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Should justice be retributive or restorative?

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I've been considering the proper basis for justice under Objectivism, and I think it is this: you lose your rights to the extent you infringe on the rights of others.

So, if you steal bubblegum, you 1) have to pay for the gum/give it back to the store owner 2) pay for the loss of time/revenue for the theft (usually straightforward, normally would be the interest rate for loans over that period, approximately) 3) pay for all legal proceedings (as it is your fault). That gets the proper owner back to where they are supposed to be. And then, for the losing your rights to the extent you infringe on the rights of others part 4) you have to pay for the gum again.

Or, if you steal 1000 dollars, you have to pay 2000 dollars, interest, and legal fees (to the victim, or perhaps legal fees go to government).

What if you do something you can't directly pay back, for example, if you don't have 2000 dollars? Then you have a debt, which would either be worked off like any other debt, or would be worked off in a debtor's prison.

What if you used violence against another, like broke their arm or punched them in the face? Well, still have to pay legal fees. You lost your rights to the extent that the victim was infringed upon, so the victim can now break your arm or punch you in the face, or you can work out a deal where you pay him money so that he does not do so (and of course he can ask someone else to do it for him if he likes, or can wave his right to do so entirely if he is a dumb pacifist type).

What about restitution? Well, I'm not sure, but the way I see it, restitution would be equivalent to the dollar value you would assign to a punch in the face or broken arm (that we would mutually agree upon). If I am to get that amount from you, then it would be (to each of us) the same as if I just hit you or broke your arm. So, not only do I get to punch you once because you lost your rights, but I can spend my restitution on hitting you a second time, or hitting you about twice as hard. And then we could obviously work out some deal so I do not do this.

This seems the most fair, and most objective way to go about things. It leaves no ambiguity- if you rape someone, you can be raped in turn (though most would not go for this option), if you kill someone, you get killed. Steal, get stolen from, chop off someone's hand, off goes your hand. It seems sort of barbaric, but it is an obvious way to go about doing things. Then, we can work from there, with the convicted criminal knowing what I can do, and us negotiating what price or sentence is worth that to him (and if I don't like how he is playing the negotiations, I can exact say a portion of my ability to punish on him, or all of it; that will make him play ball). And of course, most victims will hire people to do their punishing for them, which would be a perfectly legitimate way to go about things as well.

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The modern War on Drugs shows us good reason to not allow the government to gather funding from the property of criminals. Even without the evidence seen in the War on Drugs, I don't think it's proper to risk such a conflict of interests.

If it can be established in civil court that physical damages were caused to another individual it's proper for there to be restitution.

Criminal court should be seperate, and concerned only with the punishment of those who would harm others. This DOES serve as a deterrent to a certain extent, and that is a proper use, but it should never be the primary concern of the system nor should it supercede it's primary concern, which is punishment.

Edited by Minarchist
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If you goto my website http://www.washtenawjustice.com/ and click on Criminology: the Sociology of Crime, you will find an essay on restorative justice that I wrote for a graduate class in criminology. (It is a Word for Windows 2003 document.)

The purpose of restorative justice is not only to restore the victim, but also the perpetrator. The theory is that anyone who harms another does so in reaction to having been harmed themselves. Fix the problem, not the blane.

Studies have shown that it might cost $100,000 in psychological counseling to normalize a perpetrator, but that is less than the cost of two years' incarceration and with a much better outcome.

Traditional justice worked on this theory. Traditional justice also allowed that shooting the perpetrator in the back was also sometimes the only solution.

Grand theories are nice, but as individuals are unique, outcomes must be tailored to the actors. The market works this way. We each might not get what we want (though we often do), but we each get what we deserve. The grand theory of the market is not "price theory" or "monetism" or even "the gold dollar."

So, too, is much disussion on justice given to magnifying details beyond reason. "Bank robbers should be shot in the act." Considering that banks have nothing in them but worthless federal reserve notes that will be replaced free of charge, who cares if a bank gets robbed? Sure, 100 years ago, banks actually held the money of other people. But not today. Besides, I assure you that as a security professional, property is not worth killing or dying for. The right to property is more important; the ability to create it is most important. But the stuff itself is just trash. Even Galt's motor was abandoned as scrap. Would you die for scrap? You take that risk when you attempt to kill for it.

