# Civil and human rights and freedoms



## Earl of Ormonde (Sep 5, 2008)

I wasn't sure whether to start this new thread or carry on in the guns thread. But ultimately this is a separate issue with a lot of philosophical, moral and ethical angles, twists and turns that it would be better in a new thread.

I'm taking as my start point a few similar comments that were made a few times in the guns thread "the right to self-defence" "the civil right to defend oneself" "the human right to self-defence" and so on.

These ARE NOT civil or human rights they are far more fundamental than that. A right indicates some socio-cultural involvement and some legislative decision.

No, self-defence, survival is a basic human instinct.

Now this is where I want to spin the discussion off into what could be a fascinating or even surreal discussion; so let's suppose for starters that self-defence is a civil right stipulated by law, well then, when someone is sentenced to death wouldn't they be entitled to defend themselves and prevent execution of the death sentence at all costs, their self-defence being a civil right?

Does the legislative system remove all civil rights once a death sentence has been passed? What about human rights? Those remain on death row. As does the instinct for survival.

So, whatever way you cut it, a prisoner trying to escape from death row or preventing execution of the death sentence is only doing what is natural. 

Now, if you say that everyone has a civil or human right to self-defence how does the State view itself when it passes a death sentence? 

Tricky stuff!

Seems to me that States that have a death penalty,(be they in Asia, Africa or the Americas) pose a threat to their own societies as they aren't bound by the same laws that govern the people i.e. killing people is wrong. UNLESS you're the govt.

This isn't a question of the rights and wrongs of the death penalty it is a question of where rights and laws start and finish and to whom they apply. 

Consistency is clearly not a commonly used word in this field it seems.


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## Bjorn (May 2, 2010)

Basic human rights don't really need legislation. Or rather, should be positively legislated in any constitution. 

I see your point on the death penalty though.


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## Earl of Ormonde (Sep 5, 2008)

Bjorn said:


> Basic human rights don't really need legislation.


They shouldn't. But they do. That is why the UN legislates for them because many states don't recognise certain human rights.


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## Haffman (Oct 11, 2010)

I find the whole 'rights' thing philosophically difficult, outside of purely legal affairs. After all nobody really has a _right_ to life, liberty, happiness, shelter, food and so forth. But perhaps this is the complacency of living in a society of relative comfort where I have not had to 'fight' for these rights and therefore take them for granted? Is that it?

I spend a lot of my professional life hearing about how people have various 'rights', such as the right to state supported accommodation, the right to a comfortable standard of living, the right to have children and the right to unlimited healthcare free of charge and regardless of social contribution. I really don't know where these inalienable human rights are supposed to begin and end. I would welcome some discussion on the matter :icon_scratch:


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## CuffDaddy (Feb 26, 2009)

Earl of Ormonde said:


> Seems to me that States that have a death penalty,(be they in Asia, Africa or the Americas) pose a threat to their own societies as they aren't bound by the same laws that govern the people i.e. killing people is wrong. UNLESS you're the govt.


Private citizens aren't allowed to kidnapp and forcibly detain other citizens for years in concrete cells, yet the government does just that when it arrests and incarcerates someone. There is no unique tension that arises from the death penalty.

You are quite right that the question of when and how individuals may be deprived consequentially of rights that are otherwise inalienable is tricky philosophical terrain.


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## Liberty Ship (Jan 26, 2006)

I'm going to throw in with Friedrich Schiller on this one. In addition to providing the lyrics to the fourth movement of Beethoven's 9th Symphony, "Ode to Joy," he wrote the play, "Wilhelm Tell," which helped modern civilization define the relationship between the individual and the State. These people had already tried "trusting their government."

In it, there is what I consider to be a brilliant passage in which Stauffacher spells out how the right to defend ones self and others by means of "the sword" is handed down from heaven: 

Yes! there's a limit to the despot's power!
When the oppressed looks round in vain for justice,
When his sore burden may no more be borne,
With fearless heart he makes appeal to Heaven,
And thence brings down his everlasting rights,
Which there abide, inalienably his,
And indestructible as are the stars.
Nature's primeval state returns again,
Where man stands hostile to his fellow-man;
And if all other means shall fail his need,
One last resource remains—his own good sword.
Our dearest treasures call to us for aid
Against the oppressor's violence; we stand
For country, home, for wives, for children here!


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## drlivingston (Jun 21, 2012)

Earl of Ormonde said:


> so let's suppose for starters that self-defence is a civil right stipulated by law, well then, when someone is sentenced to death wouldn't they be entitled to defend themselves and prevent execution of the death sentence at all costs, their self-defence being a civil right?


