Humanity and Criminalization

Russell Turpin
Sun, 27 May 2001 16:32:17 -0500

Jeff writes:

> I dread a society that's in the business of categorizing 
> people and sorting them into endless boxes based on 
> whatever criteria.  It's a slippery slope to Gattaca.  

But only short space later, he urges just this:

> .. The purpose of the trial system becomes two-fold; 
> first, the trial is chartered with determining if the person's 
> actions under the law amounted to voluntary forfeiture 
> of humanity.  

I can imagine no better example of society categorizing
its members than a trial that revokes someone's 
humanity. The "voluntary" ascription of this forfeiture is 
a rhetorical trick used in many contexts to hide who is
really making the decisions and rules, and who is 
involuntarily subject to them. If you want to know 
what someone voluntarily wants -- in this case, how 
they want to be categorized -- you ask them. The 
purpose of a trial is to determine how the state 
categorizes or treats a person, regardless of their own 
desire in the matter. The notion that by committing an 
act that the state defines as a crime, one thereby 
"volunteers" for some deprecated status, is nothing 
more than philosophical prestidigitation, to hide the 
fact that the criminal does not define the crime, does
not define his new status, does not make the rule
that committing the crime brings the new status, 
and does not define the consequences of his new

> Second, the punitive phase of the trial determines 
> what the non-human must do in order to reattain 
> human status.  Note that we have to tread carefully 
> around a philosophical issue, here;  we *cannot* 
> believe that society is empowered with the ability 
> to grant and revoke humanity.

But that is exactly what you're describing! A trial
is a social mechanism, and you explicitly assign it 
the task of determining humanity, both when it is
revoked, and when it is restored. You can argue
that the trial process itself only applies a definition.
Who creates that definition? And who is to say 
that it is the one that matters? The only possible 
answer is: the legal system in the society that 
performs these trials. There are many attempts 
to disguise the hard facts of government, by
assuming that the "right" definitions somehow are
handed down from above. "It's not us, it's The
Rules." In earlier times, the social mythology 
credited the rules to heaven, in a literal sense. In 
more recent times, people try to duck society's 
responsibility for its rules by pointing to the 
philosophers, and then by verbal slight of hand 
that removes the philosopher, by reifying the rules 
themselves. You don't have to plea faith in the gods, 
if you can plea faith in The Rules. 

But the only rules that matter in law are the ones
that the society writes into its legal system. And
those rules have legal status only because the
government adopts them. 

> .. since forfeiture of all human rights is such a 
> severe thing, it negatively incentivizes the 
> criminalization of trivial offenses.  Clearly, the 
> law simply cannot be so oppressive that a 
> significant fraction of the population is
> deemed non-human

I would not be so quick to assume this. Once
used as a legal theory, "forfeiture of human
rights" is only as severe as the law defines the
consequences, and if this is the legal theory, it 
will be applied more broadly than you expect.

But let's run with your assumption, a bit. Let's
assume that this legal theory is applied only to
extreme offenses such as rape and murder. 
What, then, is the legal theory for dealing with 
minor offenses?