Cave Mystery —— Fourteen Explanations of Justice

Just after taking the judicial examination last month, I collected some books on law and took a look while the iron is hot. At present, there are Cave Mystery, The Death of a Princess, American Legal History in the Twentieth Century, etc. It took me three nights to finish the mystery of this cave.

This book was recommended by teacher Bai Bin during the lecture, saying that it is a must-read book for law students in summer vacation. This book leads to 14 judgments of different legal schools from a fictional case. Although the reasoning process of fourteen sentences is reasonable, the final result is quite different. If the law is regarded as justice, it can be described by fourteen explanations of justice. It is worth mentioning that any of these viewpoints can be expanded to write an independent long paper. Writing a paper is beyond my level, and it is not my purpose. I read the book review of Douban, and most people probably listed and summarized fourteen opinions, but I just want to record my own thoughts. But because of my limited level, I may be confused, because this book is too abstruse.

At the beginning of May, 4299, four members of the Cave Exploration Association, organized by some amateur cave explorers, entered a limestone cave in the central plateau of the Federation together with Wittmore, who was also a member of the Association at that time. When they went deep into the cave, a landslide happened. The boulder slipped and blocked the only hole they knew. When they found themselves trapped, they sat near the hole, waiting for rescuers to rescue them. As five explorers didn't go home on time, their families informed the secretary of the association, and the explorers left the cave they planned to explore at the association headquarters, so a rescue team rushed to the accident site.

The rescue is far more difficult than expected, and more rescuers and machines are needed. However, the cave is remote and it is extremely difficult to transport rescuers and machines. Workers, engineers, geologists and other experts set up a large temporary camp. Due to the continuous occurrence of landslides, the work of clearing the accumulated rocks at the entrance of the cave was interrupted several times, and a landslide even claimed the lives of ten rescuers. During the rescue process, the Cave Exploration Association quickly exhausted its own funds, and then 800,000 Freya (the national currency of Newcastle) was donated by the public and allocated to the rescue work by law, which was also spent before the trapped people were rescued. The 32nd day after the explorer was trapped in the cave, the rescue was finally successful. Because the explorers only brought barely enough food, and there were no animals or plants in the cave to survive, everyone had long worried that the explorers might starve to death before the exit was opened. On the twentieth day of being trapped, rescuers learned that the explorer had a pocket wireless device with him, which could send and receive information. Rescuers quickly installed a similar device and contacted people who were unfortunately trapped in the cave. The explorers asked how long it would take to be rescued, and the engineer in charge of the rescue told them that it would take at least ten days even if there were no new landslides. After learning that there were medical experts in the camp, the trapped people talked with the doctor. They described the situation in the cave in detail, and then asked them if it was medically possible to live for another ten days without food. Experts told them that this possibility is very small. Then, the wireless device in the hole was silent. Eight hours later, communication was restored and the explorer asked to speak to the doctor again. On behalf of himself and four other companions, whitmore asked whether they could live for another ten days if they ate the flesh and blood of one of the members. Despite reluctance, the chairman of the doctor's Committee gave a positive answer. Whitmore asked if it was feasible to draw lots to decide who should be eaten, and no one in the medical experts present was willing to answer. Whitmore then asked if there were any judges or other government officials in the rescue team who could give an answer, but these people were unwilling to give their own opinions. He asked if there were any priests or priests willing to answer their questions, or if no one wanted to make a sound. After that, there was no news in the cave, and everyone guessed (which turned out to be wrong) that the battery of the explorer's wireless device was dead. When the trapped people were rescued, everyone knew that whitmore had been killed and eaten by his companions on the 23rd day of being trapped.

According to the testimony provided by the defendants to the jury, whitmore hinted that they might eat a member, otherwise it would be impossible to survive. It was whitmore who first suggested the use of lottery tickets. He reminded everyone that he had just brought a pair of dice. At first, the four defendants didn't want to respond to such a cruel proposal, but after the above-mentioned dialogue over the radio, they accepted whitmore's proposal, and repeatedly discussed mathematical issues to ensure the fairness of the lottery, and finally agreed to decide the fate of life and death by rolling dice.

However, before rolling the dice, whitmore announced that he had withdrawn the agreement. After much consideration, he thinks that he should wait another week before implementing such a terrible expedient. Others accused him of going back on his word and insisting on playing dice. When it was whitmore's turn, a defendant rolled the dice for him and asked whitmore to make a statement on whether he agreed to the fairness of throwing. Whitmore has no objection. The result of throwing was not good for whitmore, so he was killed and eaten by his companions.

After the survivors were rescued, they were hospitalized due to malnutrition and syncope. After leaving the hospital, they were accused of murdering whitmore.

