The abolition of capital punishment has gathered steam globally over the past three decades. However, the controversy remains active in many countries. Where effective judicial review is available, the death penalty has often been one of the major constitutional issues faced by the judiciary. The fundamental issue in these cases is whether capital punishment violates human dignity and right to life. This talk surveys how this issue is tackled by the high courts of Hungary, South Africa, the United States, Japan, and South Korea. The analysis is two-fold. The first is methodological, analyzing the standards of review, and identifying four major approaches, including the absolute approach, the cruelty approach, marginal proportionality, and systemic proportionality. The second is theoretical, analyzing how these courts understand the concept of human dignity and its relationship to the right to life. The presentation will identify and reconstruct the different conceptions of human dignity in these judicial decisions.
Jimmy Chia-Shin Hsu (Associate Research Professor, Institutum Iurisprudentiae, Academia Sinica; Harvard-Yenching Institute Visiting Scholar)
Chair/Discussant: Michael Rosen (Professor of Government, Harvard University)
Co-sponsored by East Asian Legal Studies and the Harvard University Asia Center