Restitution
Some thoughts on restitution in a free society
In online discussions I have had where restitution has been mentioned as an appropriate response to acts of aggression, correspondents first deny that you can place a monetary value on acts of violence against the person, then they point out that, even if you could, a wealthy man would find any fixed scale of monetary restitution relatively less onerous to pay than a poor man would, and that this is inherently unfair.
Another objection correspondents raise is the paltry sum a victim might receive if the perpetrator was only able to afford, say, $10 per week.
Having read libertarian literature on this subject, I am persuaded that restitution is a more appropriate response to violence than retribution and, while not original, my response goes something like:
Protection policies will likely be insurance based where the purchaser decides on a level of cover, so will chose values acceptable to themselves for various events such as rape, assault, murder etc.. I cannot predict what the market might choose as appropriate restitution for e.g. rape, that will be a process of market discovery. That is part of the beauty and strength of markets as opposed to command systems.
It is the insurer who is likely to pay out to the victim, the level of compensation pre-chosen and paid for by the victim, not the perpetrator, leaving the insurer to recover what costs it can from the perpetrator.
To the extent that insurers can recover costs from perpetrators, policy premiums will be lower than they would be otherwise.
Where customers choose retribution based policies, the insurer will recover fewer costs if the perpetrator is incarcerated or killed and will bear the additional cost of any incarceration, so premiums will be higher than they would otherwise.
Because of the above, let's suppose that retribution based policy premiums are twice that of restitution based policy premiums (who knows what the actual multiple would be?). Purchasers would face the decision, "Do I receive X compensation for Y premium with the perpetrator working to pay for his crime literally, or do I receive the same X compensation but for 2Y premium because the perpetrator is locked up (or X/2 compensation for Y premium)?" Individuals will make this choice for themselves.
Any of us could face being found guilty of aggression against persons or property at some point and will face the consequences of the market choice between restitution and retribution based protection policies if we are. Which would you rather face, restitution, or retribution? How would your preference for treatment as a perpetrator colour your market choice as a victim? Do unto others etc..
A point that has only recently occurred to me, and has not yet made it into the above, is that any decision to purchase a restitution or retribution based policy will likely be made in cold blood, and at a time when finance is comparatively more important than vengeance. After a person has become a victim of violence it may well be that vengeance is uppermost in their mind, but, likely as not, this will not be when their purchasing decision is made.
But the problem of the relative ease with which a wealthy man might discharge his debt to his victim still bothers me.
An unrelated post proposed that, (ignoring state welfare payments) as income comes from labour, a given sum of your money could be said to represent that portion of your life spent earning it.
That got me thinking about the potentially unfair restitution problem.
Theoretically, our current retribution based response to say, rape, would be to incarcerate both the wealthy man and the poor man for an equal period (we all know how the wealthy receive equal treatment to the poor in adversarial state courts, right?).
However, if they did receive equal time for the same crime, the loss of earnings for the wealthy man would likely exceed that of the poor man.
So, perhaps, instead of a monetary scale becoming the market price for a given aggression against a person, a time-based scale could become the norm instead.
If you think about it, this has a concordance with retribution based justice in that, say, a rapist could pay the equivalent of ten years income while a murderer might pay the equivalent of twenty years income.
Then, another thought occurred to me. As mentioned above, protection policy premiums will be affected by the insurer's ability to recover costs from perpetrators, and, as most people will be paying protection policy premiums you could argue that any inability by insurers to recover costs from perpetrators is a societal cost (yes, that phrase makes me wince too).
Total case costs for the insurer will comprise their costs of detection, evidence gathering etc., and case preparation and presentation costs, plus any restitution payment to their customer (or their estate). Therefore, total premiums will comprise the insurer's general administration costs and any unrecovered total case costs.
Under a time-based restitution system insurers might be able to recover moneys from some perpetrators in excess of total case costs and these moneys could be applied to reduce premiums for all, so, not only would the playing field be levelled, away from the wealthy, but ‘society’ would benefit too.
There may be an additional advantage to such a system. Even under an inherently more fair free-market restitution based justice system (if you will forgive the term, system), the wealthy are still likely to afford higher standards of protection than the poor, and, as higher premiums afford higher quality advocates, this creates a disincentive to insurers of poor victims pursuing wealthy perpetrators. If, however, their revenue from pursuing a wealthy perpetrator enables them to afford a higher cost advocate to handle the case, then the scales of justice might not be tipped so far in favour of the wealthy perpetrator.
I have nothing at all against the wealthy (I wish I was amongst their number), and I harbour no feelings of resentment or thoughts of entitlement to the same goods and services that are available to them in any other field than justice. The very word justice connotes that all human beings are equal and in this field, and this field alone, a wealthy man must not be permitted to gain the advantage.
I am not a scholar, an intellectual, or a philosopher, and, while there may be valid moral or philosophical arguments against such a suggestion as this (and they would be of interest to me), I must remind critics that any free society will not be governed by intellectuals (it won’t be governed, period), it will run itself strictly according to the dictates of the market. It is not theorists, therefore, that will approve such a scheme as this, but ordinary people, unskilled and unschooled in libertarian thought, who will purchase such a product from an entrepreneur (should it be offered) and they see fit.
If this idea is not original I apologise to its developer and state sincerely that I have not come across it elsewhere.
graham gambier
