Do we have a "right" to have our rights defended?

Political Philosophy
1

If we define a “right” as some action you can take independently of anyone else, and puts no imposition on any other individual, then is it proper to label the protections afforded by the criminal justice system “rights”?

For example, the Sixth Amendment provides, among other things, that in a criminal trial the accused has the right to a speedy trial, a trial by jury, to be informed of the nature and cause of the accusation, etc.

Is the Constitution correct in labeling this a “right”? Can it be that, in the criminal justice system, a right can be redefined as a basic imposition on the government in order to preserve the rights to life, liberty and property?

Or are these procedural “rights” merely privileges mislabeled as rights? Is a Trial by Jury, or any of the other protections afforded in the U.S. Constitution ,morally required as a right? Are other protections instead of those afforded acceptable as alternatives if they provide for due process, or legal protection from the government?

While I’m on the topic, what is the Objectivist principle on compelling witnesses to testify, or appear in court? Is this an immoral use of force?

2

… what is the Objectivist principle on compelling witnesses to testify, or appear in court? Is this an immoral use of force?

Start at this post (link) in this earlier thread for some discussion on this issue.

3

Interesting, thanks for the link.

Any one else have thoughts on the first questions I posed?

4

If we define a “right” as some action you can take independently of anyone else, and puts no imposition on any other individual, then is it proper to label the protections afforded by the criminal justice system “rights”?

I would say that “Individual rights are the means of subordinating society to moral law” and that “man’s life is his by right (which means: by moral principle and by his nature), that a right is the property of an individual, that society as such has no rights, and that the only moral purpose of a government is the protection of individual rights. A ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context”. (See ‘Man’s rights’).

A person who has been merely accused of a crime does not deserve to lose his rights because of that fact. Were it not for being accused of the crime, the man would, in a free society, be able to walk away freely and not suffer the threat of having his freedoms curtailed. It proves necessary, in a law-governed society, to suspend normal rights under extraordinary circumstances, when you have good reason to believe that a person has violated the rights of another. Justice requires that the violation of the accused’s rights be minimal. The right to a speedy trial is a corollary of the right to your life – it states the extent to which that right may be curtailed. It is a right, because it protects the individual from unjust violations of an individual’s right to his life.

5

David,

While I think you make excellent points, which I agree with, I want to ask whether people think individuals have a right(something which cannot be taken away by governments) to specifically a Jury Trial (among several examples).

Or, is all a person has a right to is due process and not to be subject to the arbitrary will of governments, which can be done several ways (among which a Jury trial is just one possible way)? In which case, a trial by Jury is more of a mechanism to achieve the right to a fair trial, where it is a privilege of whichever system provides it, rather than a right in itself.

Would you agree? Or would you say the right to a Jury Trial can be proven objectively as the only way to protect the individual rights (which doesn’t appear to be the case to me, as there are circumstance in this country where Jury trials are not necessary, nor are they available in all semi-free countries), and therefore someone has to be granted one by right?

6

Or, is all a person has a right to is due process and not to be subject to the arbitrary will of governments, which can be done several ways (among which a Jury trial is just one possible way)? In which case, a trial by Jury is more of a mechanism to achieve the right to a fair trial, where it is a privilege of whichever system provides it, rather than a right in itself.

I do think that trial by jury vs. speedy trial are distinguishable, and I’m not entirely persuaded about the trial by jury thing. I would in particular say that a jury trial is not the only way to get justice, and as long as you have some mechanism of independent review, trial by professional juror or trial by panel of judges is as good a protection of the rights of the accused. In fact, I would argue that it is more objective to not have a jury of untrained random citizens. Compared to the former colonial system where the governor just told you your fate, jury trial is better: but compared to actually trained and competent objective fact-and-law evaluators, professional decision makers are better than jurors. In the current political system, I think the right to chose modes of trial is a well-motivated privelege, but not a right.

7

I agree with David that a jury trial is a procedure which is designed to ensure a person’s right to justice is recognized by government. Other procedures could serve the same purpose.

On the other hand, you could use the word “rights” to refer to a different concept: guarantees and protections actually available under a particular legal system (as opposed to those that ought to be available). If one uses the word thus, one could say: “People in the Soviet Union had no rights”, as opposed to saying “People in the Soviet Union were denied their rights”.

