论、刑事立法和刑事司法,但是也不断地受到挑战。报应主义不能为罪刑相适应提供可以接受的标准,它是"严打"和重刑主义观念的始作俑者。功利主义不但经不起检验,也不能合理解释把个人作为实现社会利益的工具的道德质疑。二战以后人权理论的发展,为我们解释刑罚的正当性问题提供了视角和新的话语方式。

The Justification of Criminal Penalty——From the Perspective of Guaranteeing the Human Rights

Reflection of the justification of the criminal penalty have promoted the development of the criminal law.The theory of criminal law,the criminal legislation,and the criminal jurisdiction have been dominated by retributivism and utilitarianism.However,retributivism and utilitarianism have been challenged continually. Retributivism brings about the fury of revenge,and it does not provide the proper penalty for the crime.It is the cause of the campains and the notion of severe punishment.Utilitarianism can not not only be verified by the experience and empirical data but also provide persuasive answers to the moral doubt,which is that utilitarianism treats the criminal as the tools for social interest.After the second world war,the development of the theory of human rights has provided new perspective and new mode of discourse to construct the justification of criminal penalty.