eye for an eye

[GePap]

Originally posted by lord of the mark


Im not sure these are seperate - IIUC the full development of criminal law in England (a small part of the globe, but like many here my orientation toward the common law and its origins is strong) state punishment of criminals, beyond those who directly threatened royal interests, was largely an attempt to provide a substitute for traditional blood feud - ergo the punishment had to be heavy enough that the state could offer it as a true alternative, and ease the repression of blood feuds. Which themselves DID endanger the social order - in other words, while the states goal WAS to maintain social order for its own purpose, that maintenance required the suppression of private blood feud, and given the real limits on state power at the time, this required making victims (or rather their families in the case of murders, where blood feud was more of an issue) satisfied with the punishment, at least to some degree.

Of course, NIetzsche's take on it was simply that as you pointed out, the state was weak, and the weaker one is, the more seevre the punishments they will meek out.

And how does this system make sense again for property crimes? Theft was punishable by death as well, meaing that stealing a cow and killing a man had the same price on the criminal. Would both crimes lead to the same type of feud?

[lord of the mark]

Originally posted by GePap


Of course, NIetzsche's take on it was simply that as you pointed out, the state was weak, and the weaker one is, the more seevre the punishments they will meek out.

And how does this system make sense again for property crimes? Theft was punishable by death as well, meaing that stealing a cow and killing a man had the same price on the criminal. Would both crimes lead to the same type of feud?

My point was not a direct reaction to weakness, but rather that the state was too weak to stamp out blood feud purely by fiat - the medieval state needed to offer something (to the victims) in return, to get blood feud stamped out. I dont know if that is what FN was thinking of.

I dont know what the punishments for property crimes were in the middle ages, or how that related to blood feud - i suspect though that for a peasant to lose a major piece of livestock may well have been something capable of starting blood feud, as this may have been the difference between life and starvation for many. Increasing use of the death penalty for property crimes in 18th c England had to do with the extreme difficulty of catching a criminal and gaining conviction, and so was a response to a different kind of weakness, that of the criminal justice system vis a vis the alleged perpetrators. A rather different situation than in origin.


Again my point remains, while punishment (in common law countries) has moved far from its medieval roots, and while those roots had everything to do with state interests, it is not quite correct to say that they had nothing do with retribution for victims.

[lord of the mark]

[QUOTE] Originally posted by GePap

What about Overpunishment?

indeed, overpunishment also undermines the legitimacy of the system. I think that is precisely what happened in Georgian England, forex, and some of the applications of the 3 strikes rule in the US today have the same danger.

As for the remnants of private fueds, no system of law can change human beings: people seek revenge in my opinion because what they seek is to rectify as violantion of their power- the criminal in his act humiliated and debased one, made subordinate and weak the victim, and the victim seeks re-enpowerment throught doing the same to the criminal "rehumbling them".

The point (in this case) is not to change the human beings, but to channel their inclinations in a way that is less dangerous to the public order than the private blood feud, vigilante justice, etc. The objection will be returned that this failure to try to change human beings in fact reinforces their undesirable qualities - statecraft IS soulcraft, and with regard to punishment we should (arguably) guide people away from vengeance - does a harsh punishment, esp capital punishment, detract from the tendency to vigilante justice, or does it reinforce blood thirstyness?

There is also the simple problem of being unable to quantify the payback ofr any crime- for example, given the crme that has been mentioned: what is the correct retribution for rape?

We have to decide many difficult issues we cant quantify. We have to do that through democratic dialog and debate.

[GePap]

Originally posted by lord of the mark

Again my point remains, while punishment (in common law countries) has moved far from its medieval roots, and while those roots had everything to do with state interests, it is not quite correct to say that they had nothing do with retribution for victims.

In your own formula, maintaining the social order remains paramount- at most, the victims opinions were sought at a time when the victim's acquiasence to the system was critical given the weakness of the system- ie. in the defense of the social order.

So even by your estimation maintenance of the social order remains paramount, and now that the state need not seek the opinion of a victim directly it has lost meaning.

[lord of the mark]

Originally posted by Ramo
As for the question, revenge is wrong. Period.

someone commmits a murder. The situation is unique, he is never going to commit another one again, nor is anyone else in society ever going to copy him. There is no utilitarian reason to hold him in jail for even a day, nor is there reason to fine him. Do we let him go free with no consequence whatsover?

This is a different question from an eye for an eye - an ELEMENT of retribution, saying punishment in some cases must go beyond what pure cost-benefit analysis would indicate (just as in SOME instances it must be LESS - it might work from a CBA POV to execute petty thieves, but it would be unjust because of the disproportion ANYWAY) is NOT the same as saying we must try to EQUATE punishment to victim suffering.

[GePap]

Originally posted by lord of the mark

indeed, overpunishment also undermines the legitimacy of the system. I think that is precisely what happened in Georgian England, forex, and some of the applications of the 3 strikes rule in the US today have the same danger.

