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When Theft Was Worse Than Murder (nautil.us)
99 points by dnetesn on Oct 13, 2014 | hide | past | web | favorite | 49 comments

400 years ago justice systems were based on the desires of the crown and aristocracy and the needs of the aristocracy demanded they be able to buy their way out of murdering common folk but have their precious wealth protected at all costs. Murder of the ruling class was, obvs a different story [1]. Among other things the strengthening of the middle class is what slowly, reverses this.

[1] http://web.ics.purdue.edu/~felluga/punish.html {Opening passage of Foucault's Discipline and Punish, recounting the drawing and quartering of Robert-Francois Damiens for attempted regicide.}

i've only read a bit of foucault but one of his fascinating expositions is the mechanisms of discipline that run through us unconsciously (i've heard it termed micropower). it's tangentially related to the panopticon, which is what many people think of in relation to foucault. foucault makes claims that normative forces (micropower) are more powerful than direct coersion.

micropower breaks down when individuals start othering people (contrasting and disassociating others from themselves), particularly those we call criminals (recall zimbardo's prison experiment and milgram's as well). reformation efforts in the criminal justice system, then, have been focused on replacing punishment and coercive tactics with rehabilitative ones to bring offenders back into the fold so that normative forces rather than coercive ones can act to create social stability.

but our justice system has a ways to go on this front. minor offenses like petty theft can lead to months/years in prison and acute othering (yet we don't even prosecute those who brought our financial system to its knees and millions of livelihoods along with it). instead sentences for most offenses should not separate offenders by putting them into jail but instead should put them in the middle of a normative group of people. this surely requires a high degree of collective empathy and compassion though. but at least we no longer have debtors prison...

Okay, okay, okay. No no. I did my dissertation on these exact same documents working with these same people.

This is NOT about upholding a class-based system. The elite could not and did not buy their way out of anything any more than a base criminal could. A wealthy elite may be able to hide a crime more effectively, but once the crime was known it was extraordinarily important for the elite to be seen as fair arbiters. Here's the deal: the elite knew that they were ruling with the consent of the lower orders (classes don't come in as a useful classification tool until the rise of the Bourgeoisie), so they were concerned to preserve their status as the dispensers of justice. This meant that in many ways an elite charged with a crime would be held to a higher standard than your typical commoner and the punishment may be more aggravated.

Check out the case of the Earl Ferrers. He's a great example of an elite figure facing the same punishment as everyone else.

(to expand on your Foucault example: an attempted murder of the king is not the same as an attempted murder of a nobleman. The king was considered God's representative on Earth. Foucault's point, in any case, was about the aggravated nature of the punishment.)

It is depressing, but perhaps expected, that an article about a quantitative approach to historical analysis includes one anecdote and no additional data.

I was able to dig up this paper:

which is sufficiently dense to require some time to read and consider.

Looks to me like nautil.us is aiming at a general readership that is interested in science. Many articles like this gloss over the numbers in favor of narrative and anecdotes, because that's what's interesting to general readership. The provides plenty of opportunity to delve deeper by seeking out the source material, as you have done.

There's many people, myself included who you could send the original paper and I'd give it a glance and probably leave it. Not because I'm stupid or uneducated, but because I don't even know if its a paper that says something new or relevant to the field or has something to offer me as a person. An article like this makes it much more likely that people will engage the research by giving me some initial sense.

Shouldn't the Nautil.us article simply have a reference (link enabled)? It's important for those of us who want to verify the analytical model and what inspired the ideas. For everyone else, it's a link they wouldn't click.

It's not exactly a new practice in the literary world.

But that doesn't fully explain it. There are other popular sites that do include charts and graphs. (Take Vox, Priceonomics, or FiveThirtyEight.) Perhaps this is a deliberate choice of the Nautil.us editors to appear more literary?

Read this just last night and wanted to quote it somewhere:

"For instance, the law of England is much more severe upon offences against property than against the person, as becomes a people whose ruling passion is money. A man may half kick his wife to death or inflict horrible sufferings upon his children at a much cheaper rate of punishment than he can compound for the theft of a pair of old boots."

"Alan Quartermain", H. Rider Haggard

This article could use some nice infographics and charts. The way it is written makes it hard to see exactly how things have changed over time.

Agreed. What I would really love to see is whether a "historical economist" (or whatever those are called) could estimate the statistical value of a human life as defined by people's own revealed preferences. This is the sort of calculation where we infer how much each of us values our own lives based on the amount we are willing to pay to avoid small chances of death. In the US today, the number is about $8 million now, and is surprisingly consistent (within a factor of 2) over many possible inference methods.


