There is one way in which the American system fails to uphold the common law. That is we punish people rather than requiring them to make restitution. Most people firmly believe that we teach people to be moral by rewarding them for being “good” and punishing them for being “bad.” I assume that most people reading this were raised by parents who used rewards and punishments to discipline them, so it’s natural for us to believe that this is the only way to “make” people be good.
I was fortunate to find a different, and much more effective, way to raise children. As a young father, I took a parenting class my last semester at the university. My oldest daughter was 10 months at the time.
In the class, I was introduced to the book Children the Challenge by Rudolph Driekers, which taught me that rewards and punishments are ineffective parenting tools because they create power struggles between parents and children. The power struggle destroys feelings of good-will and co-operation between parents and children. Driekers suggests that you want to win co-operation with children rather than try to force obedience. This is done through the use of natural and logical consequences, which are designed to help children learn to control themselves, rather than being controlled by you.
The concepts presented in Children the Challenge made perfect sense to me, because I had already come to accept the idea of the law of the harvest, which says that what we chose to do in life has built-in consequences. So, I put these principles into action and discovered that they made parenting a very enjoyable and rewarding experience for me. To this day, I love working with children because I understand what motivates them and can rapidly get them co-operating with me.
So, what does all this have to do with government? Well, if rewards and punishments create problems and disharmony in a family, destroying the spirit of love and co-operation between parents and adults, then I would propose that they do the same thing in society. The attitude that we can reward (bribe) people into doing good and deter them from doing evil by threatening them with punishment is at the very foundation of just about everything government does.
In fact, some people seem to believe that if we apply enough force by passing enough laws that we will be able to control human behavior to the point that we will prevent anyone from ever doing anything wrong. This is simply not true. It’s not true because in a society, just as in a family, the more force and coercion you apply the more you destroy the spirit of goodwill and voluntary co-operation that is the essence of healthy human relationships.
It is important to understand that human beings are by their nature social creatures. When love and goodwill exist between people, they do not criminally trespass against each other. If there is an accidental trespass or one born out of a temporary loss of goodwill, parties tend to seek reconciliation naturally, without the need of a third-party like government.
So how is this applicable to society at large? If we don’t seek to bribe and punish people to make them good, what do we do to dispense justice? The answer is surprisingly simple. We apply the law of restitution, which is a human application of the law of the harvest.
The Law of Restitution
The Founding Fathers studied many governmental systems from history. The Greek and Roman republics, the reign of the judges in the Old Testament, old Anglo-Saxon law and even the government of some Native American tribes. They borrowed many ideas from these places, but one idea they did not utilize was the idea of a restitution-based judicial system.
The goal is restitution is not punishment, but rather compensation to the victim for his or her loss. It is aimed at restoring equity and can even be used to facilitate reconciliation between the victim and the trespasser.
In our state-mediated punishment system, people are typically fined or jailed for criminal activity. Occasionally they are even given the death penalty. The fines, however, are paid to the state, not the victim. If the trespasser is jailed, the victim is paying taxes which are used to keep the trespasser in prison.
Although we call this a justice system, it should really be called a judgment system, for it does nothing to restore equity. Nothing is done to compensate the victim for their loss, except perhaps some need for revenge.
Under a restitution-based legal system, justice requires that the victim be compensated, “eye for eye and tooth for tooth” for their loss. This does not mean that a person who gouged out someone’s eye is supposed to have their eye gouged out. It’s about the fact that the victim who lost the eye or tooth through the deliberate and willful trespass of another is entitled to a just compensation from the trespasser.
It’s not the state that has been wronged by the criminal actions of an individual, it’s the victims who have been wronged. Justice needs to be on behalf of the victim, not on behalf of the state. Justice really involves the balancing the scale of social equity.
Restitution in Theft
For example, under both Old Testament and Anglo-Saxon common law systems a robber was required to make payment to the person from which he stole. Depending on the situation, the thief would need to pay anywhere from two to seven times the value of what was stolen.
To understand why the thief is required to do more than just return the stolen property requires a little explanation. Let’s say that the theft stole a loaf of bread (as Jean Valjean does in the story Les Miserable). If the theft were required to restore only the loaf of bread he stole, he would only be returning what was never rightfully his. The thief has suffered no loss of his own property so the scale of justice remains unbalanced.
But, by having to compensate the victim with two loaves of bread, the theft has not only returned the property that was never his to begin with, he has also suffered a loss of his own property equal to the loss which he inflicted on his neighbor. Equity has been restored “eye for eye” since the thief has experienced the same loss he inflicted, no more and no less.
It’s simple and logical. Plus, it’s not based on the emotional desire for revenge. Justice isn’t supposed to be based on emotion, but rather on the facts and the evidence. Emotionally, victims tend to want revenge, which really arises from the desire to see the trespasser suffer emotionally in the same way the victim is suffering emotionally. Restitution, on the other hand, is the born of the practical and logical need to restore equity between the parties.
