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Justice as restitution vs. Justice as social signals

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Wheylous Posted: Thu, May 31 2012 11:46 AM

I used to believe in eye-for-an-eye. Then, I read about the NAP and restitution and saw that it was superior.

Coming from a NAP perspective, justice ought to be about restitution - using the aggressor's funds to efficiently restore the victim's money.

However, since I've come to realize that the NAP isn't some given from up above but a sort of social contract, I've come to consider more strongly the social interaction aspect of creating a society. Rules are agreed-upon norms in a society. Property is one of them, for example. As such, society and justice are shaped by social signals.

If it's these social signals that matter, then why aren't eye-for-and-eye and retribution what we should be aiming for? For example, if a thief steals property, he sends a signal that he does not respect the societal norm of property. Since we're basing our interactions on social signals, then we may feel free to not respect the property or any rights at all of the criminal.

I just can't stomach this, however. Am I being stubborn against reason here or am I justifiably displeased?

One thing that comes to mind is the interpretation of these social signals. Maybe if he stole the property he was sending a signal that he does not respect property rights over that specific thing. Or, the specific victim's rights. From this, the conclusion society should make is not that he doesn't respect property so we don't have to either, but that he doesn't respect one very specific thing for which there is no analogue in the criminal's case (the criminal doesn't own a victim's watch, and so society cannot adapt to such a signal by saying, "hey, since the criminal doesn't respect the victim's right to the victim's property, we don't have to respect the victim's right to his property either").

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Autolykos replied on Thu, May 31 2012 11:58 AM

For one thing, retribution is ultimately an individual undertaking. That is, an individual feels a desire to do one or more things that he thinks will constitute retribution against one or more others. I also think his desire for retribution is really a desire to demonstrate that he's more powerful than the other(s).

From this point of view - the point of view of "power dynamics" - the ultimate demonstration of power over someone else is to end his life. What power does a dead person have? None. So killing a person means to take all power away from him. I think "an eye for an eye" is a limiting principle for retribution, but it still concerns retribution. The point of it is to take as much power away from the criminal as he took from someone else.

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Clayton replied on Thu, May 31 2012 12:06 PM

Rules are agreed-upon norms in a society.

This is like saying "words have agreed-upon meanings in a society"... it smacks of being true but conveys an incorrect conception of the origin of language. Laws emerge from social interaction, just as words emerge from communication. Nobody ever sits down and shakes hands over the meaning of a word or over a social norm, rule or law.

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gotlucky replied on Thu, May 31 2012 12:24 PM

I like to emphasize the golden rule every so often.  It boils down to repect me and what's mine, and I'll respect you and what's yours.  The NAP is a legal realization of this concept.  The golden rule is found in many cultures, and the vast majority of people are attracted to it.  Libertarian anarchism is just the logical conclusion of the golden rule, and I think this is why most libertarians are attracted to the NAP and (hopefully) eventually anarchism.

When a criminal steals from another, it is true that he is demonstrating his lack of repect for other people and is violating the golden rule.  However, most people do not immediately believe that execution is the appropriate response, especially those that have any sense of proportionality.  If a man repeatedly chooses to be a criminal, many societies in the past have just outlawed the man.  Some crimes are so terrible that a man is immediately outlawed or executed.  But for the most part, people who commit crimes are not outlawed or executed.

As I said, the NAP is just a legal realization of the golden rule - respecting people and their justly owned property.  Just because someone doesn't respect another doesn't mean he must be immediately outlawed or executed.  Most people are not comfortable with that, and that's probably why you don't see it too often in moderately free societies.

I hope some of that rambling helps.

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Retribution ought to be primary, in my opinion, as per Stephan Kinsella's estoppel theory.  Ultimately I think "equal suffering" is a more coherent standard for punishment than "restore the victim".  But that's just my view; I don't see it as a particularly important argument, because we can't know in advance of there actually being a free market in law what free market courts will choose as a standard for determining punishments.

In this old thread, Kinsella argued in favor of retribution being primary, while Geoffrey Allan Plauche argued in favor of restitution being primary.  In my opinion, Kinsella has the stronger argument.  (The thread mixes together argumentation ethics and estoppel theory, which is unfortunate because they can and should be kept distinct... I accept estoppel theory but tentatively reject argumentation ethics).

