生命の法的保護の矛盾撞着 (1)―死刑の正当化事由をめぐって―

The Dilemma of Ultimate Exclusion of Life: Justifiability of the Death Penalty? (1)

公開日:2018.10.03

発行日
2018年03月31日
概要
 The atomic bombings of Hiroshima and Nagasaki killed and injured a multitude of Japanese noncombatants. This cruel murder was committed in the name of ending the war and restoring the peace. The United States maintained that it was necessary for the public welfare and justified both as retribution for Pearl Harbor and deterrence against the kamikaze mentality. That stance, however, was not universally accepted. For example, John Rawls (1995) distinguished “jus ad bello” from “jus in bello” and concluded that the bombings were great wrongs.
 The same logic of justification of national murder, however, is found in a judgment of the Supreme Court of Japan (March 3, 1948) regarding the acceptability of the death penalty under article 13 of the Constitution. The murder imposed by the death penalty was seen as the ultimate punishment for preservation of the public welfare. It is not clear whether the Court’s conclusion was based on principles of utilitarianism (deterrence) or retribution (deserts). Nonetheless, general and special deterrence would need no more than life imprisonment (with possibility of discretionary release on parole). On the other hand, retribution would require no less than the death penalty. The Penal Code, however, never relies on pure retribution.
 What is the constitutional basis of “public welfare”? Article 13 sets forth both the dignity of the individual and the public welfare, originating from utilitarianism. Any penalty should involve the minimum evil of compulsion for rehabilitation and the integrity of the community. This doctrine does not always bring effective outcomes. Nevertheless, the nation should do its best, engaging in evidence-based practice.
 The proportionality of punishment has two aspects. However, the death penalty fails at both the maximum and minimum points. For mass murder, it is not severe enough. So, deterrence is the only practical justification.
 This inquiry requires us to go back to the discussions of the legislators of our 1903 Penal Code. Are there good reasons to support the death penalty? We shall find better reasons to abolish it.
キーワード

death

penalty

justification

utilitarianism

deterrence

life imprisonment

welfare

dignity

proportionarity

1903 penal code

文献等

掲載誌名・書名:

中央ロー・ジャーナル, 第14巻, 第4号, pp.53-85

公開者・出版社:

中央ロー・ジャーナル編集委員会

書誌コード類:

ISSN: 1349-6239

種類
紀要
言語
日本語
権利情報
この資料の著作権は、資料の著作者または学校法人中央大学に帰属します。著作権法が定める私的利用・引用を超える使用を希望される場合には、掲載誌発行部局へお問い合わせください。

このページのTOPへ