Monday, December 04, 2006

Tort: The Once and Future King

I've been thinking about something that Daniel Quinn wrote some time ago--that "tribes" don't have the same concept of punishment as "civilization" does. Tribes, he says, try to remedy the wrong more than to punish the wrongdoer.

Tribes, of course, do not have crime at all. None--by its very definition. Before the anthropologists dredge up examples of rape, theft, or murder, let me explain: Tribes don't exist free of harmful conduct, but their reaction to it is fundamentally different. Tribes have tort.

Crime, by its definition, is action against the state by an individual. Tort, on the other hand, is action by one individual that harms another individual. This is the accepted legal definition.

Criminal "justice" is intended to punish the individual for violating the authority of the state, and as such the result is usually to lock up the criminal as an examplary, deterrent, or incapacitating measure. Criminal "justice" has absolutely nothing to do with righting the individual victim of a crime. Our criminal system is intended to strengthen the state--it is a positive feedback loop that supports hierarchy.

Tort, on the other hand (if we ignore the recent and ill-advised jurisprudence involving punative or exemplary damages), is intended to compensate the individual victim for the results of the wrongful act. This is a negative feedback loop, supporting stasis.

So, from the perspective of hierarchy vs. rhizome, perhaps we should be a bit less critical of tort claims. Tort is, to borrow the classic phrase, the "once and future king."

6 comments:

Theo_musher said...

So how does tort compare with waves of revenge killings?

There seems to be an "argument from primitivism" but only certian primitive societies are seen as exemplars of this. But this form of argumentation seems to be drawing from some universal.

To me it seems just as likely that waves of revenge killings would replace criminal jusice administered by states than a system of torts in an anarchic society or group of neighboring societies.

Theo_musher said...

Another thing to consider that "tribes" as a universal ideal or broad category of social organization, describes much of the way of life in the middle east.

Is Sharia law a somewhat analagous to this tort system you are thinking through? Eye for an eye?

It seems more like punishment but, I am thinking it is closer to this tort idea, because these punishments are seen as somwhat analagous.

The old testament scriptures seem to emply a lot of these ideas of torts in cases of theft and things like that.

One thing that springs to mind though is that slavery existed then. So for example a theif could be sold into slavery to pay off his debt.

In the US underclass criminals are simply incacerated. Whithout slavery how would you get an unemployed person to pay somthing back?

Theo_musher said...

Not to throw too many things at you, but since you didn't have any comments here anyway:

What is your opinion on tribal life in Iraq? Would three or more warring tribes be better for the Iraqi people than a state?

One reason the tribe in Arab muslim society is so strong is through cousin marriage. Generation after generation of cousin marriage divides their society into all these close knit tribes. A tribe is a large extended family basically.

Your rhizome idea seems to have this assumption that all the hubs in these loose network get along with each other.

Why would that be? These three groups in Iraq pretty much all hate the occupation but hate each other as well, maybe more.

Wouldn't the level mof organization of the nation state break down into small insular warring factions?

Peter said...

Hi Jeff,

Congratulations on the daughter. That's wonderful news.

Have you seen Apocalypto yet? Gibson does a splendid of contrasting tribal society with that of empire. It's also just a very entertaining action movie.

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