Benjamin Birney Law and Nerdonomics

25Aug/120

Restitution is old. Is it just?

ABSTRACT: Despite the venerable heritage of restitution and its widespread use today, the idea that compensating the victim complements punishing the criminal is vulnerable to theoretical challenge. The punishments of criminal sanction are usually much harsher than the remedies of the civil law. (The remedy for most civil wrongs is money damages, which the prevailing plaintiff may or may not be able to successfully collect. The iconic remedy for a crime is incarceration.) One can justify these harsher punishments on the grounds that a crime, unlike a civil wrong, harms all people, not just a discrete group of victims. Crimes like murder, arson, and robbery are, in theory, wrongs of such a nature that the very act of committing one creates unstable conditions in society that harm everyone. Thus, a criminal punishment must be imposed for a wrong that affects everyone; the punishment is on behalf of the community, and any compensation should naturally flow to the community.

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4Jul/113

Liberty requires justice; justice requires liberty

Several years before I went to law school, I identified myself as a Libertarian. As I have learned more about how the law works, and how we think about why the law should do what it does, I have found that decision strongly reinforced. It occurred to me, in conversation with a close friend in the spring of this past year, that there is a fundamental connection between the purposes of the law and idea of liberty. At the time, I expressed the idea by saying: “Justice requires liberty; liberty requires justice.” I continue to think that statement is a correct one. I will attempt to justify it.

WHAT IS JUSTICE?

In order to convince you that my two statements are correct, we must first be talking about the same basic terms.  We all have a basic idea of what “liberty” means. For instance,  if I were to say “’Liberty’ means having the freedom to do whatever I want, to the extent that my actions do not reduce the same freedom in other people,” I would expect us to basically agree. (I am not claiming we would agree on the value of having that freedom, but I think we could agree on the definition.)

“Justice” poses a trickier problem. The word can mean many things to many people. To some it means doing what is fair; to others it means punishing people who do wrong; to others, it means giving everyone what he deserves to have because he is a human being.  However, the emphasized words are themselves debatable. What’s “fair,” “wrong,” and “deserved” are all very subjective inquiries, and reasonable people frequently disagree over what they mean in practice.  Further, in the real world, all three are basically irrelevant. They are coincidences to which we give labels. I’ve never yet met someone who got what he deserved, or what was fair, or what was right; I’ve met plenty of people who received what the earned, and got what they caused. If what a person gets happens to line up with what I personally think is “fair” or “right,” then I might think the world is a little better place – but those perceptions are my own, and guaranteed to be different from what other people perceive.

My world is as I cause it to be. I get what I earn, or what other people give me, I not having earned it. (Grace, for instance, is unearned, and un-earnable; likewise forgiveness.) There is room in this statement for accidents, or for serendipity; these things do happen. They are moments that we build our lives around. If I win the jackpot, I have been given a moment of serendipity; but what I get as a result depends on what I do, what I cause. Thus, we have the old saw about unhappy lottery winners. If I break my leg, my life will be as I cause it to be in the context of having a broken leg.

This leads me to my definition of justice, which I shall assume to be correct for the purposes of this discussion. Justice means a system in which we protect and maximize each person’s freedom to make meaningful choices. Why this definition? Two reasons. First, I submit (as, I admit, an assertion) that the greatest human experience is one in which we have the most ability to direct our lives and achieve what we want to achieve. This requires the maximum meaningful choice available to each person. Each person’s hopes and dreams are intensely personal, and to achieve them requires the ability to select from the greatest array of options at every branch in his life. To take a simple example, if my dream is to be the greatest craftsman of furniture I can possibly be, then I must be able to make choices that lead to training, to raw materials, and to tools. If I cannot choose these things, I cannot be a great craftsman.

Second, meaningful choice leads to personal power. If I have chosen what I have, then I am empowered. If not, I am reduced. To continue the craftsman example: If I choose to apprentice myself to a master craftsman for seven years to gain his skills and experience, then I am powerful, because I chose it. Each day when I wake up and work long hours for a low wage, I am doing it because I choose to defer gratification and better myself. If, on the other hand, I am enslaved to the craftsman for seven years, I have chosen nothing, and I am reduced in my power. I could legitimately claim that a terrible injustice has been worked on me.

(Slavery, in its pure form, is among the greatest injustices this world has ever seen. It reduces the human potential of a single person to nothing. The slave, given his choice, could pursue a life that would lead to greatness and benefit to everyone else around him; because he is denied that choice, we all lose the benefit of what he could achieve. Only murder is more unjust.)

For these reasons, I am going to continue with the assumption that Justice is a system that protects and maximizes each person’s freedom to make meaningful choices, to the extent that his choices do not limit the choices of other people. (I realize that this is terrifically abstract. I hope the discussion that follows will help make it more concrete.)

LIBERTY REQUIRES JUSTICE

That liberty requires justice is so fundamental that you might overlook it. The idea is natural and intuitive. Very simply, if liberty is the freedom to make meaningful choices and justice is the system that protects and maximizes that freedom, then liberty without justice is vulnerable to being extinguished at any time by any person stronger than you. I may only make choices so long as I am free to do so; if you come along and make a choice that reduces my freedom, I have less liberty. Let’s look at some (deliberately) simple examples.

