The Capitalist concept of Fairness

[Dean]

To most crimes, capitalism proposes an "equal, opposite reaction" as it were. If I steal 5$ from Joe, I owe Joe 5$.

There is also a tendancy to support other forms of "eye for an eye," especially when activity by the criminal cannot give back what is taken from the victim. For instance, a murdered man cannot get his life back; so the same must be taken from the criminal. Other justifications to this end tend to be less about punishment, more about money: it is cheaper to shoot a person in the head (barring the current legal cost of appeals) than to keep them imprisoned for life. The argument goes that it is not economically viable to maintain a person's subsistence who is being held to maintain the safety of the rest of society. In a word, the criminal's life is worth less than the money it costs.

However, I don't see this as making any sense at all. For instance, a person who is by some standards mentally insane but not by others - an arguable defense for a criminal's life, as he is without control - brings the question of how far sanity must be to insure "just execution," and what exactly qualifies for sanity.

Another glaring example of the contradictory nature of this idea system is raised if we consider the social end desired in justice. If it is "punishment," a vague, irrational and divisive concept, then there is no contradiction, just no precedence. However, if the end is in the safety of society* (for which justice is an agent) then a huge contradiction arises: is punitive action really a mode by which society becomes safer? If a society with no punishment were shown to be safer or equally as safe as a punishing society, would it be reasonable to punish people? If Joe can always get 5$ as easily as I can give it to him after stealing it, do I really owe him anything?

*society here refers to a group of individuals and their freedom, dignity, etc; neither 'communism' nor 'capitalism' are indicated, just people and their assocative character.

[Publius]

Interesting questions.

This is a topic so vast I don't think we can get a full account of it, but I have my favorite problems.

First of all, it's reasonably well established that the best way to get information out of people isn't through torture. I remember a comment by some general saying we got information out of Himmler by playing ping pong with him than we did out of a 100 other people who we tortured. And I believe it. This idea has solid emprical backing. And yet people prefer torture as a method of extracting information when, objectively, it is worse (though sometimes effective, it must admitted.) Why? Probably some vulgar wish for retribution, as you said.

But what is the morality of retribution, other than the morality of the animals? Once you've locked someone away, you've taken with their freedom, so what is accomplished by killing them? The only thing that seems to occur is that a penchant for blood has been satiated. I fully understand these feelings, and can sympathize with them. I've been hateful before, we all have. But I recognize that this me at my worst. These are the worst feelings that I, as a human, can harbor. So in what in sense is it productive to give in to these feelings? Morality is an attempt to behave BETTER than what our nature seems to ask of us. We're supposed to be vicious, cruel, pack animals, apes better than other apes at killing. But through these minds of ours we've devised better more humane ways of living. Why, then, would we wish to revert to this tribal morality of ours? What would that gain us but base satisfaction?

[Lynx]

You have the criminal, the victim, the justice system, the corrections system and society at large.
What do we "do" for each of these parties?
The victim wants justice or retribution or the chance to offer forgiveness.
The criminal wants to escape punishment or seek redemption.
Corrections has the task of applying punishment and rehabilitation at the same time.
Society wants to be protected and be assured that justice is being served.
Finally, the justice system seeks to apply the rule of law in a balanced manner to somehow satisfy all of the above.

[pusher robot]

It is generally accept that there are four primary functions of the criminal justice system (and incidentally, I don't think there is anything particularly capitalist about these):

1. Incapacitation - the criminal cannot re-offend if he is physically prevented by doing so, such as being locked in a cage or dead. This is often the only way to prevent sociopaths from re-offending.
2. Rehabilitation - to try to ensure that the criminal will not want to re-offend
3. Deterrence - the unpleasantness of the punishment will make people feel it is not worth the risk to commit crime
4. Retribution - punishment for the sake of penalty

I would argue that each of these is necessary to some degree, even #4. There is a penalty for fouls in football; likewise, there needs to be a penalty for lawbreakers for people to feel that there is justice. As the non-lawbreaker, you then get to feel the satisfaction of not suffering the punishment because you didn't break the law.

Now, method #1 has arguably proven most effective at stopping crime - but it is also the most expensive and least likely to fulfill #2; also, it seems to have lost much of its deterrent power, at least among some groups. #2 is of some effectiveness, but generally only if applied early on, and not often in conjunction with #1. But #2 without #1 has led people to feel that #3 and #4 to be neglected.

I have argued in the past - sometimes more seriously and sometimes less so - that the U.S. should seriously consider utilizing corporal punishment for nonviolent offenses that would otherwise warrant prison time. The problem as it currently stands is that such offenders are often good candidates for rehabilitation, but in order to satisfy the goals of retribution and deterrence, prison time is handed down. Goal #1 comes into play a little bit, but not much because the person may not have re-offended at all of goal #2 was met. But the result of incarceration is that goal #2 is never met, and goals #3 and #4 are weakened over time.

