Friday, November 13, 2009

Pain and Gain in Criminalisation

Criminalization is the process of defining an act to be a crime. An act becomes a crime when it causes harm to 'others' or the society or both, but all harm causing acts are not crime, only such acts which cause harm above a certain benchmark are crime. In this post, I will be analyzing the process of criminalization of an act, on the basis of Bentham's analysis based on the concept of pain and gain(basically another name for the cost-benefit analysis!!).

The process of criminalization takes place in two steps, both consisting of the pain-gain analysis. The first step is as follows, suppose an act A is under contention for being criminalized by the requisite authority. The authority should analyze whether the the pain caused by the act to the society or to the individual (against whom the act was done), as the case may be, is greater than the gain or the pleasure that the actor gets when he commits that act and only if the pain is greater than the gain, then such an act may be criminalized.

The second step is that, after the first step has shown that the act can be criminalized, then the authority should do an analysis of whether, the gain to the society from the criminalization of this act is greater than the pain from criminalizing this act, and only if it is proved to be so, then such an act may be criminalized.

The process of criminalization is followed, by the process of fixing the quantum of punishment for the crime. This again can be done by a pain-gain analysis. The basic funda here is, that the punishment should be such that the pain from the punishment should be greater than the gain for the actor from such an act, as only then will it have a detrimental effect on the crime scene, and as one of the aims of criminal law is reduction of crime in the society, such an analysis is necessary.

Wednesday, November 4, 2009

Adversarial System v. Inquisitorial System

There are two systems in jurisprudence, which define the method in which courts come to their decisions. The first one is adversarial system, in this system, the judge hears the arguments of the councils of the two parties and gives his decision on the basis of the arguments presented before him. Stricto senso, it means that the judge has to base his judgment on the arguments presented before him and the mind of the judge is supposed to be a tabula rasa that is a blind slate.
Whereas, in the second system which is known as the inquisitorial system, the judge can inquire into the facts of the case and is not bound to base his decision on the arguments presented by the counsels of the parties in front of him.

The adversarial system in my opinion is based on the assumption that both the counsels would present the best arguments for their respective clients and as the interests of the two clients are completely opposite, so these two sets of arguments will cover the most important aspects of the case. Whereas the inquisitorial system does not accept the above stated assumption. In my opinion this approach of the inquisitorial system is more suitable for the final aim of the courts to do complete justice. This opinion is based on the following argument, the adversarial system basically assumes a hundred percent efficiency in the system of presentation of the best arguments for both the parties, this in my opinion is not a valid assumption because, many a times the counsels for external considerations might not present the best arguments in front of the courts or maybe even if they do not do so intentionally it may be a result of the wrong understanding of law or that they overlooked some fact or legal position. My basic argument is that the system of presenting the best arguments is not a hundred percent efficient in the presentation of the whole picture and hence the courts should not base their judgments only on the arguments presented before them.

I will now present, two examples of the inefficiency of the adversarial system, the first example is the BMW case, in this case, the counsel for the prosecution was seen accepting bribe from the defense counsel for throwing away the case. This in my view is the best example, where the adversarial system will result in an information asymmetry and the courts will end up giving a judgment which is not in the interests of justice, equity and good conscience(Copyright Law School Lingo).
The second example is that of the Nikita Mehta case. I am using this case, to show that many times even if the best and all possible legal arguments are presented before the court, still if the judgment is based only on these arguments, the court still might not give a completely just and equitable decision. Let us suppose that the counsels in this case, presented the complete set of legal arguments possible in this case, and the judge based his judgment upon those arguments, then as this case is about a act which has other social ramifications, the judge in my view should have taken social arguments into consideration as well, but as such arguments are generally not presented and hence in a adversarial system not taken into consideration, so the judgment might not be fully correct. In my view the judgment given in this case suffers from this defect, as the judge did not consider the social ramifications of his judgment, the ramification being that the judgment will result in increase in spate of illegal abortions as couple's will now be hesitant to come in front of a system, which aims to apply its anti-abortion laws by the letter, not taking into consideration aspects other than those in medical in nature for allowing abortion.

Thus, on the basis of the above arguments, I would like to conclude that, a judicial system is better off not following the adversarial system, but rather following a mix of the adversarial and inquisitorial or only the inquisitorial system, for fulfilling its aim of meting out complete justice.

Wednesday, October 28, 2009

Naz Foundation and Morality

Naz Foundation judgment is a very important judgment in the Indian context, because it seeks to decrease the taboos and secrecy surrounding the LGBT group. This is important because, as is true for most if India, just by assuming that the LGBT community does not exist in India(which is incidentally what most of Indians think today) is not good. So, it was necessary for the state to do something about this, it is so because of the basic fact that, these people are members of the Indian state and it is the duty of the state to ensure these peoples rights.

