Deodands put a price on objects that caused death
daily.jstor.org
daily.jstor.org
There was often some hair-splitting involved, but the law of deodands was on the books for hundreds of years in England, and it reflects still older Greek and Hebrew laws where inanimate objects that killed people were cast out or destroyed.
The railways did contribute to the end of the custom. But this is not simply because rail equipment was too expensive to seize or condemn. Richard Posner, in The Problems of Jurisprudence, notes:
> [The law of deodands] eventually became dysfunctional but, as Holmes explained, the old law turned out to have a new use. The victim of a maritime accident may encounter great difficulty in trying to obtain legal redress directly against the owner of the ship that did the harm, because the owner may live far away, quite possibly in a foreign jurisdiction. By analogy to the law of deodands, why not treat the ship itself as the wrongdoer, and hence let the victim sue the ship in the first port in which it berths after the accident? Until the suit is resolved, the ship will not be allowed to leave the port unless the ship's owner or master posts a bond. In this way the victim can obtain and collect a judgment without traveling to the owner's domicile. Admiralty law adopted this approach and still follows it.
The interesting question is: Why were trains supposedly fatal to the law of deodands whereas ships were not?
I think that it has much more to do with the decline of superstition from roughly the second half of the 18th century on -- courts began to view the old law as an irrational relic, and it gradually fell out of legal fashion.
I also wondered why trains were supposedly fatal to the law of deodands whereas ships were not. My spur-of-the-moment, totally uninformed guess was that, in the case of shipwrecks, the sea (or, more generally, the marine environment) was regarded as the killer. The scenarios that Richard Posner is writing about seem somewhat different, however, at least in that after a shipwreck more serious than a calm-water grounding, there's often nothing much to seize.
I think the superstitions are still there, but hidden in a more "utilitarian" guise.
Ha, and of course wiki makes a brief note about this: In the United States
"In American law, the deodand has been cited as a source for the modern civil forfeiture doctrine.[6][9]" https://en.wikipedia.org/wiki/Deodand#In_the_United_States
To oversimplify, the only value that prison provably offers to society is the crimes prevented by keeping someone who would have done crimes locked up. Pretty much all of the other supposed benefits like deterrence (not doing a crime due to fear of punishment) or rehabilitation (becoming a better person in prison) don't actually exist in real life at meaningful rates. Because it costs so much to keep someone in prison, it's actually really hard to find cases where the harm to society for the crimes they would have done justifies the investment of resources to imprison them. That doesn't mean no such cases exist and we shouldn't have prisons, but they are clearly overused when they are almost the default method of crime consequence in Western society, especially for minor property crimes like retail shoplifting.
What is your proposed method to prevent minor property crimes? A fine? Probation? An educational class on not stealing? When those inevitably fail, you need to remove the person from society to prevent them from continuing to commit the crime and impacting others.
There's certainly a discussion to be had about imprisoning people for victimless crimes, like drug possession by itself (my POV is overdose to your heart's content), but for crimes that result in victims, removal from society to reduce/prevent additional victims is a reasonable course of action.
Most shoplifters stop after they get caught the first time, even if they don't face any further consequences. Most people who keep shoplifting after that stop if they are caught and face consequences like community service. In general, the system of escalating punishments before prison actually works to keep problems from developing to that level.
If someone is doing serious violent crimes then it seems obvious that they need to be imprisoned until we can figure out how to make them stop. But what if someone is doing minor property crimes where the total value of those crimes does not exceed the cost to imprison them? In that case we are essentially offering an incredibly inefficient subsidy to property owners.
The real answer is to directly address the factors that lead to crime and disorder, such as cost of living exceeding prevailing wages, unemployment, drug addiction, and mental illness.
I can't find shoplifting-specific statistics, but then again, essentially nobody is being jailed for only shoplifting anyways, so it's a moot point in a conversation about incarceration.
On a broader discussion of the importance of incarceration in reducing continued victimization of society:
"In many states, up to 80 percent of the youth who are incarcerated are rearrested within 3 years of release" - https://csgjusticecenter.org/publications/reducing-juvenile-...
"According to the National Institute of Justice, almost 44 percent of the recently released return before the end of their first year out. About 68 percent of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of their release from prison, and 77 percent were arrested within five years, and by year nine that number reaches 83 percent.
The solution for your example of minor property crimes is reducing the cost of incarceration, not letting them continue commit property crimes and therefore offload the costs of society's failure to police criminals onto citizens.
To your point of "how do we make them stop", incarceration/forced hospitalization is ironically the answer to some of your supposed "causes" of crime, like mental illness and drug addiction. Look to a place like California or Seattle to see the impact of these approaches, where every imaginable alternative has been tried to control homelessness, drug addiction, and nuisance crime, far exceeding the cost of just locking them up.
You're absolutely right that they don't stop, the first time, in the US. However, the cause of that same recidivism, is overwhelmingly correlated to a lack of support on leaving. Rehabilitation is in the name - habeo, to have or possess.
Why do people reoffend? Because currently, they're fucked. Background checks in everything, screw them over. They can't get work, they can't rent, and so, when all other options are off the table, is it actually a surprise, that they reoffend?
It'd be a hell of a lot cheaper, not to lock them up, and not expose a first-time offender to a black hole where everyone says the world would be better off with them dead.
See for example, Norway, with the lowest recidivism rate in the world [1], where it actually is true, that most do not reoffend.
[0] https://bjs.ojp.gov/topics/recidivism-and-reentry
[1] https://digitalcommons.coastal.edu/bridges/vol10/iss10/2/
Because the state has an interest in trains doing train things unfettered, an interest in not pissing off local business, especially big business.
Some foreigner's ship on the other hand...
From the comment they replied to. You should question this one level higher
I'm sorry, but no. Superstition absolutely did not decline during that period. It did change shape, but it was not declining.
You're talking about a period which saw the resurgence of spiritualism - 1840s to 1920s. Revival of old faiths, creations of new ones. Every single person buzzing with ideas on magic.
GK Chesterton eschewed superstition, as the Catholic Church has roundly condemned the same foolish and unfounded beliefs of rank-and-file Catholics. Paul the Apostle thundered against “[Stupid] Galatians! Who has bewitched you? … Are you so foolish?” [Gal 3:1–5]
Perhaps the alleged “decline of superstition” during the Enlightenment was, itself, a superstition? A “meta-superstition” that scientism cannot err in its data nor conclusions?
I would flip it around and say why is it necessary for ships and not for trains.
Train owners are typically easily accessible by the courts in which their trains operate. Ship owners much less so. If a ship owner has a potentially large liability in some jurisdiction, they may arrange to never do business in that jurisdiction again, but a train owner doesn't generally have that option. Especially in older days when the rail owner and the train owner were almost always the same. You can't just pack up your rails and go away when your trains cause a problem.
We are so far removed from this mindset nowadays that it seems illogical. But there is an underlying logic that; the more expensive an object, the more human labor went into building it, the more the owner should pay if it causes harm. There is a notion of "with great power comes great responsibility."
Had we still had these laws, we would look at trains, airplanes and AI very differently and we would never have allowed corporations to exist.
It does seem like there is a deep wisdom in there about the dangers of complex and expensive objects. The creation of complex objects and structures (including abstract ones) is a form of idolatry.
An interesting conundrum. Is the maker of the AI considered to have been practicing magic and summoning a demon? The user? What's the movable chattel object in this case?
Yer welcome.
Another good example of medieval weirdness is animal trials [1].