(Of course, there are exceptions where people effectively pay rates of many billion dollars per life to avoid emotionally salient risks, like terrorism.)

The OP article gives the misleading impression that society's changing values are mostly due to moral progress (presumably arising, I guess, from people being persuaded by moral arguments, or from certain societal norms taking hold). But it's almost certainly the case that you can explain the vast majority of the change by economic developments, especially following the dramatic rise in per capita wealth starting with the industrial revolution. The dark implication of this is that if per capita wealth falls drastically in the future, which is possible depending on technological developments, then we are likely to see a regression in moral attitudes.

Agreed. About a week ago, there was an article about artificial ligth, and the authors were listing the prices of lamp oil in ancient times, the price of candles 1-2 cenuries ago, and modern electricity. The improvement of our live compared to the past was remarkable.

The same probably applies to the social norms. The brain of human beings could not change too much in such a short period of time. So, most likely we did not become intrisically better. Yes, the social norms were improved significantly, but mostly thanks to the improvement of the quality of life.

I think, it's all about utility. Killing a person does not necessarily makes the murderer richer, most likely not; on the other hand, stealing something actually makes the thief richer, so the law in the past had to take coutermeasures. Nowdays, police works better, it's likely that you will be caught if you steal something, so the utility of stealing is pretty low, and the risk is high. On the other hand, a murder is frequently not about money, but hatred and personal relationships, this motive is less rational, and the utility of a murder can be rather high, even if it's likely that you will be caught. Of course, I did not do any analysis..

And it is very pleasing for us to think that we are much better than we were in the past, and out moral standards are higher compared to the crazy stuff we did before. But this bragging is just a reiteration of the words of William Blackstone cited in the article. In fact, we are not better, we just live in different time, and it is rather stupid to assume that just a few centuries ago we were less rational and less optimal. Most likely, the old cruel law was great and optimal in that historical period.

>> The OP article gives the misleading impression that society's changing values are mostly due to moral progress ... But it's almost certainly the case that you can explain the vast majority of the change by economic developments

Not to refute your point, but there is a further interesting dynamic described in the article: feedback. English legal practice is based on precedent in common law. There is a ratchet effect whereby past rulings influence: subsequent rulings; behaviour (morality) of citizens; perhaps too, laws subsequently enacted by those citizens' elected leaders.

I suspect the OP, who is connected to the Santa Fe institute, is interested in exploring such an emergent system.

Interesting. My take on it is slightly different: it feels like a necessary condition of economic progress is that you trust that you will get to keep the fruits of your labours.

The way this happened in our history (I'm assuming that it's not the only way) is through institutions like The Old Bailey and the codification of laws and the visibility into the not always completely fair, but always getting fairer, application of those laws that they provided.

Well, I agree that certain institutions for law and order appear to be prerequisites for the sort of economic/technological progress that occurred during the industrial revolution. And it is plausible (though definitely not obvious) to me that such institutions really did arise from the slow and steady accumulation of ideas. But the sacredness of life as compared to property seems mostly a result of per capital wealth. I'd guess we can find many times and places in history where there have been periods of predictable (and reasonably just) law and order, without the sacredness of life.

If you are interested in how much people have valued a human life, in money units, throughout history, I can give you at least one recommendation.

Medieval Iceland lived for 300 years without a government. Murder was punished by fine or exile, or becoming a slave or worse, an outlaw, if they refused to pay their debt to the victim's kin. This period is very well documented. Maybe you could find the exact value murderers were fined. That would give us a data point for 1000 years ago.

Same was true in Germania when Rome invaded it. And Roman law at the time called for execution to punish murder, which did not go over well in Germania.

And at one point in ancient Rome theft carried more severe punishment than murder.

Germania was a poor province, when Rome tried taxing it, they got very little. Maybe it seemed wasteful to Germans to kill yet another man after losing one, when they could profit instead. To the Romans, prevention was the priority.

That color sketch of the goings-on at Old Bailey was way cooler than any infographic.

Who was that standing up front in the white Empire gown? Lady Justice? I'm more accustomed to her portrayed as looking down than as looking up... Even if they deny her motion, with those Popeye arms she can take the law into her own hands.

If you're interested in the main thesis of this article -- that the reason that our attitudes to violence declined steadily was due to a feedback loop "feeding the output of the Old Bailey the day before to the input of the Old Bailey the day after.", I highly recommend "The Better Angels of our Nature" by Steven Pinker.

I read that book. It was very enlightening to say the least.

That being said, my view is in line with the book: cautiously optimistic.

I believe that the domestication of mankind will continue, but that isn't inevitable. Maybe in the future, the trend will reverse. It's up to us and our responsibility to ensure that doesn't happen and to accelerate the trend of less violence over time.