8

From this thread, I think I have gathered the input required to hold the following stance:

In normal affairs among individuals, individual rights do not take the form of an imposition or demand on other individuals (beyond the requirement that they do not violate rights of others). Meaning, an individual cannot demand, as a right, that I behave in a specific way or grant them some specific act.

In relation to the government, individual rights do impose such demands upon government, which must positively act and behave in certain ways to guarantee our rights are protected from it. Individuals can demand, as a right, to receive due process, a fair trial, the right to defense, the right to be told of charges against them, the right to a speedy trial, equal protection of the laws, etc., all in the expectation not to be subject to the arbitrary application of government power. The right to these things can be reasoned out objectively, and they are all corollaries of the basic rights to life, liberty and property.

Now, the actual procedures which implement these actions, such as trial by jury, certain writs, and other rules regulating government action are the particular mechanisms that protect our rights. These particulars are established by the Constitution and laws of a nation (and in some cases judicial precedents and legal tradition), and can vary so long as the basic individual rights in the preceding paragraph are met. Because they are changable by legislative action, they are not “rights” in the sense that they are inalienable and irrevocable, but they are more aptly labelled as the privileges of being a free citizen of a particular nation.

However, in the context of a specific legal system, where the laws and Constitution grant each individual these particular privileges, an individual can demand them of the government as a right because they are the means of securing inalienable rights of individuals against government power in that nation. In this instance, “rights” are being referred to as “guarantees and protections actually available under a particular legal system (as opposed to those that ought to be available)” (softwareNerd).

9

I have a question about the (American-UK) legal system(s).

As I have continued my studies of O’ism I think I have grasped most fundementals at a rudementary level, and I am aware that O’ism doesn’t cover all of the intricasies of the science of Law, but I am curious about what those more versed in these matters can answer to enlighten me about something.

As Rights are the permission to act without interference whilst persuing your rational goals and your life (as long as you also don’t infringe on others’ rights) and as ‘economic rights’ violate the principals of rights in both the meaning of the term and by application (as someone must have their rights abused to pay for the claims of others under ‘economic rights’), where does O’ism stand on the legal right to representation by a lawyer?

I admit my knowledge is limited about the subject but from what I understand lawyers are expected to give up some of their time in pro bono work but I don’t know if this is compulsary or just a public-relations idea from the law firms.

If it is compulsary then wouldn’t this amount to the same type of slavery hoisted upon doctors by socialised medicine? And if not compulsary, then how would the system work without volunteers?

I thought it might come under the Government’s (proper) license to protect rights through an objective legal system, but as I said, the pro bono work seems to negate the rights of the lawyers.

Thanks in advance for any answers to the query :smiley:

10

. . . where does O’ism stand on the legal right to representation by a lawyer?

Whether an accused, civil defendant, or anyone else has a right to have a lawyer at his own expense seems like a science of law question, not a philosophical one.

Whether one has a right to a lawyer at another’s expense, I would say no. I’d be open to the idea of the state fronting a lawyer for someone who couldn’t afford it, and then if found guilty, the person pays off the laywer as part of his sentence. If innocent, the person shouldn’t pay.

I admit my knowledge is limited about the subject but from what I understand lawyers are expected to give up some of their time in pro bono work but I don’t know if this is compulsary or just a public-relations idea from the law firms.

As far as I know, in most if not all states pro bono is not required, though they might make it sound like it. (They’re too chicken to make it required, while still trying to appease whoever it is that wants pro bono “requirements.”) See, for example, ABA Model Rule of Professional Conduct 6.1. It says every lawyer has a “professional responsibility” to do this and that. But then if you look at comment 12, it says “[t]he responsibility set forth in this Rule is not intended to be enforced through disciplinary process.”

If it is compulsary then wouldn’t this amount to the same type of slavery hoisted upon doctors by socialised medicine?

Hell yes. That’s why they make it sound compulsory without actually having the sauce to do it.

And if not compulsary, then how would the system work without volunteers?

How do we know that it doesn’t already? To answer your question, I’d need to see studies showing me, for example, how many court appointments of lawyers there were.

I thought it might come under the Government’s (proper) license to protect rights through an objective legal system, but as I said, the pro bono work seems to negate the rights of the lawyers.

