Wednesday, 21 July 2010

Justice relating to accidental death and property damage. Part 4

Part 1 here. Part 2 here. Part 3 here.

There are several lessons from these verses that pertain to personal property. Essentially if a man is responsible for property damage or loss then he is expected to restore or replace the property. Having responsibility demands making restitution and restitution should be to the level of loss. Criminal damage to property requires restitution above the level of loss; the owner of the property should be no worse off and a disincentive is mandatory for the criminal.

Noticeable in these examples is that intention is taken into account. Did the man know his ox gored? Did the thief sell the livestock? Did the person in possession of the livestock request it be in their care. Intent can alter whether you have to make excess restitution, full restitution, partial restitution, or no restitution.

What is important about this intention is that it is to be judged on the basis of men's actions. One is not required to look into the heart of a man and establish his motives—an assessment that is probably limited to God. Rather one establishes intention by the actions of a man. An owner of a goring ox is not identified by his animals looking menacing or having sharp horns, but having an ox with a history of goring. A thief using or selling stolen goods is identified by him having the goods in his possession, or having sold them.

This is distinct from hate crimes where underlying motive is presumed based on the activities of others, or the presumed intolerances within society. A man is judged based on the crimes of other men. The prejudice of a man is assumed without evidence of the man being prejudiced.

Related to this objective judgment of intent is a prospective approach in assessing criminal activity. An ox has a history of goring prior to the event. Not, the ox gored therefore what can we find in the history to support the likelihood of such an event. Something is bound to happen because it has happened before. Of course we know something went wrong after the event, the question is, Did we know this was likely before the event?

Justice would be well served if many of these principles identified in these passages were observed in law including establishing intention of the parties using objective measures of intent.

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