Two.

[Speaker: Zhang Mingkai]: (four) the illegal essence

"Rule consequentialism claims, if and only if a behavior to the rules, but the rules can reasonably be expected to produce good and any other identifiable rules can reasonably be expected to have as much good, this behavior is licensed." Dualism advocated, illegality refers to the act of violating the protection of law norms. Duality can draw the following conclusions: as with the rules of behavior caused by the infringement results, the behavior is legitimate, lawful.

However, the benchmark rule of conduct or behavior behavior, not fully with the law against corresponding to the results, not the implementation of any behavior, already exist behavior rules, the rules may also be extra, unnecessary, but, many of the so-called rules are not known. The general situation of dualism will be confused, ask people in special circumstances and in accordance with the general situation of the rules. From the total quantity, also do not accord with the support of rule utilitarianism two yuan cold pursues effect.

Dualist. For example, in the X through the crossroads in accordance with the street lamp signal, collision induced Y death situations and ignore the red light signal into crossing Y, results no value theory thinks, because X behavior caused damage to the interests of law results, therefore, the illegal behavior of X, then X has a duty or not is discussed the problem. But against the common sense notion. In accordance with the dualist view, although the X behavior caused damage to the interests of law results, but X did not violate the law to abide by the rules, so, the behavior of X is not illegal. However, on the one hand, on the case, I am not in favor of X caused the law profit violation results point of view, can only think that Y's own violation resulted in his death. If in this case was identified as X damage results point of view, can only think that Y's own violation resulted in his death. If in this case was identified as X by the law profit violation results, then, when Y driving carelessly knocked down buildings leads to their death, we also say to building owners or developers have caused the Y result of death? On the other hand, if the Y violation in crossing, and the X Y Y hit to cause death, a causal relationship between as long as certain behavior and Y X the result of the death, can certainly sure X's behavior is improper.

As mentioned before, in violation of criminal law, is the ground for elimination of misfeasance, and self-defense, emergency hedge, ground for elimination of misfeasance, itself is the action utilitarianism in the criminal legislation of. Because of that, justifiable defense and emergency is legitimate, because this behavior from the outcome of speaking is utilitarian. In this regard, I don't want to make too many arguments, from the criminal law only to criticism from opponents point response.

Grise said: "the good is not to be compared, unless there is a available, can be applied to all the good standard. They also may not be commensurable, unless all the goodness in the exact same meaning are called goodness, and completely unified standard can be applied to all the good. I deny that anything that can have a single meaning and in this sense means to the same public standards of measurement in response to the moral judgment in the choice of good. According to this view, human kindness is not comparable, incommensurable; the corresponding human evil, is not comparable, are commensurable. In the criminal law sense, this criticism is perfectly adapted to advocate "only in violation of legal interest infringement of social ethics belong to illegal" dualism. Because when a violation of the law is in line with the so-called ethics, or on the contrary, the dualist is difficult to draw the conclusion through the comparison. On the contrary, in accordance with the results of the priceless theory point of view, has a single meaning standard, namely the law profit violation and interest measure.

[Speaker: Zhang Mingkai]: (five) the principle of responsibility

An important feature of ethics is subjective content, no five people are not judging behavior. So is the rule utilitarianism. Rule utilitarianism or dualism will deliberately, fault as the judgment itself is a legitimate standard. The primary reason for the German criminal law scholars have put forward is: "is the intentional meaning, it contains against the lack of criminal negligence, decision, protected interests so, this makes the into illegal elements has an important significance, because, if the behavior is contains the realisation that law and deliberately to be violated, than the negligent injury benefits behavior more of violation of the criminal law protection norms. Therefore, deliberately is one of the factors threatening behavior by the criminal law, these factors determine the degree of law, that is to say, it is part of the illegal, in fact, norms of criminal law violates no serious points, murder and theft of different specification does not, cannot say killed in violation of the standard 100% or 100% violation of the norms, in violation of the norms of the theft of only 60% or just 60% violation of the norms. Similarly, intentional crime and negligent crime is the same for violating the level specification, not intentional crime 100% violation of the norms, but the fault is in violation of the norms of the 60%. People usually say illegal degree different, and not to violate the level specification is different, but the essence of law degree, namely the legal interests, or against the interests of law degree is not push. Because of murder against the legal interests of the same, negligent homicide and so, intent, negligence is not illegal elements, but elements of liability.

