Killing in Your Name: Pathology of Judicial Paternalism and the Mutation of the 'Most Serious Crimes' Requirement in Taiwan

Jerome A. Cohen, William P. Alford and Chang-fa Lo (eds), Taiwan and International Human Rights: A Story of Transformation (Springer, Forthcoming)

16 Pages Posted: 20 Dec 2017 Last revised: 27 Feb 2018

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Hui-Wen Chen

University of Warwick

Date Written: 2018

Abstract

Although Article 6 of the International Covenant on Civil and Political Rights (ICCPR) falls short of banning the death penalty outright, it provides for substantive and procedural requirements aimed at limiting the imposition of the death penalty before its abolition. Among them is the restriction of the ‘most serious crimes’ in jurisdictions where death penalty remains lawful (ICCPR Article 6 (2)). Drawing on the case law of the Taiwanese Supreme Court (TSC), this chapter aims to shed socio-legal light on the role that the ‘most serious crimes’ requirement has played in the judicial rulings concerning death penalty since the ICCPR rights became enforceable in Taiwan on 10 December, 2009. It is argued that in its translation into Taiwanese judicial practice, the “most serious crimes” requirement has been read together with the domestic legal provision for individualized aggravating and mitigating circumstances under the rubric of rehabilitatibility (教化可能性), deviating from the jurisprudence of the UN human rights bodies. Under the judge-civilizer tradition prevalent in the Taiwanese judiciary, the idea of rehabilitatibility has eventually turned the judicial deliberation on whether to impose death penalty into a valuation of the worth of the defendant’s life with a focus on the discovery of the incorrigible offender. With its absorption into the individualizing idea of rehabilitatibility, the “most serious crimes” requirement of ICCPR has thus become part of the pathology of judicial paternalism, suggesting a mutation of international human rights ideals in Taiwan.

Keywords: most serious crimes, rehabilitation, rehabilitatibility, judge-civilizer, judicial paternalism, the incorrigible offender, ICCPR (International Covenant on Civil and Political Rights), civilizing mission, cultural register, death penalty

Suggested Citation

Kuo, Ming-Sung and Chen, Hui-Wen, Killing in Your Name: Pathology of Judicial Paternalism and the Mutation of the 'Most Serious Crimes' Requirement in Taiwan (2018). Jerome A. Cohen, William P. Alford and Chang-fa Lo (eds), Taiwan and International Human Rights: A Story of Transformation (Springer, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3088363

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

Hui-Wen Chen

University of Warwick ( email )

Gibbet Hill Rd.
Coventry, West Midlands CV4 8UW
United Kingdom

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