This thesis reconstructs John Rawl's Original Position in order to show that within a liberal democratic culture, the institution of punishment ought to conform to the Moral Education Theory of Punishment, put forth by Jean Hampton. According to Hampton, punishment should facilitate a medium where the state educates the criminal on the moral implications of her wrongdoing. I argue that citizens would select the Moral Education Theory of Punishment in the Original Position, since it offers the best opportunity to redress two calamities related to the criminal's wrongdoing---namely, that it threatens the moral status of the victim, and that it results from the wrongdoer's deficient moral sensibility. Upon consideration, the representatives in the Original Position recognize that redressing either of the two calamities necessitates redressing the other; thus, both objectives reinforce one another. Consequently, the representatives would unanimously select the principles of punishment manifest in the Moral Education Theory.

Thesis (doctoral)--Universitetet i Lund, 1996. / Extra t.p. with thesis statement and English abstract inserted. Includes bibliographical references (p. 219-254) and index.

Thesis (doctoral)--Universitetet i Lund, 1996. / Extra t.p. with thesis statement and English abstract inserted. Includes bibliographical references (p. 219-254) and index.

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This thesis examines why courts in the United States of America (US), India and South Africa refer to foreign law in death penalty cases. To gain an understanding of what drives the apex courts of the US, India and South Africa to cite foreign law when considering domestic death penalty issues, this thesis proposes a three-part matrix to both assess the relevant case law and to analyse the academic literature on cross-citation. Firstly, it will be demonstrated that judges in national courts cross-cite comparative law out of a primary interest in constitutional interpretation. Cross-citation is used in this manner to assist judges in their domestic interpretative tasks. Secondly, it will be illustrated how courts that engage in the citation of foreign law also seek guidance from other jurisdictions as to the content of shared values, such as what type of punishment does not fundamentally and unlawfully violate the right to human dignity. Finally, this thesis assesses to what degree courts from the three selected jurisdictions are additionally referencing or applying a customary international law norm when citing foreign sources. The argument is made that the domestic courts under examination engage with comparative law in the context of a broader transnational normative project, taking the international human rights framework that developed after the Second World War as a key reference point. In doing so, this thesis argues that these courts are at times recognising and developing emerging customary norms, and at other times giving effect to and enforcing applicable international human rights law.

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Doctor of Philosophy / Department of Sociology, Anthropology, and Social Work / W. Richard Goe / Ryan E. Spohn / This study seeks to explain variation in incarceration rates across states. To account for such variation, the study combines approaches: the Rusche & Kirchheimer (1939) thesis, which proposes that incarceration rates rise with unemployment due to potential threat to social order from the unemployed, was merged with social stratification theories to develop a theoretical model explaining variations in state incarceration rates by social class and race. The last 30 years have seen a number of studies dedicated to investigating the validity of the Rusche and Kirchheimer (1939) thesis, but these studies have yielded inconsistent results. This study adheres to and advances Rusche and Kirchheimer’s thesis, exploring the relationship between unemployment rates and incarceration rates utilizing nationwide state-level data. I tested the influence of economic factors on prison rates across the nation interacting with race-ethnicity using time series hierarchical regression, and data indicates mixed support for the Rusche and Kirchheimer thesis. This study found that important predictors related to rising incarceration rates include citizen and governmental political ideology, violent and property crime rates, and percent of population that is African American. Habitual violation of laws, including drug crime, and poverty had small effects on the incarceration rate. Additionally, this study found that inequality, not unemployment, was the most salient predictor of incarceration rates; that is, the differential in employment pay rate factored more significantly than the designation of employed/unemployed. The study revealed that such a relationship between income inequality and punishment differentially impacts citizens in general and African Americans in particular. Since excessive use of prisons exacerbates inequality, understanding the link between economic conditions such as income inequality and punishment has notable policy implications.

Published Article / Learner discipline is an important aspect of schooling. Historically, teachers applied a number of measures to maintain discipline, including corporal punishment. In 1996 the use of corporal punishment in South African schools was banned. However, some parents and teachers believed that the banning of corporal punishment was directly responsible for poor discipline among learners in the township schools. The purpose of this article was to investigate this perception, as well as to investigate what teachers were doing to address disciplinary problems among learners. A questionnaire was developed, and distributed among 20 teachers from primary schools in the Matjhabeng Municipality (16 teachers responded). The data collected was quantitatively analysed. It was found that although cases of learner mischief were still experienced in the primary schools, the level of discipline has not increased disproportionately after the banning of corporal punishment; the majority of learners behaved fairly well. However, some teachers were found to use harsh measures of disciplining learners, including corporal punishment. The involvement of parents in learner discipline was not preferred by many teachers. To help teachers to effectively handle discipline, the Ministry of Education has to find ways of training teachers in democracy, stress management and conflict management.

This thesis explores recent Scottish penal culture through the biographical narrative accounts of retired judges. Insights from the sociology of punishment are used to develop a more fully cultural approach to the judiciary and to sentencing practice. This entails a view of the judiciary as a complex institution whose practices reflect tension and compromise, and which recognises judges as bearers of penal culture through their sentencing practices. The aims of the research are twofold: to provide insight into the changing conditions of judging in Scotland and into the judicial role in criminal justice. Narrative research methods were used to interview retired judges and gain contextual accounts of judicial life and practice. This approach focuses on subjectivity and on individual responses to experiences and constraints. Reflecting the judicial role in punishment, an interpretive position based on the hermeneutics of faith and suspicion is used to evaluate and interpret these narrative accounts. This conceptual and methodological framework is used to explore aspects of judicial occupational culture including training and early experiences, the status of criminal work, judicial conduct, collegiality, the influence of criminological research on sentencing practice, and the relevance of the ‘master narrative’ - judicial independence - to sentencing. It is also used to explore the frameworks of meaning and vocabularies of motive which judges bring to penal practice. What emerges from these judicial narratives is firstly the entanglement of individual life histories and organisational imperatives. Secondly, a picture emerges of a judicial habitus that includes complex motivations, some openness to new approaches, and capacity for reflecting on the conditions which structure and constrain criminal justice practice. This suggests the reflexive judge may be an important vector of penal change and there are implications for judicial training, penal reform and for the dissemination of criminological and criminal justice research.