One action utilitarianism criticism, the results of good and evil as the general standard, and does not consider the moral standard. In fact, distinguish the behavior itself is justified (or illegal) and should be condemned behavior (responsibility), is the person's nature, even children can also be able to grasp this point. Two or three year old children's dinner on the table when the bowl shattered on the ground, when parents ask "why", in the same circumstances children almost invariably will say "I am not intentionally", "I'm not careful". Children at this time won't argue will bowl smashed on the floor is right, just, just excuse themselves not responsible or not intentional responsibility, hope that parents don't blame myself. So, I am in favor of (criminal law scholars should agree) act utilitarians Smart will act with correct or incorrect behavior is rational phase difference, the behavior is correct and whether the behavior is different from the point of view. Dualism in fact does not distinguish between behavior itself is legitimate and illegitimate peers is good or not, which lead to illegal and responsibilities.

 [Zhang Mingkai]: the speaker: "contemporary British philosopher and ethicist Bernard Williams (ex Bernard Williams, 1929 - 2003) is one of the severe critics of utilitarianism. Williams envisages a situation and that moral reasoning in this case presents a challenge to the utilitarianism. A traveler Jim in a forest in South America met a group of soldiers were preparing to shoot 20 villagers. The soldier's leader in such a way as to welcome Jim: if Jim shot and killed one of the villagers, he will order the release of the rest, and if Jim refuses to do so, the soldiers will kill all of the villagers, Williams although not against Jim should be fired the idea, but he thought that utilitarianism is a kind of simple reasoning in this case next, this is because, in Jim under the condition of people may think, in any case I was the murderer, I killed an innocent man, I don't want to become such a person. Therefore, the problem here is not to say that utilitarianism asked Jim to do is a measure of the behavior, but practical reasoning people not like utilitarianism as required counting Williams emphasized the practical reasoning longitudinal is from a personal point of view, is not a departure from a purely objective, avoid leaning to either side of the position. Obviously, this criticism is reasonable or not is another matter, but it and ethics characteristic. In the field of criminal law, we should discuss is, if like Williams envisioned by Jim, the only way to protect the villagers killed one of the villagers, Jim do is legitimate or illegitimate. But if Jim was not willing to do so, the more soldiers killed 20 villagers Jim is not illegal in criminal law. However, according to the act utilitarian point of view, Japan Jim do, protect 19 of the villagers, in the criminal law is justified. As for Jim at that time in the mind how to think, not its legitimate and judge whether the data.

[Speaker: Zhang Mingkai]: (six) the concept of Justice

Rule utilitarianism has an obvious advantage, namely through the establishment of the rules of justice, to avoid unjust utility. But this does not mean that the act utilitarianism is bound to get a non justice conclusion

"Suppose a utilitarian access a racial conflict, during his visit, a black man raped a white woman this crime is the result: the race riots, white mobs police connivance, bash, killing black. The following is assumed: when the crime happened we utilitarian were on the scene, so his testimony will declare a special black guilty if he know as soon as possible to arrest the suspects will stagnate riots, stagnation of black lynching, as a utilitarian, no doubt, he must have come to the conclusion that he has the responsibility to bear, do false testimony, starting a stream of people." However, "leading to an innocent man was sentenced to death, this is wrong. The utility and contains this is right, so the utilitarianism is not correct." In a word, act utilitarianism in conflict with the idea of justice. On the contrary, rule utilitarianism can avoid this defect: for as long as compliance with innocent people should not be punished, the rules don't make the miscarriages of justice, can avoid the inconsistent with the idea of justice phenomenon. Smart: "no matter how much spending action utilitarianism not willing to this conclusion, he also must admit, when he was in such a situation, should draw the conclusion of injustice." "If ethics is a utilitarian, it sometimes had to accept injustice, and those who received formal education is actually don't like this possibility." People think, Smart concluded that he insisted on a logical result of the consequences. Because the behavior of utilitarian point of view, any action, as long as it is better than other alternative action, whether just or unjust, is a good behavior.