 

 

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Clayton replied on Thu, May 31 2012 1:23 PM

One thing that comes to mind is the interpretation of these social signals. Maybe if he stole the property he was sending a signal that he does not respect property rights over that specific thing. Or, the specific victim's rights. From this, the conclusion society should make is not that he doesn't respect property so we don't have to either, but that he doesn't respect one very specific thing for which there is no analogue in the criminal's case (the criminal doesn't own a victim's watch, and so society cannot adapt to such a signal by saying, "hey, since the criminal doesn't respect the victim's right to the victim's property, we don't have to respect the victim's right to his property either").

Prices are a kind of signal. If we imagine social norms as signals in a similar vein, then norms matter to individuals but not the other way around. The price of apples is indifferent to my "signals" regarding what the price of apples ought to be (by virtue of purchasing or not purcahsing). Similarly, a social norm - regarding, say, property rights in a grocery store - is indifferent to my "signals" regarding the legitimacy of that social norm.

A social norm is a fact about society, that is, a population. When reasoning about social norms, it is crucial to maintain a sharp distinction at all times between facts about populations and facts about individuals. For example, it is true that "an adult human male is about six feet tall" but it is not necessarily true at all that "John, an adult human male, is about six feet tall".

"It is wrong to murder", for example, is absolutely true - human beings believe that it is wrong to murder. But it is not true that every particular human being believes it is wrong to murder. Most murderers probably don't believe that murder is wrong. The confusion arises when we don't maintain a sharp distinction between facts about populations and facts about individuals.

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I'm pretty sure that in a free society, restitution would be used more often because it's less wasteful. The state goes hand-in-hand with retribution.  It has to do with the state always trying to make the subjective objective.  It is revolting against nature by doing so.

The best argument in favor of retribution that I see is the question of what happens when a tyrannical state is abolished.  In other words, the agents of the former state should get executed for waging war on their people, because it would be impossible for them to do restitution on the level they waged war on.  At the same time, it's ultimately best to not collectively punish them, because that would set the grounds for a new state.

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@No2statism

From Punishment and Proportionality by Rothbard:

But restitution, while the first consideration in punishment, can hardly serve as the complete and sufficient criterion. For one thing, if one man assaults another, and there is no theft of property, there is obviously no way for the criminal to make restitution. In ancient forms of law, there were often set schedules for monetary recompense that the criminal would have to pay the victim: so much money for an assault, so much more for mutilation, etc. But such schedules are clearly wholly arbitrary, and bear no relation to the nature of the crime itself. We must therefore fall back upon the view that the criterion must be: loss of rights by the criminal to the same extent as he has taken away.

It should be evident that our theory of proportional punishment — that people may be punished by losing their rights to the extent that they have invaded the rights of others — is frankly aretributive theory of punishment, a "tooth (or two teeth) for a tooth" theory.[12] Retribution is in bad repute among philosophers, who generally dismiss the concept quickly as "primitive" or "barbaric" and then race on to a discussion of the two other major theories of punishment: deterrence and rehabilitation. But simply to dismiss a concept as "barbaric" can hardly suffice; after all, it is possible that in this case, the "barbarians" hit on a concept that was superior to the more modern creeds.

 

Thus, we see that the fashionable reform approach to punishment can be at least as grotesque and far more uncertain and arbitrary than the deterrence principle. Retribution remains as our only just and viable theory of punishment and equal treatment for equal crime is fundamental to such retributive punishment. The barbaric turns out to be the just while the "modern" and the "humanitarian" turn out to be grotesque parodies of justice.

 

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bloomj31 replied on Sat, Jun 2 2012 10:27 PM

Wheylous:
 I just can't stomach this, however. Am I being stubborn against reason here or am I justifiably displeased?

Justice for me is about dealing with two internal desires.  One is to balance the equation and make the victim whole again (restitution) the other is to send a signal to people considering a crime similar to the one committed that such acts will not be tolerated thus making that particular type of crime a significant net loss for a greater number of potential criminals (deterrence.)

The morality inherent to this concept has to do with an internal sense of right and wrong.  I feel that murder is wrong but I cannot prove that it is only that I feel it is. I live in a society where this moral feeling is generally shared.  I cannot prove that rape is wrong only that I find it detestable and that this moral feeling is commonly shared.  I don't really see this as coincidence, I think it's human nature.

My desire for restitution comes from my empathy for victims of crime.  I imagine myself as a victim of crime and realize that I would like to be compensated so I want to see victims made whole so that I might be made whole if I am ever a victim of crime.  I also have an inherent desire to not only punish a criminal but to punish him to such an extent that a message is conveyed to any other potential criminals: "You do this at your peril."

