| Death penalty abolitionists who ground their claims on either comprehensive ethical theories or the Supreme Court's 8th and 14th Amendment jurisprudence face philosophical and rhetorical disadvantages. In response, I develop a theory of abolitionism that shows what is wrong with capital punishment with respect to certain features of the concept of law. I argue that if we properly identify the source of legal normativity, we discover that normative legal institutions must incorporate procedures for revising prior legal judgments. This result shows that law and capital punishment cannot coexist, insofar as death is a punishment that cannot be revised in principle.; I begin by criticizing H.L.A. Hart's positivist account of legal normativity, showing that his derivation of normativity from legal actor's commitments to their institutional roles fails to distinguish legal institutions from gangs of gunmen. To develop a more satisfactory account, I argue, we need to adopt Immanuel Kant's strategy of deriving legal normativity from a general account of normativity in practical reasoning. This strategy enables us to see how everyone has a reason to commit themselves to law, even if they have no reason to blindly obey it. Although the rest of the dissertation retains much of the form and substance of Kant's theory, I argue that his work requires one crucial supplement. For Kant, the constraints that practical reason puts on actions are expressed as duties. But sometimes we ought to do things we have no duty to do; sometimes I ought to give a homeless person money, even though I have already met my duty of beneficence for the day. Emmanuel Levinas accounts for this phenomenon by arguing that normativity has its source in our singular responsibilities for others. I build on Levinas' insight, showing how this singular responsibility is the ultimate source of legal normativity. After tracing how this model of normativity is expressed in specific U.S. legal practices, I show how it generates my argument against capital punishment. |