But, first, although in the opinion of Smart, the ethics must get unjust conclusion, but in the criminal law could not get this unjust conclusion. Because the criminal law to the legal principle of crime and punishment, criminal procedure adopted the principle of presumption of innocence, so, not through the false accusation or perjury conviction and sentencing of the way. Also, the legality of act utilitarianism, presumption of innocence is not denied, instead, they are required to act utilitarianism. The opportunity was utilitarian principle of criminal law, may not express or implied, in extreme cases, allow imposition of penalty on the innocent to achieve greater utility. This is because, if the criminal law to make the recognition, then, in this kind of extreme cases but could not reach it to achieve the purpose of. The opponents of the case as an example. If the criminal law allows extreme cases punished innocent, then, one might suspect this was announced as the criminals is the scapegoat for the government, justice is still not implemented, not only does not halt atrocities, riots (unless the thugs who is just looking to the alien to vent their anger, regardless of certification of criminals), and criminal law. Authority must be destroyed. Not only that, in other cases, criminal law to a certain behavior declared crime and penalty, it can really make people feel that justice be done, not to know the threat of crime, also become the question. Because people have good reason to doubt whether the authorities in the use of criminal law to deceive them, while the potential crime also seem to be more willing to flout the criminal deterrence, because they will feel even committed a crime may also have some bad scapegoat to take responsibility for their. On the other hand, kind-hearted people will worry about some day in the future become the scapegoat. Obviously, the criminal law to make it the default utilitarian goals, it must provide the penalty is only the convicted person, which is embodied as the legality, the principle of presumption of innocence. Therefore, in the field of criminal law, only in the premise of legality, presumption of innocence, in order to achieve the desired results act utilitarianism. At this point, the action utilitarianism and Rule Utilitarianism does not have distinction. Because even when a violation of the rules, and even further violations of the law, as long as no criminal law regulations, Rule Utilitarianism does not claim violates the crime punishment legal principle that the act constitutes a crime. Secondly, similar facts in the case, the witness can not determine the perjury will lead to a black was convicted, probably avoid a riot, or cause their own perjury is found and convicted. Therefore, it is difficult to draw the conclusion of the critics. Thirdly, the writer can not determine the administrative penalty innocent results are good. Although one death is better than many people died as a result of good, however, the penalty of perjury innocent and risk and consequences may not only lead to greater racial conflict, but will lead to the loss of public confidence in the legal system. Opponents say, no one will know and leak out. But, if so, the opposition is how know there is such a thing? Fourthly, the above assumption cases almost impossible to become a reality. In modern society, even if this kind of cases, many methods to prevent, stop, riot, the punishment of the innocent is not the only way. So, can not think of act utilitarianism would violate the idea of justice. If the violation of some idea of justice, the basic principles of behavior is the only way to protect the larger, more benefits, we can only on the basic principles of justice, have intention to commit a crime victims. The prohibition of torture is one of the basic principles, and that no exception. If that is the case? In September 27, 2002, the French the suspect kidnapped a banker, 11 year old son, and attempted to claim one million euros ransom. According to the plan of the Frankfurt police, the suspect in September 30th came to collect the ransom was arrested. But in the next trial, the criminal suspect has repeatedly refused to disclose the place of detention. Although the police has taken many measures, still can't find the victim. Second days, taking into account the victim may be due to the lack of drinking water and food necessary already in extreme danger, Frankfurt police chief Daschner ordered into the intimidation and even applied to physical pain in the necessary way to obtain the hiding place of the criminal suspect in the doctor's care information. Applying corporal punishment in the trial under police intimidation, the suspect finally confessed the victim's hiding place, and has been the victim was killed on the evening of September 27th criminal facts. The German court police chief Daschner constitute the crime of coercion behavior. The basic reason lies in, "even in order to protect the reputation and dignity is not permitted the use of torture". However, according to the German media, about 2/3 (EN 63%) German citizen thinks, the behavior of the police chief of police in the case of Daschner should be legal or at least should not be subjected to criminal treatment. It is difficult to believe that the lack of justice of Germany's 2/3 members, it may be said, even in order to protect the reputation and dignity is not permitted the use of torture "itself is a violation of the sense of justice. Indeed, people will worry about the consequences, "from the reality angle that, once the exception to rescue the legalized torture, then, because in practice difficult to partition a set boundaries and in view of the risk of state organs to abuse of torture, is likely to make the rapid expansion to" which is the rule of law tolerance "point: torture, once started, will not stop." However, since it is the exception, can not be generalized. Step back and say, if think that once the exception that is legalized torture will bring bad results in serious, so it should be banned, this is also the conclusion of act utilitarianism.