The basic problem is that discussions about justice seldom begin with basic questions. You have to start somewhere, of course, and the middle is as good a place as any, but sooner or later, you have to ask some basic questions.

What is justice?

Do we need it or do we only want it?

Can it be manufactured?

Is is discovered or made?

Can it be given or taken?

Can it be measured?

(And still other questions could be framed.)

For instance, we have two words for these problems: justice and law. We treat them as synonyms, as intertwined and integral. In fact, they began as two different concepts and they continue today as two different kinds of interactions.

Justice is like juice -- they come from the same root word: the essence. Justice is inherent in the situation and discovered by the actors. Law -- lex; rex -- is made. It is declared. A law can be unjust. We know that. So, if justice is disovered and not made, how can we get more of it?

Restorative actions work better than retributive actions because restoration depends on the discovery of justice, whereas retribution only requires the manufacture of law.

Edited by Hermes
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First of all the idea of restorative justice is not new at all... Secondly it is entirely opposed to the ideas of Objectivism and the fundamental principles of justice. Restorative justice assumes that the focus of justice should be on rehabilitating the offender because there is something wrong with that person. This almost always takes the form of deterministic beliefs which blame society or the raising of the offender rather than the offender themselves. The bottom line is that offenders are rational agents with free will just like the rest of us and are just making poor decisions based on irrationality and poor information. The rehabilitation of irrationality should be the province of education (a proper, rational, privatized education system) and the institution of the family. The criminal justice system should be entirely concerned with retribution and dealing out the just penalties to people who violate the rights of others. For more information on crime as rooted in rights theories see Ayn Rand's writings on the nature of rights.

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First of all the idea of restorative justice is not new at all...

Exactly, in my paper (on my website), I cite examples from the Visigoths, Cheyenne and Eskimos. Restorative justice is traditional justice. It is also commercial justice. When businesses arbitrate their disputes, the goal is to keep the parties together in a profitable relationship. Adversarial law comes from trial by combat, thus you have an "at tourney" to champion your cause: one winner; one loser; no middle ground. Restorative justice can include retributive punishment. Among the Visigoths of Spain, a woman whose claim of rape was acknowledged could flog her assailant herself, if she chose. The goal of restorative justice is to restore both the victim and the perpetrator.

Secondly it is entirely opposed to the ideas of Objectivism and the fundamental principles of justice.

Neither claim is true. Restorative justice is found within the ethics of Objectivism. According to Ayn Rand, objective law must be clearly stated so that all can know it and understand it. And, to be objective law must be enforced according to context. On its own, as a mechanism, restorative justice does not violate either of those. Restoration is also consonant with the fundamental principles of justice in contexts and by means that mere retribution never can be.

Restorative justice assumes that the focus of justice should be on rehabilitating the offender because there is something wrong with that person.

Indeed, there is something wrong with the person who willfully harms others, who violates another person or their property. Slapping the offender upside the head will get their attention: it will not get them to think through the problem. That takes more work.

This almost always takes the form of deterministic beliefs which blame society or the raising of the offender rather than the offender themselves.

That is not true at all. In fact, if you think about it, retribution is actually that model: We, society, will take care of the offender for years and years: food, clothing, shelter. We, society, failed, so we society will bear the responsibility for incarceration.

It is true that rehabilitating the offender is a goal of justice. We seek to avoid a repetition of the problem. Retribution fails to do anything for the offender, so they re-offend. My county prosecutor once said to me, "Every business depends on repeat customers." Restoring the perpetrator prevents recidivism. That restoration process begins with acknowledging the harm they caused, admitting the wrong they committed, identifying the losses suffered by the victim. In identifying the facts of reality, the offender gains an objective understanding of the context. The offender who blames others is not participating in restorative justice.

The bottom line is that offenders are rational agents with free will just like the rest of us and are just making poor decisions based on irrationality and poor information.