This brings us to the reason why restitution could be higher, up to seven times the value of what was stolen. Why on earth would it be just to require someone to pay seven loaves of bread for having stolen one? This provision covers for the possibility that a rich man stole from a poor man, whose suffering and loss was greater, proportionally, than the rich man's. The rich man is required to compensate the poor man with more property only so that he will feel a loss that is more comparable to the loss he inflicted on the poorer man.
For those familiar with the Old Testament, I suggest you review the principles of the Mosaic law to see the various ways it provided for compensation to victims of a crime. Skip the religious rituals and focus only on the penalties for crimes. It will give you a whole new understanding of what New Testament writers referred to as the law.
Negotiation to the Victim’s Satisfaction
If you look at Old Testament law you’ll see it prescribing death for a lot of situations in which the death penalty seems overly harsh. However, after doing a little study I found that Jewish people understood that the prescribed penalties were the maximum allowable restitution. Victims did not have to seek, nor did judges have to grant, the maximum allowable restitution.
Under Old Testament law, four possible forms of restitution are prescribed: a public whipping, fines, banishment and death. Death is required only for premeditated murder. A lesser “satisfaction” (meaning a lesser compensation to the victim) can be made for all other crimes, but it is the victim who must receive the satisfaction. It is likely that banishment would be used instead of the death penalty in most cases, other than murder, where the death penalty is prescribed. Being “cut off from among the people” (banished) from society isn’t possible to enforce unless there’s an implied, “don’t come back under penalty of death.”
In all cases where the death penalty was prescribed as a potential “satisfaction” for a victim, the injured parties and the witnesses upon which the verdict was rendered were required to “cast the first stone(s).” In other words, the execution had to be undertaken by victims of the trespass. This fact might make it more likely that judges could have negotiated a lesser restitution in seeking restitution and satisfaction to the victim.
For example, although many spouses feel murderously hurt and angry upon learning that their partner has cheated on them, most don’t actually kill their spouses. Most of us would not want to actually kill an ex-spouse who cheated on us. Our initial anger would likely “cool off” and we would just want to get on with our lives. So most spouses whose partner committed adultery would likely settle for a lesser restitution—their share of the property, custody of the children, and so forth.
But, if the cheating spouse was also abusive and threatened their lives, they may also want the former spouse banished for their own safety. The “death penalty” aspect of this means that if they violate their “restraining order” their spouse has a right to use deadly force to stop them. That’s what I believe the “death penalty” aspect of this law is really about.
Judges Under the Ancient Common Law
What leads me to believe this is the third and final aspect of the common law system of the ancient Israelites and Anglo-Saxons. The judges who heard these disputes and resolved them were selected by the people through a democratic process, just as they are in America today.
Both the Israelites and the Anglo-Saxons organized themselves by family groups. The smallest group was ten families (or in modern times we’d say households). These groups were also organized into larger groups of fifties, hundreds and thousands. All of the judges over these groups were chosen in yearly elections.
Under this system, if you had a complaint against someone you took it first to the leader of your group of ten families. They were required to try the case and make their decision. An appeal could be made to the higher judges if either party was dissatisfied with the judgment.
The judges were only consulted over disputes. They did not dispense rules. In fact, they only became rulers in the case of a national invasion where the judges automatically became the captains of the able-bodied men who could be mustered to defend the nation.
So, let’s imagine we’re living under such a system today. In fact, suppose you are one of these judges elected by the other nine households in your neighborhood. Your role is to hear disputes from the citizens and render judgment to compel restitution to the satisfaction of the injured party. Because these people are your neighbors and you are accountable to them because they can replace you, you would be motivated to encourage the parties to work out an amicable settlement, wouldn’t you?
This means that these restitution-based common law systems were not just intended to be a way of meting out prescribed restitution. Instead, there would be some desire to arbitrate disputes in a way that aimed to restore peace and equity to the neighborhood.
In other words, the goal of the systems was to teach people to be accountable for how they treat each other according to the Golden Rule. Once I understood this, I realized why Jesus could say that loving God and loving your neighbor as yourself was the basis for all the law and the prophets. If the goal was simply punishment, then how could it help restore love between neighbors?
The American System of Common Law
American government has its roots in the idea of the common law. This means that everyone is supposed to be free as long as they don’t trespass against their neighbor or break the voluntary agreements they’ve made with others. This means leaders aren’t supposed to be rulers, they are supposed to be servants of the people. Instead of ruling, government is supposed to exercise its power in three ways.
First, government is supposed to set up and maintain the framework or structure that helps create a level playing field for everyone, so their rights can be protected. That’s what the American Federal and State Constitutions do, along with the applicable laws and rules that govern how the system works. Right now that’s not working very well for reasons we’ll discuss shortly.
Second, government is supposed to help protect us. Part of this should be providing a way for victims, whose rights have been trespassed against to get help in finding restitution. Criminal law deals with those who trespass within society and military law maintains discipline for those who are supposed to protect us from outside threats. However, as I’ve already pointed out, our system is missing the restitution part of this process.
Third, when private citizens can’t agree with each other and work out their differences, such as a divorce or a breakup of a business partnership, the government provides a system for arbitrating disputes. That’s civil law.
These facts are what make our government a republic. It’s very important to understand what that means, which I’ll explain in the next chapter.