Death Penalty: Yea or Nay?

[AMT]

Has this, or anything even remotely resembling this, ever actually happened?

Yes it certainly has, I know of one case even in which a guy managed to kill two prison guards in one fight with his fists, but he was literally a huge guy. Edited video of that killing exists. Murder in prison isn't as common as it used to be as the US has managed to greatly reduce the total number since the 1980s when it was more then one a day, but some of that is purely because of better trauma care allowing people to survive dozens of shank wounds. When 100+ people a year are still murdered in prison in the US and you are claiming a lot of them are in innocent then its obvious some innocent will be among those killed isn’t it? I'd support restricting the death penalty to cases like this and a few other things, but as far as I’m concerned the US is far too based around violence to abolish the death penalty especially for military cases. In some countries other then the US, prison murder can be a far more massive problem, the US has wasted a lot of money recently on ever bigger and more lavishly secured jails.

Of course even with the bigger and more secured (how does one lavishy secure a jail, btw?) overcrowding is an extremely large problem, due to out draconian drug laws, raising tensions. In addition, gang violence still occurs, and even if security is tightened, conditions are not very good for food or comfort. All these together cause a powder keg, such as the riot that occurred in a KY prison in the recent past due to bad food conditions.

[Aldroud]

...its precisely because human beings are capable of this kind of behavior that dehumanizing them is a bad idea. It means we aren't trying to understand them, which is crucial to stopping or preventing them from acting badly in the future. The kind of behaviors that we put people on death row for are for the most part on the extreme end of spectra of behavior we don't usually put people on death row for.

I like the way you phrased that. Very thoughtful.

[MarshalPurnell]

You do realize that your "subjective" morals apply to no one but yourself?
They are not commonly accepted and there is no need for them to be.

There is no way to logically prove the superiority of one set of morality over another. People have been trying for roughly 5000 years and have yet to produce a single, universally accepted code of morality. Certainly sets of morality can be judged superior based on objective criteria like how the societies they dominate operate, but in the end to have a uniform morality would mean not just suppressing the really bad sets but also relatively trivial differences between people. Ergo, having the law based on morality raises the question of, whose morality? We do that to some extent in the US, which is why sex toys were illegal in parts of the South until recently, and why atheists are prohibited from holding office under several dead-letter laws. Conflating the defense of social order with the defense of morality was also behind slavery, segregation, and so on. In an ideal sense the law would exist to the degree necessary to uphold the social order, the basics of which any functional set of morality condones, and leave other questions of morality to the subjective judgment of citizens.

And the moral roots of opposition to the death penalty are certainly subjective matters. That all life is sacred in all circumstances is certainly not a commonly held moral belief, being acted on consistently only by extreme pacifists. The idea that the state sets a bad example by executions is silly since it completely ignores the context that differentiates that from actual murder. The state imprisons lots of people, does that mean it can't say that kidnapping is bad? And the ability to compel, to coerce, and direct the lives of its citizens is an inherent property of the state. People don't pay taxes voluntarily, conscripts don't always go willingly, and criminals don't report to prison because they want to. If you are already willing to admit that the state may need to lock away people for life, even in solitary confinement, to protect other citizens (and thus the social order) I say there's no particular great moral obstacle to simply shooting them outright. Except for the nagging possibility that you might be wrong about their guilt, but this is a procedural objection, even if it is also inherent in any human justice system, rather than a moral objection.

I'm pretty sure the social order itself is derived from "individual rights", not the other way around. Also the social order and peoples rights are concern of what you label as "objective law" and not of that of any subjective morals which you dissociate by claiming "death penalty is morally justified but not legally".

Go to Somalia and see how far those transcendent, inherent, God-given rights get you. Point is, individual rights are meaningless outside of the context of an existing, stable social order upheld by some form of government. Social contract theory is at best an abstract tool to look at the relationship between the state and its subjects, and bears no resemblance to the actual reality.

[Bakustra]

Formless: Killing anyone is murder.

Me: No, it isn't.

Bakustra: Why is murder bad?

Me: *headdesk*

Purnell, you're either a liar or so stupid that I doubt you'd be able to breathe. I'd say it's more likely that you're god-damned liar. I sincerely hope that you come to a hilarious and unsympathetic end, so that the average honesty of humanity as a whole might rise notably. I asked you why you considered murder to be wrong, in other words, the reasons you use to determine this. That is a valid question. I'm sorry that you're so unfamiliar with the concept of morality beyond its subjectivity, which you don't even understand anyhow, that you can't respond to a moral framework without incredulity.

You presented a definition that focused on the concepts of "randomness" and "unrestrained" to condemn homicide. I replied with noting that most murders are not random and many murders are restrained by social codes as well. You replied by waving your hands in the air and complaining about perceived moral failures in me because I dared to question you. You then refused to refine your reasoning, so I can only conclude at this point that you are legalistic enough to only consider murder to be wrong because the law says it to be so.

With that said, I'm loving trying to roll this boulder up this hill, so let's go on!

Ergo, having the law based on morality raises the question of, whose morality? We do that to some extent in the US, which is why sex toys were illegal in parts of the South until recently, and why atheists are prohibited from holding office under several dead-letter laws. Conflating the defense of social order with the defense of morality was also behind slavery, segregation, and so on. In an ideal sense the law would exist to the degree necessary to uphold the social order, the basics of which any functional set of morality condones, and leave other questions of morality to the subjective judgment of citizens.

Demonstrate why freedom of speech helps the social order, or the right of habeus corpus. Both of those are surely not necessary to the functioning of a society, seeing as many societies have existed without protecting those thoroughly. Consider the People's Republic of China, which regularly abrogates and has abrogated both. But it still has a clear social order. So, are those necessary to uphold the social order, or are they irrelevant and should no longer be protected, or does morality have a part in the development of law?

Go to Somalia and see how far those transcendent, inherent, God-given rights get you. Point is, individual rights are meaningless outside of the context of an existing, stable social order upheld by some form of government. Social contract theory is at best an abstract tool to look at the relationship between the state and its subjects, and bears no resemblance to the actual reality.

Authoritarian prick. Excuse me, I just had to get that out of my system. So, first of all, we have the assertion that a government is necessary for social order. This means that apparently all societies without a formalized government are just orgies of blood and slaughter, which says some surprising things about Melanesian society. But let's assume that you define government in such a way that the anthropological "big-man" fits in comfortably, granting you that gymnastic feat. So now we run into the key assumption- that rights are a gift from the benevolent state to the subjected people. So why exactly is this superior to and more realistic than, say, rights being protected by governments because they are valued by society? I can think of one major criticism- it relies on the theory of political elites, which is largely discredited in political science.

