“Double deviance effect cancels out the consequence of Chivalry hypothesis”

In Criminology, those of you with bias in the subject remember very well that we looked at two theories, double deviance and Chivalry hypothesis. They are traced in criminology through the attitude of our criminal justice on how offenders, both male and female, get treated and how these two theories influence the outcome of the verdict and the  role played by them at any stage of the process. Does double deviance cancels the consequences of chivalry hypothesis. I have taken time to read through the materials that have dwelt deeply on the subject and here I am giving you in summary the outcome of my findings. I am not going to involve myself with the sociological side of it but I will focus on what criminologists feel about the theories.

Criminology has treated women’s role in crime with a large measure of indifference. This conception maintains esteem autonomy, intelligence and force of character while disdaining women for their weakness of compliance and passivity. Treating women who conform as pure, obedient daughters, wives and mothers who benefit men and society (Feinman 1946:16)

It regards women as weak, submissive, dependent and passive. Therefore women who do not, that is, are non-conforming, may simply be one who questions established beliefs or practices, one who engages in activities associated with men, or one who commits crime (Morris)

This brings to the general assumption that women are sentenced and punished more leniently than men. Their courteous attitude is one attribute on the part of the sentencers who may explain female offending in very different terms to male offending and who may be reluctant to send women to prison, especially if they have children.

 This attitude above is called chivalrous treatment. It entails the attitude that women are far less likely than men to receive a custodial sentence, are more likely than men to receive probation or discharges and, if given a custodial sentence, are generally given shorter sentences. (Hedderman and Hough 1994)

In chivalrous theory, there is a general inability to believe that a real woman could be capable of horrible, violent acts. Real women therefore can escape and spared from harsh treatment by our criminal justice due to their perceived feminine nature. Women are less responsible for their actions and therefore less culpable and less likely to pose a continuing danger to society. Therefore women do not enter criminal justice and if they do then the judge is expected to be more lenient on them.

However, chivalrous treatment, if it exists, is likely to be far more complex than the simple lenient treatment of all women.

Other criminologists argue that chivalrous treatment is part of a bartering system or exchange relationship in which lenient treatment is extended only to certain kinds of females, according to the nature of the offence but also according to adherence to proper gender roles. some of the examples cited are such things like being married, having dependent children and being a good home maker, these all may afford a woman lenient treatment. (Criminology, Chris Hale)

I came across an American case that confirms Hale’s proposition and not necessarily chivalrous treatment. In The United States of American case, the woman, Lizzie Borden, who murdered her parents, was portrayed by the media and the defence team as of good character, had no motive of killing either of her parents. The defence described her as a Christian lady, she volunteered as a Sunday school teacher from time to time and she was the treasurer of the local Christian Endeavour Society. Besides, she was also the second daughter of a respected and wealthy family. The defence maintained that she had a ring relationship with her father therefore it was unthinkable that she did not return that love. They could not find a reason for not holding her as such.  Lizzie could not possibly have killed a man who loved her so much.

The media painted Lizzie as the perfect lady with perfect woman like qualities. Her church work and faithfulness to her family were seen as proof of her womanly nature. She dressed like a lady and her clothes were discussed extensively by the press.

The verdict was that the all-male, all-white jury couldn’t convict a rich white lady. There was a general inability to believe that a real woman could be capable of horrible violent acts. (Yale J L & Human 1996)

The manner in which she was acquitted illustrates the core principles of the chivalry theory but may be just to agree with Chris Hale that it’s just a gesture of exchange relationship that lenient treatment is extended of which Chivalry is part of.