In my view this could be done only by the Judiciary. It is so because, as India is a democratic country, so the popular government will never go against the 'morals' of the people and do something like pushing for legalizing LGBT behavior. This is true in my opinion, for all true democracies of this world, and hence the courts should be looked upon as harbingers of social reform as well. And hence the judiciary had the duty to push for something like this because it strives for justice and equality.

Now, coming to the question of Naz Foundation and morality, there can be two kinds of morality that one is talking about. The first one is critical morality, which defines the set of morality which is right per se. The second is conventional morality, which defines the set of morality which is right because the society thinks it to be right. In my view this judgment is in congruence with critical morality but is in opposition to the conventional morality standards. This is based on the following arguments,
Firstly, by critical morality, we mean something which is moral because it is moral per se. Now, in my humble opinion the question of sexuality is a personal matter and the state or the society should have no say regarding that as it is against the ethos of critical morality. It is so because of the state or the society enforces its view in personal matters, then it is treading upon the person's liberty and hence it is against critical morality. The assumption being that, protection of personal liberty is a part of the set of critical morality, an assumption which is reasonable in my opinion.
Secondly, regarding conventional morality, the correctness of my statement is obvious from the fact of the amount of societal taboo attached to the LGBT community. Hence, we can state that that the judgment is against conventional morality.

Thus, we see the morality axis of the Naz judgement. But, it is important to note that, the court side-stepped the whole question of morality, by stating that it is only 'constitutional morality', that they take into consideration. Though it was a very smart step on the part of the judges, but in my humble opinion it prohibits the scope of the courts in future cases of social reform. It is so because, if the court restricts its mandate to just 'constitutional morality', then it might have to go by the dictates of the government. This is so because, 'constitutional morality' can be changed by the government by the power of amendment, and if the government is so opposed to a judgement related to social values, then it can change the Constitution to suit its needs, and as the courts will only accept arguments regarding 'constitutional morality', so it will be in a sense dictated by the government and hence will become a 'popular court'. Now, it is problematic because, when this is seen in the light of the argument that courts are the harbingers of social reform amongst the three different branches, we see that the courts are restricting their own powers and hence state sponsored social reform will become even rare.

To conclude, I would like to state that it though the judgment is a great step forward, but the reasoning of this judgment should be changed, so as to accommodate the concept of 'critical morality'. I would like to add, that this would reinforce the status of the courts as the harbingers of social reform as 'critical morality' is a set which can never be fully defined and hence the courts can define it on case to case basis and lead us to a more just and equitable society.

Thursday, October 22, 2009

CRITICAL MORALITY v. CONVENTIONAL MORALITY

Critical Morality: Morality regarding what is in fact right/moral; it does not depend on the societal idea of morality.

Conventional Morality: The morality which depends on the community’s mindset and culture.

By my limited understanding, the following points are worth noting,
1.Critical morality always existed as a truth, in a way it can be taken as the ‘grundnorm’ of morality. Whereas conventional morality changes in consonance with societal changes.
2. To explain it with an example, in 1800’s, sati was moral by the standards of conventional morality prevalent at that time, but even then it was immoral by the standards of critical morality.
3. The basic funda is, that critical morality is like a complete set in itself and it has always been present throughout the time space continuum, but the degree of its discovery has been changing throughout this continuum. Whereas, conventional morality is completely dependent on the societal values and hence is an ever changing set.
4. To explain the above with an example, till the time it was propagated that earth revolves around the sun, it was understood that the earth goes around the sun, but the fact that the earth goes around the sun always existed irrespective of the views held by the majority of human race. So, the fact that something is moral/immoral has always existed(critical morality), irrespective of what the majority of humans at that time think about it(conventional morality).
5. As far as X’s point goes that, if A=B was a part of earlier critical morality and later A#B became a part of critical morality, there can be two cases,
Firstly, if we can say that A=B and A#B is complete knowledge that is possible regarding A and B, then in such a case, X’s thesis that one of them will not be a part of the set of critical morality will hold true. It is because, critical morality as has been defined above cannot contain two mutually contradictory moralities, even if they are separated by the time continuum.
Secondly, if we cannot say that A=B and A#B is complete knowledge regarding A and B, then in such cases, X’s thesis cannot be held true because, that thesis is only true if the degree of discoverability of critical morality regarding A and B is 100 percent, which it isn’t.
My humble submission is that, as proving that one has complete knowledge is not possible, hence though X’s thesis is sound in theory it has very little practical application.