Duty of Justice I: Torts and Theft

A state possesses seven duties. The discharge of these duties, being the reason for its creation, determines if the state is fit or not fit. However, this claim leaves much to be desired. Why seven and not six? And what are these duties? As such, I shall commence upon a series of essay which shall give both my proper justification for these duties along with any side questions that arise. In addition, it will be clear to the reader why I chose these seven duties and not six. There has been some feedback likewise concerning me leaving out certain duties, such as the general welfare, charity, and virtue. They shall also be addressed in their due time.

I shall continue to follow the two concessions that I requested at the beginning of the last essay—morality is accessible through reason and we may utilize sane universal moral intuitions as empirical data. For if morality is real and objective it must be in reality. Furthermore, if the Almighty created the universe for a purpose then that purpose ought to be permeating reality. Likewise, the morality that the Almighty created must be permeating reality. As such we may utilize empirical thought experiments, observation and intuition as a starting point for reasoning. Our reasoning may therefore be falsified by sane universal intuitions, or else have to explain it. One may compare this to physics where reason and experimentation stand hand in hand in harmony. Scripture, just like reality, was created by the Almighty and it is thus obvious that morality permeates them. If reason arrives at a different conclusion than scripture than either one’s reason is faulty or one’s interpretation of scripture. This way, my conclusions can be authenticated to be clear via both empirical evidence and scripture.

The first duty that I shall elaborate upon is justice, which is the primary duty upon whom the others depend. As this term is one that has been argued and discussed by the philosopher, the sage, and the theologian, a single essay cannot do proper justice to the full depth of the term. This essay will thus focus upon the initial definition of justice along with its application to tort and theft law.

We shall naturally begin with a clear moral intuition to establish a starting point of evidence to reason from. If Simon was to go and seize the property of Levi due to his own selfish desires, it is eminently clear that Simon has perpetuated an injustice. The judge however that seizes the property from the hands of Simon and returns it back to Levi has done an act of justice. We can thus infer that there exists such a quality as justice. Indeed, if the judge remarked that he did not care to restore the property this would be an act of injustice. We can thus say that when someone has their property taken, and it is not restored then this is injustice. The act of seizure of their property is the act of injustice and the restoration of their property is the justice.

However, the failure to seize their property is not justice. We thus gain two powerful insights into justice as a quality. The first is that there is a certain quality, which we shall define later, that seizure of property eliminates and or reduces. Also, that justice is inherently directional. As in, there is no state of justice which is maintained by sitting and doing nothing. In the cases we have proposed, justice is inherently directional. Actions, or even in actions, are just or unjust based upon their effects. Intention likewise are clearly ancillary. For if Simon thought that Levi’s property was his own, was this not still a perpetuation of injustice?

However, we have so far only covered the case of stealing. If Simon was to destroy the property of Levi, this is clearly an act of injustice. However, there is no property to replace. This comes even more into focus if the item was non fungible such that a replacement item may not be given. The obvious answer is money of some sort as money is the ultimate fungible good. How much money is a question that I shall leave open as there are many methods of value such as purchase value, market value, replacement value, and sentimental value. The real answer we have is that money can be utilized to restore this state and thus enforce justice.

This however begs the question, what if Simon was hanged? After all, if it was a costume bird bath from a now dead artist, the bird bath cannot be replaced. Thus the argument is that no money only the irreplaceable can suffice? Everyone would agree that no bird bath is worth a human life. And thus we gain another principle. For what is the difference between the value of the bird bath and the human life? Levi obviously has a desire for the bird bath and thus if it is still around, it must be replaced in order to restore this state. If the bird bath has been destroyed then we must make a compromise and replace it with money. However, the life of the man cannot possibly compensate for now Simon is out his life and Levi his bird bath. But what if Levi did indeed desire the life of Simon or something less ridiculous his house? Presuming a normal bird bath and not some priceless golden artifact, everyone recognizes that this is wildly disproportionate. For a custom bird bath could run up to tens of thousands certainly, but a house is hundreds of thousands. Thus the injury dealt to Simon is in no way proportional to the benefit that Levi accrues.

