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A Humanist Development Strategy
27 August 2021 12:00 by John de Villiers
The criminal justice system and crime prevention strategies must take note of the contribution that the sociology of law can make in developing a “humane” criminal justice system to effectively contribute towards crime prevention.
This article is based on the article Sociology of Law as a Humanist Development Strategy with regard to the South African Criminal Justice System by DJ Steyn in the Journal for the Institute for Development Planning and Researchwhich argues that the South African criminal justice system must develop towards a “humane” criminal justice system if it wants to effectively contribute to crime prevention in South Africa.
The criminal justice system and crime prevention strategies must therefore take note of the contribution that the sociology of law can make in this regard. It follows a previous article in which it was explained that the sociology of law, as a dialogue between law and society, will firstly inform the broader public of their ability as active and co-creators of the meaning of law (and the administration thereof), and will secondly inform the administrators of justice (as exponents of law) of the social consequences of their official action.
The essence of this article is based on the view that social institutions like courts represent law as an objective reality, but man is a co-creator of these social institutions as a subjective reality. However, through the sociology of law, as a humanist development strategy, law becomes a logic structure of meaning. Man is therefore an active and creative participant in his/her social reality when viewed through the four assumptions of a humanist conception of society.
2. Four assumptions of a humanist conception of society
The assumptions being in brief:
1. Society is experiential – humans are self-conscious and the human world is meaningful, the human world is rooted in man’s ability to construct a meaningful reality.
2. Society is intersubjective – Society is a structure of meaning, consisting of meanings which can never be exclusively private. Humans share a common understanding of the world but experience it in both shared (common understandings) and different ways (different interpretations).
3. Society is symbolic – symbols are the building blocks of man’s social reality, and through this symbolism and cognitive participation, meaning and the creation of society emerges.
4. Society is dialogical – man’s participation in the social construction of his/her social reality through negotiation, debate and dialogue gives it meaning, an understanding of tradition, of the past, context, and through a reflexive attitude to listen to alternative views.
If not, alienation in the humanist sense results. Dialogical consciousness is therefore a precondition for a development towards a more humane society and not by the introduction of new structures, like laws. Alienation means that people begin to view their choices as final, as they occur within unchanging social institutions. In such a situation both a person in a power position such as a judge, by forcing his/her will onto another, and the subjected person are alienated in the humanist sense.
3. A humanist conception of development
The process to establishing a more humane society – development programme - must be measured against the assumptions above and the notion that all alternative viewpoints must consciously be reconsidered needs to be emphasized – cognitive participation.
To measure the humaneness of policy programmes three criteria have been distilled.
4. Three criteria for humanized development
1. Creative participation – all sectors and social actors of a community, must realise their ability to creatively participate as co-creator of his/her society as a structure of meaning.
2. Bringing (or raising) to consciousness – members of society must be made aware of their ability to fully participate in the process.
3. Reflexivity – allows different viewpoints and a willingness to reconsider one’s own viewpoints.
The phenomenon of sentencing - with the above in mind, consider that each sentence passed in a criminal court of law influences both the individual in particular and society in general.
5. Sentencing in a criminal court of law
Three sciences, when a humanist approach is applied with regards to jurisprudence, provide the dialectical cohesion necessary to understand the sociology of law.
1. Ethics of law
Implies the ethical maintainability or condemnability of certain legal rules – an active process of creating meaning and revised interpretation of law. Consider how the Constitution and the Bill or Rights implies a “culture of justification”, where unjustified exercise of government power by officials should result in alienation from society (it means to uphold for example the inherent dignity of man, fair labour practices, and the right to life). The ethics of law influence and co-exist with the sociology of law.
2. Sociology of law
The sociology of law implies a description and understanding of “Why does law work the way it does?” How the norms of decision help shape the norms of conduct. Our absorption of the meaning of and conflict in the law in our consciousness. This is reflected in the unsatisfactory reaction – and therefore implied alienation – of the local media and public to sentences passed in criminal trials.
In S v Zinn 1969 (2) SA 537 (A) the Appeal Court postulated triad of considerations when imposing a “suitable sentence” being, the damage/nature of the crime, personal circumstances of the offender, and society’s indignation when viewed together with the aims of punishment (deterrence, prevention, reform and retribution). With this consideration it is argued that a more modern approach to the aims of punishment is necessary and that the South African criminal justice system needs an understanding of the underlying social pathology.
As an example, harsh prison sentences do not cause any decline in criminality, in part because administrators of justice need to understand and be informed of the social consequences of their official action. The author’s experience as a prosecutor in the lower courts has exposed the myth of the “effective prison sentence”, accompanied by the lack of properly recording the prosecutor’s conveyance of the interests of society. As a result, it can be argued that prosecutors and magistrates are alienated from their roles as administrators of justice, while the public are excluded from both the meaning of and being participants as co-creators of an “appropriate sentence”.
The ethics of law and sociology of law influence and co-exist with the politics of law.
3. Politics of law
The politics of law implies an improvement and transformation of a legal system – in this case arriving at an “appropriate sentence”, to be in step with the law as enshrined in the Constitution. Which can be as a consequence of our ability to exercise control over social behaviour, using the law.
In achieving this it is proposed that section 93 of the Magistrates’ Court Act, No. 32 of 1944 be developed to allow for the appointment of a jury consisting of the prosecutor, magistrate, members of society and a sociologist of law - during the passing sentence phase to co-create a meaning of an “appropriate sentence” for every individual case.
Returning to the three criteria for humanized development, is this proposal a conception of sociology of law as a humanist developing strategy regarding the South African criminal justice system?
1. Creative participation
The creative participation of the magistrate, prosecutors, members of society and sociologists of law to form a jury in reflexive dialogue, and the invitation to dialogue between administrators of justice and society, the author argues, do indeed meet the criterion of creative participation.
2. Bringing (or raising) to consciousness
By making members of society aware of their ability to fully participate as active co-creators of the meaning of law, and its administration, this criterion is met.
Is met when all participants realise that all viewpoints and solutions are constantly being subjected to re-evaluation – “reflexive dialogue”, thereby allowing different viewpoints and the ability to reconsider their own viewpoints.
In short, sociology of law as a humanist’s development strategy must be viewed as a triangle with three interrelated sides:
- Ethics of law as related to our Bill of Human Rights in the Constitution.
- Sociology of law which allows us to absorb the meaning of and conflict in the law of our consciousness, and
- Politics of the law, which in the light of 1 and 2 above proposes a transformation of the criminal justice system.
It was shown that the sociology of law is a humanist development strategy for the criminal justice system, and for it to develop into a “humane” criminal justice system, the necessary implication is for it and crime prevention strategies to consider the contributions that the social sciences can make.