e_jo_m | Entries tagged with law

Often you can make someone do something by imposing some sort of threat if they fail to comply; for example, the government forces persons to drive sober because the penalty for failing to comply is jail.

Often you can make someone do something in a certain way by telling them that if they can't do it that way, then you won't let them do it at all. You might call this an 'absolute ultimatum', or possibly characterize it as a rule backed by the sanction of nullity. For example, the government tells builders that if they can't make their buildings in accordance with certain fire safety regulations, then they're not allowed to make buildings at all.

Sometimes this backfires. For example, suppose it's so costly to comply with all the requirements of legally providing vaccinations that an investor decides that it isn't worth paying for. Or suppose a shopkeep can't afford to pay all of his employees minimum wage, and thus lays off one employee, reducing that employee's wage to zero. This phenomenon has been referred to as "banning gruel", based on the example of the government thinking that the poor would be better off eating better food then gruel, and banning poor people from eating gruel to facilitate that objective.

So sometimes absolute ultimatums work, and sometimes they backfire and make things worse. For example, a bunch of minimum wages have worked, increasing wages without decreasing employment, and a bunch of minimum wages have overall made things worse for workers. Laws restricting food safety have caused some people to cease feeding the poor; laws restricting food safety have doubtless caused many restaurants to avoid giving their customers E. coli.

Absolute ultimatums do not inherently backfire.

(a la https://slatestarcodex.com/2020/06/17/slightly-skew-systems-of-government/)

The Island of Saba very much admired the old UK approach of having one republican camera and one Are You Really Sure You Want To Do This camera. As a result, their Senate was composed of professors, bishops, guild leaders, ethicists, and hereditary aristocrats. Unfortunately, the Senate ended up being too left-wing for the comfort of the House of Representatives, and so the House of Representatives abolished first the Senate and then undesirables.

Upon declaring independence, the Grand Duchy of Baden needed to draw up a codified Constitution – but who should do the drawing up, and who should approve the final result? There had been much time and ink over how to select the membership an organization designed to counter tyranny of the majority. Ideally it would be people whose political opinions were all influenced by factors which were not shared between them. The final lineup was: the Archbishop, a randomly chosen citizen from each square unit of land determined by a per-capita maths formula, a randomly chosen citizen under the age of twenty, a randomly chosen citizen over the age of eighty, the judge who scored the highest on a test of standard dogma the composition of which a supermajority of judges had to approve, and a representative of the High Queen. All votes of the committee had to be unanimous, but any such votes would be fully binding as to the Constitution.

After eleven years of fierce debate, the membership selection process was finally approved and entrenched by a majority of virtually every conceivable political grouping in Baden. Two years of implementation later, the committee was selected. The resulting Constitutional Committee deliberated for one week, and then bindingly adopted a constitution which was virtually identical to the Constitution of Germany.

The Cracovian Metropolis was tempted to have a direct democracy, but they worried that the general populace would be unreliable, capricious, and uneducated – even more so than politicians. But they also believed strongly that handing power to elites not accountable to the general populace would be asking for disaster. So they decided that they would have a republic. The general populace would elect persons whom they believed were wise, intelligent people who agreed with core values and some major issues; and then the elected officials would make decisions in accordance with their own best judgment as to what would be best for the general populace.

Of course, that doesn't mean that the officials don't pay attention to what the people wanted. That would be crazy. Before every single decision, there is a general referendum of the whole populace on the issue. The referendums aren't binding – that would be a direct democracy – but the officials are honour-bound to weigh the result heavily, for after all, people are usually pretty good at knowing what they need. The Cracovians think that it would be laughably dishonest to have a "democracy" where the populace isn't even consulted on a given decision.

