The Law of Damages and Our Spiritual Traditions

It’s my turn to teach First Day School (what Quakers call Sunday School) for the past few weeks.  And as usual I’m having more fun than the kids are.  The King James Version of the Bible has been a favorite ever since I took Prof. Bond’s course on “The Bible as Literature” at Dartmouth (before the Punic Wars, it sometimes seems) and it is a delight to revisit that wonderful collection of superb writing.

Looking through the story of Moses has stirred some concerns, though, about what we Americans think justice is, and what we use the law to accomplish.  In particular, I wonder whether we have lost our fundamental cultural moorings a bit when it comes to our response to being injured.

When Moses laid down the law to the Children of Israel, he generally called for restraint.  He taught them to refrain from vengeance and to practice even-handed justice, where the remedy was proportional to the hurt.  That is, if a Hebrew is injured by another Hebrew, then the punishment should be to inflict upon the wrongdoer only the same injury, not more.  If a neighbor pokes out your servant’s eye, the punishment is not to kill one of his servants, or to poke out both the eyes of one of his servants, but to poke out one eye of one of his servants.  Thus:

If any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. — Exodus 21:23-25

I’ve always thought that this Biblical principle is the derivation of the “scales of justice.”  The harm and the response to harm are of equal weight, and after justice is done the scales are balanced.  Where there is an upset in affairs such that the community is thrown out of balance, then the law provides the remedy that restores equilibrium.

Jesus went one better:

Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: but I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.  And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also.  — Matthew 5:38-40

That one never quite made it into the books.

Still, you have to wonder how it became okay for Americans to seek — and get — a remedy that exceeds our injury.  Indeed, the justifications that the law has come up with — that extra damages are “punitive” or “exemplary” — are a bit unconvincing, aren’t they?  Someone is going to use the civil law to punish or make an example of someone?  By making them pay more than the harm they caused?  What example does that set?

This isn’t (I hope) a naive reformist plaint, or a political or social rant.  On the contrary, it’s a personal thought that reflects, if anything, a spiritual grounding that I and others have had since we were kids.  There’s something down deep in us that gets embarrassed by this sort of thing.  A car manufacturer is made to pay millions for a dent in a hood that can be fixed for $300.  A fast-food company is charged zillions because someone bought a cup of hot coffee and burned themselves when they tried to drink it as they drove.  We laugh, but don’t we also cringe a bit?

Every mediator has been in the position of watching a mediation crater because, although the defendant was willing to make the claimant whole, he was unwilling to pay more than that — such as the fees that claimant’s attorney claimed to have clocked up.  My worst experience in this was mediating a claim for $1,500, purportedly subject to treble damages.  Over a five-hour mediation, the defendant eventually offered $5,000, making the claimant more than whole.  But the attorney wanted an additional $22,000 for fees incurred to date.  The result:

Maybe the vague discomfort that we feel about awarding remedies in excess of the injury stems from some intuitive realization that our societal norms are not consonant with the spiritual values we were taught as kids.  Maybe the law encourages us to behave towards each other in a way that our Mamas wouldn’t approve of. 

And if that’s so, let’s at least get it on the table.

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