[MarshalPurnell]

Bakustra, you're a goddamned joke and anyone who has been on the forum knows damn well that you are. You're pulling strawmen left and right out of your ass, drawing inferences from general statements that no sane or honest person would, and trying to hide your own stupidity by accusing me of failing to meet a challenge you never offered. You asked me to define why murder is bad for the social order, not to provide a moral justification for condemning murder. Such a frankly stupid request, and your subsequent spinning out into what-ifs of gang war and assassination as distinct from murder, strongly suggested you were not acting in good faith. Your subsequent posts have just proved you are shit-throwing for the sake of shit-throwing, and have no real content behind them at all.

[Big Phil]

Would a mod be willing to excise MarshallPurnell's pissing match with Formless/Bakustra?


OP: I was once an avid supporter of the death penalty. I am today an opponent, mostly because the application of the death penalty is unfair and biased, and justice systems get it wrong far too often.

On the flipside, I'm not a proponent of the "prison for everyone! Yay!" mentality that results in pedophiles, rapists, drug offenders, and murderers all ending up in the same place. I would prefer a justice system that focuses on outcomes, rather than on "merciful" or "just" punishments. For example, our prison system is filled with non-violet drug offenders, which seems like a really stupid place to put them. I would prefer drug use was decriminalized and the prisons emptied of these people. In a little more detail:

Drug Use/Possession - decriminalize and treat the addiction
Robbery - Replace with restitution and forced labor
Violent Crime (non-murder) - prison and restitution
Murder - Prison

This is a vast oversimplification, but I would prefer that we get away from the idea that putting people in prison is a good solution to every crime. In some cases locking people away from society is a good thing, but in many cases it's pointless and other punishments might result in less recidivism.

[Bakustra]

Bakustra, you're a goddamned joke and anyone who has been on the forum knows damn well that you are. You're pulling strawmen left and right out of your ass, drawing inferences from general statements that no sane or honest person would, and trying to hide your own stupidity by accusing me of failing to meet a challenge you never offered. You asked me to define why murder is bad for the social order, not to provide a moral justification for condemning murder. Such a frankly stupid request, and your subsequent spinning out into what-ifs of gang war and assassination as distinct from murder, strongly suggested you were not acting in good faith. Your subsequent posts have just proved you are shit-throwing for the sake of shit-throwing, and have no real content behind them at all.

So, to recap-
1) Nobody can critique your definitions.
2) Nobody can ask you questions about your beliefs.
3) Nobody can make use of context when making posts.
4) Nobody can challenge you on anything.
That's clearly the road to discussion.

See, I asked you why you thought murder was bad for the social order so I could respond effectively to your position. But you apparently can't understand why anybody might think that it was up for question. Apparently, the definition you provided is self-evident. I don't think that you can insult the intelligence of anybody- even an ant has a better understanding of social intercourse than you.

Now, would you be so kind as to respond to my points, or are you just going to stick your fingers in your ears and exhibit that oh-so-lovable authoritarian personality type as you demand, demand that people not challenge you on anything.

I'd say that I'd rather be a joke (and I'm curious as to who exactly thinks this, apart from you and whatever toys you keep on your desk) than the legalistic, authoritarian dick you present yourself as. At least jokes can be loved, while nobody can really love someone like your image without fear or anger or exasperation or sorrow twisting it, depending on your relationship. If you're presenting yourself as you are in real life, then I pity you and feel sorry for all the people you regularly interact with, but you're such a caricature that I doubt that I'd believe it even if you produced signed witnesses. If you're not, then I have to wonder what social experiences have led you to conclude that this persona is a beneficent one.

Have a nice day.

OP: I was once an avid supporter of the death penalty. I am today an opponent, mostly because the application of the death penalty is unfair and biased, and justice systems get it wrong far too often.

On the flipside, I'm not a proponent of the "prison for everyone! Yay!" mentality that results in pedophiles, rapists, drug offenders, and murderers all ending up in the same place. I would prefer a justice system that focuses on outcomes, rather than on "merciful" or "just" punishments. For example, our prison system is filled with non-violet drug offenders, which seems like a really stupid place to put them. I would prefer drug use was decriminalized and the prisons emptied of these people. In a little more detail:

Drug Use/Possession - decriminalize and treat the addiction
Robbery - Replace with restitution and forced labor
Violent Crime (non-murder) - prison and restitution
Murder - Prison

This is a vast oversimplification, but I would prefer that we get away from the idea that putting people in prison is a good solution to every crime. In some cases locking people away from society is a good thing, but in many cases it's pointless and other punishments might result in less recidivism.

I have to say that I oppose the death penalty while recognizing many of the exceptionalist arguments as fairly convincing, at least in part because these cases are defined by extremity. It seems to me to be difficult to enshrine "only if they're irredeemable/untreatable" into the law without making it overbroad, and the same with making it a matter of judicial discretion (though theoretically, those could be overcome). Of course, I also have severe problems with the overall approach of our legal system, but those are less relevant to the OP.

[MarshalPurnell]

So, to recap-
1) Nobody can critique your definitions.
2) Nobody can ask you questions about your beliefs.
3) Nobody can make use of context when making posts.
4) Nobody can challenge you on anything.
That's clearly the road to discussion.

See, I asked you why you thought murder was bad for the social order so I could respond effectively to your position. But you apparently can't understand why anybody might think that it was up for question. Apparently, the definition you provided is self-evident. I don't think that you can insult the intelligence of anybody- even an ant has a better understanding of social intercourse than you.

Now, would you be so kind as to respond to my points, or are you just going to stick your fingers in your ears and exhibit that oh-so-lovable authoritarian personality type as you demand, demand that people not challenge you on anything.

I'd say that I'd rather be a joke (and I'm curious as to who exactly thinks this, apart from you and whatever toys you keep on your desk) than the legalistic, authoritarian dick you present yourself as. At least jokes can be loved, while nobody can really love someone like your image without fear or anger or exasperation or sorrow twisting it, depending on your relationship. If you're presenting yourself as you are in real life, then I pity you and feel sorry for all the people you regularly interact with, but you're such a caricature that I doubt that I'd believe it even if you produced signed witnesses. If you're not, then I have to wonder what social experiences have led you to conclude that this persona is a beneficent one.

Have a nice day.

Your "critique" was nonsensical, even farcical, and designed to evade any attempt to discuss substantial issues. My definition of murder has consistently been the intentional and unlawful killing of another human being. This is the legal definition of murder. Formless claimed that there was some other definition of murder that was equivalent to killing, such as "lawful murder," and claimed he was using murder in the colloquial sense to mean killing people, when saying an executioner was just as guilty of murder as the murderer he puts to death. Now the legal definition of murder can be looked up in any dictionary or law code and is not in dispute.