We can thus add another principle to our definition of justice, proportionality. The harm done to Simon must be in direct proportion to the injury. For if we defined it by a man’s desires, if a man has a hundred dollars he will desire two hundred and so on until the smallest injury would merit the total seizure of a man’s wealth. In addition, what man has not felt a desire of revenge? Even if we discount greed, a man, in the moment of his wrath, may feel that justice is best served by executing his fellow man via firing squad. As we have already proven that the death penalty is not proportional to the theft or destruction of the bird bath, thus, we must reject desires as the measure of justice.

We shall view this injustice from another angle. For, it is clear that if a man creates an item with his own time, materials, and directive that the items belongs to him and no man has any possible claim upon it. As such, he may bestow it upon any person he desires with any reasonable conditions. Given that the Almighty created the world with His own materials and His own time it is obvious that the world belongs to Him as it is written, “I own the cattle on a thousand hills.” As such, He bestows His property to man for the purpose of fulfilling His holy will as it is written, “It is [G-d] that gives you power to make wealth, in order to confirm His covenant.” We also see in the psalms it is written, “The heavens are the heavens of the Lord, but the earth He has given to the children of men.” We thus see that the Almighty owns everything, but has given the items and property to man for the purpose of pursuing His holy will. After all, how else can the Almighty mandate charity if the property was not His to order one to give to whoever the Almighty desires. As such, if a thief were to take the property of another, he has just rebelled against the most High. He is not only a thief he is a rebel. In addition, the victim is now bereft of goods which he required to serve the Almighty. As such his state of being able to pursue his purpose is thus compromised.

However, even setting scripture aside, it is clear that a man has lost when he lost his property. This is why property rights is considered by many to be the most fundamental of rights and indeed, there is no ethical system that will not accuse a man of being a thief before seizing his goods. After all, communism asserts that the capitalist has through owning the means of production engaged in the wage theft of his workers. Thus, he owes the means of production to the workers as compensation for his theft. The communist does not merely say in our ethical system, we steal what we want. Rather, they invent an excuse. This thus proves the principle in its breach for even when the principle is being breached, it is appealed to in order to justify the breach itself. Therefore, we may see that the same principle is demonstrated from two angles. First, top down with the Almighty delegating ownership of property to whoever He desires, and second bottom up from moral intuition. As such, this conclusion represents independent convergence and is thus firmly supported as truth.

Indeed, the statement, a man loses by loses, is a sheer tautology, such that the very axiom that a man owns his own property is the foundation of many ethical systems or one of the major elements. The Jeffersonians would argue that property and consent is the very beginning and end of law. As such, the above is a very clear definition of justice. However, I have been gesturing at a state for quite some time, that is, the state where Levi has his bird bath. It has gone so far unnamed, at this point the reader must be pardoned for my Hebrew but I will quote a Bible verse that shall name this state explicitly, “A thief must surely make a shaleim.” In this context it would be translated as restitution, however, the state of restitution is confusing. As such, I would like to venture the translation wholeness. A thief must surely make a person whole. In doing so we name the state that we were gesturing at earlier.

However, to merely translate shaleim as wholeness is to perform the disservice that I initially left the word untranslated to avoid. For, shaleim is not merely wholeness, but likewise perfection, completeness, fitness, and peace. Indeed, the word that most readers will recognize in Hebrew is Shalom, which arrives from the root word shaleim. Most however will only recognize peace as the translation, along with hello and goodbye, but this flattens the word. All of the words that I utilized to define shaleim are encapsulated in the word, for in English the word peace can refer to a graveyard, however, to refer to a graveyard as shalom would be ridiculous. Likewise, a classroom full of children chanting their lessons is not peaceful, but it is certainly shaleim.