The people of New Sydney thought that the American Founding Fathers were on the right track by adapting the bicameral Westminster System to their own needs as a federal democracy. They did, however, think that the poor Founding Fathers had been constrained by the limits of eighteenth-century communications infrastructure in having to limit the House of Commons to a roomful of representatives just because popular referenda would have been totally impractical. (This wasn't necessarily what happened with the American Founding Fathers, but it's what the Sydneysiders thought had.) Still, even with modern communications, it was nevertheless too impractical to have the chamber of initiative be the entire voting population. So the Sydneysiders drew up a simple system. The National Assembly was elected by party-list proportional representation; each representative in the chamber had the right to propose any bill; and if at least two representatives voted in favour, the bill would go to the general populace, who could veto it or vote it through. Thus, the representatives were less like MPs and more like diplomats or barristers, acting as the agents of their constituents for solely bureaucratic purposes.

But the Sydneysiders weren't satisfied with that; they didn't necessarily want to get as close as possible to a direct democracy, but rather to get as close as possible to the idea of the bicameral legislature. They had the house of commons, and now they needed the senate, a body of wise and cautious individuals who could check the worst populist impulses of the lower house. So the Sydneysiders drew up the composition of their House of Magnates: bishops, professors, judges, generals, Cabinet ministers, hereditary lords, civil servants, knights, guild heads, corporation heads, the heads of various activist groups and legal funds, mayors, one spot that is auctioned off each term, representatives elected by the student bodies of various universities, representatives elected by the faculties of various universities, and the representative of the High Queen.

Foreigners complain that this is undemocratic. The Sydneysiders respond that they're missing the point.

When the State of Saarland announced that it would select cabinet ministers via competitive examination, cynics protested that the exams would be rigged; the constitutional convention replied that the exams would cover only standard dogma, the questions would be multiple choice for the sake of neutral grading, and the Supreme Court would be permitted and compelled to overturn blatantly rigged questions upon appeal by concerned citizens. This worked out quite well, with two downsides. The first downside was that the ministers tended to be people who had spent their entire lives studying only standard dogma, and thus usually had no creativity or original thinking whatsoever; however, this was no different from any parliamentary democracy. The second downside was that the Minister of Commerce formed a secret pact with the economics departments of the country and slowly turned the study of economics into a secret conspiracy in which only supporters of the Shadow-Ministry of Commerce were permitted to learn enough to pass the examination; this worked for about fifty years until an immigrant with an econ degree from Fenwick University took the test, became Minister, and reopened the universities.

The new Kingdom of Lombardy was of the opinion that rhetoric was so powerful that whoever hired the best lawyer won the debate. They didn't want to be a plutocracy, so they immediately eliminated public debate on anything related to politics. While most citizens patriotically obeyed this ban, many dissidents immediately launched underground newspapers. The official government commanded citizens to stamp out samizdat (saying that if the citizens didn't want to then they could elect different governors in three years provided that they didn't tell their fellow citizens that that was what they were doing). Unfortunately, it turned out that the Capitol had some security blind spots, unnoticed and unsecured because the government had outlawed itself from hiring white-hat hackers; as a result, the rebels overran the senate chamber. The Kingdom of Lombardy is now a rhetoritocracy; all governors are elected via voting at the end of public debates, and old-fashioned citizens complain that 99% of legislators are former barristers or newspaper columnists.

Seeing the Lombardian Civil War, a spooked Catalonia decided that the problem wasn't earnest debate but rather rhetoric, and inculcated in its population a deep-seated belief that if someone was using rhetoric it was because their actual data couldn't stand up on its own. After a brief race to the bottom in which people tried to get elected by arguing more and more stridently that they would make the worst legislator in world history, the nation soon settled on a culture in which arguments were presented in the barest way possible, ideally in randomised order. There is much controversy over whether spoken campaign speeches should be allowed, or if oral intonation does too much to sway voters.