The criminal justice system seeks to make women treatable, since this neutralises the effect of their criminality and protects the gender stereotypes upon which social order is based. These social stereotypes are described as gender contract. The effect of which the woman’s life must be represented primarily in terms of its domestic, sexual and pathological dimensions. Thus, a woman will symbolically breach this contract by engaging in criminal acts. (Women and the criminal justice, Ivan Bacik)

This theory was heavily criticised by Pollak (1950) and others, they said that crimes committed by women went largely unreported or hidden. Women were particularly skilled at hiding their crimes due to female biology. He primarily put forward a view of women as inherently deceitful and vengeful, exploiting a flow of helpless victims and aided by men’s besotted chivalry (Heidensohn 1985)

Anne Campbell (1981) in support of this idea pointed out that female suspects were more likely than male suspects to be cautioned rather than prosecuted. Official statistics show that remains true. For Pollak, one of the reasons why female crime is low and underreported was that females used sexuality to instigate crime and then captivate males in the criminal justice system to secure them lenient treatment.

Double deviance deals with an evil woman, those who have shown deviance from notions of appropriate sex role behaviour. These may be dealt with more harshly than other women and indeed men. Unlike Lizzie Borden, evil women have no media coverage or support and decidedly not ladies. The press paints these women as sexpot, a cocktail waitress, curvy, comely, flame - haired and blonde and others who may describe them as housewife with hamster morals. They are evil women because they are more cunning and deceitful than men. They are more capable of hiding their crimes, or they are more capable of convincing men that they have done nothing wrong, further the sexual nature of women makes them demonic. (Women who kill, Jones Alan)

Double deviance is seen in women who violate the traditional views of what women are. These women fall outside of what the criminal justice system describes as appropriately feminine and they offend society with their unfeminine behaviour. Men dominate, women submit, for a woman to commit crime she needs to be unnatural, she needs to emulate men.

 Conceptually, researchers have had difficulty linking femininity to criminality which is hardly surprising given that feminist criminologists have long noted the double deviance inherent in female offending. That is female law breakers are deviant not only because they have broken the law, but also because their actions violate general expectations of feminine behaviour. (Rappaport)

With that opinion therefore we will have a problem noticing as to whether the judge has been influenced by the double deviance theory or not although it is a fact that every judge has his own predilection when it comes to sentencing.

However, the law is objective in the sense that there is no discrepancy in the definition of crime dependent on the sex of the perpetrator, therefore the possibility that gender has a bearing in society’s perception of crime, which may turn influence the sentencing procedure. The introduction of mandatory and minimum sentencing in the crime (sentencing) Act 1997 is a significant restriction on the judges using their discretion in the sentence. But this does not imply that judges do not use that discretion at all, but criminal attitudes have changed, the rate of women offenders have considerably gone up.

Baroness Wooton (BJS 2010) pointed out, given that the participation of women in social, business and industrial life has been increasing steadily, one might expect a commensurate development in their criminal activities.

In 1995 and 2005 the imprisonment rate for women in England and Wales increased by 175% compared to an increase of 85% for men. (UK Crimeinfo)

This alone suggests a greater readiness to sentence female offenders to imprisonment for less serious crime. This contradicts the chivalrous view point, whereby women are perceived to be treated more leniently because men do not consider them capable of being motivated by criminality and thus are reluctant to treat them harshly.

Women have become more men like due to the women’s liberation movement - a theory known as liberation thesis. Chivalry within the criminal justice system is diminishing due to feminist calls for equality in treatment (Adler, Simon 1975)^.

Progressive changes in status for women in arenas such as the family, marriage, employment and social position brought by the liberation of women allowed them to be crime prone as men. In the way women have become doctors and lawyers at the same time women have become burglars, forgers and terrorists.

As a result of the women’s liberation movement, criminal justice personnel are no longer treating women as leniently as they once did.

What changed?

David P Farrington and Allison Morris conducted a study of sentencing in Magistrate Courts; they examined data on sentencing for 408 offences of theft in Cambridge in the same year. Some 110 of these offences were committed by women. Although the men received more 

severe sentences than women, the research found that the difference disappeared when severity of the offences was taken into account. They concluded there was no independent effect of sex on sentence severity. This may be because there have been many sentencing reform initiatives that serve to reduce inequalities in race, class and gender. The criminal justice system although being tainted with chivalrous attitudes, the emancipation of women and through their engagement in various men’s role tend to even severe crimes committed equally by men and women.