Neither does murder colloquially mean "killing," it is far more frequently used to mean "intentional killing of someone innocent," since large numbers of people are inclined to excuse vigilante crime and revenge killings and so on which are unlawful. I in no way "conflated" them as part of my argument, which was one of the first and most bizarre accusations you made. Regardless, allowing people to randomly murder each other is a danger to the social order, which is why murder is illegal; and all non-state sanctioned murder is effectively random relative to the state, regardless of whether or not the murderer is targeting his child's molester, or red-haired people, or fellow mafiosi. No sane person could take my definition as meaning murders with a specific motive or victim profile are not a threat to social order and therefore legal, much less moral; but you had a personal agenda, and chose to run with the most absurd interpretation possible. And your motives have been on transparent display ever since.

Speaking of evasion, you and Formless have both relied on spinning outrageous conjecture about me and my beliefs rather than actually engage logically, much less to defend your own assumptions. In so far as either of you have laid out any kind of structure, you think law ought to reflect your morality and that your morality says executing people is bad. Indeed, Formless went so far as to say the rights of everyone are equal and may never be abridged, despite later claiming that indefinite detention in prison is an acceptable method of dealing with persons who are dangerous to society. You have made the same logical bow, that in fact it is perfectly legitimate to traduce the rights of an individual in the name of public safety by confining them to prison. So rather than stand there and explain why it is an illegitimate or immoral step to go one bit further and put exceptionally dangerous individuals to death, you have preferred to accuse me of being an authoritarian and against free speech and having never met a moral atheist and all kinds of extraneous bullshit.

My own stance has been consistent throughout. The law is an instrument of state authority to maintain social order. The American legal system originated in English Common Law, and under that system murder was prosecuted for subverting the social order and breaching the King's Peace. It was also prosecuted for violating Christian morality, and I have never said that morality had no place in law, since it so obviously does - but in a secular legal system it would be best to limit the influence of particular morality to the broadest possible principles, because failing to do so can lead to oppressive outcomes. A person's "rights" are an abstract formulation rooted in a particular social context; by which I mean they have no meaning outside the context of a social order, which can only be established by some form of authority, in other words government. Whether that is Melanesian tribal chiefs or the Westminster system matters quite a bit, but both are ultimately a form of authority maintaining a particular social order. Free Speech has no serious utility when society is being riven with blood feuds and securing food takes up the majority of your day; but likewise as most of the modern world shows, repressing freedom of speech is not necessary for preservation of public and social order. One starts with the presumption that a given action does not threaten social order, and only if it proves otherwise should it be made illegal.

The alternative approach can be summarized as "law upholds morality." Whose morality? Because if we let the majority's morality decide legal issues, the resulting code would be a lot less palatable to everyone here than one based on an approach of preserving social order. It has been shown that most reasonable people can agree on important maxims to defend social order, IE Murder is Bad, and that those resulting laws have an objective sense agreeable to sane people everywhere. Morality on the other hand is inherently subjective to the individual. So why should we start out with the premise that you and Formless have the single correct moral vision, that execution is inherently wrong? Neither of you have actually addressed that point, preferring to spin out personal attacks, insanely grasping inferences, speculation about my beliefs, semantic quibbling, and pretty rhetoric that means nothing.

[Bakustra]

A massive, massive false equivocation, along with several things that you are simply wrong about. Not in the sense of "I disagree with you", but in the sense of "denial of reality". You also don't really bother addressing my points, but I've come to expect that from you. First of all, you reduce the potential purposes of law down to two: to uphold morality and to maintain social order. What about the concept of justice? That is something that has been associated with law through the ages, but you ignore it. (You may say that justice is subjective, but the overall concept of justice, that of fairness, is one that is widely agreed upon, far more so than your belief.) And that is at the heart of the question of rights that I brought up, and which you ignored. In other words, where do the concept of rights enter into this view of social order being the sole purpose of law? I mentioned the People's Republic of China, which is a stable nation despite abridging these rights frequently. What, then, justifies human rights under your system (and saying that they are the beneficent gift of the sovereign does not justify them within the bounds of your system)?

Ultimately, there is a way by which you can salvage this without copping to feeling civil rights are extraneous, but it is only salvage in the sense of hanging on to your precious word choices, as it requires saying that social order is subjective as well and dependent on the society.

You are wrong in your description of Melanesian governments as "tribal chiefs". The Big-man is an anthropological term used to describe individuals who are the sole leaders, without formal power of any kind, of many Melanesian societies. They lead solely through their personal skills and talents. This is only a government in a very strange sense, and the distinction between that and a formal chief is massive, and it destroys your argument about dependence on a government to prevent orgies of blood and death.

Overall, what's interesting about all your complaints about how I'm forcing my morality on other people (yes, I control the world secretly, as part of the Illuminati, you've found me out) is that you don't seem to get why people might be asking one another about their views on the death penalty, as you seem to think that said queries demand a response based solely on the law. When personal opinions come into play, one might think that moral beliefs might be appropriate. But your response is to deny any relevancy to morality.

So, let us return to the question of social order and the law. What of peaceful protestors? They seek to damage the social order as you define it, by intentionally breaking laws. They also seek to induce change not based on the social order, but based on concepts of justice, equality, and morality. How exactly should they be treated under your system? How should laws based on these ideals that they propose be incorporated into the system? Should they be incorporated?

You seem very uncomfortable with discussing your system, so I will give you an out here. If you really don't want any further discussion of this, just say so, and if you stick to it, then I'll subside. If you break the agreement, though, then you'll just further prove that you're an asshole.

You also don't have any real ideological consistency. You talk about how rights must be granted, but then say in the same breath "as most of the modern world shows, repressing freedom of speech is not necessary for preservation of public and social order. One starts with the presumption that a given action does not threaten social order, and only if it proves otherwise should it be made illegal." which requires some serious mental gymnastics to make compatible with that. I doubt that you'll get that, so let me explain further.

If rights must be granted, then it is not a matter of necessity. The null state is no freedom of speech, according to you, but simultaneously the null state is freedom of speech. You have no consistency here. None. If rights are not natural, and must be granted, then the null state is for them not to exist. If the null state is for rights to exist, then they must exist outside of said social context that you trumpet. Have you thought about your ideology in any way?

I'll let you ponder the terms by which you'll dismiss my last two paragraphs for a moment. There. Now, you've conflated Formless' arguments with mine- I haven't said anything about imprisonment, oddly enough. In fact, I haven't really elucidated my opinions on the death penalty beyond a single objection to a specific argument. I never said anything about whether rights should be equal between all persons. You're simply making that up, constructing a strawman. Tear that man of straw down, sir, tear it down. It doesn't help you any, and you're frankly pathetic clinging to it.

I accuse you of expressing an authoritarian personality type because you treat your opponents unfairly, seek to control the conversation and turn it to your own ends, cast your speech in the light of a government granting the light of civilization to plebeians, ignore more democratic explanations in favor of somewhat anti-democratic ones... you're right, this is completely unjustified, you're actually just an idiot, as you've explained to me. Thanks for the clarification.