The Federation of New Prussia adopted a unicameral legislature much like the American Senate, but thought that the Westminster System had an interesting idea in having the head of state being separate from the head of government. This seemed like a good idea, for efficiency reasons in addition to separation of powers, but their revolutionary leader General George Bolivar had a 99% approval rating and everyone wanted him to be running the show. So they were pondering whether and how to implement headship in their own constitution, when one of the convention's members happened to consider the example of the Duke of Boston. The Dukeship of Boston was almost entirely a powerless honorific, but the individual who happened to be the Duke also happened to be the elected Doge of the Free City. The Duke had said that they had considered writing the Bostonian constitution to provide that Their Grace's descendants would be powerless figureheads of state, "But it would have just been too silly for the supposed head of the country to have no power whatsoever. I mean, come on – how can you take anyone like that seriously? No offense to William, who's nice and intelligent enough, but he's just some random rich guy." (As this statement illustrates, the Bostonians often contested with the English that the more western head of state "Tells it like it is".) The constitutional convention hit upon a brilliant solution. Prussia would have one President and one Lord Chancellor. The President would be elected by direct popular vote, and serve a four-year term; the Lord Chancellor would be appointed by a House of Lords existing specifically for that purpose, and serve a twelve-year term. The President would be a direct representative of the populace, and have great power; whereas the Lord Chancellor would be a meritocratic magistrate, and have great influence. The President would have veto power over bills passed by the legislature, command of the military, and veto power over cabinet ministers; the Lord Chancellor would have a non-majority seat on the Supreme Court, the legislature, and the House of Lords, and the ability to nominate cabinet ministers. Thus, the common populace could have control over the powers of government, while the wise elders could have sway. In accordance with his popularity, General George Bolivar was simultaneously elected President and appointed Lord Chancellor; after three terms of the former and one of the latter, he retired, and the two offices were never again held by the same person.

The City-State of Dresden agreed with Clement Atlee that a powerless figurehead chief of state is tremendously useful to democracy, in that all of the patriotic hero-worship that would otherwise go to someone who could abuse that loyalty to start wars is instead directed to someone who can't do anything at all and whose authority is so blatantly illegitimate that any attempt to seize power would be met with pitchfork, torch, and possible guillotine. The difficult part was striking a balance in having a chief respectable enough to receive such patriotism yet disreputable enough to never be given any actual power. Hereditary was considered, but this was deemed insufficiently fair, for everyone should have the chance to be king. Since everyone should have the chance to be king, it was naturally decided that the monarch should be selected via absolute sortition. However, it transpired that the populace somehow considered absolute sortition to be more random than accident of birth, and thus a lottery winner would not be sufficiently respectable. So the City-State eventually settled on a complicated scheme in which one hundred randomly chosen youths had to pass a Test of Courage and the winner became King. The downside was that to be authentic, the Test of Courage had to have a high fatality rate; but on the plus side, this drastically reduced the risk of the second-place winner pretending to the throne.

(You know, since he'd be dead. Geddit?)

Greater Gargellen elects the entire legislature via sortition. They reasoned that while it's true that sortition has a chance of putting a bunch of completely evil nutcases into the office, so do ordinary elections, for there are no certainties in this universe, only probabilities; election by lot simply makes the uncertainties more visible than election by popular vote does. The neighbouring country of Samnaun sees the logic of this, but has a House of Elites that can slow or restrain any particularly crazy acts by the House of Randos. Greater Gargellen objects to this, saying that Samnaun is concerned only about bad laws being passed, rather than the House of Elites killing thousands by preventing the passage of desperately needed government programs.

Saxon Hanover didn't want the Supreme Court to be a monolithic block of identical ideologues. So they wrote in the Hanoverian Constitution that two of the five Supreme Court justices had to be the two circuit judges who were overruled the most by the previous Supreme Court. This immediately created the perverse incentive of circuit judges writing the most outrageous rulings possible, in order to win most-overturned status. Saxon Hanover hastily amended the constitution to say that only overruled cases in circuit splits would be counted for this. The Supreme Court had to do a little pushing-around when the circuit judges then tried desperately to make their own hearing of a given issue somehow qualify as a different issue which another circuit had ruled differently on, but it worked out alright in the end.

The shining city of Nouvelle-Paris is the neutral capital of the European Union, and as such is directly under the rule of European Parliament and the High Queen. However, the European government has almost entirely devolved home rule to the local municipal government, although it reserves the right to reassert their control for any reason. This latter action happened once, when the city police finally cracked down on illegal parking by MPs; Parliament and Council responded by withdrawing all funding for the arts until the Queen stepped in.