Starving to death is terrible, but I can hardly blame the survivors. Ang Lee's Fantasy Drifting of Pi is such a thing. And this imaginary case was also changed from a real case. They are as follows:

Fuller's case is not passive water. He is based on two famous real cases: 1842 America v Holmes and 1884 Queen v Dudley and Stephen (regine v Dudley &; Stephens). In the Holmes case, the immigrant ship Brown sank because it hit an iceberg, and 50 people escaped by ship and boat. In the former case, due to the bad weather, the sea overflowed and the ship split. At the critical moment, the sailor Holmes threw eight men and two women overboard and was finally prosecuted by the prosecutor. He was sentenced to six months in prison and a fine of $20 for premeditated intentional homicide, and President Taylor pardoned him. In the Dudley incident, four survivors survived in a small boat after the Milkweed sank. After the lottery was opposed, Parker, the weakest and dying, was killed. After landing, he was arrested and convicted of murder, and was immediately pardoned by Queen Victoria.

The book simulates fourteen judgments made by fourteen judges from fourteen law schools. The first five justices elaborated on the basis of the principles of public law, while the last nine involved specific analysis.

First of all, as a judge, the simplest way to deal with it is to respect the law. The legal provisions stipulate that "anyone who intentionally deprives others of their lives will be sentenced to death" (the provisions imagined by the author are much more complicated in reality). Since it is stipulated in the law, this is a good decision. This is the first point at the beginning. In fact, anyone can reach this level. However, there are also human feelings outside the legal principle, just as Queen Victoria and President Taylor did above. After being sentenced to death, Judge A asked the Chief Executive for pardon. This is actually a bit of shirking responsibility, because the pardon of the Chief Executive is uncontrollable. Therefore, the objection is that whether a crime is committed should be the scope of judicial consideration. It is unfair for survivors to hope for administrative pardon.

However, if only it were so simple, judges in different countries have different views. In some countries, executive, legislative and judicial powers are separated. As a human being, there will inevitably be loopholes in the legal provisions. While applying the legal provisions, the legal provisions themselves should be interpreted. Or should it be explained by the original intention of the legislator? Therefore, the second view is that the judiciary should trace the purpose of legislators instead of mechanically applying legal provisions.

For the purpose of tracing back to legislators, it is divided into three parts. That is, what is the basis for legislators to legislate?

The first is the birth of law.

Judge B's view is radical, and legislators make laws because they acquiesce that we can save. In other words, the statute law is a kind of law that adjusts the relationship between members of society based on the existence of * * *. And because five explorers are isolated in the cave. Social relations that match the law can no longer form jurisdiction over them. For them, it belongs to the life and death situation of primitive society, so they should not be bound by written law, in which they apply natural law, that is, natural law. In Judge B's view, it is reasonable for people to eat each other in order to survive in the natural environment. Similar to the famine in ancient China, the original government and other social relations can no longer provide protection, and they can only follow the laws of nature.

Judge C, the same judge, also supplemented Judge B..C's view that the way of law formation in China is actually a contractual relationship that the public acquiesces and abides by. After consulting the outside world by radio, the five adventurers did not get contract guidance. Even if there are government officials, judges and/or priests on the scene, they can't get correct guidance. Because there are so many arguments afterwards, let alone drawing conclusions on the spot. Social contracts can't help them. So they established a new country and reached a new social contract on the basis of being isolated from the outside world in the cave. And a new social contract does not necessarily require everyone's consent. China National People's Congress only needs 1/2 to pass laws. So the premise of this social contract is reasonable.

Second, the emergence of the law.

Our law was born on the premise of democracy. Based on the emergence of the law, Judge D and Judge E have different views on this case. Judge D thinks that these five people should be acquitted, because the law serves the public, and the public's opinion is based on sympathy for their innocence. So according to common sense, it should be innocent. Judge e found him guilty. He believes that our laws are really based on democracy. But at the time of legislation, democratic legislation has been formulated. The law itself is the product of democracy, so enforcing the law means enforcing democracy, so it should be convicted. Although both Judge D and Judge E interpret the law based on democracy, their conclusions are diametrically opposite. Their main difference lies in whether democracy exists before or after legislation.

Judge D refutes Judge E because although legislators are elected by the people, most of them are experts in civil law and company law. Secondly, the prosecutor, and the prosecutor's accusation is to convict people. There are very few people who really have judicial practice experience. So there must be something inappropriate in legislation.

Finally, what is the purpose of legislation?

The direct purpose of criminal law legislation is to punish crimes and protect human rights, and the fundamental purpose is to maintain social order. The relationship between them is that criminal law plays a deterrent role by punishing crimes and plays an educational role by protecting human rights, thus achieving the purpose of maintaining social order. Therefore, the argument between Judge F and Judge G is whether the death penalty for survivors has the function of deterring similar incidents from happening again. This involves subjective judgment, and everyone is different. Judge F believes that if this happens again, it will not prevent another cannibalism. Judge G believes that the recurrence of such incidents can be prevented by imposing the death penalty. At least let them wait until the first person dies of natural causes and eat the body instead of killing again. The key is whether murder innocence will be abused. In fact, this is also the reason why our country is so strict about self-defense. As far as the environment of our country is concerned, in fact, self-defense is easy to be abused.