My view is that many people are quite domesticated- traditionally, would you not agree that society flourishes wherever the strong and fair have the capacity to exclude the psychopaths?

Unfortunately, domesticated people often somehow get convinced to vote for open borders.

Borders are only one way to exclude people from society, and not a very efficient one if the only goal is to "exclude the psychopaths", which are no more likely to be on one side of the border than the other.

Or maybe I missed your point?

qnaal's point, of course, was to derail the interesting conversation HN is trying to have with some meaningless contingent political bullshit. I envy you, that such intent wasn't clear upon reading. Suffice to say, there is a certain class of American political lizard that enjoys pretending there's no problem we can't solve without some more of that good old-fashioned racism. Just downvote and move on.

From a theoretical standpoint, we define our own borders, no? A 'society' doesn't have to be very large to thrive, especially when it can interact with global markets.

Obviously there are many ways to 'remove people from society', but I think it's clear that the most ethical and economical method is exile.

Such a strategy doesn't scale very well for an enormous society, so globalists like 'jessaustin' call me racist- but I think my political agenda is apparent- curiosity and discussion of theory. It's pretty clear who's trying to derail what.

Murder is theft. The worst kind of theft

Not really. A life is not property. It cannot be acquired or given away. Even if we were to just go along with it and categorize life as personal property, a murderer does not take the victim’s life into their possession in any way I can tell. Murder ends life rather than appropriating it, so murder would be destruction of property, not theft.

Life can not be acquired or given away more than once (with current technology).

But that's not what property means to everyone. For me, property is something that is owned privately, and I claim private ownership of my life.

Even if we were to just go along with it and categorize life as personal property, a murderer does not take the victim’s life into their possession in any way I can tell.

That never stopped copyright holders from calling infringement "theft".

If the copyright holder is deprived of resources they otherwise would have received due to the infringement, it is indeed "theft". It wasn't until it could easily be done on a wide scale that such infringement was a real concern.

That's not how it's seen legally. Dowling explicitly made clear the distinction between theft and infringement. No taking with intent to deprive == No theft. Copyright is unique in that there's no "taking" when you copy something.

The laws can vary from area to area, but a number of them do refer to infringement as a form of theft. Any law that refers to the negative impact of the criminal act to the economy is almost certainly speaking of theft. It might not be literally spelled out as theft, but in most cases it is. Heck, in the US there's a law referred to as the Net Act, which stands for No Electronic Theft Act, that literally names it electronic theft even if there is no monetary gain.

EDIT: Which upon reading up on this I'm assuming you mean Dowling vs US from 1985. The Net Act I mentioned was passed in 1997. Plus Dowling is strange, it seems to suggest that copyright infringement isn't theft because the alleged thief didn't steal the actual copyright and didn't deprive the owner of the use of the copyright. The decision didn't seem to have anything to do with the physical materials that were copies, most of which weren't copyrighted to begin with.

The "taking" is not the copying, that's a truly sad defense. The taking is depriving the original owner of the resources due them for the time and resources expended during the creation itself. If they created it then they have the right to dictate terms in how you consume it. If you don't agree to the terms then the proper response is to not consume it, not to copy it outright and make some silly claim that they lost nothing because you made a digital copy so that they still have the original.

Heck, in the US there's a law referred to as the Net Act, which stands for No Electronic Theft Act

This means nothing, and is certainly not a defense to your (and the copyright lobby's) misuse of the word "theft". There is absolutely no requirement that a bill amending the USC be titled anything that has to do with what it actually regulates or contains. The Patriot act has little to do with patriotism...

The taking is depriving the original owner of the resources due them for the time and resources expended during the creation itself.

A good counterpoint to this:

* Inviting a friend or any random person to watch a movie with me: Perfectly legal.

* Inviting a friend etc. to watch my entire collection of movies with me: also perfectly legal.

* Ripping my own DVDs so I don't have to deal with physical media: Arguably legal and fair use.

* Giving that ripped copy to said friend: Copyright violation, and many would argue morally wrong.

* Downloading a copy of a movie I already purchased from a torrent site for whatever reason: Also a copyright violation, but few would argue that this is morally wrong somehow.

Replace "movie" for "song" or "game" and the same argument holds.

Where your logic breaks down is that the net effect to the copyright holder in every one of those scenarios is the same. Someone else enjoyed some product without extra compensation being required.

That's a stretch. The effect to the copyright holder is the same only if the frequency of the acts is the same. Giving a copy to someone is very easy, disconnects the time and place of playing completely. Those are easily enough to disincentivize the friend from buying the movie.

