살인범죄자에 대한 인간존엄의 실현 방법으로서의 사형

• 영문명: Death Penalty as a Method of Realizing Human Dignity of Murderer - An Ethical Reflection on Death Penality
• 발행기관: 전남대학교 법학연구소
• 저자명: 안진(Ahn, Jean)
• 간행물 정보: 『법학논총』제29권 제2호, 389~414쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.12.30

영문 초록

This paper examines death penalty in the view of ethics, especially Kant and Hegel, and reflects on its implications with regard to the current debate on death penalty. Kant and Hegel, like the abolitionists of death penalty, find the meaning of human dignity in autonomy (reason, morality, or person-hood). However, they differ from them. Kant and Hegel think death penalty is the only way to respect a murderer’s autonomy while the abolitionists consider death penalty violates a murderer’s right to life. Consequently, Kant and Hegel argue that death penalty is necessary for respecting a murderer as a human being. The principle that Kant and Hegel rely on for their argument is the principle of equality/proportionality (equality provision) of retributive punishment. It is a categorical imperative or justice that we punish a murderer by following this principle exactly. According to Kant, following the principle of equality is not to treat an offender as a means but to respect him as an end. It is to respect reason and autonomy of the offender and to ask his responsibility of his action. This is the same with Hegel. According to him, punishment is to respect the offender’s reason and freedom because his crime realizes his reason and freedom/autonomy. Punishment is a right of the offender because his crime already involves it and he is respected by it. The same logic is applied to a murder crime. Death penalty for it realizes autonomy of a murderer. Following the principle of equality (practical equality provision), death penalty is the only legitimate punishment for murder because the victim’s life cannot be irreparable with anything in the world. In this principle of equality, only a murder action has to be considered for the sanction and any notion of the utility of punishment is excluded. In this way the murderer is not treated as a means. On the other hand, for the murderer killing a victim is just the same as killing himself because he willfully universalizes his ethical maxim to himself when he commits a murder crime. This is why Hegel says this: The murderer has universality of his action although committing murder is a presentation of his personal will. In brief, only death penalty is a logical consequency to a murder crime, and very this death penalty is to realize human dignity by respecting his autonomy. Retributive punishment or the principle of equality/proportionality (practical equality provision) of Kant and Hegel is considered as an application of a universal moral rule (the golden rule) addressing “you deserve what you do to others.” This golden rule functions when people ask for death penalty for a cruel murder crime as a punishment corresponding to it. The hardest barrier that the abolitionists must overcome is this golden rule lying in retributive punishment. In the perspective of ethics, it seems to be extremely difficult that the golden rule is abandoned because it is very difficult for people to stop an application of the golden rule for a cruel murder crime. So we should approach to the matter of death penalty in the way of finding a substitutive punishment. Perhaps, “a restrained death penalty used strictly at minimum” can be adopted until we find a substitutive punishment for death penalty satisfying the golden rule.

목차

Ⅰ. 서 론

Ⅱ. 사형존폐론에서 인간존엄의 개념 : 생명가치와 자율

Ⅲ. 칸트에 있어서 인간존엄의 구현으로서의 사형

Ⅳ. 헤겔에 있어서 인간존엄의 구현으로서의 사형

Ⅴ. 요약과 함의

키워드

사형 인간존엄 자율 응보주의 형벌 처벌에의 권리 death penalty human dignity autonomy retributive punishment right to punishment