(a la https://slatestarcodex.com/2020/06/17/slightly-skew-systems-of-government/)

In the jurisprudence of the American Empire, it was verboten to specify numerically what a "reasonable doubt" is in the area of criminal convictions. The Dominion of Australia thought this was a cowardly way of covering up the injustices of their system, and held a vote to determine how certain you had to be. Article IV of the DoA Constitution thus said that no one may be convicted of an offence unless a judge or jury has decided that if there were one hundred cases with this evidence then no more than one of them would have an innocent defendant. The Constitutional Convention thought that this struck a good balance between minimising harm to innocents while still ensuring that some criminals got convicted. After a decade of this, some activists ran the numbers and cried that, statistically speaking, there were now ten thousand innocent people in prison. Fortunately for the public prosecuting service, however, nobody knew who those innocent people were, and any given convict was 99% likely to not be one of them.

The Free City of Boston has a much smaller distinction between torts and criminal offences than we do. Literally anyone can prosecute a crime, provided they have a lawyer. (You do have to give the public prosecution service a few months to see if they want to handle it.) They don't get paid to prosecute it, unless they're an actual employed public prosecutor, but they can prosecute if they want to. It's often done by activist groups who think that the DA is shamefully letting some terrible person get away with it.

(This is actually rather similar to Conquest-through-Renaissance prosecution in England.)

(Update: Turns out this was already suggested by David Friedman!)

The Grand Commonwealth of the American West wanted to avoid tragedies of the commons as regards the landscape which formed its raison d'etre, and so its constitutional convention sent a delegation to the Great Boston Library to read up on Georgism. Eventually, they announced that all land, air, and water were outright by the government, which would contract out use thereof to the most cost-effective private distributors. They immediately ran into the problem of heavily bribed legislators selling destructive use of irreplaceable landscapes to money-grabbing corporations, and over the course of three terms of office enacted a patchwork of overlapping laws that succeeded in more or less protecting most of the really valuable natural resources from permanent damage. Eventually the sovereign polity known as the Nature Conservancy recommended some of their own lawyers from Boston and Europe, and the Commonwealth government hired said lawyers to write a constitutional amendment which barred any permanently deleterious effects to natural resources without a supermajority vote, no loopholes. This finally worked, and the Grand Commonwealth is renowned for its rugged beauty to this day.

After the highly controversial effects that WWIV had on the Levant, many Israelis decided to pack up and move. While Boston was of course a popular choice, and countries all over the world proved to be fertile grounds for the latest diaspora, many Israelis were drawn to the tiny community in India which claimed to be a descendant of the Ten Lost Tribes. The inevitable attempt to codify talmudic law failed, however, for one reason: it transpired that sometime in the past fifty years, the community had decided that since their exile from Israel predated the Mishnaic period, they ought therefore to use only the Mosaic Law as written in the Pentateuch. The resulting explosion of interpretation kept scholars extremely busy for some one hundred years until a basic functioning legal code had been decided; in the intervening period, the community maintained order via a kritocracy which used English Common Law as its base.

The highly impoverished nation of Eastern Cabinda had been granted many printing presses by the Free City of Boston's foreign aid programs, but unfortunately had no other kind of printing press to make currency with; the result was that anyone with a press could perfectly forge money. First the government considered seizing all printing presses in the country via eminent domain, but the Free City had explicitly banned this approach, threatening to withdraw any future foreign aid. International trade regulations precluded hiring a foreign printer. The government then decided to simply buy a special printing press that ordinary presses could not match, but ironically did not have the resources for it. Exportation of fabbers to developing nations was highly regulated, but a charity in Puget Sound without a good lawyer thought they could get around the regulations by donating a fabber which, though it could use any substance as material, was carefully built so as to not be capable of generating anything but six-inch strips of unforgeable paper saying "ONE EASTERN CABINDAN DOLLAR". Eastern Cabinda quickly realised that having a fiat currency was far less valuable than having the ability to convert garbage into paper; within a year, houses were thatched with bills, clothes were sewn from them, and fishing nets were painstakingly woven from them. The Puget Sound charity found itself facing a great deal of public embarrassment, not to mention heavy fines, but it proved to be a great boon for Eastern Cabinda, which had switched to using gold as currency and later adopted the euro.

The Kingdom of England had come under a lot of flak for its department of child protection, which had a track record of needlessly removing children from perfectly fine parents while simultaneously neglecting to remove children from illegally abusive parents. When sued, the department said, "Whoa whoa, man; first you're saying that we're taking too many children away from their parents, and then you say we're taking away not enough? Make up your mind, man! This is, like, a Catch-22! You can't expect us to actually be competent at our jobs. That would be totally unfair. Imagine if you handed a soldier a loaded gun and told him that he has to shoot enemies, but can't shoot anyone who's not an enemy! If he then started refusing to shoot enemies while simultaneously shooting innocents, you wouldn't be mad at him, would you?" The courts agreed that this would indeed be too high a burden on the poor department, and let them off scot-free. (The judges said that the soldier argument was a brilliant comparison, as it was indeed a rich English tradition to let soldiers get away with massacring civilians as long as the victims were of undesired ethnicities.) However, a later election put a very left-wing element into power. The new House of Commons said, "The government will guarantee that children not be in abusive households. Our agency will endeavour to remove children from illegally abusive parents. Wherever and whenever the agency fails in this task, the child in question can (when an adult) apply for compensation in the form of suing the agency in the tort of negligence." This new initiative cost quite a bit of tax funds, but did increase the efficiency of the agency once the agency's pensions were made to come out of the same budget as the reimbursement fund.

Greater Pennsylvania, before its independence, had tended to have matters of law decided by judges and matters of fact decided by juries. However, many issues of statutory interpretation, as well as many suits in tort, depended on what the "reasonable person" would think to be the case, or on the abilities of the "reasonable person". It made no sense, said the Greater Pennsylvanian jurists, for questions of what the "reasonable person" thinks to be a matter for educated elite judges, when we already have the institutional infrastructure to poll twelve ordinary citizens. The Superior Court of Greater Pennsylvania thus ruled that all questions of the "reasonable person" must be decided by juries. There was subsequent controversy over how much precedential value such rulings had (for example, presumably the average person's ability to drive a manual transmission changes over time), but the real difficulty began when the juries started saying, "Sure, I'm a reasonable person, and I've definitely texted while driving before."

The US Constitution allows federal employees (in certain circumstances) to heed Jesus' alleged proclamation that you shouldn't make per-se promises. Did Jesus actually believe this?

In Matthew, Jesus says that a religious doctrine says "'You shall not swear falsely, but carry out the vows you have made to the Lord.'" (Mt 5:33 NRSV; Ruden has "'you are not to violate your oath: you are to fulfill your oaths to the lord.'"). By the looks of it, that doctrine implies that oaths are okay, but you shouldn't break them.

Jesus, in Matthew, then goes on to say that He disagrees with that doctrine, or at least wants to add to it: "But I say to you, Do not swear at all, either by heaven, for it is by the throne of God, or by the earth, for it is his footstool, or by Jerusalem, for it is the city of the great King." By the looks of it, that statement probably implies that you should not swear by anything that is in God's direct and immediate domain, because God owns it and His ownership includes the right to swear by it. I don't think this statement alone totally rules out all swearing, because He says either by heaven or by the earth, or by Jerusalem; presumably swearing by, eg, pincushions is not prohibited by this statement alone.

Jesus, in Matthew, then goes on to say "And do not swear by your head, for you cannot make one hair white or black." In context, probably this means that you can't even swear on things that are theoretically yours more than God's ⁽¹⁾ if they will not actually enforce your commitment. (The Oxford Annotated Bible, Fifth Edition, says that the head is also under God's domain, so it's the same as swearing by the heavens; Dr Vermes suggests that you're swearing by your life, which I'll grant is definitely enforceable provided only that there's some mechanism to determine the objective veracity of your failure or success in keeping your word.)

Jesus, in Matthew, then goes on to say "Let your word be 'Yes, Yes' or 'No, No'; anything more than this comes from the evil one." (or "from evil."). This seems refreshingly straightforward…but of course it is not necessarily what it seems.

