近代國家的懲罰權是什麼？權力的型態又是什麼？懲罰又是如何被正當化？是本文主要要回答的三個問題。法學教育著重於法律如何被解釋，但攸關知識基礎的問題卻被忽視，所有的法律都在國家的背景中存在，但何謂國家卻是被存而不論的問題，甚至關於國家的靈魂—主權，更是模糊。故而本文將從考究國家的概念為始，確立近代國家的核心即為主權。續由對權力概念與其他概念如自由、秩序、權利等概念之比較分析。最後探討懲罰的意義，經由不同倫理學基礎，分別是義務論與目的論，探討懲罰的正當性依據，並分析各種現行理論與批判，並提出我國法學中匱乏的對於懲罰的探討，最後提出本文對於懲罰正當性依據的看法。
What is the power of Punishment in early modern State? What are the Forms of power? How is Punishment justified? These are the three questions this thesis sets as problems to solve. Our law education focuses on how law is interpreted, but the foundation of knowledge is yet been ignored, that all kinds of law exists in the background of State, but the question of “what State is” has been set aside as a question solved. Even concerning soul of State — Sovereignty, is vague as well. Which is why this thesis aims to. Find a the concept of State as a start, to establish the core of State is Sovereignty. Followed by comparative analysis of the concept of power with other concepts such as liberty, order, right. Finally, exploring the meaning of Punishment, through different basis of Ethics, deontology and teleology, finding out the foundation of the justification of Punishment, and analyzes theories nowadays and criticizes, then put forward discussion about punishment theory which is lacking in contemporary discussion. At last, states opinion of the justification of Punishment of this thesis.