The Rothbardian concept of justice promises to satisfy one internal desire but not the other.  Rothbard says that my desire for restitution is right but my desire for disproportionate vengeance is wrong.  I do not know why he doesn't feel the desire to truly punish wrongdoers but it's obvious from his writings that he doesn't and that's enough for me to reject Rothbard's concept of justice.

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gotlucky replied on Sat, Jun 2 2012 10:54 PM

bloom31:

The Rothbardian concept of justice promises to satisfy one internal desire but not the other.  Rothbard says that my desire for restitution is right but my desire for disproportionate vengeance is wrong.  I do not know why he doesn't feel the desire to truly punish wrongdoers but it's obvious from his writings that he doesn't and that's enough for me to reject Rothbard's concept of justice.

I suppose I could let Conza go after you, but didn't I just go ahead and quote Rothbard saying that retributive justice is the proper justice, and that restitution is derived from that?  Furthermore, you claim he doesn't truly desire to punish wrongdoers, but this is just a matter of your opinion on what punishment should be.  Obviously, since he considers his rule "two teeth for a tooth" to be the maximum, I would think that he considers that to "truly punish wrongdoers".  To go further than that, in his opinion, would no longer be punishment but become a crime.  But you cannot claim that he does not want to "truly punish wrongdoers", as he considers his idea to do exactly just that.

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bloomj31 replied on Sat, Jun 2 2012 10:59 PM

gotlucky:
 Obviously, since he considers his rule "two teeth for a tooth" to be the maximum, I would think that he considers that to "truly punish wrongdoers".  To go further than that, in his opinion, would no longer be punishment but become a crime.  But you cannot claim that he does not want to "truly punish wrongdoers", as he considers his idea to do exactly just that.

I suppose that's true.  He feels that he would be satisfied with two teeth for one tooth.

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Clayton:
This is like saying "words have agreed-upon meanings in a society"... it smacks of being true but conveys an incorrect conception of the origin of language. Laws emerge from social interaction, just as words emerge from communication. Nobody ever sits down and shakes hands over the meaning of a word or over a social norm, rule or law.

Nevertheless, one does agree (or not) to follow social norms, if only tacitly. But in debate, I think people often do essentially sit down and shake hands over the meanings of words.

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Autolykos replied on Thu, Jun 7 2012 10:03 AM

Graham Wright:
Retribution ought to be primary, in my opinion, as per Stephan Kinsella's estoppel theory.  Ultimately I think "equal suffering" is a more coherent standard for punishment than "restore the victim".  But that's just my view; I don't see it as a particularly important argument, because we can't know in advance of there actually being a free market in law what free market courts will choose as a standard for determining punishments.

I'm curious about your view. Why do you think "equal suffering" is more coherent than "restore the victim"?

Graham Wright:
In this old thread, Kinsella argued in favor of retribution being primary, while Geoffrey Allan Plauche argued in favor of restitution being primary.  In my opinion, Kinsella has the stronger argument.  (The thread mixes together argumentation ethics and estoppel theory, which is unfortunate because they can and should be kept distinct... I accept estoppel theory but tentatively reject argumentation ethics).

I admit to not having read that thread before typing this, so it might address (some of) what I type below.

After thinking about it lately, in the context of "power dynamics", I've concluded that restitution is really just a form of retribution. (Ironically, "retribution" originally had the same meaning as "restitution", but now it means the same thing as "revenge".) Why are people driven to enact revenge? I think it's because they want to be and (perhaps more importantly) appear more powerful than those who they'd take revenge on. That's why revenge can escalate. If you do more harm to the person who harmed you, then presumably it's even clearer that you're actually more powerful than he is. The cycles of violence that can come from this result when each side keeps trying to outdo the other in terms of being/appearing more powerful.

If you think about it, the difference between this and war is only one of degree, not of kind. With this in mind, I wonder whether the proportionality principle only came about when and where multiple tribes started coexisting. When it was every tribe for itself, no one saw any reason to limit warfare. So if one tribe gained the upper hand over another, typically the other tribe was exterminated. After all, if no one in the other tribe is left alive, then there's no way for anyone to retaliate.