Suppose I have built a house and cleared some land to plant crops. This was my choice-driven act of liberty, calculated to give me some of what I want (and need) in my life: food, shelter, beauty, and fulfillment. Now suppose you come along and force me to leave “my” house and harvest “my” crops. I have no liberty; my choice has been restricted by your choice.

Now suppose I give you $100,000 for the right to possess a fertile piece of land with a house on it. (We must assume that both of us thought that we were getting ahead by the deal; otherwise we would not have entered into it. The subjective theory of value is a wonderful topic for another day!) Having done that, you refuse to move out, and forcibly prevent me from planting or tending crops. Absent recourse to the law, I have no liberty; my choice has once again been restricted by your choice.

These two examples illustrate how private property rights and free commerce – fundamental expressions of liberty – depend necessarily on a system of justice. “Recourse to the law” is not just a pretty phrase; it means that the full weight and power of “the law” – a smart, tough, resourceful group of people, cooperating together – will come to my aid when someone restricts my liberty.  The same will, of course, be true if I do something that restricts another person’s liberty; without equality under the law, liberty as a social concept is utterly meaningless. When we decide that, for instance, a black person may not own property, we have thrown any notion of liberty out the window; the tremendous benefits that flow from the black person’s liberty are lost to everyone.

JUSTICE REQUIRES LIBERTY

This proposition is more difficult. Why should a justice system require liberty? Plenty of systems calling themselves “just” have greatly reduced the liberty of the people they purport to protect, often far beyond what is needed to protect the liberty of other people. This historical abuse of the word “justice” makes it harder for us to understand at an intuitive level why justice requires liberty. But return to the assertion with which I began this conversation: That justice is a system that maximizes each person’s freedom to make meaningful choices.

Now, I can hear you thinking: Ben, you’ve simply proved your argument by definition. If justice is what you say it is, then by definition it not only requires liberty, but actually causes liberty. I admit that my definition and this proposition naturally reflect each other. That does not mean the proposition is less true, if you accept the opening assertion. However, perhaps at this point you are questioning the assertion. Let’s return to it, and see if we can imagine a “justice” system that neither requires nor causes liberty.

Rather than pick a real-world court system – and there are plenty that bear examination as examples of justice without liberty – let’s instead imagine a hypothetical one. This hypothetical justice system enforces laws and rules without any regard whatsoever to the freedom of people to make meaningful choices. To keep this exercise credible, let’s imagine that our system is designed to do something that sounds attractive: It is designed to make sure every person has enough to eat and drink, someplace to live, and access to “adequate” health care. The legislators – however they come to be in that position – write laws with no thought to personal choice, but lots of thought as to how to allocate food, water, living space, and health care resources most effectively. Let’s even imagine, though this bears no relation to reality, that these magnificent central planners are actually able to perform this feat as efficiently as a free market, causing no shortages, surpluses, or interminable bread lines. The courts and police enforce the laws faithfully and strictly.

You live in this society. You are given food of adequate nutrition in the form of vitamin-enhanced bread. The water is free, but smells rather strongly of chlorine. You live in an apartment sized perfectly for the number of people in your family unit, but with no unnecessary or frivolous furniture, decorations, or luxuries. The temperature of the air and water are controlled automatically to save energy. Every month you are required to go to an appointed doctor for a preventative care check-up, and you are seen more frequently if the doctor determines that something is wrong with you. The doctor decides what medicine you will take, what operations you will have, and whether you will be treated for a disease.

This justice system is fulfilling its purpose. Whether you would rather have eggs for breakfast is not relevant, because it is not necessary; your vitamin bread accomplishes the social goal more efficiently. Whether you would rather have an overstuffed leather chair in your living room is of no matter to the law; the law cares that your apartment is large enough and contains adequate furnishings. Whether you would really rather have symptoms of an illness than take a particular medicine is similarly irrelevant to the law. The purposes of this “justice” system are being well and dutifully fulfilled.

I hope this illustrates to you the value of a justice system that maximizes choice. You are a powerful, intelligent, free human being. You are perfectly capable of deciding you’d rather have eggs for breakfast; you can make informed and reasonable decisions about your dwelling; your health care is within your control. An individual who makes choices for himself will lead the fullest and most expansive life available, full of opportunity, fulfillment, and value given to other people. Yes, you will sometimes need a safety net; no person can live without other people to help him. When you break your leg or get cancer or lose your job, you will need help from other people. But the point of choice is that you have the ability to construct your own safety net – by being part of a community, by conserving your resources for a rainy day, and by taking risks carefully and with open-eyed calculation.

A justice system that requires no liberty to protect is, I posit, no justice system at all. If you doubt the truth of this position, I can defend it in no better way than to direct your attention to the fine and well-seasoned body of dystopian literature. We, 1984, Animal Farm, Brazil, and hundreds of other thoughtful and compelling stories are out there to show you, rather than telling you, what it means to have liberty, and what it means to yield it. If you truly believe that justice can exist without liberty, then I encourage you to read some of them and imagine what it would be like to live in that kind of a world.

CONCLUSION

I have put forward the idea that (1) liberty requires justice, and that (2) justice requires liberty. These two statements are based on a foundational assertion: That “justice” means a system that protects and maximizes each person’s freedom to make meaningful choices.

I welcome your thoughts and comments.