It does, but I’d guess initially that’s what the public defender is supposed to be for. Like I proposed above, the state fronts the lawyer. Nobody would be compelled to be a public defender, but the government could make it a requirement that the public defender not be allowed to refuse a case on moral grounds. I don’t see a problem there.

11

After due consideration, I cannot see that an accused has the right to be provided with legal representation on the public dime – assuming a rational legal system. Matt, with respect to your idea of the state fronting for a defense attorney, I can’t see any basis for tying this to whether or not the defendant can “afford” to hire an attorney. Suppose we set the cutoff point at $20,000 a year, and the attorney fee for such-and-such defense is $10,000. The guy making $21,000 can “afford” this and the guy making $19,000 can’t. With a finding of not guilty, the poorer guy gets his costs totally covered, and the “rich” guy doesn’t. I don’t see the justice in that. I do see the potential argument that the state should compensate wrongly-accused people for the expense of defending themselves, but that should be independent of their income.

What would be bad about having system where people simply had to pay for their own lawyers, if they wanted one? I don’t mean now, when it takes forever to figure out what the statutes say and what the past 200+ years of relevant case history is. Suppose, though, that we had a nice clean statutory system where laws are simple and few in number. I’m not trying to push you out of a job – civil law will always be with us!

12

Upon reflection, I don’t see any basis for tying it to affordability, either. (Though it could be made less ridiculous than you suggest by putting the amount owed/milestones on a sliding scale, but that’s a non-issue now.)

I do see the potential argument that the state should compensate wrongly-accused people for the expense of defending themselves, but that should be independent of their income.

How about this? The state provides the option of a government defense attorney to every accused. (Disregard for now whether this should apply to really small stuff like traffic citations.) The accused may accept or may deny the attorney. He may not accept the government defense attorney and also use his own attorney. If he accepts the government attorney, he owes nothing unless and until a guilty verdict is rendered. If a guilty verdict is rendered, the criminal must pay as an add-on to this sentence the market value (an hourly rate most likely) of the attorney’s services for all billable hours. If the criminal has the money, he must pay by money. (Oh God, now I’ve raised issues of creditor priority? What have I done?) If he does not have the money (or assets), he must perform an equal amount of work at a market hourly rate. For example, he might be the A wing’s janitor at $5/hr. (He wouldn’t have to pay state taxes, but he’d get paid roughly as though he did. No sense giving him the money to give it right back to the state.)

What would be bad about having system where people simply had to pay for their own lawyers, if they wanted one?

One concern I have is the checks and balances. When an idiot (as many criminals are) doesn’t have a lawyer, what’s to keep the government from admitting evidence in violation of constitutional rights or whatever? If the idiot doesn’t claim a Fourth Amendment violation, who’s going to do it for him? The judge? (Is it now the judge’s job to be the accused’s lawyer?) The government? (Is it now the government’s job to represent the accused?) My concern here is not so much the idiot, but the system itself.

Here’s part of what I’m having trouble reconciling, then I really have to get back to my negotiation studies. Should it be a crime to lack money? I don’t think so. Should it be a crime to be an idiot? I don’t think so. Is one innocent until proven guilty? I think so. But we’re talking about potentially thrusting either an expense (a lawyer) or responsibility for a scary and potentially devastating proceeding (a criminal trial) upon someone who has presumably done nothing illegal and is presumably in this proceeding through no choice of his own? Something about that just doesn’t sit right.

As for what the alternative is, I began outlining that earlier in this post.

I’m not trying to push you out of a job – civil law will always be with us!

Don’t worry about it. I’m not sure I’d have a job under either system. :smiley:

13

I don’t know if the “checks and balances” principle is enough to justify government-funds being used for defense. However, I think that “checks and balances” is the only way one might justify it. Is there any other principle by which one might justify it?

14

One concern I have is the checks and balances. When an idiot (as many criminals are) doesn’t have a lawyer, what’s to keep the government from admitting evidence in violation of constitutional rights or whatever? If the idiot doesn’t claim a Fourth Amendment violation, who’s going to do it for him? The judge? (Is it now the judge’s job to be the accused’s lawyer?) The government? (Is it now the government’s job to represent the accused?) My concern here is not so much the idiot, but the system itself.

