The law of penology and criminology "I can’t breathe" : a legal philosophical appraisal of the need to hamornize the law in Uganda
“If a law is unjust, a man is not only right to disobey it, he is obligated to do so as a test of legal validity, any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority “Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their rights and withhold justice from the oppressed of my people, making widows their prey and robbing the fatherless.” ~ Isaiah 10:1 Recent developments in the law have occurred against a background of mounting public anxiety about violent street crime. Leading politicians have proclaimed crime a priority rivaling even inflation and defense. As the sense of urgency intensifies, the desperate search for answers quickens. Virtually every day, a politician, editorial writer, or criminal justice professional offers a new prescription for ending crime. I believe the discussion currently raging over justice issues can best be understood by focusing upon a central question: Must we compromise the most basic values of our democratic society in our desperation to fight crime? I have elsewhere considered the implications of this question for issues of criminal responsibility and for policy choices in the administration of justice. In this book, I will examine the ways in which different answers to this fundamental question can affect the development of legal doctrine, particularly with respect to the constitutional rights of those accused of crime. Proﬁciency in law involves a number of different skills and competencies. It requires knowledge of the rules wherein the elements of criminal offences are to be found. It requires knowledge of the rules of evidence and procedure. It requires an ability to identify the rule(s) applicable to a fact situation and to apply them logically and coherently. Attaining these latter competencies is necessary to discharge effectively the day-to-day tasks of a criminal lawyer solicitor, advocate or judge. However, true mastery requires something further. It requires also a critical and evaluative attitude. The law in action is not just a matter of doctrine , it has its purpose that is the delivery of justice and criminal justice which are a contingent outcome in which rule, process and context all play their part. It is not simply a logical description of what happens when rule meets (prohibited) event. Understanding the law requires, therefore, an appreciation of the day-to-day workings and constitution of the criminal justice system. Moreover, it requires an understanding of the resources of the criminal law to produce substantive justice. If the mechanical application of a given rule to a fact situation acquits a dangerous or wicked person, or convicts someone neither dangerous nor blameworthy according to ordinary standards, the law may be considered not only ‘an ass’ but as confounding its own rationale. Understanding this “I CAN’T BREATHE” A LEGAL PHILOSOPHICAL APPRAISAL. rationale is also, therefore, a necessary preliminary to understanding the law itself since it will inform a realistic appreciation of what can be argued and what cannot. At its most basic, to know what the law is may require an understanding of how to produce cogent and principled arguments for change. This book seeks to examine the rules of the law in an evaluative context. It concerns itself with what makes a crime, both at a general theoretical level and at the level of individual offences. It addresses what the law is and, from the point of view of the ideas, principles and policies informing it, also what it ought to be. We will explore some general matters which will help to inform such an evaluative attitude, the principles and ideas informing decisions to criminalize will be considered. What is it, say, which renders incitement to racial hatred a criminal offence, incitement to sexual hatred a matter at most of personal morality and sexual and racial discrimination a subject of redress only under the civil law? This book examines punishment and the theories used to justify it. Although this is the subject-matter of its own discrete discipline, namely penology, some understanding is necessary for the student of law. It provides a basis for subjecting the rules of criminal law to effective critical scrutiny. If we have a clear idea of why we punish, we are in a position to determine, for example, what fault elements should separate murder from manslaughter, or indeed whether they should be merged in a single offence. Without such an idea our opinions will, inevitably, issue from our prejudices rather than our understanding. Individual offences themselves are covered and although elements of these offences vary, they have certain things in common. In particular, they require proof of some prescribed deed on the part of the offender unaccompanied by any excusing or justifying condition, together with a designated mental attitude, commonly known as guilty mind. Since this model of liability (conduct–consequence–mental attitude–absence of defense) is fairly constant throughout the criminal law these separate elements and the ideas informing them will be explored in before we meet the offences themselves, so as to avoid unnecessary duplication. Finally, we will examine how criminal liability may be incurred without personally executing a substantive offence, whether by participating in an offence perpetrated by another or by inciting, attempting or conspiring to commit a substantive offence. Before tackling these issues we will, examine some general issues pertinent to understanding the law and its operation, concentrating, in particular, upon the philosophy, workings and constitution of the justice system.