摘要： 证成问题一直是法律惩罚所面临的基本问题。报应主义、功利主义和复合主义都无法完全证成惩罚。基于情感的惩罚证成是一条可行之道,其包括一般证成和分配证成。一般证成认为,愤怒结构性地包含着罪行和惩罚,由于愤怒具有理性成分,作为常情具有合理性,故而愤怒内含的惩罚也就具有正当性。分配证成包括惩罚对象和惩罚量两个维度。在惩罚对象上,由于愤怒的对象是负有责任的特定主体,故而惩罚对象必须是对罪行负有责任的主体,而不能殃及无辜。在惩罚量上,失控的愤怒与惩罚不可取。适度的愤怒与惩罚虽然可以接受,但不是最佳方案。在爱的基础上愤怒,才是一个社会理想的情感体制。这样的转型性愤怒将会导致一种与报应主义和功利主义都不同的惩罚观。这种惩罚观以拯救和预防为宗旨,惩罚的严厉程度不需要与罪行对称,而需要与治病救人的目的相称。惩罚的情感证成是法哲学关于惩罚证成的一次新尝试,对刑法学中刑罚问题的讨论也有启发意义。

关键词: 法律惩罚, 惩罚的证成, 报应主义, 功利主义, 愤怒

Abstract: The problem of justification has always been the basic problem of punishment.Retributivism, utilitarianism, and compoundism all fail to justify punishment.Emotion-based justification of punishment is a viable option.The emotional justification of punishment includes general justification and distribution justification.The general justification is that anger contains crime and punishment structurally.Because anger is reasonable and rational as a common sense, the punishment contained in anger is also legitimate, and thus it is justified.The distribution justification consists of two dimensions: punishment object and punishment amount.As for the object of punishment, since the object of anger is directed at specific individuals or entities responsible for wrongdoing, punishment must be strictly targeted at those responsible for the crime and must not harm the innocent.As for the amount of punishment, out of control anger and punishment is not acceptable, moderate anger and punishment, although acceptable, but not the best option, anger based on love is an ideal emotional regime for society.Such a transition anger will lead to a different view of punishment from retributionism and utilitarianism.This view of punishment aims at salvation and prevention, so the severity of punishment does not need to be symmetrical to the crime but should be adapted to the purpose of treating and saving criminal.The emotional justification of punishment is a new attempt about the justification of punishment in the philosophy of law, and it is also of enlightening significance to the discussion of punishment in criminal law.

Key words: Punishment, Justification of Punishment, Retributionism, Utilitarianism, Anger, Emotion