Anyway, restitution is a form of retribution because, at its core, it also concerns the victim demonstrating more power than the criminal. The criminal is coerced into giving back what he took from the victim (or what has been deemed as an equivalent). Coercion is surely a demonstration of power (i.e. the ability to do something). As I noted before, the "eye for an eye" standard, which concerned crimes against the person, sought to remove the greater power that the criminal had attained with respect to the victim by injuring his person. Even when a payment is substituted in place of receiving an equivalent injury, I think the underlying principle remains the same. Besides, in such cases as literally gouging out someone's eye, how can the victim really be made whole again?

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gotlucky:
In ancient forms of law, there were often set schedules for monetary recompense that the criminal would have to pay the victim: so much money for an assault, so much more for mutilation, etc. But such schedules are clearly wholly arbitrary, and bear no relation to the nature of the crime itself.

 

gotlucky:
It should be evident that our theory of proportional punishment — that people may be punished by losing their rights to the extent that they have invaded the rights of others — is frankly aretributive theory of punishment, a "tooth (or two teeth) for a tooth" theory

Why not three teeth? why not 1 and 1/2 teeth? If proportional punishment is "losing their rights to the extent that they have invaded the rights of others", then how is it not just as arbitrary to say that two teeth are retributive enough when one tooth is taken from the victim?  Rothbard confuses me here.

 

"If men are not angels, then who shall run the state?" 

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gotlucky replied on Thu, Jun 7 2012 11:25 AM

Autolykos:

I'm curious about your view. Why do you think "equal suffering" is more coherent than "restore the victim"?

I can't speak for Graham Wright, but Rothbard states:

But restitution, while the first consideration in punishment, can hardly serve as the complete and sufficient criterion. For one thing, if one man assaults another, and there is no theft of property, there is obviously no way for the criminal to make restitution. In ancient forms of law, there were often set schedules for monetary recompense that the criminal would have to pay the victim: so much money for an assault, so much more for mutilation, etc. But such schedules are clearly wholly arbitrary, and bear no relation to the nature of the crime itself. We must therefore fall back upon the view that the criterion must be: loss of rights by the criminal to the same extent as he has taken away.

Retribution remains as our only just and viable theory of punishment and equal treatment for equal crime is fundamental to such retributive punishment.

The point here is that restitution cannot be based on any principle, while retribution can be.  Rothbard has explained somewhere (I don't wish to look now, it may even be in the link I provided earlier in the thread) that restitution is based on retribution, that criminals pay restitution in order to avoid the pain of retribution.  In other words, if you break my arm, I could break yours, or you could pay me X amount of dollars to cover medical bills and pain and suffering.  That is the source of restitution in Rothbard's opinion.

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gotlucky replied on Thu, Jun 7 2012 11:38 AM

The Texas Trigger:

Why not three teeth? why not 1 and 1/2 teeth? If proportional punishment is "losing their rights to the extent that they have invaded the rights of others", then how is it not just as arbitrary to say that two teeth are retributive enough when one tooth is taken from the victim?  Rothbard confuses me here.

It is arbitrary, but that's not the point.  The point is to find a principle that sets a standard that does not punish too much.  Rothbard states:

If, then, we are to say that the criminal loses rights to the extent that he deprives the victim, then we must say that the criminal should not only have to return the $15,000, but that he must be forced to pay the victim another $15,000, so that he, in turn, loses those rights (to $15,000 worth of property) which he had taken from the victim. In the case of theft, then, we may say that the criminal must paydouble the extent of theft: once, for restitution of the amount stolen, and once again for loss of what he had deprived another.[6]

The idea here is that first the thief returns what he has stolen, and then he "loses rights to the extent that he deprives the victim".  Rothbard then applies this to crimes in general.  If you knock out my tooth, first you knock out one of yours, and then you knock out another.  Yes, this is arbitrary.  Rothbard is just trying to establish some kind of sense of proportion in justice.

I do not entirely agree with Rothbard on this particular issue, but I think Rothbard sets a good standard to follow in general.  Proportionality is an incredibly important concept.  I would also like to say that even though I have been saying "arbitrary", I have not been using it to mean "random".  It's arbitrary in the sense that it is not objective, but Rothbard is basing his sense of proportionality on the NAP.  That if you go too far in punishment, then you become the criminal.

Does this make sense?

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Clayton replied on Thu, Jun 7 2012 11:48 AM

 I think people often do essentially sit down and shake hands over the meanings of words.