Many of the illegitimate opportunities that are open to women are types of crimes that are more apt to be investigated by the police e.g. con games and welfare frauds.

Besides, women nowadays have become less submissive than in the past and women are beginning to be dominated less by male gender, and take on roles as individuals. The chivalrous attitude of the criminal justice system is adapting to these changes and treats every case involving a woman as unique and in equal terms as if it was committed by a man.

The Difference between Islamic Sharia’h Law and the Islamic “Fiqh ul Islam” Jurisprudence

There have always been, in the western world, some misconceptions of what really constitute Shari’ah otherwise Islamic law. To many, Islamic law is just chopping hands, lashes, killing, capital punishments and restraining and confining women to their home. To some is just the law of the Quran and nothing derives from it apart from dictating a life of an individual who subscribe to the religion of Islam.

Point of correction; Islamic law is not the law of the Middle Eastern countries only or the law of the Arabs. It is the law of all the people in the world who subscribe to the religion of Islam and those who do not but may find salvation in practicing it. It is a divine law that serve to protect both life and limb, regulate individual daily transactions and relationships in any society that he or she exists.

I intend here to clarify some of the elements surrounding this law and our failure to fathom why Islamic law is not homogenous in its application. What most people do not understand or know is that as in English Law, Islamic law or Shari’ah develops through its Fiqh ul Islam or Islamic jurisprudence (the science or philosophy of law) as English jurisprudence in English Law. The misconception is based on the mistake that people do not differentiate between the two. They think Islamic jurisprudence is Islamic law and that’s a blatant mistake which needs to be rectified.

Islamic law is a revelation from Allah (God) to his prophet Muhammad (Peace be upon Him), contained in the Holy Book, the Quran and the sayings of the prophet himself called the Sunnat. This is obligatory in its implementation.

Therefore what ever is mentioned in the Quran and the Sunnat is Islamic law. But the mechanism employed in its application is Fiqh Islam or legal opinions of the four Jurists who founded the four schools of thought, a view by far thought to be parallel to the view held by the Shia Muslims of Iran. A Muslim will therefore either belong to any of those schools in practicing the religion and applying the Shariah. These thoughts are named after their founders; Hanbali, Shafii, Hanafi and Maliki.

 In Saudi Arabia they apply Hanbali, in Yemen they apply a blend of Zaidi and Shafa'i and in Africa dominated by Shafi and Maliki. And as for the Shia in Iran they follow Jafri school of thought. That is not really the Islamic Law and an individual is not allowed to apply all these thoughts at the same time on the same issue but he has to follow one of either or where there is a consensus of opinion on that particular issue.

It is also important to highlight that the differences are only on the so called branches of the law not on the actual fundamental law such as where Prayers are prescribed in the Quran and the Sunnat to be observed five times a day. No school of thought expresses its opinion on that but the disagreement revolves around time and place as well as capacity of the individual concerned.

Most scholars hold their differences as merciful gesture from Allah (God Almighty) and without it Islam would have been taken to be one of the most complicated religions on earth. The variation in interpreting the Quran and the sunnat which is seen as the only way of expressing a legal opinion is based on the understanding of the Quran and the sunnat. This therefore cannot be obligatory as there may be several opinions on one issue depending on the time and place where it was first raised.

After this small background, there is now a need to clarify at how those texts from the Quran and the sunnat are approached. There are two approaches of the text; one being taking the text as it is and follow it blindly and the second is objective approach. There is no mechanical application of the two but depending on the circumstances and where one would not find any legal basis or ground in the sunnat or would not come up with any supporting text to make sense the text in issue. In Islam you can differ in opinion, it’s accepted, it's even encouraged. And as long as you base your opinion on something, you are right. The most important thing to remember here is that Islam encourages different in opinions as long as the opinion is based on something that’s not against any text of the Quran which is the ultimate source of the Shariah. The Companions of the Prophet applied these rules to their daily undertakings and the prophet is said to have allowed it.