Franklin Pierce would have it that affirming something is fine (eg, "Yes, to be clear, I reiterate my statement") but placing a kind of affirmation as inherently superior to ordinary statements is a no-no; when you say "I'll do it" then you should do it 100% of the time, so there's no reason that adding the word "I swear" should change the substantive content of your statement. Cf. Philo, Decalogue 84, cited in Vermes The Authentic Gospel of Jesus 5.34; or the Essenians described by Josephus in War 2:135, cited ibid. This is what James believes; see Jm 5:12.

However, you could alternatively say that Jesus will allow you to say "I'll do it" when you're 80% sure you'll do it, and "I'll really really do it" when you're 99% sure you'll do it; He'll totally allow you to verbally communicate varying levels of commitment; the only swearing He prohibits is agreeing to a compulsion which you do not actually have the power to compel to compel you; like, if I say "And if I'm lying, may God infect the burn on my hand!" then I am attempting to subpoena God, which I do not have the power to do, whereas if I say "I really really guarantee this" then I am legitimately alleging especial certainty.

⁽²⁾

Dr Vermes suggests that the Matthew passage is against swearing by God because if you for whatever reason fail to follow through then you've just committed sacrilege; I don't think the passage can really back that interpretation, but he's probably right anyway!

(I'll put in a paragraph on what the New Interpreter's Bible says about this at some point.)

So what are we to make of this?

Let's assume that the Matthean Evangelist wrote this down word-for-word, and Jesus actually said all this in exactly this phrasing. It seems pretty clear that Jesus thinks we shouldn't guarantee our promises via enforcement mechanisms that probably won't actually function in the event of our default; in other words, don't swear by something that won't actually enforce your oath. It looks like Jesus is okay with guaranteeing something by saying "Yes definitely I super for sure guarantee it." What's really ambiguous is what Jesus thinks of backing up your guarantee with a functioning enforcement mechanism; you would assume that Jesus is okay with contracts enforceable by law, for example, and yet He does technically say that anything ⁽³⁾ more than "Yes, definitely" is the product OF SATAN!!! But in context, that kinda comes out of nowhere! Jesus explains why you should swear by (a) God, (b) the earth, (c) your head, or (e) Jerusalem, and then apparently also states flatly that you can't swear by (fghijklmnop...) anything else either, for unspecified reasons? Maybe Jesus is saying that you shouldn't use supernatural means to show the veracity of something, but using enforcement mechanisms to penalize proven breaches is okay?

What if the Matthean Evangelist got a couple details wrong? We don't know what his source was for this; it's not in Mark or Luke, probably not in Q. The author of James was at least partially working off Matthew, so who knows if he's got a good source on his interpretation. The sheer oddness of Jesus changing gears vis-a-vis certain backings for (a) oaths, versus (b) all backed oaths, might imply that the Matthean Evangelist or one of his sources did indeed screw up the reporting a bit…but let's face it, weird over-the-top condemnations out of nowhere are pretty darn in-character for Jesus.

Certainly if you believe that the entire standard-canonical New Testament is the literally true Word of God, then you definitely must believe that James is right in saying that you should never swear any oath, whether or not you're purporting any enforceability.

In conclusion, if you think that the Matthean Evangelist is reporting more or less accurately on the Word of God, then don't swear by something if you can't realistically guarantee its popping in to enforce your swearing. (That's just good sense anyway.) This category includes God, because you do not have the power to subpoena God. (Also just good sense.) You can swear oaths which are special extra-sure guarantees, at least if you're not purporting to back them up with anything besides your honesty. (This is also just practical; I want to distinguish between "Ho hum, I'm off to the post office" and "I swear to you that I will go to the post office, come heck or high water, no matter what".) If you want to play it extra safe, don't swear oaths that have any enforcement mechanisms at all (highly impractical! how am I supposed to enter into any legally enforceable contract, such as buying an orange? well, if our whole society decided to go with this interpretation, we could figure something out; look at how well Orthodox communities manage that sort of thing), though maybe you can get away with simply avoiding oaths whose intact status is determined by supernatural means (which is just good sense anyway).

