Sunday, February 14, 2016


Much  government violence would stop if they adopted a principle of proportionality. What limits would proportionality impose and how do we justify ignoring those limits?

What is the proportionate response to someone harming themselves? Nothing (at least, in terms of punishment, which currently is the only arrow in goverment's quiver). Why make matters worse by punishing? Errors cost enough, why add the extra harm of punishment? I may wish to persuade or teach someone a better way, a way to accomplish one's goals without causing self-harm. But they have no obligation to listen to me.

What proportionate response can we provide when someone harms another? If the harm results from voluntary interaction, such as a boxing match, again the answer is "nothing." When the harm results from an accident, we seek restitution. Intentional physical harm merits a proportionate physical response. Responses might include prevention, intervention, investigation, apprehension, trial and consequence (punishment or restitution). [When is prevention justified, and what sorts?]

What about intentional mental harm? Shunning and ostracism qualify as proportionate responses. In some cases, an offender may prefer restitution or physical punishment. [The proportionate remedy for bad speech is good speech.]

Do we prefer responding to violations or proactively preparing to prevent attack? [This could provide a topic for a blog post on its own, but I wish someone else would write it.]

Crimes with no victim at all merit no response at all. Voluntary interaction does not merit punishment. Civilized persons interact on the basis of consent only. I embrace this core idea.

Deception and manipulation can change the status of an interaction from voluntary to involuntary. Where do we draw the line between deception and misunderstanding? [Pretend there is a long section here discussing that question.]

One alternative to proportionality is incentive. Instead of letting the response fit the crime, make the punishment disincentivise the crime.  Perhaps people will behave better if they fear disproportionate punishment. A proportionate response may not discourage cheaters, especially when cheaters are hard to catch.

How can we justify disproportionate responses? Perhaps they work better. Use consequentialism to justify it. We can wave our hands at proportionality by thinking of a violation as consisting of the injury to another plus the disobedience of the rule. Note that this contradicts what I said about victimless crime above.

This raises issues regarding the appropriateness of punishment, restitution, rehabilitation and retribution. All provide ways to control persons. [Pretend there is a long section here discussing this.]

So, we can do what is fair to the participants (proportionality) or we can seek some social optimum (what best reduces violations). The fair (individual justice) and the practical (social justice?) seem to conflict with each other. Can we make an agreement that moves us voluntarily from the individual optimum to the social optimum? Would we agree to accept disproportionate responses in return for the mutual agreement of others? How do we establish this agreement? Assurance contracts? [Wouldn't it be nice if I had an answer?] Dynamic jurisdictions? 

No comments: