Fines

For millennia, imposing payments as compensation for offenses was the most common sanction. But it wasn't until the state began collecting such payments that they became fines. With the rise of the prison in the eighteenth century, compensation was partly eclipsed, for serious offenses at least.

With vengeance and restitution, the disputing parties agreed on an exchange of value or death to resolve matters. Two millennia before Christ, Eshunna's code in Sumeria threatened fines and death as its only sanctions.⁴³ At first, monetary compensation was paid directly by the offender to the victim. Only later did the state insist on its cut, eventually imposing pecuniary sanctions as an alternative to more direct bodily chastisement.⁴⁴ The word fine itself comes from the final settlement (finalis concordia) negotiated by the offender with a medieval king so that he could be released from prison. Prison was not the punishment as such but merely the means by which the criminal was encouraged to pay the fine.⁴⁵ In medieval England, fel­ons' property reverted to the king. If accused felons refused to plead one way or the other, they were subjected to peine forte et dure, being pressed to death with weights.

Once fines in the modern sense had emerged, the state faced a choice. It could levy them to make offenders pay for externalities, pricing their behavior through what in effect was a tax baked into the cost of doing business. Fines on polluting industries or for work­place accidents have been of this ilk—forcing offenders to pay some part of the costs of their actions without necessarily halting those acts altogether.⁵¹ The Factory Act of 1844 in Britain required employ­ers to fence in dangerous machinery and enforced this by impos­ing fines. In effect, it remained the employers' decision whether to fence or to pay the fines.⁵² Fines on the nineteenth-century sex trade raised revenue, presupposing that prostitutes would continue business in order to pay.⁵³ Fines on those who shirked civic duties similarly taxed the negligent. Eighteenth-century Londoners could buy their way out of their required participation in the watch by hiring a substitute. In the American colonies, citizens who refused or failed their tasks as constables or sheriffs were fined. Traffic and other everyday fines, too, are much like post hoc licenses.⁵⁴

But fines have also been used to compel.

Unpayable fines as a means of coercion contradicted the state's interest in revenue. Steep fines to compel obedience were less lucra­tive than small fines routinely imposed for minor offenses. In the third century BCE, Romans built a temple to Venus from the fines paid by adulteresses.⁶¹ The medieval state derived much of its income from minor fines.

Since large coercive fines were but an indirect means of compul­sion, as the state grew better able to twist arms directly, the need for them faded. Fines could be diminished without weakening the state's overall ability to compel. Already the Romans limited how much mag­istrates could fine. In the seventeenth century, the French Parlement restricted fines to a quarter of the defendant's estate.⁶⁵ English courts of the same era hewed to a rule deriving from Magna Carta of fines not being so high that defendants had to sell the tools of their trade. Rather than impose a heavier fine, which in effect meant lifetime prison, Blackstone advised, the courts should physically imprison or whip the defendants.⁶⁶ When in 1687 for political reasons the duke of Devonshire was fined £30,000 for striking someone near the king's palace (a median fine for assault was two shillings, six pence), the Lords judged this fine oppressive and illegal. In 1689, England prohib­ited excessive fines, followed a century later by the US Constitution's Eighth Amendment on cruel and unusual punishments.⁶⁷

Whether treated as tax or a means of indirect compulsion, fines relied on the already existing machinery of sanction without which they lacked bite.

Bodily pain was the state's primary leverage over the poor, either directly by inflicting distress or alternatively by prison's slow con­fiscation of their mortality. The rich also had property on the line, but they could more easily shrug off a loss of property than the poor could forfeit years. Inequalities of money dwarf those of chronol­ogy. The starkest disparity between the time-wealthy teenager who stands to lose a life in jail and the ninety-year-old would rarely be

more than six to one. As property themselves, slaves owned none. Unable therefore to be fined, they were instead whipped, castrated, or otherwise mutilated according to early medieval codes. Freemen unable to afford a fine were flogged.⁶⁸ In the thirteenth century, rich offenders able to pay compensation were more likely to be pros­ecuted for tort violations, but the poor, who could offer nothing but their pain, more likely for crimes. A New Hampshire statute in 1682 had those below a certain poverty line whipped rather than fined.⁶⁹ Deep into the nineteenth century, workers—with little to offer the fine collector—were jailed for violating labor contracts.⁷⁰ Since a rich person could effectively buy the right to slander others if fines were the only punishment, Kant suggested that they be obliged to kiss the hand of the poor whom they had insulted.⁷¹

Judiciaries through the ages have wrestled with the inherent unfairness of punishments premised on property.

