On Thu, 10 Dec 2009 20:49:52 -0500, Tom Francis - SWSports
wrote:

On Thu, 10 Dec 2009 07:47:54 -0600, wrote:

To state the case generically does not do the topic justice. There is
a distinction here between retributive justice and preventive
sanctions.

Ok - the first is criminal and the second is misnamed - I believe you
meant to say civil sanctions as a means to prevent disorder.

The question is which application respects an individual's
personal autonomy and responsibility.

Neither do.

Preventive sanctions presume that the individual must be
compelled by legislation to be civically, morally, and ethically
responsible. In this sense, the individual's autonomy must
necessarily be reduced for what is considered the social good.

I don't understand the difference as you state it. Both are considered
deterrants to further criminal or uncivil behavior. One is based in
criminal law (in fact, it is the original codification of social
behavior as presented in the Law of Moses and/or the Code of
Hammurabi) and the other is simply an extention of criminal sanctions
into the civil arena.

IMO, this stands in contrast to the deference given to personal
autonomy and liberty by the earliest lawmakers in this country. We've
become to conditioned over time, as a society, to accept the utility
of preventive sanctions at the cost of personal liberty, and this to
the point that a perspective such as mine is considered savagely
extreme.

I wouldn't say "extreme" - I would say misguided. 18th century
jurisprudence stayed firmly entrenched in the arena of retributive
justice - hence debtors prisons, lack of women's rights, cororeal
punishment for minor infractions and such. Most issues considered as
civil matters in today's society were dealt with as criminal in the
18th century with the corresponding "justice". The entire
Constitution and Bill of Rights is nothing more than an experiment in
socially engineering an entirely new legal and governance construct.
You'd really have to explain that a little more because I don't
understand your thesis.

I don't think my perspective would have seemed extreme in
this country's youth. Retributive justice does not presuppose that
the individual must be necessarily be constrained for the good of
society.

Huh? That's the whole point of retributive justice if I remember my,
admittedly minor, education in civil law.

If you do get the time, I'll be very interested in what you have to
say.

As little time as I have, I'll try to articulate my perspective on
this issue as best as I'm able. Firstly, I don't have a background in
law, and I make no pretense to have a firm grasp of the fine points of
law. When I encounter points of law that I find of interest, I
consult my sister who is a lawyer and is schooled in those areas for
the most part. In an attempt to clarify my political philosophy I try
to broach the subject with philosophical language for the most part.
If in doing so, I impinge upon the hallowed lexicon of the lawyer,
it's not for any purpose other to express my point of view. In
submitting the phrase "preventive sanctions," I'm speaking more in a
general and philosophical sense. I'm not looking to further bifurcate
the subject into penal or civil sanctions. I may have articulated
poorly when I stated that retributive justice does not presuppose that
the individual must necessarily be constrained. It may be better
stated that retributive justice seeks to find redress for a wrong.
It's overarching design is not too constrain the individual by
regulating the individual's every action by the enactment of a
plethora of laws that anticipate the individual's potential to err.
The latter is what I subsume under "preventive sanctions." Where
retributive justice takes the individual to task for having failed a
moral responsibility not to harm or injure, preventive sanctions, in
the sense that I use the language, presume the necessity to remove
from the individual the personal autonomy and mobility that may lead
to injury. I find the latter to be deplorable and unnecessary. If
the world were comprised of only two individuals, there is one
handcuffing the other so that the first can feel safe, under a
doctrine of preventive sanctions (again as I define the phrase). As
simple as this analogy is, it essentially encapsulates the doctrine
that drives much of the legislation that oppresses the individual in
our society. I have to say that I humbly disagree with your
assessment of 18th century jurisprudence, and I do so from what little
I have read of Blackstone, ecclesiastical law, common law, the times
of Cromwell, etc. It isn't a stretch to contend that the "social
engineering of a new legal construct" by our founding fathers was a
construct that was modeled, in some measure, on the best aspects of
Greek and Roman government, among other things. (It was also
influenced by the philosophical thought of Rosseau, Locke, and
others.) But that will have to be a discussion for another day. This
note is a bit too long as it is, Tom.

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