Ta-ta for now, as Tigger might say.

[K. A. Pital]

Seriously, Melanesian tribal societies used as an example of successful anarchy? Rights not being created by the proto-legal or legal system, but instead existing independently of the society and government? That's bullshit, no matter how much I'd sympathize with all other things you say, Bakustra.

[madd0ct0r]

'Because we're better then they are'

my words, not formless or bakusta's.

I still fail to see why 'A' killling somebody means that we MUST kill 'A'.

I'll accept it can be argued that we COULD kill 'A. Self-defense being an obvious case.

I don't see the argument moving it to we SHOULD kill 'A' let alone we MUST kill 'A'.

Examples:
if some prick tries to stab you but you gut him - OK
Some prick is standing 2m away with a knife, and you have a gun. You COULD kill him, but there are other ways out of the situation.
It only becomes MUST if the situation leaves no other way. (example - he's immune to reason/fear and will come at you anyway. assuming you can't just shoot him in the leg.)

Why SHOULD we kill somebody we already have incarcerated?

[Singular Intellect]

Why SHOULD we kill somebody we already have incarcerated?

To save resources better spent elsewhere. If we're dealing with individuals who are beyond rehabilitation, beyond possible doubt of being guilty, whom we intent to incarcerate for the rest of their lives, why bother keeping them alive? Why should they get free food, shelter, health care and amenities while law abiding people need to bust their asses to earn them?

On the other hand, say we cage them up in tiny cells, giving them only the absolute bare necessities and deny any kind of amenities to their existence. Nice, we're torturing them for the rest of their existence. How 'civilized' indeed.

If you got a Ted Bundy on your hands, gas him with nitrogen gas and get it over with. We'll expend resources rehabilitating and caring for those whom we have reasonable grounds to expect to become productive, civilized members of society.

[Thanas]

Why SHOULD we kill somebody we already have incarcerated?

To save resources better spent elsewhere.

BS. The death penalty does not save resources, not now, not ever.

[Mr Bean]

BS. The death penalty does not save resources, not now, not ever.

The Chinese model saves resources but then executions in China are not affairs when you fly everyone affected in call in a dozen politicians and twenty members of the local and national press on hand use a complicated method that involves some rare an expensive drugs and is almost festive in nature. That's how we execute people in America. Nor does their legal system assume that people on death row won't file anything to get their execution delayed.

This has been covered by myself that the method by which Death penalty cases are retried needs to be formalized and such cases given prominence over other cases to ensure just and speedy trials. Most of the costs from executing someone come not from the execution itself but all the costs incurred in holding someone who literally has nothing left to lose and the hundreds of thousands in legal fee's any decent lawyer can get in having executions delayed sometimes by over thirty years.

[General Mung Beans]

Why SHOULD we kill somebody we already have incarcerated?

I believe the principle of justice demands it for the crime of murder.

[Bakustra]

Seriously, Melanesian tribal societies used as an example of successful anarchy? Rights not being created by the proto-legal or legal system, but instead existing independently of the society and government? That's bullshit, no matter how much I'd sympathize with all other things you say, Bakustra.

That's not what I'm saying at all. Melanesian societies exist without a formalized government, and yet do not devolve into the orgies of blood and slaughter that MarshalPurnell suggested would be inevitable without such a formal government. I did not say that they were anarchist, though I suppose some anarchists might claim them, but rather that the "big-men" who lead such societies have no formal power. Thus, there is no formal government, unless we want to stretch the definition of government in such a way that it incorporates Melanesian big-man societies and excludes anarchism simultaneously.

Purnell, meanwhile, also suggested simultaneously that rights are a construct of government and that they are somehow natural, by saying, as I quoted:

as most of the modern world shows, repressing freedom of speech is not necessary for preservation of public and social order. One starts with the presumption that a given action does not threaten social order, and only if it proves otherwise should it be made illegal.

in response to my query about how human rights fit into his ideology of sola social order given that many societies (e.g. the PRC) ignore them without devolving into violent chaos.

This response, however, presumes that the null state of any right is for it to be permitted, which is incompatible with a societal or governmental origin for rights. If rights are a construct of society or government (which I agree with), then one starts without rights and then incorporates them, not the other way around. In other words, this so-called ideology mixes and matches the idea of the government handing down rights like the Ten Commandments with the libertarian concept of natural rights, and I decided to highlight that. I'm sorry if I was not clearer.

----------------------------------

Why SHOULD we kill somebody we already have incarcerated?

I believe the principle of justice demands it for the crime of murder.

What about restorative justice? What exactly within the principle of justice demands death for the crime of murder? Note that I'm not saying that you're wrong, but I'd like to know how you came to this conclusion.

[Simon_Jester]

Seriously, Melanesian tribal societies used as an example of successful anarchy? Rights not being created by the proto-legal or legal system, but instead existing independently of the society and government? That's bullshit, no matter how much I'd sympathize with all other things you say, Bakustra.

That's not what I'm saying at all. Melanesian societies exist without a formalized government, and yet do not devolve into the orgies of blood and slaughter that MarshalPurnell suggested would be inevitable without such a formal government. I did not say that they were anarchist, though I suppose some anarchists might claim them, but rather that the "big-men" who lead such societies have no formal power. Thus, there is no formal government, unless we want to stretch the definition of government in such a way that it incorporates Melanesian big-man societies and excludes anarchism simultaneously.

And yet Melanesian societies also exist without much concept of natural rights- and are not a model which can be emulated by large, city-building cultures. Even if they were, we would be faced with the grim example of many times and places where tribal societies engaged in bloody warfare against each other. That's not the "all against all" of Hobbes because Hobbes didn't get his anthropology right any more than Rosseau did. It's the "my family against yours, clan against clan" kind of warfare, and it can reach such a scale as to cause the deaths of a large percentage of the population in groups like this.

All evidence suggests that if we want to live at a level higher than that of Stone Age hamlets, some kind of artificially constructed 'government' is a necessity. Human beings did not evolve for an environment where we routinely encounter strangers not related to us, on minute by minute basis, without treating them like competitors or enemies. Nor did we evolve for any of a dozen other behavioral traits that life in civilized society- even peasant farming villages- imposes on us.

So I don't really see how you could expect human civilizations to work without a constructed notion of government. What works for a community of fifty people in grass huts does not work for a community of five thousand people in brick buildings- be that a college campus today or a city in ancient Sumeria.

Purnell, meanwhile, also suggested simultaneously that rights are a construct of government and that they are somehow natural, by saying, as I quoted:

as most of the modern world shows, repressing freedom of speech is not necessary for preservation of public and social order. One starts with the presumption that a given action does not threaten social order, and only if it proves otherwise should it be made illegal.

in response to my query about how human rights fit into his ideology of sola social order given that many societies (e.g. the PRC) ignore them without devolving into violent chaos.

