로크의 사형론과 형사정책적 함의

Abstract

This study examines Locke's view on death penalty and looks for some ideas to solve the issue for and against death penalty and to establish a better criminal policy. According to Locke, people leaving from the state of nature contract with each other and establish a civil society in order to protect life, liberty, and estate. In the civil society, they give up the right of punishment that they had in the state of nature. The state of the civil society comes to have a common law, a judge, and a executive power, and serves to protect life, liberty, and estate. Death penalty is justified on two grounds in the civil society as well as in the state of nature. The two grounds are the forfeiture of the right of life by "some act that deserves death," and the notion of retributive and utilitarian punishment. Death penalty is allowed because the inalienable right of life is forfeited due to violence with an intention of killing or a murder crime on the one hand, and because reparation and restraint in proportion to crimes are required one the other hand. This study finds two significant meanings of Locke's view on death penalty. First, his view of death penalty provides a logic justifying death penalty while it does not destroy the liberalist state idea protecting the right of life. This is because, according to the notion forfeiting the right of life, the state does not take the right of life away from the citizens but they themselves lose it. Second, Locke's way of justifying death penalty argues for death penalty more persuasively because it remedies the shortcomings of retributivism and utilitarianism by combining them.