In this study I tackle the problem of justifying criminal punishment. Although I take heed of a traditional line of theorizing which says that punishment is an expressive and communicative endeavour, my theory breaks away from traditional approaches. This break is motivated by a recognition that theorists working in the traditional framework have failed to resolve the tension between retributivist and consequentialist reasons for punishment. I argue that punishment is justified as a type of communication from those affected by the crime to distinct and varied audiences. My naturalistic theory is structured around two fundamental themes, naturalism and pluralism about aims. The naturalism consists in the fact that the theory takes an empirically informed descriptive approach to the problem of justifying punishment. This foundation provides the resources for developing a balanced view of the moral agent which takes into account not only cognitive but also emotional capacities. This broader, deeper view of agency permits, indeed calls for, an analysis of the moral psychologies of those involved in the social practice. That analysis leads to the explanation that punishment is a type of communication of, among other things, strong but justified moral sentiments. Further development of this view suggests that punishment's various messages are intended for a variety of audiences - not just the wrongdoer but also the victim and community. That explication supports my other fundamental theme, pluralism about aims. The social institution of punishment is a complex one involving stakeholders who have differing motives and needs. Consequently, we should reject strategies which claim that punishment's justification can be reduced to one reason such as, for example, that the criminal deserves it. I argue that punishment's justification is multifaceted and complex. The arguments I put forward to justify punishment also bring to light aspects of the existing social institution that need reform. In general, they point to the need to design penal measures that promote communication among wrongdoer, victim and community. But I also call for a specific reform. I argue that the victim, whose concerns have traditionally been disregarded, should also be given a voice within the social institution.

The last fifty years have seen a turn in the Catholic Church's public attitude toward capital punishment. From openly defending the right of the state to kill malefactors, the Church has become an outspoken opponent. What accounts for this? How can it be reconciled with Catholic tradition? Should the current teaching be called a 'development of doctrine'? Can we expect further change? These questions shape this thesis. The work is divided into three parts comprising a total of eight chapters. Part I undertakes a detailed exegesis of the death penalty teaching of the Catechism of the Catholic Church (1997). I conclude that the text, while not explicitly stating that the death penalty is in itself wrong, lays down premises which when carried to their logical conclusions, yield just such a conclusion. This conclusion is checked and confirmed by the fundamental moral reasoning found in the papal encyclicals Evangelium Vitae and Veritatis Splendor. In light of this conclusion (what I call the new position), Part II asks the question: may the Church, constrained by sound biblical interpretation and dogmatic tradition, legitimately teach in a definitive way that capital punishment is per se wrong? This is a question which concerns the development of doctrine. Before it can be answered the Church's traditional teaching needs to be precisely formulated so that it can be placed in juxtaposition to the new teaching. An analysis of statements throughout ecclesiastical history is therefore undertaken and what we might call the cumulative consensus of ecclesiastical writers on capital punishment is formulated. The authoritative nature of this teaching is analyzed to determine what kinds of developments it admits and excludes. Judging its nature admits of a development like the one described in Part I, models are proposed to explain modes by which it might be understood to be developing. Finally, a systematic and philosophically consistent account of the new position is proposed and its implications for other teachings in the Church's tradition of 'justifiable violence' is examined.

