Every so often I’ve heard people say that convicting you of a crime should allow the state to do whatever it wants with you. I’ve heard suggestion of experimentation, and that criminals should lose all liberal democratic rights (freedom of speech for example).
Now here’s a thought: immorality and illegality are not the same thing. There are things that are illegal that are not immoral, and things that are immoral that are not illegal. I don’t claim to have insight into the divine writ of morality, but I can’t see any good arguments that claim that driving at 200km/hr is necessarily immoral. There are all kinds of conditions that might make it so – driving at 200km/hr through a children’s playground whilst wearing a blindfold might be a good one. Even driving at 200km/hr when road conditions are poor or you aren’t a good driver seems relatively immoral. It might, on the other hand, be a moral act if you were an excellent driver attempting to deliver someone to hospital, or completely amoral if you were driving across an endless deserted plain. But it’s almost always illegal.
As the holder of a NSW driver’s licence with good eyesight, no physical impairments, I can drive a car down the Pacific Highway at 70km/hr in peak hour if I want to. But it might not be moral to do so, if for example, I was extremely angry or upset, or otherwise not terrible reactive and alert (leave out drunkenness, as that would make it illegal).
The point of a good legal system is meant to be that the illegal is generally immoral. If there is a law against something that isn’t fairly obviously immoral, then it should be carefully considered. Perhaps, for example, you might justify such a law by saying that, although any individual doing the act in question might not be acting immorally, a crowd or society of individuals all doing that act might harm many people, and the state has a moral responsibility to innocent bystanders, and even the participants, to protect them from the consequences of such an event occurring.
The philosophies justifying law are a bit of a patchwork. A belief that wrong-doers deserve to be punished is a large part of it. In a society of moral agents all possessing a working and appropriately just yet cruel conscience, perhaps law would be a non-issue. But people seem to want the law to deliver from the outside what the conscience fails to deliver from the inside.
And so we have law, and all too often people conflate it with morality, whether that be assuming that all criminals are pathologically immoral, or that any legal action is morally sound. And in so doing they feel that a badge reading "criminal" means "not human".
But people need to be more suspicious of trusting the state with their moral decisions. Perhaps today we can look at our laws and say "well, they clearly only outlaw acts that are completely inhuman, and therefore we should strip convicted criminals of their freedom of speech." And then tomorrow, our paternal state, whom we trust like children with our moral instruction, defines "saying bad things about the state" as being illegal. And so then people who say bad things about the state have no more freedom of speech. And everyone else sleeps safer at night knowing that the state can be completely entrusted with their moral decisions.
Why do we insist on treating criminals in a humane fashion? Why do many people insist that the current humane fashion is inhumane? Because, one day, if our consciences compel us to break the law, then, even those of us who agree with the need for a legal system and the need for criminals of conscience to be punished with other criminals, that we would not lose our humanity in our moral fervour.
Or perhaps we dread the fallibility of the legal system, and fear stripping an innocent person of their humanity. Or perhaps we believe that even nasty nasty people with no conscience don’t automatically deserve endless pain. Perhaps we distrust the state, and want to allow finer grained moral decisions that aren’t always the whims of law. Perhaps we believe that it is better to treat others not as they would treat us, but as it is right to treat them.