Contributor's Daniel Juol Opinion




July 29, 2017(Nyamilepedia) —– Retributive justice is a theory of justice which holds that the best response to a crime is a suitable punishment, inflicted for its own sake. The only goal in retributive justice is punishment. According to the Stanford Encyclopedia of Philosophy, retributive justice is committed to the following three principles—

(1) “Those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment;  (2) it is “intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives [those who commit certain kinds of wrongful acts] the punishment they deserve; and (3) “It is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.”

As seen in the definition of retributive justice and its principles above, retribution justice is wider than death penalty which means that any punishment that involves an eye of an eye approach is retributive justice. For this reason, death penalty is part of it.

Retributive is enforced through punishment provided in the criminal law. Thus, this justice holds that when an offender breaks the law, justice requires that the criminal suffer in return. This indicates that law and justice go supplement each other. Since, law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior, justice sees that law is obeyed.

Hence, law is a system that helps regulate and ensure that a community shows respect, and equality amongst themselves. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions.

The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politicseconomicshistory and society in various ways and serves as a mediator of relations between people.

This shows that the law is a product of people’s culture, customs and activities.

In reference to the above, law is created out of the long standing practices of the communities in a given location. This is why law is viewed as that element which binds the members of the community together in their adherence to recognized values and standards. Values and standards allow individuals to establish their own legal relations with rights and duties, as seen in the creation of contracts, and at the same time provide coercive aspect as seen in the case of criminal law that punishes those who infringe its regulations.

The law is effective in regulating the conduct because it consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. In order to make people obey the law it has to have sanction, which attaches punishment that may be corrective, retributive or in any other forms.  

However, in order to be effective, the law must take into account the stage of the development of the people, their values, norms, social relationship and understanding of the crimes by that particular community in which the law is intended to govern. Durkheim in his Book entitled Division of Labour in Society (1893) refers the above facts as social facts. According to Durkheim social facts are “sui generis” (meaning of its own kind; unique) and must be studied distinct from biological and psychological phenomenon. Thus, Durkheim defines social facts as patterns of behavior that are capable of exercising some coercive power upon individuals.

To Durkheim social facts are guides and controls of conduct and are external to the individual in the form of norms, mores, and folkways. Hence, “a social fact is identifiable through the power of external coercion which it exerts or is capable of exerting upon individuals” (see; Durkheim, [1895] 1982, p. 56).

As Durkheim has observed above, it is through socialization and education these social facts become internalized in the consciousness of the individual. These constraints and guides become moral obligations to obey social rules and eventually, the law.

Durkheim in the same Book identifies two types of communities that still exist today in general and they in particular exist in Gok State. These are traditional (pre-industrial societies) and modern societies. However, the focus of this work is traditional societies.  Traditional societies as Durkheim identifies are held together through mechanical solidarity. This “solidarity comes from likeness and is at its maximum when the collective conscience completely envelops our whole conscience and coincides in all points with it.” In other words, mechanical solidarity is a social bond that exists among the members of the traditional societies as it is seen in Gok State.

In that regard, mechanical solidarity occurs in early societies in which there is no much division of labor. Such societies are relatively homogenous, men and women engage in similar tasks and daily activities, people have similar experiences. In such societies the few distinct institutions express similar values and norms and tend to reinforce one another. The similar mechanical solidarity is also seen in Gok State communities.

Therefore, the norms, values, and beliefs of the society (or the collective conscience) are so homogenous and confront the individual with such overwhelming and consistent force, that there is little opportunity in such societies for individuality or deviance from this collective conscience.

Thus, according to Durkheim, traditional cultures experience a high level of social and moral integration and there is little individuation, and most behaviors are governed by social norms which are usually embodied in religion or culture. This can also be seen in Gok Communities.

By engaging in the same activities and rituals, people in traditional societies shared common moral values, which, Durkheim called a collective conscience. In these societies, people tend to regard themselves as members of a group; the collective conscience embraces individual awareness, and there is little sense of personal options.

