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Unpublished Paper
Chinese Homicide Law, Irrationality and Incremental Change
ExpressO (2012)
  • Michael Vitiello
Abstract: Chinese Homicide Law, Irrationality and Incremental Change This article begins with a striking hypothetical: “Having learned that his wife was having an affair, the defendant mulled over his options. After deliberation, he decided to shoot her and her lover. Sneaking up on them as they sat together in an isolated area, the defendant shot each in the chest. Because they were far from the nearest city, they received no first aid and both bled to death. Charged with first degree murder, the defendant has asked you to represent him. In your first interview, the defendant explains that he did not intend to kill his victims and instead intended only to injure them by shooting them in the torso, not aiming for their hearts.” Despite the implausibility of a defendant launching such a defense in an American court, such a defense is available under Chinese homicide law. The authors use that example to explore Chinese homicide law. They speculate about statutory reforms that invite defendants to interpose such unusual arguments, which they candidly find to be irrational. They conclude that the specific statutory provision represents a small toehold established by anti-death penalty advocates. The authors find support for their conclusion by comparing develops in China with the evolution of murder in the United States. There too, they argue, unable to win a decisive victory against the death penalty, abolitionists have chipped away at the death penalty, leading to the system currently in place in the United States, a system that the authors recognize as a system that no one can love. The irrationality in both countries has come about, in part, through efforts by abolitionists to contain the death penalty. But abolitionists see it as part of the long, slow decline of the death penalty in the United States. Hardly apologists for the death penalty in the United States or China, the authors do not pretend that China is close to abolishing or dramatically reducing its dependence on the death penalty. Instead, their conclusion is much more modest: they see the willingness of Chinese legislators to adopt Article 234 as a small toehold for abolitionists. While the provision leads to irrational results, that, they argue, seems to be symptomatic of incremental change.
  • Chinese Homicide Law
Publication Date
September 11, 2012
Citation Information
Michael Vitiello. "Chinese Homicide Law, Irrationality and Incremental Change" ExpressO (2012)
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