So, are you more in favor of lions or gladiators?


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## blairrob (Oct 30, 2010)

Earl of Ormonde said:


> I'm taking as my start point a few similar comments that were made a few times in the guns thread "the right to self-defence" "the civil right to defend oneself" "the human right to self-defence" and so on.
> 
> These ARE NOT civil or human rights they are far more fundamental than that. A right indicates some socio-cultural involvement and some legislative decision.
> 
> ...


It seems to me _rights enshrined in law are abrogated by one convicted of violating those laws_. As the arbiter in a civil society it then falls upon the justice system to enforce the penalities prescribed by the civil authorities. By choosing to live in this particular society the violator is bound to follow such laws. They have the option to leave to find a society more in tune with their beliefs or campaign for amendments to the societies laws and structures.


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## Earl of Ormonde (Sep 5, 2008)

blairrob said:


> It seems to me _rights enshrined in law are abrogated by one convicted of violating those laws_.


That is how most States work yes, but my Q is more about the moral or ethical grounds a State has for doing that. Today it is just accepted that a State can "break" all of its own laws when dealing with, detaining, imprisoning and executing criminals. You see the problem? Think of Guantanamo, for example, which incurred the wrath of many States all over the world.

That prison broke nearly every rule of International Law in the book. Fritzl did the same thing in Austria and look at what happened to him. At least Fritzl didn't employ sensory deprivation and stress positions in the blazing sun for 12 hours at a time on his family!

Same Q - what gives a State the right to do that?

The lame answers always seems to be, "you voted for the govt, so let us run the country the way we want to" AND "A society gets the govt it deserves"

Really? We can't come up with better answers than that?

Israel and the US are notorious for ignoring UN Resolutions and warnings.


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## CuffDaddy (Feb 26, 2009)

Earl, I wasn't actually alluding to Guantanamo at all. I was talking about garden variety robbed-a-bank, punched-a-cop jail. Any punishment regime will necessarily involve the state doing something that is ordinarily prohibited activity for a private citizen.


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## Haffman (Oct 11, 2010)

Earl of Ormonde said:


> Now this is where I want to spin the discussion off into what could be a fascinating or even surreal discussion; so let's suppose for starters that self-defence is a civil right stipulated by law, well then, when someone is sentenced to death wouldn't they be entitled to defend themselves and prevent execution of the death sentence at all costs, their self-defence being a civil right?


If 'freedom' is a right (is it?) then a criminal should also be expected to exercise their right to escape from prison at all costs in a similar manner.

Presumably these 'rights' are therefore conditional rather than inalienable. Conditional on abiding by the compacts laid down by society. They are not the 'rights' of a feudal overlord.


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## Earl of Ormonde (Sep 5, 2008)

CuffDaddy said:


> Earl, I wasn't actually alluding to Guantanamo at all. I was talking about garden variety robbed-a-bank, punched-a-cop jail. Any punishment regime will necessarily involve the state doing something that is ordinarily prohibited activity for a private citizen.


Okay. Amended.


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## CuffDaddy (Feb 26, 2009)

Haffman said:


> If 'freedom' is a right (is it?) then a criminal should also be expected to exercise their right to escape from prison at all costs in a similar manner.


I've often thought the same thing (though not the "at all costs" part). I have some qualms about non-violent escape attempts being an independent crime. Obviously, some of the time some men must be made subject to punishment by the state. But requiring that a man be complicit in that punishment... discomforting. It may be the only workable arrangement, but it does not sit easily.

This issues often come up when someone tries to require some sort of religious activity as a part of - or condition for avoiding - punishment, or when restrictions are put on the speech of prisoners.

The rest of your comment reflects the fact that we use the term "right" to mean several different things.

One meaning is an entitlement to some activity, property, freedom, etc., as a function of a positive regulation. I presently have a right to enroll my child in public education (or will in later this year when she reaches the correct age). But the state could decide to no longer offer public education, and I would lose that right.

Another meaning is some action or activity or option that is not currently prohibited. I have every right to own a piece of pine board 4 feet long, 4 inches across, and 2 inches deep. There's no statute saying anything about such a right - it's not ennumerated anywhere. But nothing prevents me from such ownership, and if someone tries to arrest me on the basis of me owning that 2x4, I will end up released.

Another meaning is an entitlement to some action or activity or etc., that has been placed beyond the normal reach of government. I have a right to go to the church of my choice, or to go to no church at all. The state could pass a law to the contrary, but it would be a nullity. That's because our US Constitution has placed the freedom of religion beyond the reach of the majority.

