Jurisprudence Analysis Of "Brutal Death Penalties Are Not Beneficial"

In beginning year of Sui dynasty(581 AD),the founding emperor Wen,whose personal name is Yang Jian,influenced by the idea of “different emperor,different ruling”,has launched a profound“political transformation”,opposing to the previous practice of creating terrifying and deterrent judicial atmosphere through cruel death penalties.In the book of <Penal law of Sui dynasty>,dissenting opinions have been put forward for the first time,from perspective of righteous jurisprudence,towards the idea of “eliminating the crimes by imposing heavy penalty”raised by Legalists and the judicial practice of cruel death penalties including without limitation,“hanging”,“beheading”,“tearing a person apart by horse-drawn carts”,“high up criminal's head for deterrence”,which have been widely used under the reign of Qi,Liang,Chen,Zhou(the successive small and short-lived dynasties)in Northern and Southern dynasties.For the purpose of simplifying and briefing the cruel and complex penal law,emperor Wen firstly has raised that all kinds of cruel death penalties and their execution were “not beneficial to create a solemn law-abiding environment” considering the core spirit of law,and unprecedentedly connected the purpose of death penalties execution with the preservation of humanity and the integrity of human body.From the standpoint of “enforcing the penalty benevolently”,this vision raised by Emperor Wen has reversed the previous historical practice of terrifying and deterring populace through brutal death penalties in order to uphold the authority and supremacy of the Emperor.Nevertheless,this opinion,namely “brutal death penalties are not beneficial to create a solemn law-abiding environment”,was raised as the non-mainstream theory at that time if we take a wide and broad outlook on troublous medieval history in China.According to history record,Yang Jian has participated in the last application of one brutal death penalty in history of China—tearing a person apart by horse-drawn carts in last years of North Zhou(one of the short-lived dynasty in Southern and Northern dynasties),imposed on Yuwen Xian,the mayor of Yongzhou at that time.However,Yang Jian has denied this death penalty at the inception of Sui dynasty thoroughly,which was completely different from his previous earnest belief on terrifying effect brought by brutal death penalties.We can conclude that Yang Jian may have a dual personality or introspection towards humanity.It can be said that Sui dynasty inherited Wei dynasty,Jin dynasty and Southern and Northern dynasties in many aspects,such as institutions,mechanisms and regulations,actually demonstrating the idea of “eliminating the crimes by heavy punishment” and the heavy punishments tradition of “executing one person as a warning toothers”.From the perspective of political logic,the governing of tyrants in Wei dynasty,Jin dynasty and Southern and Northern dynasties has negatively affected the political ecology of beginning period of Sui dynasty.The social instability,the fear for death and Emperor Wen's personal experience of taking power illegally,have in fact given rise to the imaginary impression in every hierarchy of the society that Emperor Wen was also a tyrant.What's worse,populace have had no fear and hesitation anymore to sacrifice their own lives to revolt and rebel many times due to ethnic hatred accumulated gradually from the period of “five minority nationalities' invasion on central china” to North Zhou dynasty and the long-term reigning by tyrants,which have intensified social conflicts and made populace' lives insufferable.It was actually the social riot and rebellion resulting from the brutal death penalties and sanguinary conflicts which have breed Emperor Wen's idea that “brutal death penalties are not beneficial to create a solemn law-abiding environment”Apart from the political logic of “too much water drowned the mille” and “extremely good governing after extremely bad chaos”,the fusion between morality & etiquette and law& discipline in Sui and Tang dynasties was the irresistible megatrends at that time and the internal humanistic connotations which forcing Emperor Wen to emphasize on “penalty of benevolent emperor”.Contrary to the cruel political reality,the Confucians have refreshed and rethought the humanity and integrated their thinking with the law in a forgivable and benevolent manner at the earlier years of Sui dynasty.Along with the issuing and enforcing of certain judicial mechanisms reflecting the Confucian inner core,such as emperor making judicial decision for eight certain kinds of important people,counteracting the crime by demotion,exempting death penalties for serving the older,mitigating or aggravating the penalty based on the rapport or alienation of family relationship and severest penalty for ten extremely heavy crimes,the