Which is nobody's business but the two friends, right? Sure, if all those other situations are a right and not a privilege. Socially, people feel they must be able to share their movies in their own home, and the movie industry begrudgingly permits this without charging. But when you start giving it away, the argument that its your business is clearly strained to the breaking point.

So are we talking about laws or morals here? My stance has always been that the legal argument carries zero weight for the average person, along the same lines as the slight speeding that anyone who owns a car has done. Yeah it's illegal, but who cares? You're not going to be in trouble unless you make a business out of it.

Morally? Then, admittedly, it's murkier. There's a point to be made there though that the "damage" the industry always crows about is less of a real thing (supposed damages higher than the country's GDP, suing networked printers, that kind of thing.. these are not the actions of rational actors with facts on their side) and more of an excuse to be made for exerting greater control over culture. That's getting a bit meta for this thread, though.

Are we at the moral event horizon? I can only speak for myself: We blew past it sometime around the Sony Rootkit scandal. Respect is earned, not given freely - I certainly don't lose any sleep over that blockbuster movie sitting on my NAS or that EA game I download to ensure it's not garbage before shelling out $80.

For you and anyone else? Can't speak there. I just wish everyone would stop conflating legal and moral.

I would say that you are mistaking moral and legal issues. It's your moral right to commit illegal acts because of the Sony rootkit fiasco or other similar nefarious acts? Really? I guess we can all go rob banks now because of the financial industry misbehavior over the last few years? We can steal cars to determine if we like them before dropping twenty or thirty grand?

And there's the strawman.

Is that response in the negative or the positive? I always get confused when people toss out the fallacy card to answer simple questions. It's not like I claimed no true Scotsman would commit copyright infringement, they are simple questions awaiting a yes or no response.

You went directly for the bank robbery line, which is at the very least dishonest when talking about copyright infringement.

Your simple questions are loaded and therefore will not be answered.

You are correct about naming of laws, but it doesn't necessarily make my point invalid.

I would believe that inviting a friend over to watch a movie is legal is because the copyright holders allow it under the license you agreed to as part of the transaction. They would most likely be within their current rights to restrict such a thing but I seriously doubt a court would agree with it.

In most cases ripping a DVD is most likely illegal in the United States as it is illegal in most cases to bypass any security measure to prevent copying. This has been covered under the Digital Millennium Copyright Act, but I am not familiar with any recent adjustments they have made to that law.

Downloading a copy of a movie under a torrent is illegal not because of the download, but the uploads of you seeding the file. I believe this has been established in the courts.

With all your examples, regardless of the material involved, can be perceived as theft under copyright protections if the copyright holder wishes to pursue it as such. Just because they allow some behaviors that may be seen as a detriment to them in some way, most likely it is not, doesn't mean that suddenly all behaviors are moral and legal.

The defenses I see of the idea that copyright infringement is ok and not really a crime is dependent over complicating the matter. It also requires stretching the definitions of commonly used words which has clear meanings throughout various cultures. I admittedly take a simplistic view of the matter and many may not agree, which I'm fine with.

I create a song. You wish to listen to the song. I want a dollar from you for this transaction to happen. You give me a dollar and you get a copy of the song. I have gained a dollar and you have gained the right to listen to the song. The opposite of that is you do not pay the dollar and copy the song illegally. I have been deprived of the dollar I am due and you have gained the ability to listen to the song. It could also be argued you have also gained the dollar that you were supposed to give to me in the transaction. That is the simple matter of why I consider it theft.

If the copyright holder was giving out the material without financial gain but with specific restrictions and one violated the restrictions, then I would say that is copyright violation that is not theft. But if the copyright holder expects monetary compensation as part of the agreement to let you consume the material and does not get it? That is theft.

Are you sure you've read the thread, or did you just jumped at a perceived criticism of copyright holders?

My point was that if copyright infringement can be considered "theft", then surely so can murder. I'm pretty sure a murdered person is also deprived of resources. Like "years of life".

I read the thread and it is not a perceived criticism. It is a real criticism and is a valid point. Some people may disagree with the criticism but that doesn't automatically make it invalid.

Actually in many ways a murder can be considered theft, due to the lost resources that person may have generated within a normal life span that is then deprived from a family member and/or dependent. Usually such matters are handled in civil court. They are called wrongful death suits. Keep in mind, one does not need to be convicted of murder to be held monetarily liable for a person's death. But this type of law varies from area to area so it could be quite different to you than it could be for me.

An easy example of this that has plenty of things to read about are the OJ Simpson cases. Other examples are lawsuits brought against law enforcement agencies for unjustified shootings.

I fear we've been talking past each other, but it doesn't matter.

