Right to Life and Capital Punishment in Transnational Judicial Dialogue

Asian Journal of Comparative Law, First View, pp. 1 - 27 DOI: https://doi.org/10.1017/asjcl.2021.22

36 Pages Posted: 20 Dec 2021

See all articles by Jimmy Chia-Shin Hsu

Jimmy Chia-Shin Hsu

Institutum Iurisprudentiae, Academia Sinica

Date Written: December 15, 2021

Abstract

In this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.

Keywords: capital punishment, the death penalty, right to life, cruel and unusual punishment, human dignity, State v Makwanyane, the Korean Constitutional Court

Suggested Citation

Hsu, Jimmy Chia-Shin, Right to Life and Capital Punishment in Transnational Judicial Dialogue (December 15, 2021). Asian Journal of Comparative Law, First View, pp. 1 - 27 DOI: https://doi.org/10.1017/asjcl.2021.22, Available at SSRN: https://ssrn.com/abstract=3985687

Jimmy Chia-Shin Hsu (Contact Author)

Institutum Iurisprudentiae, Academia Sinica ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei, 11529
Taiwan

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