I don’t think Madeleine’s analogy is supposed to be pushed this far. The reason we do not subject the criminally insane to retributive punishment is because their mental state means they lack culpability, the reason they are institutionalised is because they are a threat to others. Although both occur in the context of insanity they are actually separate issues. Theoretically a person could lack culpability for a crime and yet not be a threat to society.

In the case of recidivists they are both a threat to society and culpable of the crimes they are committed. Moreover the way we tell if they are a threat to society (i.e. that they are incorrigible recidivists) is by determining whether they have repeatedly and culpability committed crimes.
.-= My last blog-post ..Published – Three Strikes: Proportion and Protection =-.

I find the non-aggression axiom compelling in some respects but I feel it is open to flaws in others and as previously stated, my libertarian leanings come from my theology, not my reading of Ayn Rand, so I prefer to think of rights as duties, thus construing them more precisely. This excludes all the rights you and I would view as rubbish and includes only those worthy of the term.

Recent blog post: MandM Best Religion Blog Nominee

Interesting discussion above. I agree about the distinction of rights, though I have not fully thought thru which exist and which don’t from a biblical perspective. I tend to thing freedom of thought to be a fundamental right which I guess is related to liberty.

I understand Garrett’s sentiment about being too hung up on rights. If we are defending rights of criminals and these significantly affect the rights of non-criminals then many would suggest the criminals rights should go.

Part of the problem may be that most people don’t think deeply enough. Garrett at least can see that rights compete. Many just want a list of rights they can have because people are selfish, and many may not even realise that these can contradict each other. And ask them where rights come from…!

You post takes the concept deeper showing there is indeed no conflict. I sometimes wonder if lawyers finding inconsistencies has nothing to do with consistent law and much to do with legal activism.

While I prefer consistency and think pragmatism can be dangerous, there may need to be a degree of inconsistency if the law is not going to be rewritten from the ground up. Though new law should, in general, aim towards decreasing discrepancy.

The concept of “human rights” is nebulous and open to abuse by people like Garrett, whereas the non-aggression axiom gives a solid definition: it’s explained in the posts that I linked to.

Only when our rights are defined by the non-aggression axiom will we be truly free.

The original concept of human rights were what is known as first generation rights – life, liberty, property, etc which a person possessed by virtue of their humanity. I refuse to consider the so called second and third generation rights as human rights (e.g. education, welfare, discrimination, etc) these so called rights are more egalitarian based and as normally characterised are a load of rubbish and certainly not “rights.” (I did make that distinction in what I wrote.)

The notion of incarceration, the concept that the state has the power of the sword, it should interevene at the point your fist reaches my nose, has its roots in viewpoints that run much further back than Rousseau’s. Rousseau’s notions of social contract are just one theory, one that I do not subscribe to, Locke has a different social contract theory which I much more time for.

The Bill of Rights in NZ is not completely wrong as it does contain pretty much all the first generation rights (but for property rights though the Treaty of Waitangi covers these) but I agree it goes beyond where it should and contains some of the bogus subsequent “rights” and of course the NZ Human Rights Act is hideous.