[randallsquared]

it doesn't mean that the point shouldn't be looked at to analyse the differences in our approaches, as this is the most obvious case where they diverge.

Wow, I strongly disagree. Our approaches diverge on virtually every case, as far as I can tell. My approach would be to apply the exact damage to the aggressor that they applied to the victim, except where the victim forgives all or part (for monetary "damages" or some other consideration or reason). If a mistake is made, the same procedure can be used to rectify it. This does mean that completely irrevocable damage (that is, death) can't be applied while keeping the property that mistakes can be fixed or paid for. Murder is already an exceptional situation, not like other crimes of violence, due to its finality.

As far as I can tell, your approach (along with the vast majority of existing legal systems today) requires sentencing or damages to be decided individually by a third party, rather than by the parties already involved, which seems inelegant.

There's also the fact that capital punishment is where this discussion began.

Oh. Well, there is something to be said for staying on topic, I suppose. :)

[colah]

>Wow, I strongly disagree. Our approaches diverge on virtually every case, as far as I can tell.

That was a poor wording on my part. Make that where they diverge most strongly.

>My approach would be to apply the exact damage to the aggressor that they applied to the victim, except where the victim forgives all or part (for monetary "damages" or some other consideration or reason).

I'm going to assume your talking about assault. If I'm wrong, sorry. In any case, we can't just let them settle it with a fee to cover damages. The aggressor demonstrated themselves a threat to the Public. Depending on the circumstances, the aggressor will need to spend some time in jail, with a psychologist, doing community service, reporting to a probation officer, et cetra, or most likely a combination of the above, for the protection of society.

If there was material damage in addition to that, it is not a criminal matter and can be settled in the way you described.

>As far as I can tell, your approach (along with the vast majority of existing legal systems today) requires sentencing or damages to be decided individually by a third party, rather than by the parties already involved, which seems inelegant.

As the previous example illustrates, this is only true for criminal matters.

[nostrademons]

Many civilizations have had justice systems that worked exactly like that. "An eye for an eye."

In practice, it doesn't seem to work very well. There's a reason why most legal systems today rely on a third party to enforce justice. Civilizations that don't tend to devolve into a cycle of retributive violence, eg. medieval blood feuds in Italy, duels in the Wild West, and lynchings in the Reconstruction South.

I'm not entirely sure, but I suspect it's because every action you take not only has its material effects, but it's also taken as a statement of how you want the world to be. So if you steal something, you not only have taken the object, but you've declared that you want to live in a world without property rights. If you rape somebody, you haven't only traumatized her, but you've declare that you want to live in a world where sex can be used as a weapon. If you kill somebody, you haven't only taken their life, but you've declared that you want to live in a world where lives can be taken by conscious action.

If someone then does the same thing back at you, they don't just cancel out. Instead, both parties have declared that they want to live in the world where that crime is accepted behavior.

[randallsquared]

I think there's a difference between relying on a third party to enforce justice (a concept which I have no problem with), and relying on a third party to choose punishment. If the punishment is exactly in kind (by default), then no choice is required. It's only because the sorts of punishments our society uses are completely different in kind from the initial offense that a choice is even necessary, and that same difference means that there's no "right" answer to the question. There's at least some hope of finding a right answer to how much damage was done to someone after having a TV stolen or being beaten. But even knowing how much damage was done, how could you translate that into a given amount of time in prison in any objective fashion? Is a beating "worth" two years or two months in jail? There's no right answer to that question.

In the system I advocate, actual settlements or punishments might vary widely, but as long as the convict always had the option of taking a similar beating to the one he gave the victim, we'd know that the punishment or settlement couldn't be more than warranted. As long as the victim can refuse any proffered settlement in favor of having the default punishment administered, we know that the settlement can't be less than warranted. The "eye for an eye" standard is just a tool for allowing the convict and victim to negotiate a settlement, and I think it would be rarely fully carried out for anything major, if the victim has the option of accepting some amount of money to forgive some or all of the offense.

but it's also taken as a statement of how you want the world to be.

I don't think people who steal a TV would agree that they want to dissolve property rights. They don't want to have stuff stolen from them, only to get away with it themselves. One of the reasons that law is possible is that even thieves want to have their own property protected, and even burglars want to protect their homes from entry by others.

[nostrademons]

They don't want to have stuff stolen from them, only to get away with it themselves.

But whether or not they want to have stuff stolen from them, that's the message they're sending to the rest of the world. Hell, your proposal enshrines that into law.

It's like the observation I saw a while back on HN: People judge themselves by their intentions, but they judge others by their actions. It doesn't matter whether they intend to send the message that they don't think property rights are worthwhile, that's the message that will be inferred. And if both the criminals and the government agree on that message - what will the citizens think?

[randallsquared]

Your argument seems to be that people cannot tell the difference between offense and defense. I don't think that's the case, but I don't have a coherent argument against it at the moment.