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By Luc Loranhe (2006)
I am not an utopist. States and nationwide governments are needed. They cannot just be abolished. (please note: the term “state” is used in its international meaning, referring to the ruling structure of a country; not in its US meaning, referring to a federal state of the US).
The principal function of states is to keep the peace between the members of a society, and to make a society as safe as possible for all who live in it. Furthermore, states have the obligation of defending a society against outside aggression. Beyond that, states should involve themselves as little as possible in the lives of the people.
Even states led by Marxist-Leninist governments have come to realize that a Communist economy, entirely managed by the state, just doesn't work as well as one based on private initiative.
Just as with respect to economic activities, some basic adjustments should also made to the way, crimes and settlements are handled. It may not be obvious but until now, the legal systems of modern states are based on the archaic idea that punishment primarily serves a god, or an abstract entity, whose social order was violated, and not the injured party.
There is no other explanation for the fact that even in cases where the perpetrator of a crime and the victim of a crime were to find a settlement, the state still insists on meting out a punishment.
In contrast to current legal practice, I hold that when the victim and the perpetrator of a crime can agree on a compensation (usually a payment, but both parties should be free to agree on other measures), then the state should give up a claim to punish a perpetrator.
When there is no agreement, the state would impose a punishment in accordance with pre-set ceilings, jus as in current legal systems.
If the maximum sentence for car theft is set as 5 years imprisonment, a victim may ask a court to have this punishment implemented. The court would decide whether there are circumstances that warrant a lower punishment.
But if the victim were satisfied with a compensation payment that is 10 times the value of the car (or anything the two parties agree on, then this punishment would be valid. In such a case, the state may, however, impose a charge on the perpetrator to recover investigation costs.
A society in which punishments would be victim-oriented, different standards would evolve in different strata of this society, and in the interest of personal freedom, I would welcome this.
The essence is that while the state would set limits of maximal punishments, everything below that would depend on what is considered appropriate in different strata of a society, or by victims in different strata of society.
In cases where the victim and the perpetrator of a crime can agree on a settlement, the function of a court should end with having established the guilt of the perpetrator.
In practice, would the proposed alternative legal theory mean that rich people would just pay up and walk free, and poor people can't? Would such a system favor the wealthy? Not necessarily. In many cases, it would mean that rich perpetrators would pay much more compensation than poorer perpetrators. This would even be more consistent with principles of social justice than the current practice, which typically imposes the same punishment on the rich and the poor.
Would the proposed system mean leaner punishments? Not necessarily either. If an injured party feels that only imprisonment will settle the score, then it shall be imprisonment, with the length of a prison term decided by a judge, Justas is current practice).
I do want to point out that my idea is quite different from the Islamic concept of blood money to settle murder cases. In murder cases, no redress is available in favor of the victim, so that in murder cases, the state should always impose a strict punishment.
Current legal theory forces its standards uniformly on all members of a society. This means that even the consensual activities of a group of people may be prosecuted because it violates state standards. A blatant example is the execution of consenting homosexuals in Iran. Another the prosecution of those who engage in consensual oral or anal sex ("against the order of nature") in Malaysia, Singapore, and Myanmar.
Western countries are not free of laws that punish consensual interactions between their citizens. They are not even free of laws that regulate what a person does alone, with his own body. If a person grows marihuana or poppy in a flower pot and smokes it himself, he may be severely punished in the US, even though there is no victim in the legal sense.
People within a society should be entitled to choose their own consensual lifestyle, without being restricted by the state. Then, different groups of people within one country would live very different lives. This is the essence of freedom.
I am aware of the fact that current political systems are unlikely to put such a new legal theory into practice, and to be able to then to fine-tune it so that it will indeed guarantee for a country’s population a new dimension of personal freedom. The political force that most likely could handle the task would be a elitist single state party, strongly guided by a sound ideology in accordance to which granting optimal personal freedom to a country’s citizens would be the primary goal of political rule (in addition to providing safety).
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Copyright Luc Loranhe