Exactly, the offender thinks not at all of other people or the consequences of their actions. In fact, they think hardly at all, sometimes not all. So, just flogging them, branding them, chopping their hands off, putting their eyes out, or incarcerating them achieves nothing -- and nothing for the victim, either, of course. Restorative justice invests no more total effort in bringing the offender to the table to identify the harms they committed and losses they caused than the retributive system wastes in sheer cruelty.

The rehabilitation of irrationality should be the province of education (a proper, rational, privatized education system) and the institution of the family.

When you cannot stop at an intersection because you were driving faster than the speed limit, and you have a damage accident, the problem is public schools, or your family? I think the problem is with you. You need to admit that you made a series of mistakes, meet with your victims and thereby restore them to their previous state (to the extent possible) and reintegrate yourself into the community of lawful motorists.

The criminal justice system should be entirely concerned with retribution and dealing out the just penalties to people who violate the rights of others. For more information on crime as rooted in rights theories see Ayn Rand's writings on the nature of rights.

Nothing in the works of Ayn Rand supports the assertion that justice is concerned entirely with retribution.

Most people who are not involved in objective crimes -- different from the transgressions we capitalists would excuse, justify, or even commend -- have no clear idea of what crime really is. They get their ideas from television, movies, print, the internet. It is a "mass mediated hyper-reality" an abstracted abstraction that feeds on and feeds to illusions that crimes are committed by poor people and people of minority races who murder, rape, and loot each other, or by corporate executives who murder each other to cover up pollution or pyramid schemes. Indeed, those do exist. However, it is a plain statement at for any police department, 80% of your problems come from 20% of your addresses, rich, poor, middle class; white. blue, or green; Catholics, Objectivists, or Scientologists. People are people because A is A. Uncles molest their nieces; employees steal from work; kids shoot out street lights.

Retribution is based on the theory that the State is an Instrumentality of Divine Punishment: struck by lightening, turned into a pillar of salt, hung by your hair from a tree...

And it is an absolute fact that there are some perpetrators for whom no amount of restorative justice will ever change their internal states, give them ideas, help them think, or let them perceive the people around them. Some criminals are genetic sociopaths. But punishment does nothing for them, either.

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  • 1 year later...

This is sort of related to a topic I was thinking about.. I was reading this essay that describes what happens in the US when a mentally ill person commits a crime. According to the author, a psychiatric evaluation is ordered and the person in question is either deemed fit or unfit to stand trial. If he's unfit, he's forced to take medicine or receive other treatments until he's able to stand trial. Or, he may be confined to a mental institution indefinitely without ever standing trial.

The author here advocates rehabilitative justice, which he says, "provides room for people to grow, to change, to get treatment, to develop as human beings, to reshape their world and make changes in their lives." This is opposed to the current method of retributive justice, which forces the accused to take medicine, accept treatment, and then stand trial. This, he says, is "just another form of crime, and it certainly doesn’t mean that people are getting off free and escaping the consequences of their crimes."

So I wonder- would Objectivists argue for rehabilitative justice for those who are criminally insane (ie: mentally ill/off meds when committing a crime)? Or should they be responsible for their actions because they are the ones who decided not to take any medicine -- (even though in some cases, people like paranoid schizophrenics think that medicine will harm them, or blow up a building, or something equally crazy)? If so, is the current retributive method of forcing the person to take medicine and get treatment, then stand trial/be institutionalized, really an act of justice?

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@Michelle,

The insane argument reminds me of a more clear cut example. Child molesters or paedophiles (also maybe off their libido reducing meds).

There is such a thing as tragedy. If a person initiates force against an innocent creature, but that person can't actually help it, then..

the victim is entitled not only to compensation but to justice (which might be in practice simple Hammurabi revenge, but it could bring 'closure' which is in itself meager compensation).

The perpetrator or aggressor could be confined or isolated to avoid further damage, but to punish/chastise him would be further cruelty since supposedly some paedophiles literally can't help their desires. (have been watcihng Solondz's sagas, Happiness and Life During Wartime)

/ unrelated to the previous example.

We have a long history of an eye for an eye, the Code of Hammurabi.

But some relatively recent Anabaptist (Friends, Mennos, and the like) religious communities that abstain from violence have devised another form for protecting their communities from harm. Instead of imprisoning, confining or killing the perpetrator, they 'shun' him or expel him.

