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Opinions of Thursday, 17 July 2008

Columnist: Acheampong, Emmanuel Opoku

Instant Justice: A Startling Illogicality

Nothing presents itself as much a bewildering paradox as the action popularly so referred to as “instant justice”. It consists in the activities of individuals who upon suspicion of a violation, purport to circumvent, and does circumvent the objective criteria for determining such violation by substituting their own notion of what they consider as punishment for that of authorities exclusively mandated by law to determine the violation. Various arguments have been advanced in support for and against the practice; some ranging “from the sublime to the ridiculous.” I will however not venture into the substance or merits of opposing viewpoints. My task is merely to address the issues as objectively as I can so that emotions and sentiments which are products of violations, and which sustain the impetus for mob actions do not themselves contribute to upsetting the social foundation. Consistent with this premise, I shall proceed to address the issues from three different perspectives.

Mob action: A product of intense criminality?

I have on more than one occasion had the opportunity to restate the inalienable and incontrovertible fact that a society totally exempt from criminality is utterly impossible. A society is conducted along normative rules which are intended to regulate human behaviour and introduce predictability into the conduct of its affairs. These normative rules, expressed as rules of conduct are designed to serve as a mental construct to the individual in pursuit of his fundamental interests, and in pursuit of his personally systematised schemes. Yet, in the regulation of society, certain individuals will inevitably hold in subversion these normative rules in substitution for their personally systematised schemes, thereby ceding the authority of the rules to personal interest and desirability. This means then that the normative structure which lies at the base of behavioural regularity will certainly and continually be subject to strain by individuals whose activities may be deemed as falling beyond communally accepted moral boundaries.

However, for the normative structure to correct itself so that it does not become disruptive to the normative rationality of society, it is imbued with an inherent counteractive trait that enables it to suppress any violation to its authority by prescribing a form of social repression commensurable to the violation. Thus every normative violation has as a corollary, a form of social repression proportionate to that which is determined by the collective sentiment of society. The collective sentiment exciting against a particular violation therefore determines the extent or degree to which it would be so repressed by society. For example, the offences of robbery and stealing offend the same altruistic sentiment of taking that which belongs to one’s neighbour; yet, the collective sentiment exciting against robbery is so exacting that it confers on it [robbery] a disproportionately graver form of social repression relative to that of stealing.

In this light, if the collective sentiment exciting against a particular violation is deemed as disproportionate to the degree of social repression attached to it, the human consciousness, the originator of the collective sentiment would inevitably devise extraneous means of repression it considers as perpendicular to the offending act, thereby circumventing the socially sanctioned repression attached to the violation. This represents the underlying pillar of mob actions.

However, this could scarcely justify support for mob activity since such a conclusion would mean that incremental crime that distorts the correlative equilibrium in the rate of criminality ought to be attributable to disproportionate social repressions relative to violations. In other words, the import remains thus: unless it could clearly be shown that social repressions are disproportionate to offending acts, the rate of criminality could have no correlation whatsoever with legal authorities exercising power of legally repressing violations.

For example, the increasing incidence of robbery excites such greater collective sentiment against the offence, requiring in the view of society, a corresponding greater degree of social repression to fulfill or satisfy the moral opprobrium exacting against it. If therefore the anticipated degree of social repression is incommensurable with the degree of collective sentiment exciting against robbery, the moral opprobrium enshrined in the collective sentiment will exact itself so much against other venial offences that with time it would inevitably by extraneous means, confer upon these offences the same degree of sentiment and exact from them the same extraneous form of repression it would otherwise have applied to robbery. This explains why the mob will descend upon and kill a petty tomato thief much the same way they would for a robber.

But can the buck of blame be laid on the doorstep of legal authorities tasked with determining repressions proportionate to violations? Hardly not: for it is not uncommon to hear reports of judges convicting and sentencing offending robbers to proportionate degrees of high sentences which can by no means be divorced from the degree of collective sentiment exciting against the offence. With no compelling evidence then to support the conclusion that social repressions of violations are disproportionate to collective sentiments exciting against them, the claim that the courts contribute to the growing spate of mob actions is not only untrue and facile, but flies in the face of express conclusions to the contrary. Now, if the courts cannot be faulted in this regard, what then could be the cause?