This response, however, presumes that the null state of any right is for it to be permitted, which is incompatible with a societal or governmental origin for rights.

This is a great misunderstanding of Purnell's point. Purnell's entire point is that rights do not have a null state; the concept of "rights" cannot be defined separately from the concept of "law."

Let me see if I can explain.

It would be silly to say that there is (for instance) such a thing as "natural copyright law;" nature does not compel anyone to respect your intellectual property. You can create whatever you please in nature, but you have no assurance of anything equivalent to a copyright on it. It would likewise be silly to say there are "natural financial regulations," "natural pollution controls," a natural "code of military justice," or a natural anything within the sphere of law.*

Purnell's point on this subject is that "rights" are a form of "law." A law binding on the state, and requiring that it refrain from affecting its citizens in certain ways.

But, Purnell would seem to argue, there is no such thing as (for instance) a "natural right to a speedy trial," or a natural right to a trial at all, because in nature there is no such thing as a trial. Trials are artifacts, as much so as a house or a plow. We create them to serve a purpose, and there is nothing in the fundamental laws of the universe that compels us to create them a certain way.

Therefore, there is no "natural" shape for a trial to take any more than there is a "natural house" or "natural plow." There are of course good and bad ways to design a trial (or house, or plow), but these methods must be discovered and adapted by human beings, and no matter how 'ideal' the trial (or horse, or plow) becomes, it cannot escape its basic nature as an artifact.

One of the concepts that some societies use in organizing themselves is that of "rights:" as said earlier, laws which define protections or immunities for the citizens, and which the state is bound to enforce and honor- even to the point of enforcing these laws against itself. Such laws have been recognized in different forms in many societies- some cultures think a parent has the right to beat their children, some take the entirely opposite perspective of thinking that a child has a right not to be beaten by their parents.** It's hard to imagine two interpretations of the rights of children in society that are more different, or more incompatible... and yet we can find people who believe each of these incompatible things living in the same society, mere yards apart from each other.

*"Law" is here defined in the social sense, not the physical sense. There is such a thing as the natural proton-electron combination, since that state is defined by natural laws. But there are very few natural laws of human conduct, and those are only the ones evolution has bred into our bones.

**It is blindingly obvious to us which of these two perspectives is preferable- which is better, to put it more bluntly. But the fact that there's ever been any disagreement among anyone at all over the matter should be a tip-off to you that the human idea of "rights" is a very strange thing. Human beings tend to believe they have a "right" to do whatever they're accustomed to do, and whatever makes it easier for them to maintain what they see as the proper social order, regardless of any other concerns.
_____________________

Thus, Purnell argues, we cannot abstract out the notion of rights from the social context within which, and for the sake of which, they were defined. For most of human history the 'rights' defined in traditional cultures existed as part of a larger milieu of laws and customs. Even with the rise of natural-law theory in the 1700s, we see a strong emphasis on social context- Locke wrote about preexisting natural laws for a reason, and that reason had to do with the structure of government: the idea that you could legitimately transfer from one government to another, rather than being stuck with a super-legitimist absolute monarchy

The concept of natural law itself depends on the appeal to social order: that there is, or damn well ought to be, a code which constrains our behavior for the sake of preventing conflict between human beings.

But because of this, the idea of a "null state" for rights (or other laws) is meaningless. There are simply acts which we have decided to ban for our own good, acts we have decided to require for our own good, and acts we have decided to neither ban nor require for our own good.

The idea of rights flows first out of the observation that for our own good we must ensure that the broad majority of things people do in day to day life should not be banned- that the state should not impose a continuous burden of "you can't do that" on routine activity. That requires a first-order concept of rights: that most things ordinary people do, the government has no authority to stop you from doing; if it tries, it is acting unjustly. Aside from revolutionary governments that seek to overturn society entirely and remake it in their image, these rights are almost universally accepted de facto.*

The second-order 'political' rights are ones we talk about far more, simply because nearly all human societies take the first-order ones for granted. These are, again, derived from the observation that for our own good we must do something: specifically, we must impose procedural limits on the state, and its ability to exercise control over the shape of the political process.

*Normal governments may regulate the details of routine activity, but they generally don't try to exercise strong, direct control over it on a regular basis. Even in a tyranny, the average citizen can reasonably expect to live a normal life without being directly attacked by the tyrant's oppression- to work, to play, to raise a family, to participate in culture. Regimes where this expectation isn't upheld tend to collapse, as we now see in the Middle East where several dictatorships are collapsing or in danger of collapsing. Not so much because the citizens are pained by their lack of political rights, but because their first-order rights are under threat due to the dictators' systematic mismanagement.

If rights are a construct of society or government (which I agree with), then one starts without rights and then incorporates them, not the other way around. In other words, this so-called ideology mixes and matches the idea of the government handing down rights like the Ten Commandments with the libertarian concept of natural rights, and I decided to highlight that. I'm sorry if I was not clearer.

I don't think it's this simple. The process by which a 'right' can become established is not always formal and Ten Commandments-esque. It can be, and usually is, a process of explicit and implicit negotiation between the government and the citizenry. On the one hand, the citizens will predictably refuse to support a government that doesn't leave them room to live and a comfortable* margin of rights to protect them from it. On the other, the government will always be responsible for drawing up the legal documents and is therefore, when all's said and done, responsible for establishing exactly what your rights are. They're the ones with the printing presses, and they're the ones who maintain a set of judges to hand down court opinions.

So the correct model, I think, and I'm pretty sure Purnell thinks, is neither libertarian nor statist. The statist would say that rights are given to citizens like divine laws passed from God to man, because the state is (in his opinion) godlike compared to ordinary people. The libertarian would say that the rights were there all along and are more fundamental than government, with everyone having by default a right to do anything.

But when you get down to it, the former interpretation is absurd because one of the purposes of rights is to place restraints on the state, if need be against the state's will as shackles restrain a prisoner. And the latter interpretation is absurd because it presupposes the idea of a "natural" social law, which is as foreign to the physical-natural world around us as a "natural" house or "natural" plow would be.

And thus we are left with rights as tools created to establish the desired** social order. Not created by (more to the point, not creatures of) the government, but nontheless part of a larger social framework that must be considered before we talk about what rights people do or do not have.

*The definition of "comfortable" depends heavily on what kind of people the government is trying to rule. Mesopotamian peasants would put up with a lot more than, say, modern Frenchmen.
**(insert list of adjectives here such as "just," "stable," "pious," "victorious," "prosperous," whatever you want your society to be)

[Bakustra]

First of all, my point about Melanesia is to counter the idea that a formal government is necessary for a stable social order, which it does. It doesn't say anything else- that's just you reading anarchist sympathies into my statements.

