NATURAL LAW AND THE DECLARATION OF INDEPENDENCE 53
independently.
One well known theorist, Immanuel Kant,
believed that laws lacking moral support are not law, rather
only commands.
Law is one method by which society
demands certain action that corresponds with morality.
“When we credibly attempt to punish an offender who knows,
or reasonably should have known, that it was illegal to have
stolen, raped, or murdered, we are trying to tell him that his
actions matter to this community constituted by shared
laws.”
Basically, American criminal law creates and enforces
written law in order to avoid or prevent harm. Punishment for
non-conformity in an attempt to prevent harm is generally
summed into four categories: incapacitation, deterrence,
rehabilitation, and retribution.
However, these four
categories only penetrate so far when justifying punishment
for the death penalty; morality is the underlying theory that
provides authority for the notion that certain acts should
result in deterrence, incapacitation, rehabilitation, and
retribution.
Since morality is the basis of the aforementioned
punishments, the moral debate
is often the subject of
Id. at 369 (explaining that “Like morality, concepts of law ‘cannot
be understood in isolation from one another,’ although they can be
described discretely.”).
Id. (citing Allen W. Wood, KANTIAN ETHICS 108-09 (2008) (quoting
Immanuel Kant, LECTURES ON ETHICS, in Cambridge Edition of the
Writings of Immanuel Kant 27:273 (1992)).
Markel, supra note 9, at 427-28.
Mary Sigler, Contradiction, Coherence, and Guided Discretion in the
Supreme Court's Capital Sentencing Jurisprudence, 40 AM. CRIM. L. REV.
1151, 1154 (2003).
See, Markel, supra note 9, at 426. “In the past, retribution theorists
asserted that “the fact that a person has committed a moral offence
provides a sufficient reason for his being made to suffer.” Id. This
understanding of retribution as a purely interpersonal moral
doctrine has waned over time.” Id.
The moral debate extends in a multitude of directions. For
example, two popular, but contrary, views for defining driving
forces behind moral actions are utilitarianism and deontology.
“Utilitarianism, holds that morality is defined by the consequences
of one's actions or that increasing overall welfare generally equates
to doing the right thing;” Bronsteen, supra note 2, at 1130.
“[However,] deontology, [which] defines morality independent of