The problem with that view is that your defining theft essentially as any wrongful setback of interests, which means that every non-victimless crime (and even legal but immoral acts) is "theft".

But by stretching the word so far, it essentially loses all meaning. The guy who cut in line is a thief because he stole your time; the woman who insulted you in public stole some of your self-esteem.

And more: with copyright infringement being considered theft we're not even talking about interests being set back, but suppositions that they have been set back (since it's impossible to if it actually had any effect).

To me, theft means one thing: wrongful transfer of something from the victim to someone else. Any other definition is too broad to be usable.

With all your stretches of logic and out of context examples I fail to see how you are disputing anything that I said.

>Not really. A life is not property.

Life of other sentient beings, like dogs or apes, still considered a property. Wrongly so of course.

>It cannot be acquired or given away.

only for about next 20 or so years until upload and cloned bodies become accessible. The killer (or his insurance) will have to cover repairs or replacement cost in case of "total", and be charged with intentional property destruction if it was intentional.

> 20 or so years until upload and cloned bodies become accessible

That's an... optimistic time frame.

So, I did my dissertation on these documents working with these same people. I don't really have an argument with Dedeo's argument. Now, my work was mostly qualitative (I tried to infer meaning from the text) than quantitative, but my work relied heavily on quantitative underpinnings. The only argument I have is with the title. In 17th, 18th, 19th century England thievery is never considered worse than murder. Ever. That doesn't mean that people weren't executed for it, but it's usually under what we would call "aggravating circumstances". So, a woman who stole something might be pardoned, sent to the workhouse, or "transported"-- that is, sent overseas. In fact, if you were a young and fertile woman you had a better shot at getting out of trouble-- and the women knew it.

Were people executed for property crimes? Sure they were, but the property crime could have very well been the precipitating legal event, not necessarily the larger "social" crime that the person committed. What do I mean? Well, juries were often a group of men impaneled to sit in on trials throughout the course of a day. They sometimes knew the defendant, sometimes not. During trials, a defendant might call character witnesses to his or her defense. The prosecution might call character witnesses to the character witnesses, and on and on (though usually this was more effort than anyone put in). Character witnesses mattered a lot, because it showed that you were viewed as respectable and therefore clearly not guilty (strains of Calvinism here). If a nobleman stood for you then your chances were pretty good. Now, if no one stood for you, or if people came in to defame you for the prosecution, that showed that you were a transgressive individual. As a transgressor you might very likely be worthy of death. It's notable that a lot of folks who were executed in the 17th and 18th centuries would confess to their crimes on the gallows. And even if they did not confess to the crime for which they were charged, many would admit that they deserved the punishment for other acts they committed. So, judgment in a criminal court case is often the judgment of a person's whole life.

Now, execution was the basic form of punishment in this era because the options are execution, occasionally a workhouse, transportation, the stocks, and ... that's about it. Jail (gaol) was only a place to hold people until they were ready for trial. No one stayed there long term. Okay, well more gradation is needed for punishments. If a man kills another man in a fight then he may deserve to die, but he may simply die by hanging. His end may be gruesome, but if he's viewed as a decent fellow who made a mistake then the hangman may give him a "drop" that actually breaks his neck or the crowd may gather around to pull his body down and thus speed his death. The woman who murders her husband in cold blood was often strangled and then her dead body was burned at the stake. A premeditated murder could see the dead body quartered and hung up in his or her's hometown. The important thing here is what happens to the body after it's dead.

Dedeo's point about the changing nature of society and the role of violence therein is correct. I don't buy Pinker's argument, really, but what Dedeo describes here reflects an accurate understanding of the changes in the English justice system.

A few things worthwhile to know:

* Foucault is the starting point for studying crime, but he's just that, a starting point. His general conclusions are so-so, but he asked really important questions. Anyone who relies on the work of Foucault as a theoretical basis ends up having to expand it to make sure they can derive meaning according to the situation their research is examining.

* We can't talk about class at this point, because this is not a society organized by its relationship to the means of production. We can talk, however, about social orders. There's a lot of gradation and variation on this, but you have a very small elite group and a very large group of commoners. The elite are responsible for justice and protection. The commoners cooperate in this because they believe that the elite (in a general sense) are upholding their responsibilities to fair justice and providing protection. When they disagree this does break down and the elite knew it.

If you have questions, let me know. I'll be in and out all day.

Do you have any pointers for someone outside the field to get an overview of critical responses to Pinker's thesis and work?

This review sums it up pretty well: http://www.history.ac.uk/reviews/review/1232

You might very well want to punish theft more harshly than murder, because it's significantly more difficult to find the perpetrator.

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