Second of all, you're misunderstanding what I'm saying. If law's sole function is to promote social order, where do rights fit in? You are arguing for social contract theory, which Purnell dismissed earlier, by saying that society decides to cherish these rights. I suggested that as an alternative earlier, and again, Purnell dismissed it. Furthermore, I really fail to see how the idea that rights are inherent to a society makes it impossible for rights to have a null state. The society itself can be envisioned not to exist, (even if you wish to mentally cripple yourself by pretending that the rights cannot be envisioned independently), and thoughts about whether it exists naturally or is a construct can be formulated even under this mental handicapping you two apparently like to indulge in.

My point is still that one cannot really define rights solely in terms of social order as Purnell has outlined it, and his response has shown that is the case, by pretending that there is a null state of a right existing until it is forbidden alongside saying that rights are a construct of government (he specifically denied society as the constructor by rejecting social contract theory). This was done because he does not want to acknowledge any flaws in his theory, which the mere existence of oppressive states provides by suggesting that rights are not integral to social order, thus making rights not part of his theory. Either he must discard rights or discard his theory, but he chooses the quick and easy path of discarding consistency. Too bad for him.

In other words, you have not actually made a meaningful criticism, simply suggested that "the truth lies somewhere in between", misattributed beliefs to Purnell, and you have expressed support for the Hu Jintao government when it suggests that human rights are inherently Western and inimical to Chinese society unless you want to carefully re-express what you mean by society. Really, not a good showing, Simon.

[Big Phil]

'Because we're better then they are'

my words, not formless or bakusta's.

I still fail to see why 'A' killling somebody means that we MUST kill 'A'.

I'll accept it can be argued that we COULD kill 'A. Self-defense being an obvious case.

I don't see the argument moving it to we SHOULD kill 'A' let alone we MUST kill 'A'.

Examples:
if some prick tries to stab you but you gut him - OK
Some prick is standing 2m away with a knife, and you have a gun. You COULD kill him, but there are other ways out of the situation.
It only becomes MUST if the situation leaves no other way. (example - he's immune to reason/fear and will come at you anyway. assuming you can't just shoot him in the leg.)

Why SHOULD we kill somebody we already have incarcerated?

Why is locking people in a tiny little cell a morally superior to killing them? Men have been driven insane by incarceration, after all.

[Bakustra]

Ghetto Edit: I think I was too harsh in my last post. Simon, the problem that I have is that your post agrees far more with my position in an earlier post- that rights are things that are societally valued- which Purnell rejected, and yet you posted it in support of him. In fact, overall I think that you sympathize far more with my opinions. What I am arguing, overall, is that the law is not solely based on social order and its maintenance. Other concepts, such as justice, come into play here. This is frankly obvious- one cannot understand the existence of civil rights and affirmative action and anti-discrimination laws without something other than social order influencing the law. You recognize this. So why defend Purnell? He doesn't, seeing as he reduced the potential influences on the law to social order and morality, and then dismissed morality as a distant junior partner. My ultimate argument is that sola social order is a failure descriptively and a failure prescriptively. Descriptively, it cannot explain the existence of human rights. Prescriptively, it would severely restrict the inputs of people into the law, seeing as it would forbid the concept of justice, or indeed anything other than social order, from being part of consideration about the law, and produce either an inhumane system, or a hypocritical one, false to its very core.

[Singular Intellect]

BS. The death penalty does not save resources, not now, not ever.

A dead person costs nothing, a living one costs a lot. Pay careful attention to the criteria I asserted necessary before promoting the death penalty. They invalidate the predictable arguments of appeals costs and uncertainty regarding the individual in question.

[MarshalPurnell]

A massive, massive false equivocation, along with several things that you are simply wrong about. Not in the sense of "I disagree with you", but in the sense of "denial of reality". You also don't really bother addressing my points, but I've come to expect that from you. First of all, you reduce the potential purposes of law down to two: to uphold morality and to maintain social order. What about the concept of justice? That is something that has been associated with law through the ages, but you ignore it. (You may say that justice is subjective, but the overall concept of justice, that of fairness, is one that is widely agreed upon, far more so than your belief.) And that is at the heart of the question of rights that I brought up, and which you ignored. In other words, where do the concept of rights enter into this view of social order being the sole purpose of law? I mentioned the People's Republic of China, which is a stable nation despite abridging these rights frequently. What, then, justifies human rights under your system (and saying that they are the beneficent gift of the sovereign does not justify them within the bounds of your system)?

Ultimately, there is a way by which you can salvage this without copping to feeling civil rights are extraneous, but it is only salvage in the sense of hanging on to your precious word choices, as it requires saying that social order is subjective as well and dependent on the society.

You are wrong in your description of Melanesian governments as "tribal chiefs". The Big-man is an anthropological term used to describe individuals who are the sole leaders, without formal power of any kind, of many Melanesian societies. They lead solely through their personal skills and talents. This is only a government in a very strange sense, and the distinction between that and a formal chief is massive, and it destroys your argument about dependence on a government to prevent orgies of blood and death.

Overall, what's interesting about all your complaints about how I'm forcing my morality on other people (yes, I control the world secretly, as part of the Illuminati, you've found me out) is that you don't seem to get why people might be asking one another about their views on the death penalty, as you seem to think that said queries demand a response based solely on the law. When personal opinions come into play, one might think that moral beliefs might be appropriate. But your response is to deny any relevancy to morality.

So, let us return to the question of social order and the law. What of peaceful protestors? They seek to damage the social order as you define it, by intentionally breaking laws. They also seek to induce change not based on the social order, but based on concepts of justice, equality, and morality. How exactly should they be treated under your system? How should laws based on these ideals that they propose be incorporated into the system? Should they be incorporated?

You seem very uncomfortable with discussing your system, so I will give you an out here. If you really don't want any further discussion of this, just say so, and if you stick to it, then I'll subside. If you break the agreement, though, then you'll just further prove that you're an asshole.

You also don't have any real ideological consistency. You talk about how rights must be granted, but then say in the same breath "as most of the modern world shows, repressing freedom of speech is not necessary for preservation of public and social order. One starts with the presumption that a given action does not threaten social order, and only if it proves otherwise should it be made illegal." which requires some serious mental gymnastics to make compatible with that. I doubt that you'll get that, so let me explain further.

If rights must be granted, then it is not a matter of necessity. The null state is no freedom of speech, according to you, but simultaneously the null state is freedom of speech. You have no consistency here. None. If rights are not natural, and must be granted, then the null state is for them not to exist. If the null state is for rights to exist, then they must exist outside of said social context that you trumpet. Have you thought about your ideology in any way?