Mob action: An affront to the law’s authority

As I have severally stated, the law’s ability to sustain its authority and affirm its boundaries lies in its ability to reassert itself. This means then that the law must not countenance any affront to its authority no matter how rational or socially acceptable such a violation may seem. Should the law subordinate its authority on account of increasing criminality, so that owing to such condition, it withers in its assertive authority because society has developed normative acquiescence to certain prohibited acts, could society then be regulated if the law cannot reinforce such authority and assert its boundaries because certain social conditions or results are considered desirable or acceptable by certain sections of society?

Does the law not commit the determination of violations to certain individuals exercising authority in sustaining the law’s prohibitive function? So therefore, if in consequence of a violation, a suspect is denied access to these legal authorities under the thin disguise of increasing criminality and subjected to horrifying ordeals expressed as “just” punishment, what should preclude the law from asserting its predominance over such manifest disregard to its authority?

The expression of the law as a prohibition is to compel the individual to cede his personal desires to the collective will enshrined as socially systematised schemes of conduct. Thus emotions and sentiments, no matter how endearing or compulsive cannot operate to stultify what is expressed as a prohibition; for the liberty and dignity of the individual remains sacrosanct regardless of a violation, and that conduct which the human consciousness visualises as offensive to itself can only be so expressed in line with what society views as proportional repression. Anything beyond that constitutes a violation not only to the authority legally so endowed to determine the violation, but also of the law’s authority for which an assertion of its dominance is required to accord efficacy to such authority.

If the individual who considers his liberty as inviolable does not himself respect that of his neighbour, but invests himself with unlawful authority to dispense such trespass so as to cause the death of an offender, could such individual be clothed with moral authority to assert his liberty should a lawful authority engage in conduct likely to detract, or does detract from his dignity as a human being? What would impel a police officer for example, to accord dignity to a suspected offender if the citizen himself possesses an unwavering propensity to subordinate the predominant authority of the offender’s liberty? Clearly, the correlation between progression in mob attacks and the equally progressive withering of police disrespect for individual liberty cannot be discounted; for what could better motivate a police officer to subordinate the law than a society that has developed normative acquiescence to wilful and blatant disregard to individual liberty?

I submit on the strength of the analysis that the continuous thriving of mob activity is attributable not to the misconceived notion of spiraling criminality, but of the law’s atrophied character, and of its inability to assert its authority, largely attributable to police indifference in arresting and prosecution transgressors.

Mob action: A restraint to criminality?

One of the arguments advanced to rationalise mob activity is the contention of it being a response to defects in the criminal justice system. While this may sound appealing from a subjective standpoint, it can barely submit to a critical and objective reasoning such as to expose the shallow foundation on which such an argument is constructed.

First, for a thing to be expressed as a substitute to another, it must be so expressed in cognition that the substituted item intends to remedy certain mischief in the original item for which the intended substitution is warranted. Therefore, if defects in the criminal justice machinery are accountable for increasing criminality, thereby warranting substitution for mob activity to correct the said defects, then an inherent logical presumption is implied that criminality would be reduced on the advent of the substituted mob activity. However, glaring realities quickly emulsifies any such conclusions as the rate of criminality shows an incremental progression, thus invalidating any such argument which is nothing more than exalting a patent illegality.

Second, the argument pales further into oblivion when considered from the offender’s cognitive abilities. The criminal, like any reasoning individual, engages in calculated decisions in pursuit of his criminal activity; his possibilities of apprehension as opposed to his chances of success and his anticipated rewards being the most paramount. With the possibility of apprehension being a paramount consideration to the offender, he may rely on instrumental violence to defeat this restraint, which may further be reinforced if the possibility of falling to mob activity operates centrally to his mind. As a consequence, he develops such stronger and forceful predisposition to constrict his possibilities of apprehension that instead of the threat of mob activity constraining his initiative, it imbues him with stronger cognitive skills that disposes him to repress any condition or activity that might cause him to fall a prey to mob activity.

Now in the face of such indubitable conclusion, where then lies the logical position that mob activity represents the single most potent inhibition to criminal initiative? If any at all, the increasing threat of mob activity positions the individual (in his contact with the criminal) in an even more precarious and susceptible condition than he would otherwise have been were it not for the threat.

Conclusion

As has clearly been established, control of criminality lies not in subordinating socially sanctioned procedures for determining crime and their appropriate retributions, nor is it about substituting personal notions of punishment for the objective criteria for punishment determined by society. It lies in the desire of the individual to uphold the authority of the law, while not exhibiting extreme docility to political leadership, but to keep asserting his social and economic liberties inveterate to him, which is but the most rational and viable antidote to social inequalities considered as festering ground for criminality.

The writer is a student of law @ KNUST, Kumasi eoacheampong@yahoo.co.uk