THEORY OF JUSTICE, JUDICIAL METHODOLOGY, AND THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT - RAWLS, DWORKIN, AND A THEORY OF CRIMINAL RESPONSIBILITY

• NCJ Number: 58034
• Journal: Syracuse Law Review Volume: 29 Issue: 4 Dated: (FALL 1978) Pages: 1109-1174
• Author(s): S J M DONNELLY
• Date Published: 1978
• Length: 66 pages
• Corporate Author: Syracuse University
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

A SET OF METHODS FOR RELATING THE FUNDAMENTAL ETHICAL OR POLITICAL POSITIONS OF A JUDGE TO LEGAL DECISIONS IN 'HARD CASES' IS PRESENTED, USING THE CONCEPTS OF JOHN RAWLS AND RONALD DWORKIN.

Abstract

FOLLOWING A DESCRIPTION OF THE THEORIES AND METHODS OF DWORKIN AND RAWLS, THE ASSERTION IS MADE AND SUPPORTED THAT THE ARGUMENTS OFFERED IN JUSTICE POTTER STEWART'S OPINION FOR THE PLURALITY IN GREGG V. GEORGIS (1976) WHICH UPHELD SOME STATUTES IMPOSING CAPITAL PUNISHMENT AND REJECTED OTHERS, ARE REDUCIBLE TO AN ESTIMATE OF MAJORITY WILL. AN ALTERNATIVE BASIS FOR TESTING THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT IS OFFERED, USING A THEORY OF CRIMINAL RESPONSIBILITY AND CAPITAL PUNISHMENT AS A JUSTIFICATION FOR THE DEATH PENALTY IN TERMS OF THE EIGHTH AMENDMENT. THE ANALYSIS OF THE EIGHTH AMENDMENT IS COMPARED WITH ARGUMENTS OFFERED BY THOSE OPPOSED TO CAPITAL PUNISHMENT. UNDER THE CONCEPTUALIZATION PRESENTED IN THIS ARTICLE, A PUNISHMENT CHALLENGED UNDER THE EIGHTH AMENDMENT (PROHIBITING CRUEL AND UNUSUAL PUNISHMENT) WOULD BE 'UNUSUAL' IF IT WOULD BE CONSIDERED CONTROVERSIAL OR CHALLENGABLE UNDER CURRENTLY RESPECTABLE OPINION, AND IT WOULD BE 'CRUEL' IF IT WERE NOT IN ACCORD WITH A THEORY OF CRIMINAL PUNISHMENT RELATED TO AN UNDERSTANDING OF HUMAN DIGNITY. JOHN RAWLS' THEORY OF JUSTICE PROVIDES THE CONSISTENT THEORY WHICH, UNDER DWORKIN'S METHOD, SERVES AS THE FOUNDATION FOR THIS CONCEPTUALIZATION AND FOR A THEORY OF CRIMINAL PUNISHMENT RELATED TO AN UNDERSTANDING OF HUMAN DIGNITY. IN DEVELOPING A THEORY OF CRIMINAL PUNISHMENT, ONE MUST BE CONCERNED NOT ONLY WITH PROTECTING THE INTERESTS OF SOCIETY OR THOSE OF THE POTENTIAL VICTIM OF CRIME, BUT ALSO WITH PRESERVING THE BASIC INTERESTS OF ONE ACCUSED OR CONVICTED OF CRIME. IN THE CONTEXT OF SUCH A PERSPECTIVE, CAPITAL PUNISHMENT WOULD BE USED ONLY WITH THE GREATEST RELUCTANCE AND ONLY IF IT COULD BE DEMONSTRATED IN A PARTICULAR CASE THAT THE DEATH PENALTY IS NECESSARY TO PRESERVE THE CONDITION IN SOCIETY WITHOUT WHICH LIBERTY COULD NOT EXIST. THE DEATH PENALTY SHOULD THUS BE RESERVED FOR CURRENTLY RARE AND EXTREME CIRCUMSTANCES OCCURING IN THE CHANGING CONDITIONS OF SOCIETY. (RCB)