John Singleton with Bob Howard, Rip Van Australia (Stanmore: Cassell Australia, 1977), pp. 141-43, under the heading “Justice”.
There will never be a decent political sense developed in this country until we breed a race of people who are as ready to go to the mat for justice on behalf of what they do not believe in as on behalf of what they do believe in. That is the spirit that utterly terrifies politicians and job holders and makes them walk a chalk line. ~ ALBERT JAY NOCK
The voice of the majority is no proof of justice. ~ SCHILLER
The original intention of the legal system was to dispense justice. Today, its function is primarily to enforce the rule of the State. In more cases than not, this involves perpetrating injustices — as, for example, in all cases of victimless “crime”.
A real crime is committed when an action is initiated that violates the rights of any individual. (This excludes appropriate action taken in self-defence.) It has been argued (see Crime) that victimless activities do not violate rights, and thus are not really crimes. In the case of real crimes, such as robbery, breach of contract, murder, fraud, rape or assault, what happens in our courts today? Punishment is meted out, but rarely justice.
Suppose your house was burgled and lost $5000 worth of goods. The odds are they will not be recovered, so you’re down $5000. What happens when the burglar is caught? He goes to gaol — and if he admits to all his burglaries he can serve out the time for them all simultaneously. Who pays for the cost of his capture, his trial, his upkeep in ever-increasing luxury in gaol, and, probably, the upkeep of his family on welfare while he’s in there? You do. What do you get back by way of justice? The dubious please of knowing the burglar is in prison. Big deal. Some idea of justice! You lose all down the line.
The focus of the judicial/legal system should be on the victim. After all, he or she is the innocent party. But today, the victim is increasingly disregarded. Concern to rehabilitate the criminal competes with the desire to punish the criminal, and above all the State ensures that its authority is not questioned. The victim takes a very distant back seat.
The real aim of justice, once the criminal has been apprehended and given a fair trial, is to determine who is the injured party, and to achieve as nearly as possible, full restitution to that party at the criminal’s expense. It should not be at the taxpayer’s expense.
In a case such as murder, the injured party is the victim’s family, the next of kin, or business associates. In our simple example of burglary, the criminal should be put to work — either inside an institution or, preferably, in civilian life, as the courts may decide — and kept at work until he or she has paid back the full $5000, plus extra for inconvenience, loss of interest or opportunity, plus an amount to cover police costs, court costs, and, if necessary, prison costs. When the debt is paid, and not before, the prisoner is a free person.
Obviously, under this system, some crimes would result in a lifetime of such labour — for example, for some murders or multi-million dollar robberies. For large robberies, there is thus a very real incentive for the criminals to give up the money once caught and convicted.
Another aspect of this system is that the form of restitution could be chosen by the victim and would only need to be in keeping with the crime. If the crime involved money, then restitution would be in money, or at least, in material form — goods and services for example. If the crime involved physical violation, such as murder, rape or assault, then the form of restitution could be physical (capital punishment in the case of murder), or material, or both.
The courts would have the task of ensuring that the degree of restitution demanded by the victim was commensurate with the degree of the crime. For example, you wouldn’t choose 100 lashes as restitution for knocking off a couple of chooks. But it should be obvious that most people, given the choice, will choose a material form of restitution — mostly money.
For their part, the criminals, by their actions, have forfeited any claim to rights. Because their action, to be a crime, involved the initiation of an act which violated someone else’s rights, they in effect said, “We don’t recognise your rights.” Well, they can’t have it both ways.1 If they don’t respect the rights of others, they cannot in justice claim that their own be respected. They can only claim fair treatment.
It could be said that the system of restitution would favour the rich, because they could easily pay off their debts “without punishment”. Well, as a victim, if you are fully compensated, what more do you want?
The fact that a criminal’s background may have contributed to his criminal tendencies should be completely irrelevant to the court. The victim is not responsible for the criminal’s background, nor should he or she suffer because of it. This does not mean that we deny the influence of such factors as background and environment, on the formation of criminal desires. We don’t. We simply wish to point out that while such considerations may be of great concern to psychologists, social workers and so on, they are not necessarily of any concern to the victim, and should not be forced upon the victim.
Finally, if, as victims, we are to be repaid by the criminal, this means that we would probably get the money in bits and pieces over a long period. This would not be very satisfactory, and so companies or co-operative societies, would inevitably be set up to pay the money out in a lump sum to the victim, and then undertake to retrieve the money from the criminal. These organisations could be run like a medical benefits scheme or an insurance company. In this case, it probably would be in the interests of these organisation to employ psychologists, social workers and the like, and make some effort to rehabilitate and train the criminals, because by doing so they would ensure that they received their money far more quickly.
You may not agree with all these ideas, but one thing at least can definitely be said — they would go a long way further towards achieving justice than our present system does.
Footnote
- One exception to this is the category of victimless “crimes” that currently exists, but which should not exist. These victimless “crimes” are not really crimes, because no rights have been violated. And it’s interesting to note that in the case of a victimless “crime”, who is the “victim” that claims restitution? ↩
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Luke
April 29, 2011 @ 8:27 am
" In our simple example of burglary, the criminal should be put to work "
Isn't that taking someone elses job. What if I am a landscaper and I can't compete with the cheap labour from the chain gangs?