In the previous couple of posts of this series, I argued that the practice of punishment and the institution of criminal law are inherently unjust. As an alternative, I proposed that we replaced them with a purely civil system, with no law but tort law. All cases would then be cases of dispute resolution, where aggressors are not punished, but instead forced to pay restitution to their victims. Here, I’ll provide some brief responses to some of the most common criticisms of this idea.
One problem that is often raised against an exclusively tort-based legal system is that it fails to provide sufficient deterrence. Sophisticated versions of this charge do not claim that pure restitution totally (or even generally) fails to deter, but that it fails to deter in a few very specific instances.
One of these is in cases where the offender is especially wealthy. If the legal consequences of an offense are just that the aggressor will have to pay monetary compensation, this will do little if anything to stop someone with a seemingly endless supply of money.
Another involves cases where the offender is especially poor. If the offender is already deep in debts he or she is unable to pay, one more might not mean that much.
The first thing to note here is that there is a legitimate basis for exacting more restitution from a wealthy offender than a poor one, even though pure restitution is victim-centric. That basis is in proportionality. To generate a restitution debt of three million dollars may only be a minor inconvenience to Bill Gates, but could ruin the life of an average person. Because that debt is more impactful on one person than another, it may go well under the acceptable amount of force for one person, and well over it for the other.
Furthermore, it may well be the case that a restitution debt is not enough to fully deter a potential aggressor. Yet if what I said in the previous posts are correct, this is not a sufficient reason to reject pure restitution. Deterrence may be a good side effect of law, but it is not the proper purpose of it.
Moreover, deterrence is not exclusively provided by the law. Social sanctions and pressures can also serve an important role, especially for wealthier offenders (due to their public visibility). The same is true within social circles or spaces frequented by more ordinary offenders (see, for instance, prison abolitionist and feminist Victoria Law’s account of resisting gender violence outside of the legal system).
One other case where it seems like pure restitution fails to deter is in murders against people with no known relatives or friends. Typically, when the victim is no longer alive, the restitution debt is then owed (like any other debt) to their heirs. Thus, if the victim has no heirs (or even close social contacts that could be determined to be one), it seems like no restitution debt would be owed.
One solution to this problem is that claims could be homesteaded. If another person or organization seeks to bring a case on behalf of the victim, they could be entitled to the restitution debt. Of course, if multiple parties attempted to do so, they would either need to do so jointly, or the court would need to determine who had the most legitimate claim to the debt. For example, after the murder of a homeless man, an association dedicated to helping the homeless would have a better claim to the debt than a wealthy lawyer who just wants the money for themselves.
Insufficient Condemnation / Imperfect Justice
To say that all a legal system should do to an aggressor is to force him or her to pay monetary compensation to their victims just seems intuitively wrong. Understandably, there is a very real feeling that this simply does not fully account for how deep a moral wrong has been done, and does not achieve perfect justice.
Unfortunately, the basic claims of these criticisms are spot-on. Yet where they go wrong is in thinking that these concerns give us reason to support punishment or criminal law. It is true that no amount of money will ever bring back a life, and often will not fully relieve the suffering felt by other violent crimes. Yet no amount of punitive force taken against the aggressor will do that, either. The difference is that under restitutive models of justice, at least something is being done to restore what can be restored, and achieve what justice can be achieved.
Also, while a pure restitution framework holds that monetary compensation is the only thing that a legal system can use violence to collect, it does not require that only monetary compensation can be a part of a settlement. Any number of alternative restorative arrangements – in which the aggressor attempts to directly make amends with a focus on accountability – are possible, and can stand in place of all or part of the owed monetary compensation. When these arrangements are feasible, they are likely the closest to perfect justice we can reach.
Beyond that, it must be emphasized once again that a problem with criminal law and its punitive focus is that it makes us lose track of remedies completely outside of the legal system. The courtroom, ideally, should be a place for settling disputes, not for handing down the official moral voice of the community. Moral condemnation should, rather than coming from one central authority, spring up from the ground level of the community itself.
In fact, by having legal cases determine moral guilt and innocence, the punitive framework both pollutes trials (by misdirecting verdicts to make moral statements beyond the actual case at hand) and disempowers other areas of civil society from making moral statements. Once the court has spoken, we assume that that’s all there is to say about the matter.
Finally, when not talking about the legal system, most of us tend to agree that violence is an improper way to drive home a moral point. Even more appalling would kidnapping and enslaving a wrongdoer for that purpose. That judgment should carry over to how we think about the law: moral condemnation is not a legitimate basis for punishment, and certainly not a legitimate basis for imprisonment.
That the equivalent of imprisonment seems worse than the equivalent of judicial corporal punishment is worth noting. Therefore, my next post will outline why prisons are inherently unjust for reasons even beyond the injustice of punishment altogether.
Of course, then there’s the problem of when the heir is also the murderer. But then it seems reasonable to determine an alternate heir, since the heir is supposed to stand-in for the murdered, and clearly the murderer is not representing the wishes of the murdered.