positive influence of culture exerting on judicial practice has directly cultivated the value of emperor Wen and other legislators to abolish cruel death penalties and enabled them to reassess the feasibility and necessity of abolishing the cruel death penalties.Meanwhile,the “kind and benevolent” atmosphere cultivated by culture has provided the strong social foundation,which eliminating the dislike and resistance arising from culture difference for abolishing the cruel death penalties.More importantly,under the tension between the extremely political ecology and gradually reasonable culture awareness,there was more attention on combining the humanity with “natural will”,the legitimacy basis of the power of emperor,after getting rid of the sole and absolute supremacy of “natural will”.The fundamental of the penalty must be compatible with “natural will”.The “light punishment” is not simply mitigating,lessening or abolishing criminal penalty,but a high-level concept for judicial practice under which the emperor need to integrate the “natural will” with “populace”.Thus,this value on natural law,namely “light criminal punishment to prosper the society”,has enabled the emperor to try to figure out one way combining the“natural will” with populace perfectly,which could also be the starting point for judicial reform of brutal death penalties.“Natural will” shall not only be simply regarded as the judicial legitimacy for emperor's will,but also linked to the nature and the preservation and development of humanity.“Light criminal punishment” was the brightest manifestation of humanity which has been shadowed under the roof.For emperor,only respecting the humanity,he could thoroughly understand the natural will,thus governing the country well.Death penalties are regarded as a way to maintain awe and respect toward life and condemn illegal behavior,thus upholding the authority of law.Since the birth of enlightened civilization,the practice of deterring and punishing people by cruel penalties has occurred and lasted,so no emperor would abandon this traditional and habitual practice of cruel death penalties and adopt other ways to achieve above functions.It still deserves the emperor to abandon the habitual thinking and reflect harder as to whether the sense of horror brought by the stipulation and execution of death penalties is self-evident right or wrong,the same as the existence of death penalties themselves.It is wrong to simply think the purpose of death penalties is purely deterring,since there is not enough and persuasive connection between the cruel criminal behavior and cruel revenge of death penalties.In other words,there is no evidence that the special deterrence of death penalties will produce positive effect on governing country no matter from the perspective of legislation or execution,which could be shown in following sentence said by Emperor Wen,“relying on cruel punishment will never guarantee a strong country.The Chinese traditional “value on morality and profit” has casted the “dual personality”in judicial system by its inner conflict.The traditional pyramid-like structure of power allocation,has determined that the individual had no other outlets but to closely rely on his family and clansman.Undoubtedly,it is the inherent value of the law to protect people's basic dignity and rights.However,individual's right to express freely,is totally and ultimately dependent on the authority's attitude and perception towards the humanity.However,the sprout of this perception is just the emperor's deliberate manifestation to maintain hissovereign and authority under the so-called name of “forgiveness” and “benevolence”.Thus,there is absolutely no single example in which individual's legal rights has been protected separately throughout the legal history.This overwhelmingly judicial philosophy based on public power certainly will squeeze the space of individual's legal rights.It can be said that death penalties in ancient China were established without any consideration of individuals.However,the expression of “brutal death penalties are not beneficial to create a solemn law-abiding environment” recorded in <Penal law of Sui dynasty> at the beginning year of Sui dynasty is an extremely important breakthrough to care individual under the deterrent atmosphere of death penalties.The judicial principle of “replacing heavy punishments with light punishments,replacing death penalties with other penalty”,is more of a challenge and modification for “the supremacy of heavy punishment”.The inspiration triggered by emperor Wen on eliminating cruel death penalties,is in substance the profound retrospection on the topic of exempting people from cruel torturing.This topic,however,is exactly the traditional perspective which has been ignored by contemporary legal community handling the relationship between death penalties and human nature.