The difference between Judge H and Judge I is whether life is priceless or valuable.

Judge h is a utilitarian. He thinks it's better to die for one person than for all five. His analogy is that it is wrong to eat one person for the survival of four people. Let's enlarge these figures. Sacrifice one person to save 100 people or even sacrifice one person to save 10 thousand people? This is the logic of our society. Soldiers died for the whole country. Some people should be sacrificed for the survival of the whole.

Judge I insisted that life is priceless. His metaphor is that if you still don't save him, three people will eat another person. Then two people ate another person. The last person ate the other person. That is, it takes four people to survive. Judge, I think this is obviously a little crazy. Similarly, I personally think that if a small number of people need to be sacrificed to save most people from the abuse of active execution. Just like Nazi Germany in World War II, it took the initiative to secretly dispose of the disabled and saved resources to win World War II. Obviously unreasonable.

In fact, our law has restrictions on analogy. Legal punishment is not linear, and similar cases are not parallel. To master a "degree", that is, the "principle of proportionality" in jurisprudence, is also similar to the Confucian "golden mean".

In addition, the focus of the judge's debate is whether the judge should have discretion.

Judge J believes that the characteristics of judges are accurate understanding of existing laws, not sympathy. A judge should be like an artificial intelligence, which can only give the results according to the given procedure, but can't give his own inner judgment. Judge K thinks that judges can make laws, just like judicial law-making in Britain and America. By extension, it actually lies in whether the law has achieved justice. Judge J believes that justice belongs to theological and philosophical schools. Law is only a tool to manage social order and has nothing to do with justice. The key is execution. No one can make an absolutely controversial judgment, only God can. Judge K believes that law is synonymous with justice, and evil law is illegal. Judges should have the right to decide what is fair.

Finally, the focus of the debate between Judge L and Judge M is whether morality should be mirrored by law.

Morality is pluralistic, while law is unitary. Some behaviors are illegal and immoral, while others are illegal and immoral. In our country, morality belongs to the informal source of law. When there is no law to judge a case, moral discretion can be introduced. And my jurisprudence book also wrote, "the modernization of law refers to the complete separation of law and morality." It can be said that the relationship between morality and law is also very contradictory in our country.

Judge L made it very clear that if I were in the same situation, I would eat people. Because it's not against my morality. Most people sympathize with the survivors precisely because the situation at that time was not immoral. So it should be innocent. Judge M always thinks that morality and law are separated. Therefore, the death penalty should be imposed according to law. Judge n took a neutral position. Whether this case applies to moral image, he abstained.

Before I started typing, I always doubted whether I could write this reading note well, and my mind was quite confused. Fortunately, I typed so many words. The judge's views from A to N are not completely arranged according to the views in the book, but only what remains in my mind. Moreover, it only involves jurisprudence and does not involve the details of criminal law. Among the fourteen viewpoints, there are technical problems about concrete judgment. For example, whether it is fair for five people to reach a contract, whether the murder is intentional, whether the victim promises, whether it belongs to self-defense and whether it belongs to emergency avoidance. First of all, the first one is very long, the second one may be beyond my level, and the third one may be incomprehensible when written. Fuller was originally a scholar of contract law, and his first five viewpoints only involved jurisprudence. Salle added the technical aspect of criminal law in the last nine viewpoints.

I found an interesting thing when I was preparing for the judicial examination. There are also more than a dozen famous criminal law teachers who teach openly on the Internet. However, when encountering difficulties in criminal law, every famous teacher will put forward different theories of criminal law. Although everyone can justify himself, these theories have put forward different views on some controversial topics. Moreover, some famous teachers also accuse others of being "fake criminal law". The essence of criminal law is getting closer and closer to what we call "justice" every day. The so-called "Heavenly Master" in ancient novels is generally famous for solving crimes. Just like the contents of the cave mystery, everyone's "justice" is different and all are just. This book can make the public feel fear and anger, how can the judgment that determines a person's "life and death" be so contradictory, and whether a person is murdered is still inconclusive. Therefore, in the exam, there is often a sentence in the subjective question of criminal law that can be answered from different perspectives. Of course, this is what Zhang Mingkai, a teacher of criminal law before 16, did, because he himself admitted that "there is no completely correct and exclusive view of criminal law". To my regret, Chen Xingliang, the author of this year's topic, took his views as a general theory. This year's answer, answered by the theories of all famous criminal law teachers in the market, is wrong and slaps the whole teacher.

Personally, I think this kind of material, the mystery of the cave, is very suitable for the composition of the judicial examination. There is no need for a correct answer, mainly to examine the examinee's understanding of the spirit of jurisprudence. Unfortunately, the current situation is that the topic of discussion is political, and the material for discussion is generally the spirit of a leader's speech, which is closer to the government's official documents.