Yet another meaning of right is some naturally-endowed entitlement, or some right that is inherent in all humans. This concept of rights is not dependent on a legal system, but many legal systems justify themselves by claiming to be inspired by or based upon or to capture some or all of these rights. What rights fall into this category is a matter of philosophy, as is the question of whether they exist at all.

For all but the last category, one can say that these rights cannot be taken from you without due process of law. What due process is required depends upon the right. For rights in the first category, all that is required is for a duly elected government to make a change. For constitutional rights, all that it takes is a constitutional ammendment. For many rights, conviction of a crime is sufficient to justify the abbrogation of my rights, though not all rights. Even within the law enforcement system, different levels of process are required for deprivation of different rights. In my country, a civil penalty of money may be imposed based on a preponderance of the evidence, but a criminal penalty must be based upon evidence that puts my guilt beyond reasonable doubt. If you want to incarcerate me, you can do that with a simple, single-stage trial, but if you are planning to execute me, I get a multi-stage trial and expanded rights to counsel and assistance with defense.


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## CuffDaddy (Feb 26, 2009)

Earl of Ormonde said:


> Israel and the US are notorious for ignoring UN Resolutions and warnings.


I don't know about Israel, but under US law, pronouncements of the UN don't have the force of law. If I go into court here arguing that, yes, Georgia or US Federal law says X, but UN law says Y, and Y means my client is not liable... I am going to lose.


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## Haffman (Oct 11, 2010)

Thanks CuffDaddy, that made very interesting reading. With regard to the last paragraph, which rights in the USA can _not be _abbrogated now following the commission of a crime ? The 'right to life' can. Even legal rights like the right to legal representation or to fair trail can for certain kinds of terrorist offences right ?

(Disclaimer : this is not some dig at the USA -- I am just asking about the US case because that is where CD's expertise lies)


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## Earl of Ormonde (Sep 5, 2008)

Haffman said:


> be expected to exercise their right to escape from prison at all costs in a similar manner.


Which was and is always expected of PoWs


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## Earl of Ormonde (Sep 5, 2008)

CuffDaddy said:


> I have some qualms about non-violent escape attempts being an independent crime.


I've always disliked the punishment of prisoners for escape attempts, be they criminals or PoWs they are all exercising human instincts - survival, flight.



CuffDaddy said:


> But requiring that a man be complicit in that punishment... discomforting. It may be the only workable arrangement, but it does not sit easily.


Again, I agree.

The logic is odd as well. 
Here it is: I commit crime X, I get a prison sentence for it.
When I am in prison serving that sentence crime X has been accounted for and nullified, if you will.

So, by my simple presence in prison I have answered for crime X.

I should not then, from the moment I am locked up, have to stop myself from doing whatever (apart from crime) I need to do in prison in order to survive, be it fighting or escaping or hiding or refusing official orders or not eating or not washing. Prisons MUST be seen as an extension of the outside world as far as human and civil rights are concerned. And punishing prisoners for making a stand for survivial or their human rights does not sit easy with me either.


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## Haffman (Oct 11, 2010)

Earl of Ormonde said:


> I've always disliked the punishment of prisoners for escape attempts, be they criminals or PoWs they are all exercising human instincts - survival, flight.


Particularly as those that are punished are not necessarily the ones who tried or succeeded in escaping !


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## Earl of Ormonde (Sep 5, 2008)

Civil rights, human rights, human needs, human instincts

Human drives/instincts - eat, have sex, sleep, shelter, survive (fight or flight) 

Human needs - the physical ones according to Maslow's hierarchy of needs - breathing, food, water, sleep, sex, homeostasis, excretion. 

Human rights - according to whom? Nat. govts? UN? EU? Nato? Red Cross? - varies 

Civil rights - varies from country to country 

"I have a right to an education" "I have a right to a job" "I have a right to safety"

No you don't. Further up his hierarchy Maslow says you need safety and you need to belong to a group or a family, to feel love, safety, self-esteem, friendship, intimacy, to have a job, to achieve. 

So these are all needs not rights. 

Maslow doesn't expressly mention learning or education as a need.


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## Joseph Peter (Mar 26, 2012)

Oh Mr. Earl, this is a trick thicket: trying to ferret out the origin of self defense (which is a luscious topic) in the context of the death penalty (which is a politically charged topic). Further, your query conflates the context of person v. person with the context of state v. person. In other words, your scenario, as phrased, is mixing apples with oranges.