Islamic Jurisprudence continued to develop even after the prophet; Umar bin Khataab contributed immensely to the way the text has to be approached. Umar was a great jurist, a man of a very special mind, the second Caliph and the founder of the second school of thought, the Maqasid al Sharia (the objective of the law). And he made a lot of changes in the rules even in the Quran. There are several instances, close to thirteen different cases where Umar bin Khatab applied the objective of text in the Quran and therefore I do not really call it change. What is supposed to be the law in the Quran and the Sunnah Umar cannot change it but he applied Maqasid al Sharia al Islami, the objective of text in the Quran and Sunnah. During the time of the Prophet and the first Caliph, Abu bakr, it was almost obligatory for the treasury to pay a sum of money to those who embraced Islam at the time of the prophet according to Quran, Muallafat qulub. But Umar applied the objective text by asserting that the objective was to encourage other people to join Islam, now that Islam had spread to countries like Egypt, Yemen, Syria and Persia there was no need to effectively pay them money for accepting Islam.

The Law is still there in the Quran and the Sunnat but its application should be objective and that the authority should ensure to apply that objectively and safe guard Muslim’s money that are meant for the poor and from any abuse of the system for financial gains. You can imagine how many people would have joined Islam today for financial gains if the text was to be followed blindly.

In this area of Maqasid al Sharia there is a huge wealth. Muslims have to take extra caution before applying the law blindly without having to consider its objective and the goal it’s to achieve. Imam Malik is the only founder of a madhab, school of thought, who impelements this type of objective approach but as mentioned above, the real founder is Umar Bin Khattab and after him his son Abdullah Bin Umar, and then later Saeed Bin Mosaib and so on. The Muslim jurists who applied what we call Maqasid al Sharia. 

Imam Malik applied their opinions and developed this area of law. That's why you find in the Maliki school of thought Maqasid al Sharia. Through this, Maliki also brought about what is called Amral Ahlal Madinah (the rule of Madina) established as a source of legislation. And he established Al-Masalah Al-Mursala, the public interest of the Muslim community, as a source of legislation in Islam. All these meant to help Muslims understand fully the objective of the texts, the Quran and the Sunnat (Sheikh Zaki Ahmed Yamani, the implementation of Islamic Law in modern times)

It is therefore easy to relate this to our time and generation; the internet, automobile, information technology, planes and our lifestyles as to how Islamic law can fit in easily. Islamic law is the law of all generations and for all time. It is a fact that during the time Islamic law developed, the above things never existed and people had to exert so much effort to come to a conclusion of any emerging issues. Today in the absence of the Prophet, the caliphs and the Jurists; the objective application of the law would suffice to settle the mud and differences that have haunted us for years now unless otherwise. And I think even a stranger would find the Islamic law to be the most beautiful system of law. It is not rational to think that the Islamic judiciary would apply the Islamic law in its rigidity without having to take into considerations issues that I have raised here and Scholars being cautious of the fact that most people just follow things religiously when preaching the law or any text in the Quran and the Sunnat. Scholars should be able to clarify instances where the Quran addresses the prophet as a messenger, a judge and a head of state. There is no reason to hold these instances at par because the responsibilities here may vary from one position to the other. Let me give you an example on each; Allah addresses the prophet in the Quran to consult his companions on an issue of some importance; say sending troops to frontline with an enemy, here the responsibility is one of the head of state, he must democratically listen to the views of the people before executing any decision in their interest.