Like bail, fines raised problems of fairness. If others paid on the offenders' behalf, they allowed them to avoid atoning. Early on, fines permitted the well-off to escape. A wealthy Roman, slapping the faces of passers-by as he perambulated, was followed by a servant, who paid on the spot the requisite fine for his indulgence.⁷⁸ But in a money-based economy, if fines were correctly calibrated and per­haps paid in installments, most people could afford them, and they were not strikingly unfair. In ancient Rome, women, children, and slaves could not be fined since they owned nothing.⁷⁹ Yet medieval English law assumed that even slaves could pay fines, and by the eighteenth century fines were a ubiquitous punishment.⁸⁰ Today fines have become the commonest sanction. Even allegedly social­ist China punishes half of all criminal offenses by fines.⁸¹ Sanctions have become more moderate, and most citizens are sufficiently well- off to be punishable in their property, no longer just in their person.

Yet the inequality problem has not vanished. In the early twen­tieth century, the first motorists, who had to be wealthy to enjoy this new sport, happily paid a succession of £10 speeding fines. Rich motorists were occasionally sentenced to jail to make sure they did not just pay their way out of trouble.⁸² To account for this funda­mental inequity, fines have sometimes been reengineered as a fairer and tougher coercive device.⁸³ They have increasingly been tai­lored to the offender's circumstances. Plato suggested fines graded by wealth for his ideal community.⁸⁴ Following the Scandinavians in the 1920s, income-staggered fines were adopted also by others, such as the Swiss and the Cubans. In northern Europe, fines are often set in relation to daily wages.⁸⁵ Finnish millionaires have been slapped with five-figure speeding tickets. Estonia has trialed giving speeders a choice between cash fines and forfeiting their time by the roadside under police supervision—both more equal and pos­sibly more deterrent for drivers in a hurry.⁸⁶ Maximum penalties for insider trading—a rich man's offense—leapfrogged in the US from $100,000 in the 1960s to $1 million in the 1980s to $5 million in the new millennium.⁸⁷ Corporations have faced the same logic. The European Union has threatened to fine information-technology and social media businesses in relation to annual revenue. For a company such as Google, a 10 percent fine of annual revenue would be $9 billion.

Finally, fines pose the issue of fungibility. As restitution, fines have priced almost every action, even those that the modern mind resists considering compensable—such as Sharia law's acceptance of payment for murder. If nothing else, this pricing of everything undermines the facile idea that only the modern market economy alienates humans by attaching a monetary value to all things. Wergelds, due for killing someone, expressed the social hierarchy of the early Middle Ages in precise monetary terms. In seventh­century Kent, ^thelberht required only that a man who had sto­len someone else's wife pay her wergeld and supply a new woman, much as if he had run over his neighbor's dog while backing out of the driveway.⁸⁸ Medieval law was the equal of today's actuarial tables in its subtle distinctions among harms and their cost. Marxist legal theorists, such as Evgeny Pashukanis, in effect agreed, arguing that punishment in bourgeois society and more generally law and morality are founded on the idea of exchange, whose logic reaches historically much further back than the origins of capitalism.⁸⁹ With the introduction of specific performance, it is modern law that arguably has sought to retain a sense that some actions cannot merely be compensated. Instead of just paying damages, offenders are forced to restore matters to their preharm state. Already early Roman law set aside victims' claims that stolen items be restored to them and offered only restitution in money.⁹⁰ The Anglo-Saxon sys­tems limited specific performance to equity law, especially for land

and other singular goods. Specific performance achieved its high­point in the nineteenth-century civil law codes, which took as their default making damages whole again, not just paying for them.⁹¹