I think this is more the domain of specialists. If you want to be a physicist, you can't use the word "time" to refer to the elasticity of a substance. It's just not allowed, it's not part of what it means to be a physicist to rewrite the words how you like. But the definitions that are used are very specialized and somewhat "artificial" compared to ordinary language. But I think the key thing to note is that ordinary language is logically antecedent to specialized language. Similarly, social norms are logically antecedent to formalized norms (such as contracts). That doesn't mean that they supersede them, only that they ultimately owe their existence to the prior existence of informal social norms.

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Autolykos replied on Thu, Jun 7 2012 12:16 PM

gotlucky:
I can't speak for Graham Wright, but Rothbard states:

But restitution, while the first consideration in punishment, can hardly serve as the complete and sufficient criterion. For one thing, if one man assaults another, and there is no theft of property, there is obviously no way for the criminal to make restitution. In ancient forms of law, there were often set schedules for monetary recompense that the criminal would have to pay the victim: so much money for an assault, so much more for mutilation, etc. But such schedules are clearly wholly arbitrary, and bear no relation to the nature of the crime itself. We must therefore fall back upon the view that the criterion must be: loss of rights by the criminal to the same extent as he has taken away.

Retribution remains as our only just and viable theory of punishment and equal treatment for equal crime is fundamental to such retributive punishment.

The point here is that restitution cannot be based on any principle, while retribution can be.  Rothbard has explained somewhere (I don't wish to look now, it may even be in the link I provided earlier in the thread) that restitution is based on retribution, that criminals pay restitution in order to avoid the pain of retribution.  In other words, if you break my arm, I could break yours, or you could pay me X amount of dollars to cover medical bills and pain and suffering.  That is the source of restitution in Rothbard's opinion.

On the one hand, it seems that restitution can be based on a principle, namely the principle of "restoring (i.e. making whole) the victim". However, I think I kinda answered my own question in my last post. cheeky Retribution is more coherent than restitution because it can be applied to more cases. For example, a victim whose eye has been gouged out cannot be made whole. (Perhaps, at some point in the future, technology will have advanced to where a person could receive a replacement eye, but we're not at that point yet.) Technically, a person who's suffered from property destruction can't be made whole either. But in those cases, the criminal has deprived the victim of rights to some extent, so it's then equitable to deprive the criminal of rights to that same extent.

Essentially, then, the purpose of law is to establish beforehand what a person's rights are. Instead of referring to payments made in cases of personal and property damage as "restitution payments", I think a better term might be "compensation payments". Then again, that might be splitting semantic hairs. cheeky

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gotlucky replied on Thu, Jun 7 2012 12:25 PM

Autolykos:

Essentially, then, the purpose of law is to establish beforehand what a person's rights are.

NO!  The purpose of law is to resolve disputes nonviolently.  Establishing what a person's rights are is a by-product.

I agree with the rest of your post, though I am indifferent to "restitution payments" vs "compensation payments".

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Autolykos replied on Thu, Jun 7 2012 12:39 PM

gotlucky:
NO! The purpose of law is to resolve disputes nonviolently. Establishing what a person's rights are is a by-product.

I don't see a need to shout...

I think it depends on what you mean by "resolve disputes". Do you think a dispute is resolved if a ruling is made against one party, but that party refuses to abide by it?

gotlucky:
I agree with the rest of your post, though I am indifferent to "restitution payments" vs "compensation payments".

Okay, fair enough. smiley

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Clayton replied on Thu, Jun 7 2012 12:48 PM

Retribution versus Restitution: I think these terms refer to the subjective motives of the parties to the dispute and are, therefore, immaterial to the issue of resolving the dispute. What matters is: the price at which both parties will agree to settle the dispute, if any. Call it whatever you like.

If you steal my car, I don't think I can get you to agree to pay ten times the value of the car as "retribution." Of course, I don't think I would automatically agree to merely restoring the car or its dollar-value on the basis that I've thereby been "made whole." The point is that the aggressor won't care about the victim's desire for retribution and the victim won't care about the aggressor's view of what constitutes restitution.

In addition, there may be other factors at work - perhaps social norms are such that they permit a victim to ask for some kind of retributionary act, e.g. public humiliation or public notice of a wrong done, but not restitution. Social norms play a crucial role in determining the character of the common law. Disputants do not enter into negotiation to settle their dispute in a vacuum where any outcome is as likely as any other outcome. Rather, there is some sense of "what the market will bear" or what the "going rate" for settling a specific kind of dispute is. While disputants may bargain up or down from this "going rate", it is always the case that disputants enter a dispute with the knowledge that there are some kind of outside boundaries or limits to what settlement terms are possible.