So what you want, ideally, is a punishment that is harsh enough to satisfy the need for retribution and serve as a deterrent, but won't sabotage efforts at rehabilitation and will make incapacitation unnecessary. I think corporal punishment such as lashing would fit this requirement. It's an extremely painful experience that the law-abiding will agree is sufficient penalty for the crime, and that people will probably greatly want to avoid, but it is over quickly and doesn't throw the offender into a crime culture the way that prison does, offering an immediate opportunity for rehabilitation that won't be undermined by months or years of being treated as an animal and joining criminal gangs.

Whenever I have proposed this in the past, the immediate rejection is that this is unthinkably cruel and should not be permitted in our enlightened age. But I think that this far too easily dismisses the cruelty of imprisonment, which is easily forgotten about when it is conveniently hidden far from view. 9 times of 10, when I ask the same person whether they would rather receive 15 lashes or 2 years in prison, they would rather take the lashes! And personally, I think I would too. But it takes forcing them to consider the reality of 24 months of imprisonment for them to consider how cruel prison really is.

Now, if there is a "capitalist" system of justice, that would be the civil tort system, where you sue people for actual damages done to you. If Joe takes your $5, you sue him for $5 of damages. The only goal this system cares about is restitution - the goal of restoring the plaintiff to their original position before they were wronged by the defendant. Of course, this sometimes has somewhat uncomfortable outcomes because it relies on determining a dollar value for every possible harm, even death! It's easy to see why this is insufficient, though, and thus some criminal laws are called for.

[Dean]

Originally posted by pusher [email protected] 31, 2007 05:53 am
So what you want, ideally, is a punishment that is harsh enough to satisfy the need for retribution and serve as a deterrent, but won't sabotage efforts at rehabilitation and will make incapacitation unnecessary. I think corporal punishment such as lashing would fit this requirement. It's an extremely painful experience that the law-abiding will agree is sufficient penalty for the crime, and that people will probably greatly want to avoid, but it is over quickly and doesn't throw the offender into a crime culture the way that prison does, offering an immediate opportunity for rehabilitation that won't be undermined by months or years of being treated as an animal and joining criminal gangs.
This isn't my point - though you raise rome interesting points, the issue is whether or not, without results, punishment or retribution is reasonable. I don't see how it can be; in other words, the safety of society is more important than the right of those "wronged" to have retribution against the wrongdoer.

You say that all four are necessary - but in many cases, wouldn't retribution cancel out the capability to safen society, rehabilitate, etc.? Isn't that a moot point when it comes down to the actual goal and aspects of morality and/or justice?

[Lynx]

15 lashes or a heavy financial penalty, proportionate to income. Which would you choose? Which would be a better deterrent in a capitalist society?

[JazzRemington]

If you're interested in the capitalist concept of justice, read "The Rich Get Richer and The Poor Get Prison." I had to read it in my undergrad work and I even still have it.

[pusher robot]

the issue is whether or not, without results, punishment or retribution is reasonable. I don't see how it can be; in other words, the safety of society is more important than the right of those "wronged" to have retribution against the wrongdoer.

Well the whole idea of criminal law is that it is society that has been wronged to begin with. Making the victim whole again is the purview of civil law, not criminal law. Now, safety is an important goal of the criminal justice system, but is it the only goal? I say, no, the overall goal of the criminal justice is not crime prevention but the dispensation of justice. That leaves us in a sticky situation because defining justice is so difficult, but I think most people agree that justice must entail some kind of penalty for the wrongdoer. The wrongdoer victimized society at large by flouting its laws. That transgression, in the minds of most, must be met with the administration of some penalty.


but in many cases, wouldn't retribution cancel out the capability to safen society, rehabilitate, etc.? Isn't that a moot point when it comes down to the actual goal and aspects of morality and/or justice?

Like I said, I think it's an erroneous assumption that the sole goal of the criminal justice system is to make society safer. In fact, often it will do things that compromise that particular goal in order to serve the larger goal of justice itself. The reason that criminal laws exist is because some acts are deemed worse than the sum of the harm inflicted on the victim.


15 lashes or a heavy financial penalty, proportionate to income. Which would you choose? Which would be a better deterrent in a capitalist society?

It depends on how heavy a fine we were talking about.

[Lynx]

Heavy enough that it would serve as a greater deterrent than corporal punishment. Fines could be expressed as a % of net worth.

[Dean]

Originally posted by pusher [email protected] 31, 2007 11:26 pm

the issue is whether or not, without results, punishment or retribution is reasonable. I don't see how it can be; in other words, the safety of society is more important than the right of those "wronged" to have retribution against the wrongdoer.

