Rothbard’ position is that the aggressor should compensate the victim of his crime, regardless of whether the crime was intentionall or not. Kinsella argues that intent matters, and an accidental damage to property or body should carry a much more reduced punishment or compensation.
I think Rothbard is a more “libertarian” in this case, because for him, liberty trumps the human need for vengeance. However, usually when one person hurt another intenationally, the victim wants to take vengeance, not only receive compensation.
I am quite torn between these two positions. On one hand it doesn’t seem just that we punish the victim of a crime for executing what would seem a just vengeance. On the other hand having judges deliberate on “intent” makes me uneasy. It just seems too vague.
Anyway, my position is a middle view between Rothbard and Kinsella, namely, that Rothbard is right in theory and Kinsella is right in practice. I think that intention should not matter for the purposes of determining the “damage award ceiling”, in other words, in determining what is the highest customary damage that can be awarded for the tort. However, I think that just as vengeance is part of human nature, so is forgiveness, and in a customary law system, I think there would be a lot more latitude for victims to show leniency to their aggressors.
The problem with allowing intentionality to be a factor in setting awards is that it’s largely a subjective issue. Even a clear statement of intent, such as, “I’m beating you because you’re a Jew and I hate Jews” could be made sarcastically. So even a straightforward confession of intent does not necessarily establish real intent! This means establishing intent is inherently arbitrary. The only way it could matter is if the aggressor specifically stated his intent in the course of the legal arguments but this basically never happens, even under cross examination (which itself I doubt would exist in the form we know it under market-based law).
Well I don’t think many people would show leniency if they can get a lot of money from the insurance company. There is very little interest here in showing leniency.
I think the idea is restitution… We have the justice system so that we can bring things back to the way they were before the aggression. Punching a guy in the face does nothing to get your TV back…
Wheylous, that’s personal. For some, vengeance is better than restitution. In any case, a person is definitely justifiable in executing vengeance. An eye for an eye is very just in my opinion (not necessarily desirable or smart though).
Well the only real law is a law that regulates human acts. But human acts are free acts and free acts have to do with things like intent, knowledge, etc. So the law, under any regime, has to take cognizance of intention and knowledge if it wants to assign guilt.
I suppose, and this is just my opinion, that intent can be gathered by careful attention to human nature and, (by keeping in mind your own lack of intelligence) by a healthy skepticism and humility RE: your judging capacity. This is just speculation but, specifically one can judge intent by discovering the middle term through which a person comes to some action.
So for instance, if I say All killing is pleasurable, and pleasurable things should be acted out, and therefore killing should be acted out; then the middle term “pleasure” is the reason why I did what I did. So as long as one can logically argue, you will be able to narrow down the terms sufficiently through disjunct subtraction, until you reach the indisputable intent. But again such a process seems to smack of hubris and so may be too unethical.