Justice as restitution vs. Justice as social signals

Economics Political Theory
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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.

Clayton -

22

Oh please, I merely raised my voice!

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.

23

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…

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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I’m aware of that. “No” in all-caps was meant in jest.

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

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?

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.

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.

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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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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@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.

Clayton -

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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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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.

Clayton -

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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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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?

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.

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”.

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.

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.