I’ll let you get back to your negotiation studies, but here is a quick answer. Yes: the judge. The judge is supposed to uphold the law and protect the rights of all. That would mean if there were an illegal search, the judge would not need to wait to toss the search for the defense attorney to make that motion – he would know from the facts that the search was improper. I’m not presuming that judges also have to hire PIs to check whether the arresting occifer has a history of prisoner-abuse that might support an allegation of coersion – but I doubt that people being defended on the public dime get to hire Paul Drake either. Maybe that isn’t practical, but at least the judge is there and he knows the law, and there’s no conflict of interest.

15

I don’t know if the “checks and balances” principle is enough to justify government-funds being used for defense. However, I think that “checks and balances” is the only way one might justify it. Is there any other principle by which one might justify it?

Aren’t there other contexts in which checks and balances is enough to justify government expenditure? As I understand it, having the three branches of government we have is not something objectively required. If so, what justification is there for that other than checks? If checks is the justification, then what differs about this context?

What about the requirement that an accused be indicted by a grand jury before a trial may be brought? Is that objectively required? If not, what is the justification? If it’s checks, what differs about that context?

As to whether there’s another principle by which one might justify requiring provision of an attorney, I’ll stew on that. One of the major sources of discomfort for me is the fact that an accused may have to (for all practical purposes) bear an expense when he is presumed to be innocent. I wonder how that works out to a principle.

To you and David:

It just occurred to me that the source of our disagreement may be much smaller than I thought. softwareNerd, do you agree with David that you “see the potential argument that the state should compensate wrongly-accused people for the expense of defending themselves”? If so, then it seems that we agree (or at least agree there’s an argument) that those convicted should pay the costs of their trials, while those not convicted should not. I think we only disagree on when. I am saying that the state should bear the cost until the person is convicted.

16

Aren’t there other contexts in which checks and balances is enough to justify government expenditure?

Yes, there are. I was just trying to see if there was another reason, other than checks/balances. On the checks/balances question, I would personally be in favor of keeping the system as it is on the principle of checks/balances, as long as there are limits on what a defendant is allowed for free.

As for the defendant paying back the state if he is convicted, I guess that might make sense. Not too sure. After all, the limited amount of legal advice is being provided not because the defendant is poor, but because one wants a system of checks. So, the money is like a court-cost, like the salary of judge. If defendants pay for that – which perhaps they ought to once convicted (I don’t know) – then it would make sense for them to pay for this check/balance as well.

17

I’ll let you get back to your negotiation studies, but here is a quick answer.

Oh, thank you massah! :thumbsup: But seriously, I’m now taking a short break from the middle of an all-night study marathon. I put off writing this negotiations journal in favor of other classes and of preparation for and time spent in the recording studio. Good thing I’ve got this marvelous ability to stay up for ridiculous periods of time! (Sadly, I lack the corollary ability to get up on time.)

By the way, I told the mods, but should tell you, I’m going to be out of town for a couple weeks starting in about eight hours. I think I’ll have suitable internet access, but I may not. So abnormal delays in responses are quite possible during this time.

Part of my trip is to the Baltimore/D.C. area. I begged Mom and Dad to accompany (read: transport) me to the Supreme Court for a few hours. Anything you or “softwareNerd” want me to pick up for you while I’m there? I don’t have much money, but I can get you some little token, or if you want a bigger one, you can send me the dough. Anyway, now back to your regularly scheduled thread.

The judge is supposed to uphold the law and protect the rights of all.

Agreed.

That would mean if there were an illegal search, the judge would not need to wait to toss the search for the defense attorney to make that motion – he would know from the facts that the search was improper.

The facts aren’t the only thing the judge has to know to determine the propriety of a search. He also must know the law. I have no actual experience in this area, but I would guess that many times this is rather simple. I would also guess, though, that many times it is not. What is a judge to do then? How is the judge supposed to get a good argument (or as good an argument) in favor of exclusion without a qualified advocate for the accused (Clarence Gideon notwithstanding)? How is to he to have things he doesn’t understand explained to him when there’s no one to do the explaining? It seems to me that such cases would require judicial omniscience to keep the scales from tipping towards the prosecution.

I’m not presuming that judges also have to hire PIs to check whether the arresting occifer has a history of prisoner-abuse that might support an allegation of coersion – but I doubt that people being defended on the public dime get to hire Paul Drake either.