In this study I tackle the problem of justifying criminal punishment. Although I take heed of a traditional line of theorizing which says that punishment is an expressive and communicative endeavour, my theory breaks away from traditional approaches. This break is motivated by a recognition that theorists working in the traditional framework have failed to resolve the tension between retributivist and consequentialist reasons for punishment. I argue that punishment is justified as a type of communication from those affected by the crime to distinct and varied audiences. My naturalistic theory is structured around two fundamental themes, naturalism and pluralism about aims. The naturalism consists in the fact that the theory takes an empirically informed descriptive approach to the problem of justifying punishment. This foundation provides the resources for developing a balanced view of the moral agent which takes into account not only cognitive but also emotional capacities. This broader, deeper view of agency permits, indeed calls for, an analysis of the moral psychologies of those involved in the social practice. That analysis leads to the explanation that punishment is a type of communication of, among other things, strong but justified moral sentiments. Further development of this view suggests that punishment's various messages are intended for a variety of audiences - not just the wrongdoer but also the victim and community. That explication supports my other fundamental theme, pluralism about aims. The social institution of punishment is a complex one involving stakeholders who have differing motives and needs. Consequently, we should reject strategies which claim that punishment's justification can be reduced to one reason such as, for example, that the criminal deserves it. I argue that punishment's justification is multifaceted and complex. The arguments I put forward to justify punishment also bring to light aspects of the existing social institution that need reform. In general, they point to the need to design penal measures that promote communication among wrongdoer, victim and community. But I also call for a specific reform. I argue that the victim, whose concerns have traditionally been disregarded, should also be given a voice within the social institution. / Arts, Faculty of / Philosophy, Department of / Graduate

Text in Afrikaans / Summaries in English and Afrikaans / Die Konstitusionele Hof het ir:i S v Makwanyane besluit dat die doodstraf nie versoenbaar is met die Grondwet nie en dit ongeldig verklaar. Die kritiek teenoor die regbank en die openbare mening oor die doodstraf was nog altyd s6 prominent dat die hof nie anders kon as om hieraan aandag te skenk nie. Die hof besluit dat die openbare mening nie 'n rol speel in die hersieningsproses nie. In hierdie verhandeling word die hof se standpunte en red es daarvoor ontleed. Ek kom tot die gevolgtrekking dat die hof korrek bes I is het. Die open bare mening is onseker. Daar is 'n verskil tussen die aard van die waardes in die Grondwet en die aard van die open bare mening. Die kritiek op die uitspraak is te wyte aan die gebrek aan insig en begrip onder lede van die gemeenskap oor die nuwe bestel en die rol van die regbank daarin. / The Constitutional Court in S v Makwanyane declared that the death penalty was inconsistent with the Constitution. The criticism on courts and the public opinion on the death penalty have been so severe that the court could not have but considered these issues. The court concluded that public opinion is not relevant in constitutional review. In this dissertation, I analyze the court's viewpoints and the reasons therefor. My conclusion is that the court made the correct decision. The public opinion is uncertain, and differs from values. The judgment is criticised due to a lack of understanding amongst the public as to the meaning of the new dispensation and the role of our courts therein. / Law / Thesis (LL.M.)--Universiteit van Suid-Afrika, 1996.

Text in Afrikaans / Summaries in English and Afrikaans / Die Konstitusionele Hof het ir:i S v Makwanyane besluit dat die doodstraf nie versoenbaar is met die Grondwet nie en dit ongeldig verklaar. Die kritiek teenoor die regbank en die openbare mening oor die doodstraf was nog altyd s6 prominent dat die hof nie anders kon as om hieraan aandag te skenk nie. Die hof besluit dat die openbare mening nie 'n rol speel in die hersieningsproses nie. In hierdie verhandeling word die hof se standpunte en red es daarvoor ontleed. Ek kom tot die gevolgtrekking dat die hof korrek bes I is het. Die open bare mening is onseker. Daar is 'n verskil tussen die aard van die waardes in die Grondwet en die aard van die open bare mening. Die kritiek op die uitspraak is te wyte aan die gebrek aan insig en begrip onder lede van die gemeenskap oor die nuwe bestel en die rol van die regbank daarin. / The Constitutional Court in S v Makwanyane declared that the death penalty was inconsistent with the Constitution. The criticism on courts and the public opinion on the death penalty have been so severe that the court could not have but considered these issues. The court concluded that public opinion is not relevant in constitutional review. In this dissertation, I analyze the court's viewpoints and the reasons therefor. My conclusion is that the court made the correct decision. The public opinion is uncertain, and differs from values. The judgment is criticised due to a lack of understanding amongst the public as to the meaning of the new dispensation and the role of our courts therein. / Law / Thesis (LL.M.)--Universiteit van Suid-Afrika, 1996.