Imagine that I have a stick, and I use that stick to hit another person. Justice will demand that I be thrown in a cage for a specified amount of time, I may have to forfeit a portion of my property, and could face execution.
Let us assume, as I attempt to work through this, that the system of justice is flawless, though in reality we know it is not.
Pretend I have a stick and a rock. I own both these things, for the strongest conceivable value of ownership possible. Let us say I hit the rock with the stick. Then a courtroom appears and the court is asked the question, should I be thrown in a cage for hitting the rock with a stick. The answer, I hope, would be no. A rock is an inanimate lump of matter possessing no rights of its own, as well as being my property-- in effect an extension of my own will. Without context it seems clear that the act of hitting a rock with a stick is morally neutral, and certainly not an act to inspire disapproval.
Let us now assume the rock is owned by another person, and I hit the rock with a stick. While a stick is unlikely to do a great deal of damage to the rock, when our courtroom appears they will find me guilty of a crime. Not a large crime, something like vandalism or unauthorized use, but still a crime. This is not because the rock has any rights of its own to be violated, but because the rock is now owned by a different person, and through that ownership becomes an extension of the other person's will, an extension of the other person, and in hitting the rock with a stick I have caused harm to another person and brought myself into the hypothetical at the
Now I have a stick and a goat. I own both the stick and the goat, and have the goat reasonably well confined. Let us say I hit the goat. My reasons are irrelevant at the moment, even though I hate goats with an abiding passion and believe they deserve absolutely everything bad that happens to them and none of the good things. Our court appears and notes that my actions are not identical to hitting a person, since the goat does not have agency, and not identical to hitting a rock, because the goat is animate. Ultimately, the court must decide that no criminal act has occurred. After all, the goat has no property right over itself, since I am the one who owns the goat, and no right to liberty, since there was no problem with me confining the goat. The goat does not have a right to life, evidenced by the fact that goats are killed everyday for food and leather and glue (and whatever else). If killing the goat is within my rights and not a violation of the goat's rights, it is clear that merely hitting it with a stick cannot be a criminal act. In the real world, there are certain jurisdictions which would hold this as a criminal act, but there are also jurisdictions that would hold the possession of marijuana to be a criminal act. Clearly the laws of states are not perfect proxies for the Laws that should guide justice.
Now I am sitting on the fence, watching two goats. One goat has a stick and hits the other goat with it. Since neither goat is a moral actor with rights or agency, this is no more a crime than when a rock falls upon another. Crimes cannot be committed against goats, only against moral agents.
While no crime has been committed against the goat, you are, of course, free to judge my actions as less than neutral and scorn me appropriately, but my considerations today encompass only those things for which a court would be justified in throwing me in a cage for.
Now I have a stick and there is a person in front of me. I own the stick, though obviously I cannot own the person to the same extent I own a goat. If I hit that person, who I do not own, I am violating the property rights of another person in the same manner that I was when I hit the rock, since a person owns their own body, with the added bonus that I am now directly diminishing the life of that other person as well. It is right that I get thrown in a cage for this.
Now let us assume that I have signed a contract with that person. In exchange for some compensation (nominal or substantial) that person has given me the right to hit them with a stick. Having signed the contract, I hit them with a stick. Should I be thrown in jail?
Another way to put this question is: Are the fundamental rights to life, liberty and property truly and completely inalienable? The founding fathers believed so, but they also held slaves. If such rights are truly inalienable, then a slaveholder (of imported Africans) must necessarily believe that Africans are less than human, and more akin to goats. If we are to hold slaves and still consider them human, at least human enough to be created with rights, then those rights must not be inalienable. Similarly, in the first case a person cannot sign a contract allowing me to hit them with a stick while still remaining a person, while in the second case such a contract would be allowed. Let us proceed without resolving this by holding both cases in mind. As an aside, the notion that all men possess inalienable rights is a far more troublesome notion than is popularly believed, though I believe it is a sufficiently worthwhile sentiment to go through that trouble. Not today, though.
Now, again, I have a stick, and there is a person in front of me. There are no pre-existing arrangements or relationships between me and the other person. I own the stick outright, with no contracts or conditions. That person takes my stick from me and refuses to give it back. This person has violated my property right as surely (though to a different degree) as when I hit the rock owned by another person a few paragraphs ago. While the precise nature of appropriate punishment is beyond this screed, let us agree that a crime has been committed against me.
Now I have the stick again, and another person, with whom I share no history, stands before me. I hit that person with the stick, thus committing a crime. As I wind up to hit them again, they take my stick from me. When I ask for my stick back they refuse to return it. The act of taking my stick was an act of self defense, since I am now no longer able to injure the other person when I was clearly intending to previously. This, intuitively, is not a crime. Let us also state that an analogous situation would be if they broke my arm to prevent me from continuing to hit them, with or without pairing that action with stick theft. Let us ignore the notion of proportionality in self defense for the moment.