I'll let you ponder the terms by which you'll dismiss my last two paragraphs for a moment. There. Now, you've conflated Formless' arguments with mine- I haven't said anything about imprisonment, oddly enough. In fact, I haven't really elucidated my opinions on the death penalty beyond a single objection to a specific argument. I never said anything about whether rights should be equal between all persons. You're simply making that up, constructing a strawman. Tear that man of straw down, sir, tear it down. It doesn't help you any, and you're frankly pathetic clinging to it.

I accuse you of expressing an authoritarian personality type because you treat your opponents unfairly, seek to control the conversation and turn it to your own ends, cast your speech in the light of a government granting the light of civilization to plebeians, ignore more democratic explanations in favor of somewhat anti-democratic ones... you're right, this is completely unjustified, you're actually just an idiot, as you've explained to me. Thanks for the clarification.

Ta-ta for now, as Tigger might say.

You're being deliberately obtuse.

The "big man" in a Melanesian tribe exercises authority over others, establishes rules, solves conflicts, enforces social mores... and that's not a government? Of course, before the late 19th century the Solomon Islands were best known for headhunting and cannibalism, so yeah. Great example of how government isn't necessary. Of course Melanesia does have formal government now, though it's power is pretty weak; which is why in say, New Guinea, where tribal authority is very strong, death from internecine tribal wars is pretty common. However the difference between a government and tribe in enforcing social order through authority ultimately derived by power is a matter of scale, not kind.

As for rights, as I have consistently stated, they are meaningless without a social context. Freedom of speech as some kind of transcendent right of the dignity of people is absolutely worthless in the absence of an organized society. You would literally be shouting into the wind. Simon correctly interpreted my position of rights, as he put them, artifacts of society. In a real sense, yes, they are behaviors or customary privileges that have been long-established by general social consensus. Of course, there are other forms of rights like equality or economic rights which lack that establishment or even wide social consensus when they were introduced. In a theoretical sense, a right like Freedom of Speech is simply a collection of behaviors that are not harmful to social order and so do not need to be "justified" on any grounds at all; banning them is unnecessary for public order, and therefore should not be done. Something like equality is actually a negative sanction of the state, forbidding people from discriminating in the name of enhancing the social order. But as an artifact of society these rights have no independent, a priori existence, and are instrumentally created by the interplay between society and the law, even if one can theoretically justify them as simply the result of "that which is not forbidden for a good reason, should be permitted."

The argument for the purpose of law providing justice is a red herring, because justice is simply another term for morality. It's a sort of transcendent outcome reliant on subjective principles, which in the case of nearly every person is their own moral code. My point, in that the influence of "morality" ought to be limited in the law, is not that the law should be immoral but rather focused on a particular, objective end; the maintenance of social order. That way we do not have endless debates about whether or not the dominant morality code in the country demands that gay people be forbidden from marrying, or whether or not to force businesses to close on the Sabbath, and whether that's Friday, Saturday, or Sunday. Almost every code of morality can agree on the basic actions necessary to maintain a social order, such as Murder, Theft, Assault, Burglary, Kidnapping, etc is bad, and that people who do that kind of thing and threaten other people should be restrained from doing so. Of course the imperative of society to hold itself together trumps the scruples of any one member, and it is not as if this is some kind of conscious, formal, organized process, but nonetheless that is roughly what outcomes should be like. Social order is simply the most basic, essential rationale for the existence of a justice system and as such laws should meet that criteria as a nonsectarian, objective baseline to judge whether or not they should be implemented. One is free to campaign to change the law to enhance the public order, or end an essentially extraneous restraint imposed by it, or petition to have one's moral code better reflected in the law, but the existence of the law as an instrument of state power upholding the social order is not subject to change, only collapse.

Of course this is also an enormous tangent dredged up by Formless refusing to recognize a distinction between killing and murder. This thread is not about the origin of state power and purpose of the law, or the nature of individual rights. Except in so far as it is demonstrated that most people, including Formless, accept that the state has the power to abrogate those rights of people judged guilty of crimes to protect the broader society. And my very original point on the death penalty is that I find the moral arguments unconvincing because they rely on moral sentiments I do not share and which it is apparent most people do not either. "All life is sacred" or that "all life is equally valuable" is obviously not the case because we certainly recognize that people can take the life of someone else in various circumstances, like self-defense or during a war, and that certain lives can be prioritized over others. And the argument that the state killing people is somehow the same as murder is just incoherent and illogical, since no sane man could possibly take "murder is okay" as the lesson from an execution and insane ones will do insane things anyway. Everything else in this thread has simply been a diversion from the topic at hand, provoked by people who would rather debate form than substance.

[Bakustra]

Hey, nice job appropriating what Simon said! Too bad you rejected social contract theory earlier. So are you an opportunistic liar, clinging desperately to the vain hope that everybody else is an idiot, or are you simply unaware of how those two contradict one another?

First of all, a big-man does all that, but he or she has no formal power or authority. Big-men cannot coerce in the sense that a government can, and they have no monopoly of force. If we are to suggest that big-men count as governments, then anarchist societies count as having governments too. I suspect that you have no problem with this, but then again, I see that you dismiss this by saying that Melanesians are all cannibals and warlike. Just say that they're savages, okay? I can tell that you're thinking it, just say it and be done. The cultural faults of Melanesia have little to do with my point, which is that they maintain social order without a formal government. You indicated that this was impossible and would result in orgies of blood and death, and yet the majority of Melanesian societies have lasted for hundreds of years without collapsing.

Secondly, justify your unholy melding of libertarianism and statism. You say that the default, the null state of a right is existing. That is what is necessary for "banning them is unnecessary for public order, and therefore should not be done." to make sense in the context of rights. If rights have no existence outside of the society, then their default state is to not exist, much as the default state of the society is not to exist. You're going backwards from what your ideology implies.

You also twist social order to make everything fit within its cold, heartless bounds. Equality was hardly necessary for social order. No right is really necessary for social order, so long as there is sufficient force. Social order alone cannot explain the existence of rights. Your ideology is faulty, and you are unwilling to take it to its logical conclusions.

Now, I want you to explain why equality was implemented, why civil rights were implemented, by using only the social order ideology. Bear in mind that American society had lasted for decades without more than a pretense of equality, maintaining this through effective legalization of terror against its minority populations (which destroys your theory of murder further, but you sure as hell aren't interested in any sort of universalism despite your mewling about subjectivity). Explain why the civil rights movement would have destroyed society if civil rights had not been implemented, which is necessary for your ideology. At some point, you're going to have to give up and admit that it's not the whole story.

For that matter, explain why the ideal should be to disenfranchise people that have not been brainwashed into this ideology from participating in the law-making process, which is required for lawmakers to avoid that good ol' concept of justice or morality from seeping in to the making of law.

Also, justify that "no sane man" could possibly have killing normalized from executions. That will require you to define sanity, so I suspect you'll just throw your arms up in the air again. Ah, well.

