What's Really Going On Re: Humanity and Criminalization

Jeff Bone jbone@jump.net
Mon, 28 May 2001 16:30:03 -0500


What's Really Going On?
-----------------------------

Okay, so here're some problems I'm wrestling with in this process.
First, I have a problem with (a) non-reciprocal obligation --- it
just doesn't make sense to me.  In fact, a reasonable definition of
"free" would be "the absence of unilateral obligation."  I also have
a problem with (b) the notion of involuntary obligation.  A further
expansion of the definition of free would be "the absence of
unilateral or involuntary obligation."  I have a problem with the
notion of (c) authority without corresponding responsibility.  I have
a problem with (d) bigotry of any kind --- in my ideal world, there's
"just folks," and those folks are equal and plenipotent under the
law.  (Another way of saying this is that I'm okay with only one kind
of bigotry, *human* bigotry, with notion of human that I believe is
broader and stronger than the common definition, though admittedly to
gain that expansion it does necessarily exclude some that are
currently included.)  I have a problem with the notion that (e) one
person's "rights" (whatever they might be) can ever trump another
person's identical rights in any context whatsoever.  I have a
problem with the notion that (f) any authority, responsibility, etc.
can ever be vested in a group organism, because there's really no
grounding --- the buck never stops.  Finally, I believe that (g)
legislating morality (meaning ethical positions grounded in "faith,"
faith defined in a secular way meaning any belief in unprovable
assertions) is an irrational idea, equivalent to the deification of
the law.

These problems interfere in interesting and troublesome ways with the
notion of human rights.  Our tradition speculates that our rights are
"endowed by our Creator," that they are "inalienable," and that "all
*men* are created equal."

The first is problematic because it embodies the notion of authority
without responsibility; forgetting the spiritual question entirely, I
don't *think* God has ever taken the stand in a court of law.  So
where do these rights come from?  Who "grants" them, by what
authority, and by what mechanism?  How can they be "revoked,"
suspended, measured and judged relative to some other party's
rights?  The standard answer is that they are, lip service aside,
*actually* granted and can be revoked "by society."  But where does
the buck stop?  This is an instance of  (c) and (f) above.  So hence
the desire to explicitly state who grants Human Rights to whom and
under what conditions.  The simplest model I've found for this that
avoids *all* the above problems is a contract - and as far as I can
tell, that should be sufficient.

Second problem --- we say that human rights are "inalienable."  Well,
that's a problem because we immediately turn around and give
"society" the right to revoke those human rights, for instance the
right to incarcerate human criminals.  This is prima facie
inconsistent, perhaps intentionally hypocritical.  It cheapens and
degrades the notion of human rights.  It makes sense that human
rights should be inalienable, because in my world-view the individual
(and only the individual) is plenipotent under the law, and coercion
is unacceptable.  How, then, can we accomodate the clear need to deal
with people who violate others' human rights?  How can we ever take
protective action or seek remedy?  We must have a mechanism by which
human rights are suspended, but this mechanism must be voluntary on
the part of the alleged criminal in order to avoid coercion.  It must
also be voluntary because if all individuals are plenipotent and
society is not first-class, no agent *can* have the right to
unilaterally revoke the alleged criminal's rights in order to take
appropriate remedial action --- we must avoid (e).  Entering and
exiting a contract is a much cleaner mechanism for assuming and
rejecting the rights and obligations of humanity than the notion that
they are "granted" and "revoked" by an entity ("society") I refuse to
acknowledge as having a first-class existance.

Second problem, part deux.  There is no consensus among different
cultures regarding some of the questions (where do human rights come
from, etc.) above.  I would go so far as to speculate that there
*can* be no consensus among cultures regarding these things.  This is
problematic, because we *want* human rights to be recognized
universally, across cultures.  This has a real impact on (e.g.) my
own life, because as much as I would love to travel to China I
cannot, because I cannot trust their position on the matter.  The
problem is that as long as (g) is the case, there can be no consensus
among cultures because assumptions taken on faith will necessarily
differ.  On the other hand, all cultures recognize the notion of a
contract, and there's even rough consensus (though different
mechanisms) on what they mean, enforceability, etc.  Again, the
contract seems to be the best vehicle to accomplish what we all want
at the end of the day, namely universal agreement on and respect for
human rights.

(As an aside:  I have a problem with legislation of morality because,
IMO, it's no different from the pre-rational thinking that created
religion in the first place.  Both are an attempt to endow some
immaterial agency --- in the case of religion, God, while in the case
of "enlightened democracy" the surrogate diety is "The Law" --- with
moral authority without responsibility, said morals to be determined
based on some not-so-broad consensus of subjective faith.  While we
think we achieved nominal separation of Church and State with our
national inception, in fact we did not;  we merely deprecated the
existing "Church" and made the State a surrogate Church.)