"Restitution" and "retribution" are just subjective states of mind of the disputants that are immaterial to the determination of the final outcome of the dispute except insofar as they affect the way the disputants bargain during the dispute. Someone who has not only been wronged but humiliated may be much more rigid in his bargaining than someone else who has merely been wronged. David Friedman points this out somewhere - sorry can't remember the cite! - that English common law placed extremely high penalties on apparently minor aggressions such as cutting a man's hair off.... he speculates that these high penalties reflect the indignation of the victim at being humiliated and, therefore, the propensity of the victim to prefer direct conflict (feud) over settling the matter legally.

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gotlucky replied on Thu, Jun 7 2012 12:51 PM

Autolykos:

I don't see a need to shout...

Oh please, I merely raised my voice!

Autolykos:

I think it depends on what you mean by "resolve disputes". Do you think a dispute is resolved if a ruling is made against one party, but that party refuses to abide by it?

Then no, it is not resolved.  Both parties have to agree to the resolution, or it is not resolved.  This is true even in statutory law.  It's just that when the state makes a ruling, most people decide to abide by it.  But every so often you get someone who is dissatisfied and resorts to violence against the other party.

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gotlucky:
Oh please, I merely raised my voice!

Typing something entirely in capital letters is widely seen on the internet as shouting. Buf if you insist, then I'll say that I also see no need for raising your voice...

gotlucky:
Then no, it is not resolved.  Both parties have to agree to the resolution, or it is not resolved.  This is true even in statutory law.  It's just that when the state makes a ruling, most people decide to abide by it.  But every so often you get someone who is dissatisfied and resorts to violence against the other party.

So then e.g. any body of statutes does not per se constitute "law". In other words, you're not defining "law" as a mechanism for resolving disputes peacefully, you're defining it as the actual peaceful resolution of disputes.

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Autolykos:

Typing something entirely in capital letters is widely seen on the internet as shouting. Buf if you insist, then I'll say that I also see no need for raising your voice...

I'm aware of that.  "No" in all-caps was meant in jest.

Autolykos:

So then e.g. any body of statutes does not per se constitute "law". In other words, you're not defining "law" as a mechanism for resolving disputes peacefully, you're defining it as the actual peaceful resolution of disputes.

Right, statutes are not necessarily law.  Here are some statutes in the UK that are still on the book but are not enforced.  The point is, if the community does not act as if it is law, then it is not law.  Take a more modern example of majijuana laws.  The state has issued a decree stating: "Thou shalt not smoke pot."  Despite this, police throughout the US are becoming more lenient regarding the possession and smoking of pot, though it is not always the case.  Some states have legalized pot for medical purposes, even having dispensaries.  Massachusetts has decriminalized possession of pot up to one ounce or less, though you may still get ticketed for having it.  I suspect that the trend to legalize pot will continue as the attitudes of communities become more liberal.

Sometimes the state will outright react to the community and legalize previously illegal behavior, such as during alcohol prohibition or gay marriage (in MA or some other states).  When the state does this, it is usually to save face.  Had the state not repealed the ban on alcohol, it would have eventually stopped enforcing it anyway, just like those statutes I linked to in the BBC article.

Regarding law as a mechanism, I think you are right.  I don't believe I'm describing it as a mechanism, just as words are not a mechanism.  Language and communication produce words, and nonviolent resolutions produce law.  

Also, I prefer the word nonviolent instead of peaceful, as I do make a distinction between the two.  To me, peaceful implies not only a lack of violence, but also a lack of threat of violence.  Since law requires the threat of violence, I prefer to say "nonviolent dispute resolution".

I would also like to add, that just because a dispute has been resolved, this does not mean that particular resolution is law.  Law is very closesly related to social norms.  Private murder is always against the law (alas, the state always permits itself to be able to legally murder).  If someone were to murder another, we would say that he has broken the law.  He has gone against the social norm of not murdering other people.  So even if he were granted clemency by the family of the victim and not punished, he would still have broken the law.  He just would have been lucky in avoiding punishment.

I guess law is a type of social norm that deals with the nonviolent resolution of disputes that would otherwise have turned to violence. In other words, we might have norms about etiquette, but most people would not use violence to enforce rules about etiquette.  If you break norms and act like a jerk around others, people just don't associate with you.  If you break the law, then you know that someone has a serious dispute with you.

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gotlucky:
I'm aware of that. "No" in all-caps was meant in jest.

