Theory of the Limitation of the Death Penalty

Author: Zhao Zuojun
Publisher:
Publishing Date: 2001-09-01
Features: Excerpt 2. Historical Significance and Contemporary Significance Historically speaking, before the debate on the abolition of the death penalty, the feudal autocratic era was a time when the death penalty dominated the penal systems of various countries. Back then, the number of capital offenses was extensive, and the methods of execution were brutal. This remained true even in the initial stages of capitalism. The greatest historical achievement of the debate on the abolition of the death penalty lies in the fact that both proponents and opponents of retaining the death penalty, without exception, launched fierce critiques of the brutality and inhumanity of the death penalty under feudalism. As a result, some countries and regions abolished the barbaric and cruel methods of execution from the feudal era, replacing them with a single, humane method of execution. This further led to a reduction in the number of capital offenses, restrictions on the scope of its application, and direct practices of abolishing the death penalty in some countries. Even in countries that retained the death penalty, influenced by the arguments for abolition, they gradually recognized the fatal flaws of the death penalty and focused on restricting it from various aspects and through various means to reduce the number of executions. Few countries dared to defy public opinion and extensively establish the death penalty in legislation or openly apply it on a large scale, or to sing its praises as the death penalty's retention. Additionally, during the debate, as neither side could theoretically refute the other's arguments, some scholars began conducting empirical research. American scholar Thorsten Sellin's study on the deterrent effect of the death penalty in the 1960s pioneered empirical research on the death penalty and sparked similar studies by other scholars and in other countries and regions. As mentioned earlier, scholars like Erik and Resen are renowned for their empirical research on the death penalty. Taiwanese scholar Xu Chunjin and others have also conducted empirical research on Taiwan's death penalty since the 1980s. They analyzed the long-term effects of the death penalty using methods like the "simultaneous model" and the "subsequent model," and examined its short-term effects through "overall comparison" and "individual analysis," concluding that the deterrent effect of the death penalty is not significant or even non-existent.① It can be said that these studies by the aforementioned scholars introduced scientific empirical methods, providing practical material for researching the abolition of the death penalty and establishing correct and scientific death penalty policies. To some extent, this enhanced the practicality of death penalty research and holds certain methodological significance.
(II) Limitations
1. Transcending Class, Therefore Unable to Correctly Reveal the Essence of the Death Penalty As mentioned earlier, in their research on the death penalty, few foreign scholars have provided a scientific explanation of its class nature, or even avoided discussing its class characteristics altogether, instead obsessing over its so-called legal nature as the essence of the death penalty. Consequently, both sides of the debate on the abolition of the death penalty, based on their idealistic positions and views, either completely deny the class nature of the death penalty or avoid discussing it, instead extensively arguing about its so-called legal essence being retribution or utilitarianism, thereby concealing its class nature. In our view, the death penalty is an embodiment of the will of the ruling class and a tool for maintaining class interests and the ruling order. Without considering the so-called class will and state will, without considering its class nature, and without starting from the class essence of the death penalty, it is difficult to make a correct evaluation of the death penalty and its abolition. As Lenin said: No revolutionary government can do without the death penalty; the only question is which class it uses this weapon against. Therefore, the transcendence of class in the debate on the abolition of the death penalty is precisely the fundamental flaw and inherent weakness of both sides of the debate.