We thus have the name for the quality that we discovered. The destruction or seizure of the property of a man destroys his state of shaleim. Thus the state must be restored in order for justice to be done. We also see why the animals in scripture are granted upon their slaughter a much larger penalty. For the very livelihood of a man are wrapped up in them. Without the animals a man will be unable to cloth his children or plow his field. From this I do have a hint that in our days stealing the car of a man ought to be a harsher penalty, and indeed, this intuition is borne out in secular law as grand theft auto is treated much more seriously than crimes even of a similar value. For even if the value is the same, in our society where a car can be as essential as legs, the theft or destruction of a man’s vehicle is to render him partially paralyzed. He will be unable to go to work, get groceries, or many other essential errands. Where as to steal or destroy an equivalent piece of jewelry is to do far less harm to his state of shaleim. Thus the crime concerning the car is worse than the crime concerning the jewelry and thus merits a harsher act against the criminal than the one required against the stealer of jewelry.

The astute reader will however bring an objection that while my reasoning is very nice and clearly applies to property, I have not yet applied it to the person of a man. And here it seems to breakdown for it is written, “An eye for an eye and a tooth for a tooth.” The plain reading of this passage clearly declares that if there is an injury the same injury must be done to the perpetrator. Thus if Simon were to strike off the hand of Levi, we ought to strike off the hand of Simon. To apply this to property— for why is property more sacred than a man’s body—if Simon destroys Levi’s custom bird bath we ought to destroy his. But, what if Simon does not own a bird bath? Ought we to find items of his that are equal as possible and burn them in an enormous bonfire while dancing around them in a frenzy? This is obviously ridiculous, so as this principle does not apply in the lenient case, why ought it to apply to the stringent?

Thus we see that scripture is in conflict with reason and scripture, for the principle of shaleim has been demonstrated from scripture itself. Thus as stated above, either our reason is mistaken or our interpretation of scripture is mistaken. I will add more proofs against this plain reading of an eye for an eye.

Let us suppose that Simon had one eye—he lost it in the war, which war he never says—and he put out the eye of Levi. If we were to put out the last eye of Simon, he would be left blind and destitute. On the other hand, while Levi would have difficulties in catching a well thrown football, he would continue to perform many useful occupations to provide for himself and his family as well as to contribute to society. As such, Simon has through the act of putting out an eye rendered himself destitute. This is clearly a violation of the principle of proportionality that we discussed above. For the injury dealt to the shaleim of Levi is disproportionate to that of Simon. Levi has been rendered a half a man, but a half a man is still a man while Simon has ceased to be a man. Indeed, his plight is worse than the born blind, for they have constructed their own version of man and many contribute to society by through courage and will compensating for their disability. However, this has been built from birth such that they do not miss the sight of the sun no more than I miss the taste of foods that I have never tasted. However, we have deprived Simon of many joys and pleasures that he has tasted and thus will desire.

For it is a cruelty to take candy from a baby but not man would argue that not giving a baby ignorant of candy, candy, would be a cruelty. While Levi can continue to admire beautiful works of art, be stunned by fingers of light filtering through branches of trees, and behold the face of his wife, all of these pleasures, and many many more will be stolen from Simon. Thus Simon has lost an entire world more than Levi. As such the principle, if applies as written from scripture, would result in many cruelties. This is clearly an absurdity as it is written, “Will not the just G-d do justice?” As this is clearly not justice, we must be misinterpreting scripture.

Likewise, we see above that in the acts of justice the man whose shaleim was reduced, had his shaleim be restored. However, in the above example Levi before and after the putting out of Simon’s eye is the exact same. He does not suddenly regrow his eye, nor is his loss compensated for in any means. It is this idea that caused Ghandi to say, “An eye for an eye makes the world blind.” Clearly the world being blind is a reduction of shaleim.