[Bakustra]

Now that I think about it, you've been pretty slow so far, so I'll explain why Simon's valiant defense that you adopted is incompatible with a rejection of social contract theory as a meaningful description of how things work. Social contract theory relies on the idea that people implicitly agree to form a government and subordinate themselves to it, allowing a monopoly of force, etc. In order for a society to develop rights by valuing them, you need something like social contract theory, which allows for society to enshrine these things into law. Rejecting the social contract, as you did, means that rights must be handed down from on high, from the sovereign, as in the rhetoric you were using before you starting clinging to a life preserver from the S.S. Simon Jester, because the society as a whole cannot enshrine anything into law without the relationship provided by some variant of the social contract.

[MarshalPurnell]

Hey, nice job appropriating what Simon said! Too bad you rejected social contract theory earlier. So are you an opportunistic liar, clinging desperately to the vain hope that everybody else is an idiot, or are you simply unaware of how those two contradict one another?

First of all, a big-man does all that, but he or she has no formal power or authority. Big-men cannot coerce in the sense that a government can, and they have no monopoly of force. If we are to suggest that big-men count as governments, then anarchist societies count as having governments too. I suspect that you have no problem with this, but then again, I see that you dismiss this by saying that Melanesians are all cannibals and warlike. Just say that they're savages, okay? I can tell that you're thinking it, just say it and be done. The cultural faults of Melanesia have little to do with my point, which is that they maintain social order without a formal government. You indicated that this was impossible and would result in orgies of blood and death, and yet the majority of Melanesian societies have lasted for hundreds of years without collapsing.

Secondly, justify your unholy melding of libertarianism and statism. You say that the default, the null state of a right is existing. That is what is necessary for "banning them is unnecessary for public order, and therefore should not be done." to make sense in the context of rights. If rights have no existence outside of the society, then their default state is to not exist, much as the default state of the society is not to exist. You're going backwards from what your ideology implies.

You also twist social order to make everything fit within its cold, heartless bounds. Equality was hardly necessary for social order. No right is really necessary for social order, so long as there is sufficient force. Social order alone cannot explain the existence of rights. Your ideology is faulty, and you are unwilling to take it to its logical conclusions.

Now, I want you to explain why equality was implemented, why civil rights were implemented, by using only the social order ideology. Bear in mind that American society had lasted for decades without more than a pretense of equality, maintaining this through effective legalization of terror against its minority populations (which destroys your theory of murder further, but you sure as hell aren't interested in any sort of universalism despite your mewling about subjectivity). Explain why the civil rights movement would have destroyed society if civil rights had not been implemented, which is necessary for your ideology. At some point, you're going to have to give up and admit that it's not the whole story.

For that matter, explain why the ideal should be to disenfranchise people that have not been brainwashed into this ideology from participating in the law-making process, which is required for lawmakers to avoid that good ol' concept of justice or morality from seeping in to the making of law.

Also, justify that "no sane man" could possibly have killing normalized from executions. That will require you to define sanity, so I suspect you'll just throw your arms up in the air again. Ah, well.

Do tell me where the social contract everyone signed on to when exiting the state of nature exists, so that I might examine it for myself. It is a framework of looking at the relationship between citizens and the state, and not at all a serious explanation of why and how states form.

In the real world, not the world of pious mythmaking fantasy, there is no such thing as a freestanding right. They are conceptual artifacts of society, not pre-existing, independently standing things that dictate how society is organized. Your own example of the PRC shows they are not truly universal, independent precepts that everyone accepts as a matter of course, but rather ideas and memes that have originated from particular social and cultural experiences. Society existed before the idea of rights did, coming out of archaic tribal and village kinship groups unified by force and organized for the benefit of the elite holding a monopoly of violence. "Rights" were formed by a complex interplay of historical factors whereby the power of elites waxed and waned relative to other sectors of society, resulting in the extension of privileges, or the establishment of customary behaviors that could not be curtailed without threat of social upheaval. In modern Western society they have become entrenched, established by legitimacy and custom, but at a core they are just clusters of particular behaviors that are not subject to state sanction.

The law, of course, was an instrument of power and force designed to uphold the interests of the ruling elite. Since the elite generally had an interest in insuring that society continued to function, it took notice of ordinary crimes and such that afflicted the commoners. The underpinning of such interest in English Common Law was the King's Peace, which declared that subjects could not violently assail one another and made such a crime against the sovereign. The rationale for such was explained in the excerpt from Blackstone's Commentaries that I posted earlier, on the grounds of preserving public order and public morality. Having become a secular society, we have dispensed with the idea of upholding a particular public morality, which in the original was of course the Christian religion. The King has been substituted as sovereign by "the people of the United States" or the "people of state X" in court cases, but of course as mediated through the existence of their governments. And government is no less a hierarchical organization of power today than it was 5000 years ago, though the ability of the non-elite to influence matters has greatly improved.

And yes, the null state of a right is that it doesn't exist. I no more have to justify not banning people from speaking their minds than I have to justify not banning people from using funny accents, though. The burden of proof is on the person proposing to ban something. The example of the PRC may show that a state can, within a certain social and historical context, be fine with banning freedom of speech, but that is neither universal nor a justification for actually doing so. They would need to prove that preventing people from engaging in the behaviors that in the West fall under the rubric of "freedom of speech" actually pose a danger to public order and that the laws made to combat this meet the challenge and do not go further than necessary. The same applies to racial discrimination; how is it necessary to keep black people second-class citizens to maintain public order? Oh wait, it isn't. And in fact doing so brings a host of negative consequences to the social order, both from the costs of enforcing racial inequality and from the loss of talent among the tenth of the population so discriminated against. I of course do not have the time and inclination to go through and justify all laws and social changes with regard to the social order, anymore than you would to justify everything purely on moral grounds, but in any case placing the burden of proof on a restriction meets that "social order can justify anything" concern.

Nor at any point did I say that people should be disenfranchised, which is another example of you constructing strawmen; I have said repeatedly that codes of morality (from which "justice" is always defined) will influence laws, but that ideally they should be limited and that such laws should at least meet a rational, public order justification. So that while your morality may demand that (for example) no one eat meat, you should at least provide a reason why eating meat presents a threat to public order and show that your law is tailored to meet that threat proportionately. If you say law code should be based on morality it runs into the question of "whose morality?" In a diverse society that's simply an invitation to sectarian conflict, whether political, social, or violent, and it betrays the point of being secular in the first place. A public order basis is a lowest common denominator that has a much better chance of being proven objectively than any moral claim, and as such is a superior basis to arrange a law code around.

As far as executions normalizing killing, that's not the same thing as normalizing murder or making random killing acceptable. Or do we think that throwing people in prison normalizes kidnapping?