By: Ajit Singh Sidhu (University of London) & Aryamanya Rodrick (Bishop Stuart University, Uganda)
ABSTRACT
As law students, we are well informed that the importance of the Law is to care and address the intentions and purposes of the legislative body (Legislature). Therefore, from the above purpose, the law should be founded upon the principles and values that are permanent, uniform, universal, conformable to justice and its facets and also not forgetting the feelings of humanity, and the indelible rights of a human being.[1] The common law judicature courts (England) in the realm of criminal law are not effective in deciding cases as it has an absurdly harsh view with regards towards the defendants in defences. As the courts believing in the archaic notion of; “it’s better to suffer than be the cause of suffering,” in a way that certain crimes cannot be forgiven since [deontology] has influenced some of the defences to be held absurd. However, this in turn leads to many issues inter alia; predominant inequitable treatment of the defendants in litigation which brings forth an irony while considering the fact that the judicial system prides itself with the foresight of ‘equity and fairness’, when the courts themselves treat the defendants inequitably due to this notion. For that matter, this article will discuss; the meaning of deontology and utilitarianism, with references to the defences raised in various cases in order to show the absurd results and the reason to why utilitarianism should be embraced.
INTRODUCTION
Blackstone identifies a peculiar tension resting at the juncture of law and morality. As Blackstone notes, rights are “indelible.” Where a right exists, morality prohibits its violation. This prohibition extends even –and perhaps especially –to situations in which greater good can be accomplished by violating a right.[2] Deontology generally means the theory of moral obligation, and, by connotation, encompasses moral theories that emphasize the rights and duties. Also, Deontology may refer to a philosophical view that certain action done are not justifiable and are considered morally wrong. Deontological theories include moral theories of a vaguely Kantian stripe. Kant held that one should “act” in such a way that [one] always treats humanity, whether in [one’s] own person or in the person of any other, never simply as a means, but always at the same time as an end.”[3] A good example and contemporary one is; a fictional scenario in Avengers Infinity War when “Thanos” tried to destroy half of the world’s population for the great good of the plant which may encompass things as not stealing, killing or anything that is viewed as unsavoury to society. This would contrast utilitarianism by Jeremy Bentham and J.S .Mill where it would be ok to do the unsavoury act for the greater good. A real life example would be in “Bush Presidency” where by the shooting of the plane during the attempted attack on the Pentagon during 9/11 was justified despite the brutality and loss of civilian life in the plane.
Now it can be seen that the UK and the US to some extent follows the deontology theory while raising/claiming defences in such cases, whereby there is brutality involved as opposed to utilitarianism. As seen in R v Dudley and Stephens[4], by Lord Coleridge CJ, it was held that the killing and eating of a sick cabin boy to save the defendants was not a defence. Similar in R v Axtell, “where treason was not a defence to protect the victim if it involves killing the Monarch. More still, in US v Holmes[5] by Baldwin CJ: -it was held that the throwing of some the passengers overboard to prevent the boat from being swamped. Even in minor cases like Southwark LBC v Williams,[6] in this case the defendants were in need of housing, both having been forced to leave their current lodging, the defendants were chased from the houses they latter occupied and they could not rely on the defence of necessity to their trespass of the properties. Even though authority existed supporting the view that in extreme circumstances the preservation of life allows encroachment onto private property (Mouse’s Case (1609) 12 Co Rep 63), the facts could not support the appeal and it was dismissed. However, courts would generally try to use policy as a reasoning or a hypothetical argument ie; Lord Denning’s argument on policy of Pandora box though it is observed in these cases where the courts generally decide in a pro-Deontology view that is influenced by the Anglican /Christian view of murder being unacceptable.
It can be submitted that the courts should and ought to adopt a more of utilitarianism. When Jeremy Bentham, one of Utilitarianism founders, first coined the word in 1814,[7] “deontology” referred to the marshalling of self-interested reasons for agents to act for the general good.” Essentially, this was a utilitarian theory of obligation, and was quite distinct from modern use. As looking at the precedents above it can be deduced that the defendants did not enjoy, in fact they did not want to do the illegal acts. Rather if a better alternative was given, the defendant probably would have chosen that route rather than performing that act. This was supported by the Carrado “The Theory of Excuse’ and Robinson “Criminal Law Defences; A systemic Analysis”. This is why in certain jurisdictions like Italy, her Penal code Article 52 allows it to be a complete defence. Similarly, with the penal code in Germany as per sections 49 and 50.
Modern deontologists focus much attention on rights.[8] It might be thought that this focus is merely a preference, for rights are often taken to be correlative with duties. For example, where this relation holds, if I have a right not to be punched, you are under an obligation not to punch me, and conversely. Thus, deontology may be articulated through either related elements. Deontology is limited in principle.
CONCLUSION
With the above, the courts of the common law jurisdiction ought to decide in a more utilitarianism view and be more compassionate to the defendants who committed the offence when it was necessary to be done. If other jurisdictions like; Germany and Italy could do and accommodate it, so to why not the English courts. Even if deontology were ideally contextually sensitive and epistemically sound, it still would be theoretically insufficient. Therefore in a nutshell, deontology simply is not a comprehensive moral theory, and thus cannot exhaustively account for our moral intuitions.
RECOMMENDATIONS
A good recommendation for the courts could be to approach cases with not only a utilitarian perspective, but also with references to the cases as above where the defendants did not have the cold blooded to commit the malice but instead are pressured to do so. In addition, it would be an irony if the courts themselves uphold the concept of equity, yet they are not flowing in the waves of equitable lines [in this very context, the courts would have behaved inequitably].
The Judges and the Jury alike should also go for training as a solution to be more sensitive to defendants who have committed a crime and at same time be more compassionate on deciding cases. In addition, the legislative and executive bodies ought to pass a legislation where the courts ought not convict a person who committed a crime in a necessity capacity as illustrated above and rather let them be free due to the prevailing unavoidable circumstances.
Also, as a social change I would urge the society to be more understanding to the defendants of a crime since it is needed in a way that it can be deduced that one of the reasons judges convicted the defendants was due to societies’ influence/pressure, bold thirsty view towards those who committed crime. More public awareness campaigns should be made to be more compassionate to both parties in situations like this, schools and parents ought to teach this too as a way of transforming the younger generation in order /with the view to understand that most people do commit a crime out of necessity, not for the fun of it or with the criminal law factor of intention (mens rea).
[1] William Blackstone, Commentaries*2. [2] See SAMUEL SCHEFFLER, THE REJECTION OF CONSEQUENTIALISM 80-114 (1982) [3] IMMANUEL KANT, GROUND WORK OF THE METAPHYSIC OF MORALS 96 (H.J. Patontrans., Harper &Row 1964.) [4] R V DUDLEY AND STEPHENS (1884) 14 QBD 273 DC [5] US V HOLMES (1840), 26 F. Cas. 360 (C.C.E.D. Pa.1842) [6] SOUTHWARK LBC V WILLIAMS &ANOR. [1971] Ch.734. [7] See Amnon Goldworth, Introduction to JEREMY BENTHAM, Deontology together with a Table of the springs of Action and the Article ON Utilitarianism. [8] JOEL FEINBERG, RIGHTS,JUSTICE, AND THE BOUNDS OF LIBERTY (1980)
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