I am curious about something you said in a Q&A (#508): “In every tribe I know of, cases are handled on an individual basis (since no two are alike), along lines roughly consonant with game theory. Thus, what is sought is not the biggest win for any party but the least loss for all parties.”

Certainly, this suggests that the Taker notion of justice, in which a “criminal” is punished, is entirely misguided in terms of game theory. While the “victim” may take some sort of consolation in the punishment, the original loss isn’t addressed at all, so the punishment merely adds to the total loss experienced by all parties. So it seems that the only way to achieve “the least loss for all parties” is to either do nothing in response to a “crime” or to have the “criminal” somehow directly restore some of what the “victim” lost.

Does this sound correct? Can you give some extra thoughts or examples? I’m particularly puzzled about situations in which it would be impossible to restore a loss, e.g., if the criminal murdered someone close to the victim.

“Restoring the loss” is not the central concept. It would be closer to describe it as “making everyone as well as possible.” In some cases, of course, the loss can be restored. If you steal a cow, you can give one back. The parties involved must decide themselves what comes closest to redeeming the situation.

In the Taker system, which attempts no restoration, people simply hope the state will impose the heaviest possible punishment on the wrongdoer. The victims don’t decide it, so that if the wrongdoer “gets off” with less than the maximum, they feel cheated (since they can hope for nothing but punishment of the criminal). In the Taker system, the ideal is to have a single, standardized punishment that is deemed equitable (regardless of the feelings of the victims). In a sane system, there can be no standardized solutions (since there are no standardized crimes).

Imagine a family run along the lines of Taker notions of justice. Let’s say your child slams the door. You would consult the family law book to see what exact charge can be laid against the perpetrator of such an act. Perhaps he can be charged under several different statutes. If convicted, he would receive certain set punishments for each statutory infringement, for which mitigating circumstances might be considered.

In fact, of course, in sane families, each disturbance is considered on its own merits, in its own context, and dealt with uniquely rather than as an instance of a meticulously-defined class of criminal behavior. Let’s say a five-year-old carelessly breaks a treasured family heirloom. There’s no question of the child being able to “restore” it. Wise parents will balance the loss of the treasure against inflicting terrible guilt feelings in the child.

But suppose it’s a seventeen-year-old who breaks the heirloom during a temper tantrum. Obviously this is a very different situation that has to be looked at from many different angles, and certainly no one solution is going to fit all cases; no book of statutes is going to be the least help. All too many parents would go straight to the severest possible punishment, and I suppose in some cases this might make sense (though I doubt it); wiser parents might recognize that this misbehavior signals something deeper that needs to be dealt with, and that punishment is only going make matters worse; in fact, it may well be that the overall situation can only be improved by improving the child’s situation–just the opposite of punishment.

This is the way the law should work; the question should not be “How much do we punish (even if punishing will only make everything worse)?” but rather “How can we improve this situation (even if improving it will not restore it to perfection)?”

ID: 576
posted:
updated: 22 Jun 2002
Related Q&A(s): 508