I don't see any problem, Christ-wise or practical, with saying "I solemnly swear to faithfully execute the office" provided that you do in fact intend to faithfully execute the office and think it highly likely that you will; however, if you believe that James is literally true, then it would indeed be a sin.

(1) I am quite taken with Francis Spufford's suggestion that the Parable of the Lost Sheep makes a lot more sense if you interpret it as resulting from the fact that God, being God, has no concept of ownership.
(2) Mt 5:34-37 NRSV; Ruden has "But I tell you not to take oaths at all: not by the sky, since it's god's throne, and not by the earth, since it's a foot-rest for his feet; and not by Hierosoluma, since it's the city of the great king; nor should you take an oath by your own head, because you can't make a single one of your own hairs white or black. Let the pledge you give be a repeated 'Yes,' or 'No.' Anything beyond this comes from the malicious one."
(3) Well, the word 'anything' isn't there in the Koine Greek, but obvious from context.

Epistemic status: I feel that surely this can't possibly be true, but I do not know why or how it is not true.

Why do we not punish the family of criminals?

Sure, it often will fail as a deterrent, since a lot of criminals don't care about their families; but it often will succeed! And sure, it's true that likelihood of getting punished is a way better deterrent than severity of punishment; but it's also true that if your mum's looking after you then you're way less likely to commit crimes. And come on, we both know that making a punishment so severe will deter a whole lot of crime.

We already do this consensually – in many US states it is possible to guarantee someone's bail such that if they skip town then you have to pay up. We also do this nonconsensually: when a criminal goes to jail, you're paying for his upkeep with your tax dollars, whether you like it or not.

So (besides the laws preventing this, such as the Fifth Amendment) why don't we do this? Because we feel it's wrong to punish the innocent. But we already tax the innocent, and wage war even when we know there will inevitably be civilian collateral damage, and kill people whose only crime were taking up arms for the sake of their country, and imprison people when there's a slight chance of their innocence, and allow police officers to fatally shoot criminals when necessary, and bulldoze forests to provide our country with lumber.

But hang on: we also feel it's wrong to punish the guilty! Civilized persons do not believe that crime should be punished because it's good when bad persons suffer; civilized persons believe that crime should be punished because that deters crime. Harming someone so that we may exult in the suffering of the unrighteous generally does not make the world a better place. We (should) harm criminals only because it reduces crime, not because it's inherently good to harm criminals. It is inherently bad to harm criminals, but it is justified (and therefore overall good) because it acts as a deterrent to crime. So, why is it not the case that it is inherently bad to harm innocents but justified (and therefore overall good) if it acts as a deterrent to crime?

The first counterargument that comes to mind is that the government will absolutely abuse this power to do something terrible. But how could a simple law like "For every jail sentence, each blood parent and blood sibling of the convict must serve a sentence equal to fifty percent of the convict's sentence." be abused, other than how every jail sentence is higher when certain groups are in the dock? (Of course, this gives an unfair advantage to, eg, people with adopted kids; but every sentence is unequal: a young rich person can much better afford ten years in jail than an old poor one.)

One could make the living-in-fear argument: if you're going about living your life in the full knowledge that if any one of your reprobate relatives gets convicted of a crime then you're going to jail, you'll be a nervous wreck. But how is that not as scary (especially after a generation or two of getting used to it) as going about living your life in the full knowledge that anyone can commit a crime against you, since not much is deterring criminals?

There is the argument that there will be more civil unrest if the citizens are upset about the government punishing the innocent. But we already punish the innocent, and after a generation or two the citizenry will get used to this system.

There is the argument that the suffering caused by the punishment will work out to be much more than the suffering averted by the deterred crimes. But heck, even if the total penalty was less (eg, "All jail sentences shall be split among the criminal and his three closest blood relatives"), that would still reduce crime, since it would force all the family members to keep an eye on each other.

We've spent a couple thousand years considering hereditary punishment to be barbaric. But should we?