Third problem --- we say that all "men" are created equal.  The
problem here is "men."  This literally meant *men* when it was
written --- and just certain men, at that.  Wihtout reconstructing
230ish years of history, clearly we take the broad view, now.  Not
doing so in the past has caused us a world of hurt, it's been the
Achilles heel of our fine system throughout its existance.  But is it
broad enough, and / or is it appropriately-broad in all situations in
which it's used?  Who should have these rights?

We must be careful to avoid bigotry. (d)  I am (as stated previously)
uneasy with the "genetic bigotry" inherent in such positions as
pro-life, the notion that "any old clump of cells with a human genome
is human" while we ignore the fact that there are other potentially
sentient beings out there that we exclude from our system of rights
and community of respect.  Now, saying this may seem odd given the
extreme position I'm taking -wrt- incompetents, criminals, children,
etc.  Hell, it *is* odd, and probably hypocritical on the surface.
I'll avoid that by claiming that I'm a pro-Human bigot, and hope my
definition of Human is broad enough.  "Sentient" might be a better
term, or "Sentient and Contract-Capable," but We'll get no traction
crying for universal recognition of "Sentient and Contract-Capable
Rights."

Rest assured that I'm NOT saying those "non-Human" folks shouldn't be
included in some community of respect that we also participate in.
Hell, I'm about half-convinced that *dolphins,* *whales,* and *apes*
should also be included in *some* community of respect.  I'm just
trying to make sure that the plenipotent (word of the day, sorry)
community of respect includes only people capable of bilateral
obligation and responsibility.  Accuse me of being a conservative in
this regard;  it's been said that conservatives are those who want to
minimize and make exclusive the community one participates in, while
liberals want to expand it and make it inclusive by default.  In
fact, my preference is "both / and."  What I'm advocating would
hopefully minimize and make exclusive / voluntary the community of
mutual obligation, while expanding and making de facto inclusive the
community of respect.  Defining the first community as all parties to
a particular set of co-contracts seems imminently workable, and makes
the definition of that first community absolutely explicit.

Fourth problem --- the notion of "equal."  IMO, equal implies
symmetry in obligation.  You and I cannot be equal if you are
obligated to me and yet you get no good and valuable consideration in
return.  Further, you cannot be equal to another if you have an
obligation to them that was forced on you involuntarily.  (a) and
(b)  (Example:  our current system of welfare in fact fails to
achieve equality, it actually subordinates me involuntarily to the
"crack whores."  I resent that and despise the thinking by which it
is justified.)  Further, if we are equal, then our rights carry equal
weight;  there can be no context sensistivity if "equal" is assumed
to be absolute.  Among equals, one party's rights can never trump
anothers.  (e)  So if equality is a principle we truly cherish, we
must deal with these issues.  Again, the notion of contract seems an
ideal mechanism.

The equality argument drills right to the heart of the matter.
"Equal" has a very specific meaning.  I refuse to acknowledge that I
am "equal" to a 4-cell zygote.  Inequality obviously exists among
organisms that share a human genome.  Humanity must therefore be a
qualitative thing, not a quantitative thing.  What is that
qualitative thing?  Well, given that contract-based human rights seem
to be a panacea in many other thorny areas, why not assume that the
ability to enter and execute a contract *is* that qualitative basis?
I'm not saying that the others who cannot do so are not worthy of
respect and inclusion in the community in some sense.  I'm am merely
saying that the only way to avoid asymmetric or involuntary
obligation --- i.e., the only way to preserve *freedom* --- is to
make sure that human rights are only granted to those who can assume
similar obligations.  Let's dispense with the inflammatory rhetoric
that defends a notion of universal equality based on genetic bigotry,
and ask instead what we really want to accomplish, here.  I suspect
that what we truly want is a societal fabric that maximizes both
cooperation and freedom.

So what I'm trying to do is find general mechanism which addresses
most of these problems in a somewhat reasonable, workable, acceptable
way.  I'm not trying to write down the complete axiomatic system,
though I'd like to eventually find a core set of axioms and fully
understand their derivation.  Most of the maxims we really need are
already out there:  "inalienable rights," "life, liberty, and pursuit
of happiness," "all men [sic] are created equal," "do unto others as
you would have them do unto you,"  Tit-For-Tat, "love thy neighbor as
thy brother," etc.  (I'll pass on "turn the other cheek" because it's
never been shown to generate any positive value other than
self-righteousness, and that just ain't that important for me.)  The
trick is to figure out what all these things are actually *saying*
and eventually re-express it in a somewhat more rigorous fashion.

Anyway, just some thoughts.

jb