Abstract

The subject of this dissertation is the possibility of a moral theory of punishment when society's concept of morality no longer has an objective, absolute basis. It begins with an examination of the theories of Immanuel Kant and G.W.F. Hegel as both the exemplars and the culmination of the classical tradition of law. A central tenet of that tradition was that law embodied an absolute morality which incorporated the subjective will of the individual. Punishment was just under such a conception of law because the individual's will was a part of the law which demanded his punishment. ;When law loses its absolutist moorings, however, it can cease to incorporate the individual's will and become merely coercive. This is the problem presented to Western thinking by the subjective rationality of modernism. The remainder of the dissertation focuses on two general attempts to overcome the challenge of modernism to the classical tradition of law. One attempt is to redefine authority as brute force; another attempt is to redefine it as something tied to laws of nature external to the human will. After tracing these two themes in nineteenth and twentieth century jurisprudential writings, these themes are examined in contemporary theories of retribution. Contemporary retribution breaks down into what can be roughly called "positivist retribution," where punishment is defined as a moral procedure, and "objectivist retribution," where the concept of desert is transformed into manageable, calculable units that cease to have any necessary connection with individual culpability. Both of these attempts fail to tie the subjective will of the individual to an objective will embodied in law. ;Finally, the Abolitionist movement in Europe is examined as perhaps containing some of the seeds for a modernist moral theory of retribution. By focussing on the explicit will of the offender, and the actual injury to the victim, Abolitionism can be seen as an attempt to incorporate both the phenomenalism of modernism as well as the moral autonomy of the individual associated with classical retribution