Oh, sorry then. For some reason I didn't think you were joking. blush

gotlucky:
Regarding law as a mechanism, I think you are right. I don't believe I'm describing it as a mechanism, just as words are not a mechanism. Language and communication produce words, and nonviolent resolutions produce law.

But you previously defined "law" as "the nonviolent resolution of disputes", not as "that which is produced by nonviolent resolution of disputes". How can something produce itself? Maybe the product of law (i.e. non-violent resolution of disputes) could be called "order" instead?

gotlucky:
Also, I prefer the word nonviolent instead of peaceful, as I do make a distinction between the two. To me, peaceful implies not only a lack of violence, but also a lack of threat of violence. Since law requires the threat of violence, I prefer to say "nonviolent dispute resolution".

That's fine. However, you'd have to agree that law is coercive, if "coercive" is taken to mean "employing or threatening to employ violence". But I don't see why the threat of violence is strictly necessary for resolving disputes non-violently.

gotlucky:
I would also like to add, that just because a dispute has been resolved, this does not mean that particular resolution is law. Law is very closesly related to social norms. Private murder is always against the law (alas, the state always permits itself to be able to legally murder). If someone were to murder another, we would say that he has broken the law. He has gone against the social norm of not murdering other people. So even if he were granted clemency by the family of the victim and not punished, he would still have broken the law. He just would have been lucky in avoiding punishment.

I think it's important to keep in mind that "murder" is traditionally defined as "unlawful (i.e. illegitimate) killing". So to say that murder is wrong is to state a tautology. Of course, that definition raises the question, under what circumstances is killing considered to be unlawful?

Anyway, your assertion that "just because a dispute has been [nonviolently] resolved, this does not mean that particular resolution is law" seems to go against your definition of "law" as "the nonviolent resolution of disputes". Given that definition, any dispute that's been resolved nonviolently is necessarily law.

gotlucky:
I guess law is a type of social norm that deals with the nonviolent resolution of disputes that would otherwise have turned to violence. In other words, we might have norms about etiquette, but most people would not use violence to enforce rules about etiquette.  If you break norms and act like a jerk around others, people just don't associate with you.  If you break the law, then you know that someone has a serious dispute with you.

This sounds to me like you're changing your definition of "law". That's fine, since definitions are arbitrary. But doing that can change the meanings of other statements you've made.

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Clayton:
Retribution versus Restitution: I think these terms refer to the subjective motives of the parties to the dispute and are, therefore, immaterial to the issue of resolving the dispute. What matters is: the price at which both parties will agree to settle the dispute, if any. Call it whatever you like.

Since the rest of your post seems to be an elaboration of this thesis (which I do appreciate), I'll respond just to this part.

I'd like to add that I think this is where the concept of "equity" comes into play. A common thread I've found in common-law legal theory, from ancient times up to the present day, is an emphasis on the punishment "balancing out" the crime. (Indeed, the words "compensate" and "compensation" come from the Latin verb compensare, which means "to balance out".) Punishment that exceeds what's considered to balance out the crime is seen as a violation of the criminal's rights (if he has any left). Of course, there's no objective way to determine "equitable punishment" - as you point out, it's a subjective value judgement. Nevertheless, it's something that people have considered to be very important.

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Clayton replied on Fri, Jun 8 2012 5:17 PM

@Auto: Yes, I think that human language definitely invokes a kind of physical metaphor such as a scale, balance, ruler, etc. as if harm is something that can be "measured" and then unharm "paid back" in the measured amount. Steven Pinker in an online lecture (somewhere, sorry, can't remember the cite again!) briefly mentions this point.

Of course, this is all very flowery language but it's still very important because this is how human brains work.

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Malachi replied on Fri, Jun 8 2012 8:16 PM
The tipping point for me, I think, is that retribution results in a greater net loss of wealth per event than restitution. Restitution (re)builds wealth, retribution destroys wealth. And, the worst sort of people long to administer retribution, basically, to anyone. If the plaintiff is the victim of a heinous crime, such as sexual assault, they might appear to be one and the same to the observer. But with restitution, the goal is to restore the victim. With retribution, the goal is to do nasty things to nasty people, and thats bad for you. If theyre that bad, execute with pistol, but dont torture anyone, it will poison your soul.
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Clayton replied on Fri, Jun 8 2012 8:25 PM

If theyre that bad, execute with pistol, but dont torture anyone, it will poison your soul.

