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From 65438 to 0949, the jurist Fuller published a hypothetical case-solving in Harvard Law Review. Five cave explorers were trapped in the cave and could not be rescued for a short time. In order to survive and wait for rescue, everyone agreed to draw lots to eat one of them and save the other four at the expense of others.
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Witmore was the original proponent of the plan, but withdrew his opinion before the draw, but the other four people still insisted on drawing lots, only the victim Witmore was drawn. After being rescued, the four men were accused of * *, tried and hanged. For such a judgment, the views of the legal profession are naturally controversial and divided into two groups: guilty and innocent.
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1, the view of the first school is the presumption of innocence.
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According to the principle of "putting yourself in the other's shoes", sacrificing one person to save four people is a choice that most people have to make. Just like a woman's rape case, the rapist puts a knife to the woman's neck and says: Obedience or death gives her a choice. The choices for these four people are similar: * * or starve to death.
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Secondly, the criminal law itself has two meanings, one is deterrence, but it has no effect on deterrence in this case. Because in the face of people who are already in do or die, the deterrence of the death penalty may not have much meaning, and another meaning of the criminal code-"providing an orderly solution for people's revenge" is also meaningless in the case.
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Exploring the spirit of legislation, one can violate the explicit provisions of the law without violating the law itself, which is one of the oldest proverbs of legal wisdom. Obviously, the criminal to be punished is a murderer with a vicious purpose, not a survivor that most people will choose in this situation.
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Since * * is in a special case of necessity, it does not belong to malignant injury, and deterrence and revenge of criminal law are meaningless here. Then why should we go through legal procedures at the expense of the other four people?
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2. The second faction supports the guilty verdict.
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This is a dilemma between law and morality. If hunger can't be a legitimate reason to steal food, then hunger can't be a reason to eat? Perhaps for the initial legislature, law and morality are inseparable, but for the judiciary, law and morality are independent of each other, and what judges should do is to respect the law to the maximum extent and faithfully implement it.
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Most importantly, the moral implications of this judgment. The verdict not only affects the fate of these four people, but more importantly, it will solve similar cases for a long time to come.
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Indeed, exploring the reasons, these four people may have no criminal intention. According to the principle of exploring the spirit of legislation, it seems that people really should not be punished. However, what the law should do is to punish behavior, not to explore the soul. The primary social function of criminal law is to protect citizens from actual harm caused by crime. Obviously, the recognition of psychological exemption will only aggravate the problem, but will not help solve it. Anyone who commits a crime in the future can mitigate the crime by finding a sympathetic and convincing reason.
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What's more, if these four poor "innocent people" are acquitted, more criminals will be able to commit crimes in a similar way in the future-bringing someone into a special environment and then persecuting them for the collective benefit.
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3. The law exists objectively.
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What I mean by this sentence is not that the rule exists in black and white, but that no matter what it is in black and white, we will form a so-called "law", but the laws in black and white may not be specific enough, and some of them are far from the real "law".
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Law is not a subjective and artificial rule. For example, in real life, it is difficult to have such laws as "dying at the sight of the sun" or "handing over 300 billion yuan to the state every year", which is not only difficult to implement, but also meaningless and even hinders society. Even if a stupid legislature introduces such a bill, it will be overturned.
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It is conceivable that the provisions of the law are not arbitrary and subjective.
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Then we can boldly speculate that there may be a so-called "ultimate password" in this world, just like the so-called "ultimate law of physics". Its essence is extremely simple, but it is complicated in the expression of everything. At present, all human legal provisions are constantly approaching this "ultimate code" through the game of different positions.
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And this "ultimate code" must have a purpose, and it must conform to the principle of serving people. Perhaps according to many people's ideas, this purpose is to maintain justice, but more essentially, it should be to maintain efficiency. After all, the greatest justice is efficiency.
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It may be of great significance to exempt these four people from deliberate questioning, but it will be a huge cost for the whole legal profession. This may be the case before there is enough ability to reduce the cost of judging intention.
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From this perspective, I am also in favor of a guilty verdict. Many people may still think that these four survivors are innocent, but they have to admit that it's just their bad luck. Their sin or death may have been decided from the moment they were trapped in the cave.