This raises the interesting question of what investigation a judge must do. I’ll stew on this later.

18

I think, given the overwhelming complexity of legal details now, it’s absolutely imperative that you have a lawyer for you to have ANY chance of keeping hold of your rights.

If the government were reduced to doing only what it’s supposed to do, you wouldn’t NEED a lawyer so desperately because you could always hit the books and come to an understanding of the law yourself. So, ideally, all the government needs to do to protect your rights is to let you have access to books of legal codes and hopefully a good index. But in current context it’s perfectly legitimate for the state to pay for you to have representation.

19

If the government were reduced to doing only what it’s supposed to do, you wouldn’t NEED a lawyer so desperately because you could always hit the books and come to an understanding of the law yourself. So, ideally, all the government needs to do to protect your rights is to let you have access to books of legal codes and hopefully a good index. But in current context it’s perfectly legitimate for the state to pay for you to have representation.

I think youre underestimating the magnitude of this task. If you could just pick up a book of legal codes and be able to defend yourself in court, lawyers wouldnt need to spend many years learning their trade. If you have a legal system based around Common law and prior precedence, then the idea of someone learning the relevant laws themself would move from being extremely difficult to borderline impossible.

20

Part of my trip is to the Baltimore/D.C. area. I begged Mom and Dad to accompany (read: transport) me to the Supreme Court for a few hours. Anything you or “softwareNerd” want me to pick up for you while I’m there?

The scalp of Ruth Bader Ginsburg would be nice. Have a nice trip (especially on those Nebraska winter highways).

He also must know the law. I have no actual experience in this area, but I would guess that many times this is rather simple. I would also guess, though, that many times it is not.

As an “is” especially in contemporary US law, that seems both true and bad. On that note, I do uphold the virtue of PDs under current law and would significantly increase their funding, because it’s nearly impossible to know what the law is, given the current box-of-kittens with spools-of-yarn nature of US law. The recent flurry of “permission by who?” cases does raise an important question about admissibility which can’t be answered by a straight reading of the law. This is an issue that needs to be resolved by the lawmakers so that it becomes a simple matter. In the meantime, there is a simple principle that can be appealed to, namely lenity, which I hold should always prevail when the law is not clear. (Unlike the current system where that is a ‘when all else fails’ principle to be invoked rarely, I would move that principle up the hierarchy to a very prominent position).

How is the judge supposed to get a good argument (or as good an argument) in favor of exclusion without a qualified advocate for the accused (Clarence Gideon notwithstanding)? How is to he to have things he doesn’t understand explained to him when there’s no one to do the explaining?

First, I’m presuming that judges are qualified lawyers, and then some. That would mean if a warrantless search were conducted without compelling evidence of a specific crime and good reason to suspect the individual (this is both very synoptic and a proposal), then an L1 would or should know that this is an illegal search, so certainly a judge would know it. If it isn’t clear, then the benefit of the doubt goes to the defendant.

It seems to me that such cases would require judicial omniscience to keep the scales from tipping towards the prosecution.

I think this is the virtue of lenity. The defense attorney has to be clever enough to find those flaws in the law which can get his client off, which often lead to the creation of new law. If we had a law regarding warrantless searches that says “must secure permission from some person claiming to be the owner of the property”, then there’s no question about how Georgia v. Randolph would come out; OTOH if the law says “must secure permission of the owner”, then that isn’t clear enough and lenity says that Randolph will be released.

Maybe I’m being too judgmental and hindsightish but it seems to me quite foreseeable that a law reading “The government may not enter private property for the purpose of obtaining evidence without the owner’s consent” is not written clearly enough, because of the definite article on a singular noun phrase, plus the fact that more than one person can own property; and therefore, such a law would not stand. But supposing that that were the law and that nobody had noticed the problem before, then what good is the defense attorney? He might be the one to realize this fact about the law and the circumstances; or the judge might or, for that matter, the court reporter might; or, maybe none of them will get it. While I grant that having both a judge and a defense attorney applying their intellectual skills to the case and thus realizing that there is a problem in the law will tip the scales of justice further away from the prosecutor’s advantage than if you only have a judge, it’s also true that having the judge and the entire firm of Crane, Poole and Schmidt will do that even more so. That’s fine, but not on my dime, or the risk of my dime.