[Speaker: Zhang Mingkai]: one of the biggest attack utilitarianism is: "it can be recognized very unequal distribution of good and evil. With the establishment of the rational goal is positive, we act to all stakeholders bring goodness to the maximum balance evil, so critics say: in that case, the individual will be asked to shoulder some of the inequality of evil, so that others can get the most good collective. Hedonism, utilitarianism and preference utilitarianism are facing about killing, whether moral challenge, belong to this kind of counter. A person is killed, resulting in the overall best positive results to survivor benefit, the victim lost everything. This will let us shocked, it's not fair; however, if side effects, including the consequences of the best, then, action utilitarianism (...) Must admit, this situation will not rain moral indictment." For example, "Sam is a basic normal, broken hard to describe but very good people. He the hospital to visit old sick aunt, aunt is he alive only family. He went to the hospital, the hospital had five emergency patients. The need for a liver transplant, a spleen transplantation, a lung transplant, a heart transplant, there is a need to transplant the pineal gland. These five patients are extremely important, the most beloved characters, their death will give a lot of great grief discomfort and is physically. On the other hand, Sam's death won't make anyone feel sad (in addition to his aunt, perhaps in the conscious will feel sorrow at his dead). Hospital senior management personnel are hundred-percent utilitarian. They put Sam trapped in operation room, removed his vital organs all body, these organs assigned to the patients who need. They are so in accordance with the utilitarian principle, the biggest happiness is the most people, (rigid)."

Speaker: Zhang Mingkai: [] cannot be here relates to people as means of. The purpose of people not means. But, "the people as the means and the people as their purpose, the difference between the two is not always clear to Kant said, we can't just think of people as a means of. So, if we usually think of people as a means to do?...... In real life, often makes us in a dilemma, no matter what, we always acts can be understood as the others." For example, when I was an important purpose of teacher education students are living, whether this will prove that I am using my students, regard them as my purpose? The use of torture for rescue purposes in the case of kidnapping, torture is wrong, the kidnappers as human beings; but, forces the kidnappers torture, I am afraid it would not be killed people as human beings, is the laissez faire kidnappers will be the kidnappers as tools. The air force pilots shot down into the high-rise buildings in the case of terrorism aircraft, shoot down the plane was identified to the passengers on the plane as a tool; however, if not down aircraft, is tolerant, laissez faire terrorism will passengers as a tool, but also, don't shoot down the plane is not the most people in high-rise buildings as a person to protect also, even can be considered, is the aircraft passengers as objective and the majority of people in high-rise buildings as to protect, even can also be identified, the aircraft passengers as objective and high-rise buildings as the tool. So, should not be at the life as a means for critical behavior of utilitarian point of view.

[Speaker: Zhang Mingkai]: but, first, "these be a wild legend example actually with the actual choice of the principle of irrelevance. Utilitarians must say to this example: those useful in practice principles we accept, we need to cultivate a kind of intuition, should be the kind can be called the most highly acceptable."

Secondly, as professor Nishida Norino said: "in such a situation, certainly will kill people as the only means (supplementary) in the case of 99.9% does not exist." Can think, the five organs of a person, while the five patient demand for organ transplants, may be there is absolutely No.