As a result, any wrong committed by one member of the group is seen as the wrong of the group as a whole.  This is because there is no differentiation of individuals from the group. In such a case, if one member of the group commits wrong against the member of the other group, then, the innocent member within this group where the one who commits crime against the other group is a legitimate target from the group whose member was killed or injured. This explains the rampant revenge killings in Gok State.

The revenge killings are common (as seen in Gok State) because a group is seen as one person and a member of the group is seen as a part of the group. This is because the group is homogenous with a strong conscience, which is cemented by high internal unity and coexistence. This kind of group has strong unified values and pride.  Nonetheless, the members of such a group do not respect the external members of the group that does not belong to theirs. This kind of the group tends to be barbaric and backward.

Thus, in order to effectively govern the kinds of traditional communities as discussed above, the strong and harsh law must be applied as a matter of necessity. This is the reason Durkheim prescribed penal or criminal law as an appropriate law in such a society. This type of law has strong deterrence psychological effect. Due to such effect, it can easily control the group as a whole and hence reduces a tendency of the revenge.

In relation to Gok State communities, there is a need to introduce strong law or strictly enforce that carries death penalty so that the members of the communities are controlled and with time reformed. As it has been seen in the recent wave of killings in Gok State, our communities love retributive justice and it is because of its failure that led to the revenge killings.

Moreover, looking at their mentality which is set on retributive justice, then, it becomes the most desired type of justice and it should be administered as they wished. The main reason the communities like Gok State communities respect the law and each other is not because they value the law or the lives of the members of other communities but because they fear that if they kill other people then they can also be killed, hence, they respect the law.   

In fact, all the countries which are highly developed as seen today had one time used extensively the death penalty in the governance. For instance, in the United Kingdom, there is archaeological evidence showing that the death penalty was frequently imposed in the eleventh century (see; Patrick Wormald (1998). “Frederic William Maitland and the Earliest English Law,” Law and History Review 16 p. 17).

In confirmation to the above, Peter Seddon who carried out extensive research into the history of the UK criminal law on death penalty found that in 1705 the UK government used to hang as many as 24 men at a time in front of baying holiday crowds (see; Seddon, Peter (2015). Law’s Strangest Cases: Extra-ordinary but True Stories. From five centuries of legal History.  Portico 1 Gower Street. P.24).

In relation to the above, the different countries today still maintain death penalty. The case in point is the China, the USA and other countries in Africa and Asia. The reason for maintaining death penalty is not that these countries love to kill people but death penalty is one of the best types of justice that can be provided in certain situation.

It should however be stressed that the only problem with this type of justice is that if it is applied wrongly or selectively, it can result into more injustice than what it was trying to prevent. This is why it is not working well in Gok State. Indeed, injustice is already done in Gok State due to the fact that death penalty was applied selectively.

Therefore, death penalty is not achieving its objectives in Gok State since it is applied selectively. Nonetheless, this does not make the whole concept to be wrong. What is therefore needed is that once this type of justice is applied then it should be applied consistently and equally unless a person is pardoned by the leadership of the country.  

In conclusion, based on the discussion in this article, it can be clearly stated that justice has nothing to do with how many types of justice one knows but what type of justice is most appropriate.  In South Sudan and in particular Gok State the most appropriate justice is retributive justice. At stage in which our societies are the retributive justice warrants at best a system of control and reforms. This is because the core of the idea of retribution is the moral notion that the wrongdoer ought to be punished. ‘At the heart of retributivism is the contention that it is the wrongness of the criminal act that justifies the imposition of punishment on the offender’.

The Author is a lawyer by profession; he graduated with honors in law from Makerere University Law. He participated in various works and training in community mobilization in awareness of their constitutional rights in Uganda. He is the member of Public Interest Law Clinic(PILAC) and NETPIL (Network of Public Interest Lawyers) at Makerere University; he is currently doing research with NETPIL on private prosecution; he is trained in Alternative Dispute Resolution (ADR);  he participated in writing  Street Law Handbook on Economic, Social and Cultural Rights in Uganda. He is practising with Onyango and Company Advocates Bunga—Ggaba, Road Kampala He is currently staying in Kampala Uganda where he is undertaking bar course training. He can be reached through: juoldaniel@yahoo.com or +256783579256.

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