At the same time, to permit Simon to perpetuate these gross acts upon Levi without any response is to violate scripture, as it clearly is saying to do something, and to violate reason, for we have already proven that if a principle applies to property, how much more so one’s person which is the more stringent case. As such let us insert a word to the verse. “The value of an eye, for an eye, the value of a tooth, for a tooth.” Moving forward from this insertion we see that all of our objections dissolve. For if Simon is paying money, he retains his eye, and thus only loses the money rather than his livelihood and all the pleasures that we exposited above. Likewise, Levi gains the money as compensation.

It is clear to anyone that a person’s body is more stringent than his property. Thus just as the car merited greater compensation than the jewelry due to its higher strike against shaleim, so too does bodily injury merit greater compensation than property damage. For a man did not just suffer the loss of his eye. He likewise suffered other injuries and strikes against his shaleim that we shall exposit below.

First, it is clear that the vast majority of injuries results in pain. For a blow that strikes out a man’s eye necessarily will cause pain. This pain will remain with him even after the eye has fully healed. The memory of the strike shall upon contemplation bring recollected pain in the place where his eye was destroyed. Thus the pain is permanent in a very real sense. His mental peace has been damaged in some cases permanently. Likewise, it is universally accepted that inflicting suffering is cruel. Cruelty is necessarily an injustice. Therefore an injustice has been done by inflicting pain. As injustice is a destruction of shaleim, there must be a compensation to restore his shaleim. After all, men will do work where pain is a certainty. While these positions will command higher wages, it is clear that a man will undergo pain for money. As such, monetary compensation is appropriate for the cruel infliction of suffering in proportion to the suffering.

In addition, the striking out of an eye will require a doctor. This doctor will have to be compensated by Levi, thus reducing his shaleim as this is money he is forced to lose. For as Simon must restore the shaleim of Levi, he must pay any costs that are incurred in the restoration of this state. Therefore, to leave Levi bereft of a doctor, or force him to pay out of pocket, would be inconsistent with our established principle of shaleim.

During the recovery period from the injury, Levi may be unable to work. If the company still pays his wages during this time, the company has now lost for it has accrued loss for no benefit. If however it does not, then Levi accrues the loss as he may require that money to live, and even if not, why should he lose out? Thus this period of inaction reduces the shaleim of Levi. As with all reductions of shaleim, Simon must pay to restore it.

Finally, let us presume that this horrible crime occurred in public. Many folks saw Levi having his eye torn out with Levi screaming in pain and laying upon the ground writhing in agony. Even though no man will judge Levi for this response, it is still a destruction to his dignity.

But we have just hit upon an obstacle. Why ought dignity constitute an injury? For we are thus declaring that the abstract perception of men is of such consequence as to take money? We must now rely on moral intuitions. For sometimes a company will purchase another and proceed to sell off their assets and fire their employers. An excellent example is when Bic purchased the American fountain pen company Waterman Pen Company. In 1958 they purchased the company for one million dollars. However, the financial position of the company was so dire that while the initial purchase was for 60%, the rest was granted for free. Likewise, Bic does not and did not manufacture fountain pens. As such, they were interested in neither the plants nor the unsold stock. In addition, Bic was already operating within the American market with their own distribution channels. The employees and connections of Waterman Pen Company were thus worthless in their eyes.

This leaves us a quandary. If all of these items were worthless to Bic, why in the world did they spend one million dollars—eleven million and six hundred forty four thousand in today’s dollars—on a company with no value? It is because ballpoint pens in those days did not have the same reputation. It was considered that you get what you pay for, thus their cheap pens were outcompeted by other vastly more expensive pens purely because everyone considered their pens cheap made-in-France garbage. However, Waterman Pen Company had an excellent reputation. Thus Bic desired its name for it would place dignity upon their own products which would encourage their sales.

Reputation likewise can have other monetary benefits. For if a man has a good reputation, he will be more trusted by the populace. More men will loan him one if he desires to start a business and suppliers will not demand payment as hastily. For due to his reputation, everyone knows that this is a man who would do his utmost to repay them. Even if the reputation isn’t necessarily for honesty, a man who has a good reputation and dignity will seek to preserve this quality. As such, even if he would rather cheat, he knows that to do so would be to destroy his reputation. Therefore, he will repay on time so as to defend and grow his reputation.

