
How the Tension Between Mercy and Blame Shaped Our Legal Codes - dnetesn
http://nautil.us/blog/how-the-tension-between-mercy-and-blame-shaped-our-legal-codes
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etrevino
> It’s fair to say, however, that back in Harcourt’s day, and for much of
> human history, punishments skewed harsh—perhaps because it preserves order
> and promotes cooperation among social species. Hungry macaques, for
> instance, often attack those that do not alert the group that they’ve found
> food, likely to teach a lesson about sharing; elephant seal pups caught
> stealing milk from unrelated females are often bit, and occasionally killed.
> We’re no different, and it seems humans’ elaborate legal institutions and
> procedures haven’t significantly altered the psychology we evolved hundreds
> of thousands of years ago to respond to wrongdoing.

I think that this article spends too little time discussing another aspect:
deterrence. Whether or not one thinks that harsh punishments deter criminals,
it's certainly true that it has inspired a great deal of legislation all the
way back into the era I studied for my PhD (eighteenth century England). Sure,
there's the tension between mercy and blame, but deterrence is in there, too.
Sometimes clemency isn't granted in a case where otherwise it would clearly be
warranted because the perceived need for deterrence is so strong. That's what
we're seeing above, when punishments "skewed harsh". Despite the implication
(or what I see as the implication) that we've moved beyond the need for harsh
punishments to preserve order and promote cooperation, I think that they're
still very much in evidence. It can't be ignored here, because it's certainly
a part of the rationality of punishing criminals.

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BEEdwards
Or not as all the studies I've seen that look into it find no clear relation
between harshness and deterrence, in fact it may even backfire and cause more
problems.

[http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration...](http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf)

[https://www.sciencedaily.com/releases/2009/08/090810025245.h...](https://www.sciencedaily.com/releases/2009/08/090810025245.htm)

What does work as deterrence is the risk of being caught.

[https://nij.gov/five-things/pages/deterrence.aspx](https://nij.gov/five-
things/pages/deterrence.aspx)

~~~
etrevino
I'm just pointing out that the intent of a great deal of criminal law is
deterrence and that should be factored into this discussion. Whether that's
effective is a different story.

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metastart
Sociology as a field arguably emerged from the study of crime. We have annual
crime statistics which we all take for granted today but two hundred years ago
or so it was a revolutionary concept. It was thought that crime was something
spontaneous and driven by animal spirits, but crime statistics showed the
contrary that crime was in fact a fairly consistent part of a society. Once
one could compare crime rates across different societies, then it become clear
that crime was very much related to the organization of a society, etc. -- all
of this at the time was very surprising. It's this insight that I think drives
a lot of "liberals" to be somewhat anti-punishment and see the society at
fault or blame...while "conservatives" still tend to focus on individual
responsibility. Another tension!

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captainmuon
What shapes our legal systems the most IMO is the idea of guilt and
punishment. Its a very automatistic thing. Somebody does something wrong, they
charge themselves with guilt, and then this guilt _has to_ be balanced by
punishment or atonement.

This leaves little way for nuance and mercy (but you can of course introduce
exceptions into your laws). Also it tends to lead to wierd considerations the
more we know about brains, and we have to think about if somebody is really
"responsible" for their actions or doing it involutarily (due to insanity or
determinism...).

If I'd design a society from scratch, one thing I would consider is a legal
system without guilt. Instead of a big table PUNISHMENT -> ATONEMENT, I would
make imperative laws a la: "Police officers shall prevent people from being
harmed" and "Police officers may lock you away for X days after consulting
with a psychologist/judge that you are dangerous, especially after you already
hurt somebody". I'm just making this up as I go along, in reality it would be
more precise of course.

My point is that this system of moral prohibitions (and rights) is in a way a
broken abstraction. I wonder if a completely different society could work
differently and better.

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gumby
> What shapes our legal systems the most IMO is the idea of guilt and
> punishment.

That may true today, but that simplistic model waxes and wanes with the times.

Notice how prisons departments, in particular those formed in the late 19th
century on the east coast of the US, are often called "department of
_corrections_ " and the jails " _penitentiaries_ ". During a reformist period
the idea is that the criminal would have time to reflect on their crime (be
penitent) and correct their error. It reflects a more hopeful, less manichean
view of society.

The gradual abolition of the death penalty happened at the end of such a
period; it's revival in the US happened as a more binary world view returned.

Victorian England was definitely hard core on the "punish" side, even
punishing the poor, but did abandon some of the more extreme ideology (e.g.
dropping the practice of trying and hanging animals that killed humans).

I actually think your characterization is not quite correct: I think what's
reflected is a re-emergence of the idea of the christian idea of original sin:
certain people are inherently bad and deserve punishment; thus whatever they
do can be taken as an excuse to exact justice (and even have them finance it!)
while others are deserving of "charity" (i.e. being judged by a more generous
standard)

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woliveirajr
I find interesting that this fictional case isn't mentionated:
[https://en.wikipedia.org/wiki/The_Case_of_the_Speluncean_Exp...](https://en.wikipedia.org/wiki/The_Case_of_the_Speluncean_Explorers)

It's studied in law schools (at least in some countries).

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bobwaycott
I usually like _Nautilus_ articles, but this one felt rushed, and didn't seem
to dig in deeply at all to the issue of _how_ our legal codes were shaped. It
feels like the title could drop the word _How_ and communicate as much
information as the article did.

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anigbrowl
_American Nations_ by Colin Woodard and _History of American Law_ by Lawrence
Friedman are probably the best intellectual cocktail if you want to go on a
serious historical bender.

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caublestone
Is the Tiger Richard Parker in Life of Pi loosely based on the man in this
true story or is that a coincidence?

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theprop
Luck is definitely a BIG tension in terms of punishment. Anyone for example
driving drunk is at risk of killing someone, but only the drunk driver who
actually kills someone (bad luck essentially) is put in jail for months or
years.