The prophet will be addressed to perform judicial duties where two people approaches him with an issue they have differed on, here the prophet’s wok is  to strike a fair  balance between them, weigh and asses their evidence if any and pronounce fair judgment between them. As a judge he will ensure that all the necessary elements are satisfied including witnesses to the incident are given an opportunity to be heard before giving his final verdict or judgement.

These two examples above can be performed by any other person as long as he is qualified for the position. But none can deputise to perform the messenger hood because Allah choose whoever wants to be his messenger, Muhammad was the last messenger sent on earth.

This is where Maqasid alsharia comes into play and Islamic law will only apply if one of the approaches have been employed properly and Maqasid alsharia is the beautiful science in applying the Islamic Law.

 

Tips for Beginners of Undergraduate Law Degree

Some of you might have already decided to pursue a law degree this year and you are geared up to take that incredible challenge. I admire you, because it is not an easy thing to do to be honest, law requires an open minded person, eagerness and resourceful at times. You will be busy but you will never be disappointed, most of our universities in the United Kingdom work extranuously to support students throughout their course and most libraries open 24 hours so that you get everything you need anytime. Besides, every Faculty of Law has a Law Library easily accessed as well as online blackboards that help students view their modules, learning materials, updates and any relevant anouncements whereever they are.

In your first year of law degree, you will be studying modules such as The English Legal system, you are going to look at things like sources of law, the courts and other principles involving the interpretation of the law. You will also study Constitutional and Administrative law where you are going to look at things like the rule of law, separation of power, supremacy of Parliament and the judicial review including the effects of the European Union membership regarding our domestic laws enacted by the House of Commons. In addition to that you will also study Criminal law, where you are going to explore the elements of crime, (mens rea and actus reas) intention and motive, negligence and recklessness as well as crimes of murder, homicide and theft. You will be required to master statutes in this area of law as most of these crimes are hugely statutory and considerable part of case law. First year students also study Contract law, you will learn a point where a contract becomes binding, offer and acceptance, consideration as well as invitation to treats in a case of Fisher and Bell, wrapping up with frustration of contracts. This is where the contract becomes impossible to shoot off for something that has occured before the contract takes effect without the fault of any other party to the obligation.
You should not worry too much on these modules, you will find them very interesting as they tackle and dwell mostly on things that we witness with our naked eyes, hear or see on television. Some of the crimes may have occured in our neighbourhood and you will be given an opportunity to understand how the courts reached a verdict on them.
Remember that not every module you take to study in your degree counts towards your final grades, some of these modules will just help you to excel and understand those modules that count towards your final degree. For example criminal law will help you to understand Law of Evidence and Criminology in second and third year.

In your second year, you should expect to study most of the modules that will put weight on your final degree such as Land, Tort and EU law. Land Law is part of Property law and Equity & Trust law, modules you might study in your final year. Here you may choose to study other optional modules such as Law of Evidence and Immigration law depending on what you may want to become upon completing your course. To me, Law of Evidence was the most important module and interesting module out of all the modules I did for my degree. The lecturer was Proffessor Michael Hirst, has written so many books in the field and is a qualified barrister whose influence in the country is immerse through some of his articles and contributions to the field and its just an honour to be one of his students. Certainly if you want to become a good lawyer in either criminal or civil law, evidence materials play a big role in solving so many complicated issues alleged in any case. I can therefore recommend that its not a bad idea to have it in your degree course.

Third year is final, most of the modules here including Law of Equity and Trusts are of level 3 and count towards you final degree. You should therefore aim to score above average in order to get good grades and a good 2:1. You may need good prep on this and work extra hard in your final year to get good marks in any assignments before final exams in those subjects that you will be required to take exams. Other modules such as criminology do not require exams but three good assignments and one presentation is a requirement.

Miscarriage of Justice

Following the ruling today on the definition of miscarriage of justice, the Supreme Court Panel has said that a claimant for compensation will not need to prove that he was innocent of the crime but he will have to show that, on the basis of the facts as they are now known, he should not have been convicted or that conviction could not possibly be based on those facts.