Men will often kill for reputation. If Simon was to walk into public and scream a vile insult against a group of ruffians, he is unlikely to walk out without being assaulted. This is because he has just insulted the dignity of all of these men, and as they are ruffians it is highly likely that they will consider this insult so grievous against their dignity that they ought to restore it by assaulting Simon.

We may thus see the logic of duels. For if a man insults another, he has destroyed the man’s dignity and thus the man ought to respond in a way to restores his dignity. In the older times, this was the duel, where a man would place his own life on the line to restore his dignity. The insulter by backing down has declared that he didn’t mean it and thus the reputation of the insulted man has been restored. If however he doesn’t, the very duel itself will restore the reputation. Indeed, many duels had their opponents point their fire arms into the air, for the point was not to kill the other, unless you are a base and violent man, but rather to demonstrate your courage and dignity. The very risking of life restores dignity. I will never condone dueling, however, like the communist example, the principle is observed in the breach.

We thus see that reputation and dignity are items of actual value. As such, Simon must compensate Levi based upon the humiliation. Just as a twenty dollar birdbath from Walmart is not the same birdbath as the custom birdbath from the dead artist, so to is every insult not the same. For if Simon was a vagrant and Levi the mayor, the humiliation suffered upon Levi would be extreme. In the reversal if anything Levi suffered the humiliation as the mayor ought not to be involved in fights. As such the compensation will be lessened. Likewise if both are vagrants than there is little reputation to injure, thus the compensation is proportional. There are many other levers and variables which are to complicated to expound upon, however, we have thus defined the forms of compensation that Simon must grant to Levi.

There are still many areas of Justice that we have yet to explore. For as of yet, compensation is possible, however, clearly not every crime is in this category. There are indeed crimes which are characterized as victimless. Likewise, what of crimes that, while they do have a victim, the victim cannot be compensated at all? If Simon murders Levi, what compensation shall be made? Ought we to call up the ghost of Levi and hand him a ghost check? Perhaps we ought to burn Simon’s property in a bonfire while dancing around it in a frenzy. In addition, there are many crimes in scripture which are punished via blows. How are these consistent with justice? After all, in each of our previous examples money or property compensates and repairs the wholeness of the victim. How could blows possibly restore the wholeness of the victim? These questions however merit their own essay and as such, will have to wait until the next section.

Having established the principles of individual justice in the areas of tort and property law we may then turn to the application of these principles to the state. One will bring up many counter examples to the pure application of individual justice to the state such as economic and social justice that are on a societal level. In addition, the deployed examples do not clearly map onto the state at all. As such we must return to the purpose of the state as previously stated. The job of a state is to prevent chaos to produce order. When we are in a state of shaleim, we are likewise in a state of order. We may revisit the example of the children chanting their lessons for though not peaceful, it is orderly and whole. But, any teacher knows that this picture of academic harmony is illusory. For just behind the children is a teacher holding the metaphorical whip.

For in absence of the knife—which is the monopoly of violence—the war against all will assert itself, and this war necessarily results in injustices. A man will murder his fellow and seize his wife and his items. Likewise, a man is driven off his land which is lived in by another. These are all gross acts of injustice and are the very purpose of the state which as previously demonstrated is to prevent the war against all. As the state was created for the purpose of individual justice, we may apply the principles of individual justice to it and say that the state has the job of inflicting justice. It is self-evident that an item is created for a purpose. Given that justice requires force and that the elimination of chaos requires a monopoly of force, it is logical to presume that the entity defined by possessing the tools necessary to discharge a certain purpose was constituted for that purpose. That is, when Simon robs from Levi, Levi drags Simon before the judge, with the state standing behind them both. The judge will then determine the case and direct the state to wield its knife in service of justice. Where upon the shaleim has been restored through force.

However, not every crime damages the shaleim of only an individual, for no man is an island that lives outside of society and his fellow man.