Thirdly, in recognition of life as a means of causes is very common and serious consequences, therefore, will be prohibited in principle as a means of life, or the life as a means of behavior is illegal. However, if not allowed to sacrifice their lives to protect a person more understand life, it means that would lead to more deaths, also can't sacrifice one's life, it is difficult to think of social general concept of acceptance, also does not meet the emergency social utilitarian nature. In view of this, at least to protect the lives of the majority of people who had been at the expense of a life behavior, should set up out of a crime. "If you really have no other means of saving a life, should also admit that there are identified as room emergency to the doctor." However, only when the victim specific situations (e.g., who sacrifice themselves, with the promise Wei in victim status, victim was dying, etc.) to sacrifice one's life to protect the lives of others and for "no" judgment should be more strict. So in the liver transplantation in a case, can not choose a healthy person for liver transplantation. Otherwise, no one dare to enter the hospital, can't even after the hospital near the end, will inevitably lead to more deaths. This is contrary to act utilitarianism. However, if the replacement is not killed off specific circumstances, there may be few at the expense of life to save more lives. For example, 9 and 11 after the incident, the German legislature on 2005 promulgated the "aviation safety law", the provisions of the bill, when the Department of defense released command, can shoot down terrorist aircraft. This requirement is to avoid the hijacked plane hit the building, causing more casualties, the passengers on the plane just as the country's victims. In 2006 February, the German Constitutional Court to invalidate the law. The reason is, killing the passengers against human dignity. Professor Luo Kexin agreed, because the state has no right to kill any entirely on activities of people but, Luo Ke professor and spending: "if it happens that the hijacking case, air force pilots have to shoot down, here, passengers to estimate anyway, have no hope the, but, but to save others, a lot of it, people also whether to really carry out punishment to the pilot? There is no doubt, pilot killed passengers, he was guilty of a crime, because he could not do so; but, if he is not to save the downed aircraft could have saved people, so he is equally sure culpable. When measuring the marginal issue in the dilemma of conscience these free from legal rules outside of the people, should at least can still be applied beyond the law responsibility obstructed, because in order to prevent, in this case may not be necessary punishment (specific performance for the lack of in order to prevent the need for punishment purposes (. In my opinion, the air force flight round there is conflict of obligations; down aircraft as a homicide, but only to kill a few people, but not to shoot down planes are not as a homicide, but killing is the most people. If so, it can not be said air force pilots shot down the aircraft acts as a breach of. If the air force flight round down aircraft illegality and responsibility, but without the necessity of punishment, third are killed in air force pilots. The result is not only caused the aircraft and the majority of high-rise buildings on death, passengers are killed, will cause the aircraft to air force pilot died, passengers can lead to death, air force pilot died. It can be said that the army is flying round mouth, rule utilitarianism killed.

[Speaker: Zhang Mingkai]: (seven) rights

Another criticism act utilitarianism is action, consequentialism requires us to realize the famine relief donations maximum enormous sacrifice. Action of consequentialism also asked, even to the interests of others only slightly to excess cost for actors, also want to sacrifice oneself." In other words, act utilitarianism requires people to sacrifice the interests of their own small to the pursuit of human interest.

Even if the criticism is justified, can effectively overcome in the criminal law, because the problem in criminal law mainly involves is not as a crime, but not as a crime with strict conditions, not to expand the scope of punishment. Even as Germany article 323rd of the criminal law provisions such as fail to rescue the crime, but also easy to save others, or help others does not give people bring obvious behavior burden condition. As for not set strict conditions, but also act utilitarianism demands. If anybody at any time to rescue them, our society will not see the confusion.

There is criticism, negative results, recognize the right of free choice. Consequentialist establishment must satisfy two conditions, one is that people must be free to choose, two is a choice made must determine the choice of one choice can provide more good or less evil. But these two conditions are incompatible, and require them to be met is not possible. These two conditions are incompatible, because "only when an alternative possibility or several possibilities (including what not to do) remain attractive case, a possible choice can be morally significant and asked." People choose one thing, because this thing is good however, if a choice is believed to bring about greater good or less evil, then, only promised to other choices will bring less good or great evil is lack of sound, people could not choose them. Because of the greater good or less evil provides good or evil choose smaller, larger may have every reason to.