We now have three intuitive results. 1) When I hit someone, it is a crime. 2) When someone takes away my property, it is a crime. 3) When, I hit someone and they take away my property, it is not a crime. I believe that all of these results are true, for some substantial value of truth. If my fundamental rights are alienable, then we can reconcile these things by stating that I have, by violating the rights of others, forfeited some portion of my own human rights. If my fundamental rights are truly inalienable, then we are forced to conclude that in violating the rights of others I have forfeited my very status as a human being.
Note that in extreme cases, these equate to the same thing. If I commit a crime so heinous that the death penalty is imposed (and remember that we are assuming the justice system to be perfect, whatever that may mean), then whether that is interpreted as me having forfeited completely my right to life, or if that is interpreted as me no longer being a human being and thus my execution is no more morally problematic than the slaughter of a goat, the outcome is the same. Where this matters is in the smaller crimes, the arsons, the burglaries, the petty assaults.
We have two options, and cannot reject both of them. If I, as an upstanding citizen in full possession of my full complement of rights and secure in my humanity, am abducted by government agents in the night and locked in a cage, that is an unjust act. If we deny that I can lose my status as a full person, and we insist that the fundamental rights to life, liberty and property are inalienable, then by locking me in a cage a crime is committed against me, no matter what the circumstances. Since we are assuming the justice system to be perfect, it cannot commit any crimes, and is thus unable to arrest me while I am in possession of a full complement of human rights.
This gets us to another point. Either our fundamental rights are alienable, or prison rape is acceptable (uh, oh. Tipping my hand here a bit). If our fundamental rights are alienable, at least through the violation of the rights of others, then it is implicitly the task of a court, in sentencing, to carefully circumscribe those rights that are to be taken away and for what period. If, for the crime of hitting someone with a stick, it is decided by the court that my liberty should be restricted to a cage in a prison for a certain time, then it remains a violation of my remaining rights for someone else in the prison to subsequently hit me with a stick during that time. Even those rights removed temporarily may in fact still be retained to a certain extent. If the court decides that my right to avoid bodily harm has been forfeited for a set period of time, then a case could still be made that harm which we can reasonably anticipate will last beyond that period of time, like amputation or death, is a crime against the future rights I hold. I will not investigate this possibility further today.
If, however, my rights are inalienable, then the task of a court is to first determine that I am no longer a person, and thus no more in possession of rights than a goat, and then to determine how to best dispose of me. Assume for the moment that the sentence in this case as well is confinement to a prison for a period of time, and in that confinement I am hit with a stick by another similarly confined criminal. This scenario is no different from that of two goats attacking each other. It may be in the interests of any onlookers or prison managers to intervene, but there is no moral quality to the incident. Nor would there be if the hitting was instead rape or murder, any more than there is a moral quality to the killing of a rabbit by a fox or a rape among baboons.
Which of these two systems do we generally practice? On one hand, you could look at the fact that when two prisoners fight, and are caught, there is typically some additional punishment imposed. And yet that is hardly definitive evidence for the alienability perspective. When my parent's dog, not a moral actor, pees in the house he is punished with loud noises and by having his nose placed in the offending area. This is not a case of the dog losing his right not to be so punished, but rather a Pavlovian correctional measure done without regard to the dog's rights.
We could consider than many criminals are not allowed to vote or purchase weapons, which, on its face seems consistent with the theory that they are no longer people, merely beasts allowed after a correctional period to join society, though to a lesser extent than full people are permitted. However, these laws have been around for quite some time, and it is more likely than not that a judge considered the post-prison aspect of the crime at sentencing, and could be, in effect, removing specifically the right to not be in prison for five years, as well as the right to vote for a longer duration.
I believe that the best single piece of evidence is to compare this bill in Nevada with the effects of the recently passed legalization of marijuana in Colorado. Since it is no longer a crime in Colorado to possess marijuana (all caveats aside), people will no longer be sent to prison for possessing marijuana. In contrast, it was previously the case that every sex offender in Nevada was, upon release, allowed to live within 1000 feet of a playground. If we assume alienability, then the judge, at sentencing, had the option of removing that right for life and chose not to. Therefore this bill, under that theory, would only apply to new sex offenders. It does not, indicating that at the time of conviction the sex offender is no longer considered to be fully human, and thus it is acceptable to modify any terms of his imprisonment or reintegration at any time. To give a similar example, I last night I told my kittens that they would only get one treat each that night, and yet I changed the terms of that one sided agreement and ended up giving them three each, wholly at my discretion and without regards to any rights they might possess.
Because in the current US justice system, we act as if fundamental rights are inalienable, and thus that criminals are not people. That is to say, we act that way to the extent we act in any sort of consistent manner. I would, I think, prefer an environment where fundamental rights can be given up under certain circumstances, typically with direct consent or consent implied through the social contract.
It is also possible that there are no consistent, simple rules for any part of morality and everything is completely ad hoc.