Those Pesky Lawsuits

You hear it in the news all the time: ridiculous lawsuits granting “victims” millions of dollars for trivial grievances. Conversely, you hear of rich people getting away with crimes that would result in poor people going to jail. The Bible has some interesting answers to each such injustice.

Leviticus 19:

15. Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour.

This sentiment can also be found in Ex. 23:1-9, Deut. 1:16-18, Deut 16:18-20.

Our justice system is a far cry from this ideal. Injustice is meted out to both rich and poor because we do not obey this principle.

I have listened to judges running for office. They generally say nothing but platitudes in order to avoid prejudicing future cases. But one of the favorite platitudes is that they will judge the person instead of the crime. This is in direct violation of the above stricture. According to the Bible, punishment should be based on the crime, not the person’s background. An upstanding member of society should get the same treatment as someone from the ghetto. Whether someone had a bad childhood should have nothing to do with it. Ditto for prior convictions. Whether a crime was part of a fraternity prank or part of a criminal career should be irrelevant. If the mandated punishment is too much for the frat boy, then it is too much for the gang member.

Similarly, we have punitive damage law which sets fines based on ability to pay vs. damage done. The result is that large corporations get pounded with huge lawsuits from people trying to make a buck. The result is more expensive products, richer lawyers and a few huge winners in the legal lottery.

Yes, I know it looks like it takes a bigger punishment to make a bigger entity take action, but that is not taking into account the greater vulnerability of a bigger entity. For example, McDonald’s was fined heavily for serving excessively hot coffee. According to the above principle, a local diner should be fined the same amount as McDonald’s for each person burned by excessively hot coffee. Yes, McDonald’s could pay such a fine trivially, but there would be still a deterrence on McDonald’s in that they serve a lot more coffee, and are thus subject to more lawsuits.

On the other hand, many poor people are denied justice because the complexity and expense of our legal system. One reason why a huge corporation like McDonald’s is not actually vulnerable to thousands of lawsuits when they do something wrong is that they can “spam” the system with endless appeals and the like. The proper solution, however, is not to really hammer the big corporations when they do lose, but to keep the system simple enough that all have access to it.

Still, for damage to human life and limb, a proportional set of monetary payments does not work. If we make the payments too big, then small offenders get hit too hard. Further, we create a lawsuit happy society where people try to cash in on their grievances. On the other hand, if we make the payments too small, the rich and powerful can endanger others with impunity.

The Biblical solution to this quandary is both interesting and disturbing:

Exodus 21:

12 "Whoever strikes someone so that he dies must surely be put to death.

13 But if he does not do it with premeditation, but it happens by accident, then I will appoint for you a place where he may flee.

14 But if a man willfully attacks his neighbor to kill him cunningly, you will take him even from my altar that he may die.

15 "Whoever strikes his father or his mother must surely be put to death.

16 "Whoever kidnaps someone and sells him, or is caught still holding him, must surely be put to death.

17 "Whoever treats his father or his mother disgracefully must surely be put to death.

18 "If men fight, and one strikes his neighbor with a stone or with his fist and he does not die, but must remain in bed,

19 and then if he gets up and walks about outside on his staff, then the one who struck him is innocent, except he must pay for the injured person's loss of time and see to it that he is fully healed.

20 "If a man strikes his male servant or his female servant with a staff so that he or she dies as a result of the blow, he will surely be punished.

21 However, if the injured servant survives one or two days, the owner will not be punished, for he has suffered the loss.

22 "If men fight and hit a pregnant woman and her child is born prematurely, but there is no serious injury, he will surely be punished in accordance with what the woman's husband demands of him, and he will pay what the court decides.

23 But if there is serious injury, then you will give a life for a life,

24 eye for eye, tooth for tooth, hand for hand, foot for foot,

25 burn for burn, wound for wound, bruise for bruise.

(NET Bible®)

Manslaughter was by default a death penalty offense. Causing injury was an offense that required similar injury. It is one thing to sue for money, quite another to sue for retaliatory injury or even death.

However, there were circumstances where the modern punitive damages were allowed. (Ex 21 again):

Exodus 21:

28 "If an ox gores a man or a woman so that either dies, then the ox must surely be stoned and its flesh must not be eaten, but the owner of the ox will be acquitted.

29 But if the ox had the habit of goring, and its owner was warned, and he did not take the necessary precautions, and then it killed a man or a woman, the ox must be stoned and the man must be put to death.

30 If a ransom is set for him, then he must pay the redemption for his life according to whatever amount was set for him.

31 If the ox gores a son or a daughter, the owner will be dealt with according to this rule.

32 If the ox gores a male servant or a female servant, the owner must pay thirty shekels of silver, and the ox must be stoned.

(NET Bible®)

Perhaps the ox goring scenario is the proper precedent for the modern coffee cup scenario. If so, then the court could assess punitive damages as was done, and if those responsible considered the monetary damages excessive, then they could refuse the ransom and opt for “eye for eye”, in this case subjecting themselves to the hot coffee treatment.

But note that elsewhere the idea of monetary compensation for life is deprecated:

Numbers 35:

31 Moreover, you must not accept a ransom for the life of a murderer who is guilty of death; he must surely be put to death.

32 And you must not accept a ransom for anyone who has fled to a town of refuge, to allow him to return home and live on his own land before the death of the high priest.

33 "You must not pollute the land where you live, for blood defiles the land, and the land cannot be cleansed of the blood that is shed there, except by the blood of the person who shed it.

34 Therefore do not defile the land that you will inhabit, in which I live, for I the LORD live among the Israelites."

(NET Bible®)

Monetary punishment is not worthy for the loss of a life, even in the case of manslaughter.

But there was an alternative to death for manslaughter: the cities of refuge. They are described in detail in Numbers 35. I will have you look it up since the quote is long. The basic idea is that someone guilty of manslaughter could be legally killed by an “avenger,” presumably a member or agent of the victims family. However, if the one who committed manslaughter were to flee to one of six cities of refuge, he could not legally be killed unless proven to be an intentional murderer. But this protection only applied as long as the manslayer stayed in the city of refuge. This condition lasted until the death of the chief priest, so I presume that this averaged out as a decade or two. After the death of the chief priest, this internal exile ended and the manslayer could safely return home.

I do think we ought to consider at least some variations on these ideas for modern application. Our legal system is torn several different ways regarding risky behaviors. We hesitate to fully harm those who cause harm due to their recklessness; eye for eye seems barbaric to most these days. But because of this, we end up with a slew of safety regulations and laws that are very confining. By taking away full responsibility, we lose significant amounts of freedom.

The city of refuge concept is an interesting alternative to fines or outright imprisonment for accidental deaths caused by reckless behavior, such as drunk driving. Our system of safety regulation is not objective. Different people lose different amounts of driving skills due to blood alcohol levels. Some impaired drivers properly drive slowly and carefully when impaired. They are no more dangerous than the aged who are just as impaired when sober. On the other hand, some people drive more aggressively when drunk; they are the truly dangerous. By having a real punishment, drinkers can judge for themselves what is safe and take true responsibility for their choices. Exile to a city of refuge is a punishment that modern juries should be able to stomach, so the threat of such punishment would be real. Accidental death could be punished by a “life sentence” of such exile – on the order of 20 years or more. Lesser damages could result in shorter terms.