However, in the criminal law, there are two kinds of choice in fact: one is to choose proper behavior or illegal behavior, even if the choice of illegal behavior will bring more evil, there are still people who chose this evil; two is in the conflict of obligations, choose what kind of good or evil, ending is still the choice selection evil. So, act utilitarianism and did not deny his free choice.

[Speaker: Zhang Mingkai]: three, can be integrated?

In ethics, there are scholars of act utilitarianism and rule utilitarianism is comprehensive or compromise, then, in the criminal law can also compromise?

In view of common sense morality is not vertical is consistent with the utilitarian, he demands that people don't like dogmatic intuitionism as these rules as absolute, but should not perfect recognition of these rules, improve them constantly by utilitarianism, especially when the requirements of these rules conflict. This reflects the four seasons wake to consider the utilitarianism from different levels, hide this view in his mind, a civilized people in the reflection of these common sense, can not difficult time follow the dogmatic intuitionism rules (b) will have doubts and conflict with the utilitarian approach (; c) conditions change according to when necessary, refer to the utilitarian method hidden in the existing rules, with great care to dressing sense moral rules to adapt the history.

[Speaker: Zhang Mingkai]: Hale thinks, moral thinking is divided into intuitive thinking level and critical thinking. The intuition thinking level, moral judgment based on moral principles generally accepted, highly confident, the intuition principle is the rule in moral judgment based on the standard. However, hale has repeatedly stressed that the intuition principle of this belongs to the intuitive level of moral thinking is simple, general, not enough, because it can not solve the problem of moral conflict. Hale cited an intuitionist philosophers have been like for example: I promise to children to take them to the Oxford river for a picnic, but the same day that my friend suddenly from the Australian visit and can only stay in Oxford for one afternoon, I hope I can take him and his wife to visit the Academy, obviously I should take them visited the college, and I should keep piling children's promise. Hale also cited another example: a small frigate commander, face a dilemma: if he didn't drop water bombs, slip the submarine will the enemy and continue to sink more ships, hurt more people; if the bombs, will kill the survivors in the water. Liability situation like this some conflict with each other, can not rely solely on intuition principle is to solve, must rely on critical thinking, adopt the method of act utilitarianism. The hare's opinion, the intuitive thinking can provide intuitive principles consistent with the people in the formation of historical life rules and conventions, it is rule utilitarian style but in daily moral rules of mutual conflict situations, the principle of choice, the disintegration of moral conflicts must be in critical thinking, this is act utilitarianism type the.

The theories above have a common point, that is, act utilitarianism in the event of a conflict. In the science of criminal law against field is to conflict situations, but there is a conflict between the ultimate standard of behavior norms and behavior, so, even if the act utilitarianism in ethics problems, but it will be applied to the illegal special conflict areas, but there is no problem.

In addition, there is a view that, proper understanding of act utilitarianism, only a proper theory, rather than a decision procedure. "The reason is the best evidence of behaviors or results to illustrate the theory, about how we make our moral thinking theory, is based on the development of character and make ourselves become a special type of one component." The illegality is justified evaluation behavior theory, therefore, only on the basis of behavioral outcomes and behavior may cause the results to determine whether the behavior is illegal.

[Speaker: Zhang Mingkai]: finally, I want to get my conclusion: criminal law the absolute rejection of proper behavior punishment; evaluation behavior is right or wrong, should take act utilitarianism, because should take the consequence without value; in the two kinds of interests conflict situations, should be measured by the method of interests, judge right and wrong behavior; behavior is right or wrong, and behavior should be condemned, not the same problem, therefore, the theory of criminal law must strictly distinguish illegality and responsibility set of results of intention and negligence, does not affect the behavior itself is right or wrong, so it is the factors of liability, not illegal elements.