The only thing that's going to change people's inbuilt nastiness is bearing the cost of being nasty. If you could get a settlement for $1,000,000 for a violent crime committed against you or send the perpetrator to prison for 20 years, which would you choose? My bet is that a lot of people would take the million and let bygones be bygones. But because we don't have a market in law, people don't feel the costs of their decisions, that is, the true cost of punishing someone by squandering their time in prison rather than receiving repayment from them.

It is true there are a lot of ne'er-do-wells in prison who would never repay for their crimes. I think outlawry is an efficient solution to that problem which puts me somewhat out-of-sync with the wider culture.

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Malachi replied on Fri, Jun 8 2012 8:38 PM
This is why, I am sure you agree, we need a market in justice services so that rehabilitation firms can be held to account for the products they release into society. I am opposed to incarceration but I think that the lash might work for some offenders.
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gotlucky replied on Fri, Jun 8 2012 11:54 PM

Autolykos:

But you previously defined "law" as "the nonviolent resolution of disputes", not as "that which is produced by nonviolent resolution of disputes". How can something produce itself? Maybe the product of law (i.e. non-violent resolution of disputes) could be called "order" instead?

I've been using "resolution" in the sense of "the solution that people agree upon".  So, the solutions that people agree upon without the use of violence is law.  Maybe a more accurate way of saying what I mean is "law is the nonviolent resolutions of disputes".  Does that make sense?

Autolykos:

That's fine. However, you'd have to agree that law is coercive, if "coercive" is taken to mean "employing or threatening to employ violence". But I don't see why the threat of violence is strictly necessary for resolving disputes non-violently.

Law is coercive in that there is the threat of violence in order to resolve disputes.  The enforcement of law is coercive in the sense that you have just described; law enforcement requires the threat of violence and sometimes even the use of violence.  Law itself must be nonviolent, as law itself cannot act.

The threat of violence is not necessary to resolve all kinds of disputes, only some.  The kinds of disputes that require the threat of violence to resolve are the disputes that are in the domain of law.  For example, if you and I were to order a pizza, and you want plain cheese and I want peppers on it, we could have a dispute regarding the pizza.  But there is no reason why this dispute must necessarily have the threat of violence looming in the air, and most disputes regarding pizza do not end violently (every so often you read ridiculous stories about people flipping out over such trivial things).  This kind of dispute really has nothing to do with law, unless of course pizza were taken so seriously in America that there were enough disputes over it, but I'm not going to hold my breath.  Some societies do take these kinds of things seriously, such as certain religions forbidding the consumption of certain foods.  In these societies, food disputes could actually end up in the domain of law, and they have historically.

Autolykos:

I think it's important to keep in mind that "murder" is traditionally defined as "unlawful (i.e. illegitimate) killing". So to say that murder is wrong is to state a tautology. Of course, that definition raises the question, under what circumstances is killing considered to be unlawful?

Well, murder is traditionally defined that way in the dictionary, but most people do not actually use it to mean that.  I define "murder" as "unjustified homicide".  Now, I cannot prove that most people use this definition, but let's look at some nasty regimes throughout the world.  Hitler acted "lawfully" in Germany.  He was unjustified, but he did act within the law of Germany - though he really was the law.  Anyway, as far as I'm concerned, Hitler was responsible for the murder of millions of people.  But his actions were lawful in Germany.  So I do not believe it would make sense to say that Hitler was merely responsible for the deaths of millions of people.  I think most people would agree that he was responsible for the murders of millions of people.  This is why I believe it makes more sense to define "murder" as "unjustified homicide".

Autolykos:

Anyway, your assertion that "just because a dispute has been [nonviolently] resolved, this does not mean that particular resolution is law" seems to go against your definition of "law" as "the nonviolent resolution of disputes". Given that definition, any dispute that's been resolved nonviolently is necessarily law.

Above I've tried to be more specific and defined law as "the nonviolent resolutions of disputes".  Let me know what you think about that definition, if it makes any more sense than what I previously said.

Autolykos:

This sounds to me like you're changing your definition of "law". That's fine, since definitions are arbitrary. But doing that can change the meanings of other statements you've made.

I'm still trying to figure out a definition that fully encompasses what law actually is.  I do think that law is a type of social norm.  It is more strict than regular norms.  When someone breaks regular social norms, the worst that typically will happen to anyone is just being ignored or ridiculed, however it is possible that someone will aggress in retaliation, but then most people would say that the aggressor has actually broken an even more strict social norm, the law.  When someone breaks the law, there are far more serious consequences than when someone breaks a regular norm.

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