This obviously changes the position where the Justice Secretary agrees a proposal to solely compensate  people who he decides have been completely exonerated of the crime they were wrongly convicted.

We will have to stay alert and witness the development of the law in this area, how a claimant will be automatically entiltled for a compensation following miscarriages of justice is something that the court will have to issue guidance. I dont think that procedural deficiencies that lead to irregularities in the trial and errors in the investigation of the offences will be enough to support the claim for compenasation.

But the fact is this is a new dawn for miscarriage of justice.

On another note, we would wonder to ask what will become of those who spend years behind bars on remand without having them either convicted or granted bail. Where prosecutors ask for more time of investigation before a judge and drive the court to think that they have put forward a credible case, it impinges on the accused who spend in jail for nothing on what seemed to be a good case for the prosecution. This surely demands the court to redefine the maxim"Justice delayed is justice denied" and ensure that proper guidelines and procedures are duly followed by both the prosecution and the defence.

National Interest, Is it in our name?

Is it always true that every decision that our politicians undertake to make, is made in the name of the country for national interest? If that is always the case, then should we conclude that what a politician thinks is right at the time of decision making is always right for the nation.

It is a tendency of our governments to allude to anything they do in our name to a national interest. Although the decision pursued goes to the very heart of our rights which they are entitled to preserve or that may sometimes lead to a violation of our Constitutional laws regardless. The fact that they think is a right thing to do at the time is considered to be in the interest of the nation no matter how wrong that may be.

I am a proponent of real democracy and our democratic governments are found with one purpose only; serving the national interest. Parties that form up the government should always consider their decisions not as the right decision for the individuals or the party but whether in having done so the interest of the nation is paramount.

Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people and not for profit, honour or private interest of any one man, family, or class of men; therefore the people alone have an incontestable, unalienable and indefeasible right to institute govt and to reform, alter, or totally change the same when their protection, safety, prosperity and happiness require it.

(John Adams; Thought on govt 1776)

It seems to me that surely any democratic government in the world is instituted fundamentally to defend the country through its defence department against the invasion of an enemy, keeping the nation safe through its good criminal justice system and practice, creation and provision of resources, opportunities for prosperity of the country and the nation.

The definition of democracy is rule by the people. So if people are lied to, kept secrets from, cheated out of fair election, denied real access to or ignored by their representatives, and otherwise kept out of the democratic process, the democracy no longer exists, it is a failed democracy. But one wonders under a murky leadership what would be the best way to describe what exist instead of democracy.

I agree though that sometimes what is in the national interest is vague and hazy, more especially where it goes beyond our borders, one would easily think that attacking a nation suspected of terrorism is in the national interest as it pre-empts the imminent attack on our country. But also having to establish a bilateral diplomatic relation with that country is in the national interest. Although these are two competing interests but having to choose one over the other should always be in the national interest.

That opens up another discussion as to who then decide whether the decision is in the national interest or not.

Constitutionally, I would say it is the representatives’ job to decide what reasonably is in the national interest by exercising due diligence, care and skill in carrying out that function through its various organs of the government including the parliament. What’s reasonable depends on the circumstance and its case by case basis.There is no point having a government that refers everything they do to its people despite the fact that people should not be kept in the dark all the time. Representatives betray constituents if they sacrifice their judgement to their opinion. Although carefully stating that governments that attempt to create one rule party through political control of the legislative branch and illegal politicization of the judiciary branch, collectively known as Unitary Executive Theory, would seem to be making decisions based on their individual interests rather national interest.

This is conspicuous in an autocratic government where a leader expands their executive powers secretly and refuses to submit to oversight. It is arguably that in those circumstances, national interest will be out of question and one would not see the benefit of consultations in such an environment anyway.

Representatives should remember that it is in our interest to have spend hours and hours queuing at the polling stations in order to give them an opportunity of doing things the way we want them to, in our interest not theirs.