The three strikes laws were placed democratically and remain in power- I see no real popular opposition to them. As for King George- colonists in the Americans suffered less than their counterparts back in the home country- it wasn't your average english peasant who revolted, it was a bunch of middle class merchant types.

The point (in this case) is not to change the human beings, but to channel their inclinations in a way that is less dangerous to the public order than the private blood feud, vigilante justice, etc. The objection will be returned that this failure to try to change human beings in fact reinforces their undesirable qualities - statecraft IS soulcraft, and with regard to punishment we should (arguably) guide people away from vengeance - does a harsh punishment, esp capital punishment, detract from the tendency to vigilante justice, or does it reinforce blood thirstyness?

NO, i does not-this thought goes against the notion of eye for an eye- after alll, the death of the murderer is supposed to quite people down.

We have to decide many difficult issues we cant quantify. We have to do that through democratic dialog and debate.

How can you "democratically debate" that? Anymore than you can democratically debate the meaings of science, or the consequences of industrialization?

[lord of the mark]

Originally posted by GePap


In your own formula, maintaining the social order remains paramount- at most, the victims opinions were sought at a time when the victim's acquiasence to the system was critical given the weakness of the system- ie. in the defense of the social order.

So even by your estimation maintenance of the social order remains paramount, and now that the state need not seek the opinion of a victim directly it has lost meaning.

I can see where you would see it that way.

[lord of the mark]

Originally posted by GePap


The three strikes laws were placed democratically and remain in power- I see no real popular opposition to them. As for King George- colonists in the Americans suffered less than their counterparts back in the home country- it wasn't your average english peasant who revolted, it was a bunch of middle class merchant types.

I was not speaking of the American colonists, but of a growing sense of discontent in England with the wide spread use of the death penalty. The english judiciary began to shrink from it, by avoiding conviction for crimes that required death, and through royal pardons. The american colonies played a role as a place where criminals spared death could be transported - with the loss of the colonies, England faced a crisis, which was resolved with the establishment of Australia, and eventually with the development (at the instigation of Jeremy Bentham) of the modern penitentiary.


See "The Fatal Shore" by Robert Hughes.

[lord of the mark]

[QUOTE] Originally posted by GePap

The point (in this case) is not to change the human beings, but to channel their inclinations in a way that is less dangerous to the public order than the private blood feud, vigilante justice, etc. The objection will be returned that this failure to try to change human beings in fact reinforces their undesirable qualities - statecraft IS soulcraft, and with regard to punishment we should (arguably) guide people away from vengeance - does a harsh punishment, esp capital punishment, detract from the tendency to vigilante justice, or does it reinforce blood thirstyness?

NO, i does not-this thought goes against the notion of eye for an eye- after alll, the death of the murderer is supposed to quite people down.

So it goes against eye for an eye - so what? Im trying to reflect on the question thoughtfully, not win points for one side or the other in a debate. Thats my general approach to discussing things - sorry if it violates local custom

[lord of the mark]

Originally posted by GePap


How can you "democratically debate" that? Anymore than you can democratically debate the meaings of science, or the consequences of industrialization?

you debate them by bringing in sources, including experts where necessary, by speaking and listening, etc. To the extent that something like the consequences of industrialization effects public policy (say in terms of the importance of foreign aid) it is necessary for citizens to debate these things. That relatively few citizens debate SOME subjects hardly invalidates this - citizens will always put their limited resources of time and effort toward those issues of greatest salience.

Theres a quote here from John Dewey, but i cant think of it off the time of my head.

[Japher]

you debate them by bringing in sources, including experts where necessary, by speaking and listening, etc. To the extent that something like the consequences of industrialization effects public policy (say in terms of the importance of foreign aid) it is necessary for citizens to debate these things. That relatively few citizens debate SOME subjects hardly invalidates this - citizens will always put their limited resources of time and effort toward those issues of greatest salience.

You would get banned from the Democratic Underground for saying such things! I demand you take it back!

Almost sig material, almost... it's just too short.

[Kidlicious]

Originally posted by GePap
Justice has little is anything to do with the "victim". That is why all criminal cases are between the defendant and THE STATE. The criminal jsutice system exists not to make the victim feel nice, nor give them retribution, nor to have any sort of proportionality to punishment- it is in fact designed to maintain the social order- punishment then is based on what is assumed to maintain the social order.

I suggest that it not be called justice then. Justice means that everyone is treated fairly and gets what they deserve.

[Ogie Oglethorpe]

Originally posted by Kidicious


I suggest that it not be called justice then. Justice means that everyone is treated fairly and gets what they deserve.

What an absurd notion.

[Kidlicious]

If person A harms person B what the hell does the state have to do with it except to make sure that justice is done. If you are going to call it a criminal justice system than the victim better damn well have something to do with it otherwise it's a criminal injustice system since person A didn't harm the state.

[Boris Godunov]

Person A harming person B with impunity would indeed harm the state, which is why the state dispenses justice. Anarchy is harmful to any state, after all.