Of course this is not technically recent. The Greeks and later Romans had the punishment of Expatriation but it was not a social devise but rather a punishment of denigration, or humiliation.

I sometimes assume that in an purely contractual society (Objectivist or not), criminals would be forsaken to their own luck, expelled, instead of internally punished.

It's also worth noting, particularly in light of David's first post, that most punished criminals have historically been perpetrators of victimless crimes. Imprisonment carries a higher moral danger than expulsion.

and back where i began. There is such a thing as a human tragedy, and problems without an answer.

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I watch too much law & order SVU, :stuart: but I don't think being institutionalized is fair punishment. If you rape someone, you're a rapist. If you murder someone, you're a murderer. Whether or not you're on LSD at the time is irrelevant, if you in chose to be on it.

What gets me though, is these in-between cases. For example, a person is mentally ill and homeless, and can't afford his $5,000/month meds (can't hold down a job, can't pay for treatments without government intervention, etc). So if voices speak to him and tell him to rape and murder someone, is he really a rapist/murderer since he wasn't in his right mind when he went through with it? Institutionalizing this guy for the rest of his life doesn't seem fair: schizophrenics are like two completely different people when they're off and on their meds. But there does need to be some sort of 'punishment'...

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Law and Order SVU is a fantastic show, maybe the only true drama left on tv . I love Mariska's acting, and I see that the next season is just beginning!

I watch too much law & order SVU, :stuart: but I don't think being institutionalized is fair punishment. If you rape someone, you're a rapist. If you murder someone, you're a murderer. Whether or not you're on LSD at the time is irrelevant, if you in chose to be on it.

What gets me though, is these in-between cases. For example, a person is mentally ill and homeless, and can't afford his $5,000/month meds (can't hold down a job, can't pay for treatments without government intervention, etc). So if voices speak to him and tell him to rape and murder someone, is he really a rapist/murderer since he wasn't in his right mind when he went through with it? Institutionalizing this guy for the rest of his life doesn't seem fair: schizophrenics are like two completely different people when they're off and on their meds. But there does need to be some sort of 'punishment'...

I understand, and no such a situation would not be fair. But such a perfectly in-between scenario is akin to the ''Ethics of Emergency''.

Those are exceptions, not something I would use to judge a whole legal system.

In answer to the specific question... if a schizophrenic kills because of lack of meds, is he less guilty of his crime than say a paedophile (another mental illness) who rapes because of a flaw in his hormone treatment?

Breivik's case made me investigate the Norwegian penal system (out of indignation that a terrorist children killer would spend the rest of his life in a four star resort secured by female guards) which is the most Progressive (restorative) in the World.

On one hand I find it a bit repugnant that criminals are given such a good life, on the other hand I find it admirable how the Norwegian society values human life to the point of trying to make the best of everyone. I have insisted in the past that these welfare arrangement are only possible in cohesive societies, even racially homogeneous societies that resemble a big family

But the American (or otherwise) system isn't fair either. A prison sentence doesn't just entail losing liberties, but it is in practice a torture and death sentence.

Edit: I don't know if shunning people would be a realistic alternative because we live in such big places (NYC, LA, etc.) So even if a person was shunned from his hometown, he would just move on to the next town and commit a crime there.

I should have clarified that I don't imagine a purely contractual society arising in New York or Sao Paulo, but in a new frontier, such as seasteading, the space, or maybe the Antarctic desert, where abandoning someone to his or her own luck is amost equivalent (but not 100% equivalent) to a death sentence.

I'm not thinking too clearly, I have fasted all day and I can assure you it has been a pure coincidence, I just didn't have time to eat.

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This is opposed to the current method of retributive justice, which forces the accused to take medicine, accept treatment, and then stand trial.

Medicine, treatment and trial aren't punishment, though. During a trial, a defendant can plead not guilty by reason of insanity. If successful, he is admitted to a psychiatric care facility, and receives treatment until a medical professional decides it's safe to release him.

What exactly is this author proposing instead? Releasing people who are insane and dangerous? Or is he just proposing better methods of treatment than the ones currently used?

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