The ultimate purpose of government is to provide good government. This
means: to watch over a society so that it allows those who live in it
to get through their lives as happily and appropriately as possible.
Thus the government is in charge of providing safety, and apart from that,
should allow the citizens it rules the greatest possible personal
freedom.
The purpose of government is not to have been democratically elected.
Yes, good government should represent the interests of those that are
governed. But some forms of democratically elected governments do often
not achieve this. Take, for example, directly elected populist
presidents.
A democratic system in which presidents are elected directly often does
not produce rational results (results that would objectively represent
the interests of the electorate). Such systems typically favor populist
candidates. To get elected, populist candidates appeal on instincts and
emotions. The easiest emotions to address are those of envy and hate.
Populist candidates typically present clear pictures of enemies. They
often are elected on the basis of what they oppose, not of what they
support.
There are many variations, in which this tune can be played. It can be
anti a certain ethnicity, anti foreign, anti a successful minority,
anti other religions, anti immorality, anti liberty for others.
Such agendas typically are not in the best interest of those governed,
because their appeal to the broad base of the electorate only lies in
the assumption that only others will suffer from the hate policies, and
that the individual supporter of a hate populist will not be affected.
That can be a dangerous error, because governments that are popular
because of their opposition to certain "enemies" of society develop their
own momentum. When they got rid of one enemy, they will need another
one, and than another one, and another one. Such policies impossibly
serve a society as a whole, and sooner or later, even the initial
supporters of a populist will suffer.
Now, this, objectively, cannot be in the interest of the initial
supporter (even if we don't address the point that the populist government
from the beginning only represented its initial supporter's emotions of
hate and envy).
Populist governments are a nuisance, and anybody who can afford it is
advised to get out of harm's way early enough.
To avoid "populist" governments, it is best not to have direct
elections. Definitely, a country's president should not be elected directly.
Party-based elections are already a bit better, though they are no
guaranty against the populist pest.
The most level-headed governments are obtained through indirect
elections. The electorate chooses representatives that sit in a local body.
These representatives elect one of their members to sit in a regional
body. The members of the regional body elect one or several of their peers
to represent them in a national body. And the national body elects a
chief executive.
Such indirect democracy is hard to manipulate by populists, and it will
result in a government that represents a wide range of interests, not
just the emotions of hate and envy of the lowest (and therefore widest)
strata of a social pyramid.
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).