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## Earl of Ormonde (Sep 5, 2008)

Joseph Peter said:


> Oh Mr. Earl, this is a trick thicket: trying to ferret out the origin of self defense (which is a luscious topic) in the context of the death penalty (which is a politically charged topic). Further, your query conflates the context of person v. person with the context of state v. person. In other words, your scenario, as phrased, is mixing apples with oranges.


Then you have severely misunderstood the point of the discussion in the thread. I wrote this in my opening post:

"This isn't a question of the rights and wrongs of the death penalty it is a question of where rights and laws start and finish and to whom they apply."

The Q stands: to what degree can the State or should a state be allowed to depart from its own laws in order to carry on the business of the State?

To whom do we say the State can grant exemption from its own laws?


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## Joseph Peter (Mar 26, 2012)

On the contrary, Sir. In the factual scenario you posed, the issue is the legitimacy of whether the state can use the ultimate sanction to enforce its laws versus whether armed rebellion is justified. A cynic might read your scenario as a false one to justify your position in the other thread. No matter the interpretion of the posited set of facts or the reasons underlying it, the scenario is an absurd one in which to flesh out and explore the origins or nature of self defense. The only way in which we can discuss the issue of self defense in the given scenario is if we assume government has no legitimacy and simply view self defense in the context of anarchy where as a qualitative matter a person posing a mortal threat is identical to a government posing a mortal threat. A more appropriate factual context might lead to a better discussion. As the young ones are fond of saying: "just sayin'".


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## Hitch (Apr 25, 2012)

Due process isnt that hard of an idea to master.


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## Earl of Ormonde (Sep 5, 2008)

Joseph Peter said:


> A more appropriate factual context might lead to a better discussion.


Cheerio then, don't let the door hit you in the...well you know the rest.

Look forward to reading the thread YOU create with an appropriate factual context then.


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## Earl of Ormonde (Sep 5, 2008)

Hitch said:


> Due process isnt that hard of an idea to master.


No one has said it is. 
It is however a moral and ethical minefield, which is what we are discussing


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## CuffDaddy (Feb 26, 2009)

Haffman said:


> Even legal rights like the right to legal representation or to fair trail can for certain kinds of terrorist offences right ?


Even those still get some sort of "due process." Reasonable people certainly disagree about whether the processes afforded are all that are due, but there is still process.


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## CuffDaddy (Feb 26, 2009)

Hitch said:


> Due process isnt that hard of an idea to master.


Well, in fairness Hitch, I have questions about anyone who claims to have mastery of the concept. It is simple, but very subtle, and slippery when you try to grab it precisely.


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## CuffDaddy (Feb 26, 2009)

Earl of Ormonde said:


> No one has said it is.


Well, I just did!  It's an easy concept to repeat, and is a glib answer to lots of questions. But process is just process. If the process produces bad results, the results remain bad despite the prior process.

My administrative law professor - a shockingly brilliant man - once declaimed in class: "Due process is NOT YOUR FRIEND! If someone gives you a hearing, you'd better check your wallet. People don't give you a hearing when they're about to do something nice for you."


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## Haffman (Oct 11, 2010)

CuffDaddy said:


> Even those still get some sort of "due process." Reasonable people certainly disagree about whether the processes afforded are all that are due, but there is still process.


I am assuming from the half-heartedness of this reply in contrast to your usual forthrightness :wink2: that you accept that there may actually be rather few 'rights' for those who have committed these kinds of offences. We have the same problem in this country, call someone a "terrorist" (you dont even have to bother proving it) and centuries of legal due process and civilised behaviour just seem to go out the window...


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## Earl of Ormonde (Sep 5, 2008)

Haffman said:


> We have the same problem in this country, call someone a "terrorist" (you dont even have to bother proving it) and centuries of legal due process and civilised behaviour just seem to go out the window...


Oh yes, oh yes I am going there...it's unavoidable....Interment in Northern Ireland during the Troubles was EXACTLY that, you only had to look at a soldier sideways to be swifted into the local nick.


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## CuffDaddy (Feb 26, 2009)

Haffman said:


> I am assuming from the half-heartedness of this reply in contrast to your usual forthrightness :wink2: that you accept that there may actually be rather few 'rights' for those who have committed these kinds of offences. We have the same problem in this country, call someone a "terrorist" (you dont even have to bother proving it) and centuries of legal due process and civilised behaviour just seem to go out the window...


Yep. It's a very difficult set of problems. I think we're doing a better job of it now than we were in, say, 2004. But it's still unsettling. I don't think there's much abuse at the moment, but it is a system with the potential for abuse, and I'm not sure how I would know of abuses anyway. Unsatisfying.


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