Well the whole idea of criminal law is that it is society that has been wronged to begin with. Making the victim whole again is the purview of civil law, not criminal law. Now, safety is an important goal of the criminal justice system, but is it the only goal? I say, no, the overall goal of the criminal justice is not crime prevention but the dispensation of justice. That leaves us in a sticky situation because defining justice is so difficult, but I think most people agree that justice must entail some kind of penalty for the wrongdoer. The wrongdoer victimized society at large by flouting its laws. That transgression, in the minds of most, must be met with the administration of some penalty.
Revenge, in other words. You must remember to dig two graves.




but in many cases, wouldn't retribution cancel out the capability to safen society, rehabilitate, etc.? Isn't that a moot point when it comes down to the actual goal and aspects of morality and/or justice?

Like I said, I think it's an erroneous assumption that the sole goal of the criminal justice system is to make society safer. In fact, often it will do things that compromise that particular goal in order to serve the larger goal of justice itself. The reason that criminal laws exist is because some acts are deemed worse than the sum of the harm inflicted on the victim.

The distinctions you give for criminal law versus civil are erroneous. It is not just about retribution in criminal law; it is primarily about the safety of the social institutions and the people in the society itself. The same is true of civil law, it is just referring to lower forms of safety - property rights, minor injuries, etc.

Why do you value revenge? It's basically just another way of saying that you don't understand someone, and you don't want to. The concept is that if someone commits these given acts, they are not deserving of just treatment. But you ignore the issue of sanity, and psychological factors. Should all Muslims who support the enforcement of full - body coverings for women be punished? Sure, it's wrong, but it's also a product of a given environment; why seek revenge on these people, a destructive end, when you can seek a productive end, that is to end the crime itself? What value does something so alienating and violent as revenge have for a productive society? Why support unnecessarily violence?

[pusher robot]

Why do you value revenge?

I see it as a fundamental form of fairness. The criminal inflicts suffering on his victim and violates the trust of his society. It seems simply a matter of basic fairness that the criminal ought also experience at least some suffering and violation in proportion to that he has inflicted.

You would agree, would you not, that good service to the community ought to be rewarded in various ways? Why then ought not bad deeds toward the community be punished in various ways?

[Dean]

Originally posted by pusher [email protected] 01, 2007 02:41 am

Why do you value revenge?

I see it as a fundamental form of fairness. The criminal inflicts suffering on his victim and violates the trust of his society. It seems simply a matter of basic fairness that the criminal ought also experience at least some suffering and violation in proportion to that he has inflicted.

You would agree, would you not, that good service to the community ought to be rewarded in various ways? Why then ought not bad deeds toward the community be punished in various ways?
I think good service ought to be respected, but if it is always rewarded, then it loses its meaning. Is it really a particularly good deed if the person expects some kind of reward besides the act itself?

Of course, people should be happy and respect those who do good. But if a good deed is invisible, is it useless? Rewarding all good deeds makes them an issue of trading services (and perhaps goods) instead of their inherant value as productivity. It often, but not always, strips the deed of its nobility. If you see a person picking trash off of the side of the road you might think he's an honorable man, but if you find that he is being paid, he will be respected less. It may not be true that he is primarily interested in the money, and it may be true that he needs the money to subsist but he indeed loves helping the environment - but that doesn't change that the act itself is devalued of its goodness and productivity, and even human character, when it becomes an issue of economic subsistence rather than human desire to do good.

In the same vein, the act of murder is itself a hellish nightmare for the murderer. If I woke up tomorrow with a bloody knife in my hand and two dead bodies, I would be more scared for my sanity and moral standing than the threat of prison. To become a person who destroys others, or even just one who is antisocial, violent and alienated (what most legitimate crimes entail) is not a pleasing thing. But to apply punishment, especially to those who are mentally ill (I'm willing to bet most murdereres are mentally ill, diagnosed or not) is probably going to make the alienation greater, the anger, hatred or pathology worse.

And this is the root of our disagreement, interestingly applicable very much to a lot of Marxist concepts. You support an external attack on a human for his deeds, while I contend that it is his heart which must be judged - as a product of environment, almost certainly mentally ill, the criminal is hardly the problem, or source, of the crime. It is the socioeconomic conditions which affect him, which are at the root of the problem. He is more a vassel and catalyst for the end result. And the crime, or good deed, is not about economic or physical services, goods, or punishment. It is about the deeds themselves. What it comes down to, for me, is the essential nature of something.

I do not believe that any attack on a human being's rights is ever really right; but I can see where imprisoning a serial killer is a pretty good idea. It's not about retribution, it's about utilitarianism and human rights. It is sad that people must be imprisoned, and sometimes killed, to save others, and I don't think there is a good moral reason for it; it's just necessary for stability. Much of the violence for revolutionary and post - revolutionary socities is justified by such reasoning, sometimes rational and sometimes not.