On the simplest acceptable justice system

The main idea: combine juries and Russian Roulette to get the most bang for the buck in terms of a justice system. 

0. Posts on this blog are ranked in decreasing order of likeability to myself. This entry was originally posted on 26.05.2023, and the current version may have been updated several times from its original form. 

0.1 Below I’m trying to design a Pareto justice system, i.e. one that requires 20% of the effort of modern systems (in theory being simple enough to be applied by roving guerrilla bands on the territory they control), whilst delivering 80% of the (useful) outcomes. Much comes either straight from - or is at least inspired by - David Friedman’s Law's Order as well as Rod Long’s work on classical Athens.

1 The design

1.1 You don’t have written laws, at all. Whoever can sue whomever for any reason or no reason, but they must do so before a jury.  

1.2 Each party proposes which punishment should be meted to the other or themselves (yes, the defending party can propose a punishment for the claimant), always remaining within the types of punishments allowed (see 1.6). These can be changed as the proceedings go on, but must be set in stone before the jury makes its call.

1.3 Jury members (could be as few as three) sit separately from one-another and have no chance to communicate or share thoughts on the matter they’re adjudicating.

1.4 Once the evidence is provided (which, given no standards of evidence would apply at all, may just be the claimant arguing so and so, with no supporting evidence whatsoever), the jury members vote (again, individually) on which of the claimant’s and defendant’s punishments shall be carried out. One juror’s vote is drawn at random and becomes the deciding vote.

1.5 No one can profit from the proceedings, meaning that each party’s situation after all is said and done must be no better than the worse between their situation pre- and post-crime. 

1.6 In practice, this means that no damages can ever be sought, but only punishment can be meted out. This system uses only three punishments: public lashings, Russian Roulette and confiscation of relevant goods. The number of the lashings, odds of the Roulette and which goods to seize to be determined based on whose party’s claim the random juror upholds. 

1.7 There would still be a difference between criminal and tort law though, as a claimant can still withdraw a claim made under tort law (presumably for a fee on the defendant’s part, but that’d be a private matter between the parties). The claim must be withdrawn before the jurors vote, of course.

1.8 A claim pertaining to criminal law would still allow the alleged victim (if still around) to withdraw the claim (again, presumably for money) but this would only lower the punishment if found guilty to a minimal Russian Roulette risk of 1%. Claims deemed to fall under criminal law would, obviously, only be punishable by Russian Roulette, at odds of at least 1%. 

1.9 Last but not least, any punishment can always be lowered by the party agreeing to undergo a sterilisation procedure. Flogging to be omitted entirely, and Russian Roulette odds to be decreased by a factor commensurate with age. No changes can be made to the decision to seize any goods though (see 1.5, always to be upheld).

2 The rationale

2.1 The Rule of Law presupposes that everyone is aware of what the law is and cannot commit an offence due to ignorance of the law. Drafting such a set of laws into a manageable number of pages is impossible. 

2.2 Hence, juries and the general community opinion are the only way to at least in principle be aware of what the Law is at all times: what would you neighbours think of such as such an act? All trials by jury, and all jurors to vote independently and only based on own conscience.

2.3 Crime or tort does, just like a tango, require two parties. You robbed my house, but I had a flimsy door. You raped me, but I walked alone scantily dressed after dark. You defrauded me, but I didn’t use escrow or other services. 

2.4 Hence, not allowing the victim to profit from the proceedings by strictly disallowing all payment between parties. You now have no incentive to have a flimsy door, and will invest an optimal amount into your own security. Only meeting out punishment to the offenders (and not recompensing victims in any way) is the only way to minimise crime in total.

2.5 Obviously, a robber or fraudster may not be allowed to keep his ill-gotten gains, so wherever relevant all such property must be confiscated, but not given to the victim. Not sure what to do with it, to be honest.

2.6 Flogging is a simple punishment well suited to torts or small crimes, and little has to be said in its favour. 

2.7 Russian Roulette is death by chance and allows the death penalty to be meted out for crimes which would otherwise never merit it, saving us jails. Just adjust the odds to fit the crime.

2.8 Now, this stochastic approach has plenty of drawbacks. Assuming 50-50 odds for, let’s say rape, means that one every two rapes will go unpunished. This will sit ill with the lady’s family. But the family still has the chance to just off the guy and face the jury themselves, hoping for low odds given the circumstances.

2.9 Now, allowing torts to be settled out of court allows the punishments of tort law to be converted into money, as a function of the chances of being found guilty and the defendant’s wealth. So, about the same as today.

2.10 But now we have some defence against frivolous claims: If you drag me to court, I can force the jury to vote on either my punishment or yours! Say, you claim I defrauded you (which I and you both know I didn’t, for you are a well-known fraudster yourself). You drag me to court hoping for me to settle. So you ask for me to face the Roulette at 30% odds.

2.11 I might settle. Or I might ask the jury to vote on you facing the Roulette at the same odds. Are you sure they will vote with you and not with me? I can defend myself, can you?

2.12 As well, the ability for each party to choose a punishment also allows parties who are clearly culpable to angle for a lower punishment. Everyone knows I stole your bike, so you claim I should face odds of 25%. I claim odds of just 1% for myself. Maybe the jurors would ideally prefer odds of 10%, but those aren’t on the table. Are you sure you haven’t overplayed your hand in asking for too much, allowing me to get off lightly? The bike is, of course, confiscated in any case.

2.13 In short, the old Athenian “vote on one punishment among two” is insurance against both frivolous suits and overblown claims at the same time. Further, voting among only two alternatives suffers from none of the otherwise inevitable issues with strategic voting. 

2.14 Finally, giving criminals the chance to lower their punishment if agreeing to be sterilised biases the pool of criminal offspring toward those who value offspring. What do you call a criminal who values offspring above his own life? A ruler.