Bleach 251. Kouga Violated Procedural Rights
The power to destabilize other souls
Kouga and Muramasa have the power to destabilize other souls, by turning one part of the enemy’s soul – the Zanpakuto – against the other. It is the ability to break the ties / hinder communication between the inner parts of one’s soul.
This power flows crudely inside Kouga’s soul, forcing its way into behavior and all layers of the mind, rupturing the bounds / the traits of Kouga’s personality. Muramasa’s personality stays intact, however. This means that the Zanpakuto is a separate soul who does not automatically / umbilically ‚channel in’ the flow of destructive impulses raising within the originating soul. While the intensity of one’s instincts can raise and defeat one’s sanity and prudence, the Zanpakuto, as a separate soul, can preserve its own destructive and moral outlook.
Kouga has been set up and seized. Then he escapes prison. Then he first takes revenge upon the three guys who have set him up and failed to show any sort of remorse and respect for his actual innocence.
Then he takes a new step, the random killing of innocent bystanders. It is either a devastating preemptive strike on those prone to misinterpret him – that is, almost everybody – or he is overpunishing people for their supposed suspicion of him.
Finally his discourse changes. He now wants to „teach” both Soul Society and his own Zanpakuto how powerless they are in front of him. He is breaking down communication with Muramasa („Quiet! Don’t order me around.”), and with other people (Genryusai: „He is blinded by his own power. Our words cannot reach him”). He starts claiming that ideals should not be followed, as they „only bring despair when you realize they’re unobtainable, [the good thing about despair being that] it releases one’s full potential”. Further, that those with power create order by keeping them in awe, that this order gains the color of justice etc. It’s the recipe „I am Justice plus I am initiating force”.
Defensive procedures in fights
How can one defend from such power? By „shielding / sealing/ closing off one’s heart”. This is what Ginrei and Genryusai do. It is a self imposed freezing of one’s own emotions and emotion dynamics. Or more precisely, a locking of the relative preset of emotional proportions (imagine an equalizer of a sound rendering application).
Defensive procedures in inner fights
The same defensive procedure should be employed by the wielder himself. Kouga must keep his own heart shielded from the destructive flow threatening from within, if he wants to preserve himself and have a normal inner communication with his own Zanpakuto.
The Kuchiki family adopted Kouga in order to closely help him submit to strict procedures to that effect, and train him to face his own power. But he fails. He is now driven by instinct alone: He is disowning the Kuchiki kenseikan but retains the leather mask, now more visible than ever.
The crucial significance of strict procedures and discipline, both at the level of personal ethics and of social interaction is finally revealed by the advent – and his so far mysterious play – of Kuchiki Byakuya. The normative definition of a shinigami entails that of disciplined force, and Byakuya is the best illustration of this norm. His line „You don’t deserve the name of ‚shinigami’” shows just how degraded Kouga has become.
Preemptive procedures in social interaction
I have so far layed the facts in eps. 250 and 251. Now the philosophically interesting question is normative: how should Kouga have behaved? What should he have brought himself to believe? When innocent but under suspicion, am I morally required to submit to certain procedures such as preventive detention? If so, why?
The question is dramatic: „Why does everyone hate me? asks Kouga. Is it because I am so powerful? Is my power so terrible?” And it has a purely philosophical pedigree, Nozick’s “procedural rights”.
Nozick says everybody’s powers are terrible enough to make it morally required for all of us to submit to procedures, which sometimes, given some level of suspicion, include preventive detention. Preventive detention is legitimate irrespective of one’s guilt or innocence. It has to do with demonstrated innocence, not with actual inncence. In other words, there are such things as procedural rights. In their absence, the level of fear due to the risk of having criminals at large would be intolerable.
Nozick believes procedural rights cannot be derived from a Lockean theory of rights, a theory which relies exclusively on negative rights and consent.
Consent is clearly not there. I am required to submit evenif I don’t want to.
And according to natural negative rights theory, one can force somebody to do something (for example to submit to certain procedures including preventive detention when under suspicion) only if that somebody is a trespasser of negative rights. That is, only if it is already proven that the person has already done something evil to someone; one should never force anybody to do something, only for not having done something good.This is an extremely attractive theory for a libertarian.
But it seems that submitting to procedures such as preventive detention is some kind of good deed required from Kouga:
„The moment people started doubting you, you should have trod lightly.”, says Ginrei.
„Trod lightly? Why? I haven’t done anything wrong”, answers Kouga.
Procedures are precisely about how lightly one is supposed to tread.
So, is walking wrong? If treading lightly is a legitimate requirement, then people in Soul Society seem to also have positive rights, apart from negative rights.
Having negative rights is having legitimate claims that others not do certain things to them. Having positive rights means having legitimate claims that other innocents positively do something for them, for example help them lift suspicion and do away with fear. In short, following procedures morally and legally requires positive action from innocents. Morally? That’s fine. Legally? Seems bad for a libertarian.
Can procedural rights and the negative theory be both saved?
I think so. My position is that sometimes walking is wrong, and that this doesn’t threaten the exclusivity of the negative rights theory.
The nub of the argument is that someone’s presence, in conjunction with other elements from the history of those there, can represent by itself a threat, regardless of that person’s intention. John may feel and ‚be’ threatened by Jill even when it’s neither Jill’s nor his fault that he is. It’s just his habits in conjunction with her being so unusual that together provoke fear and make for a threat. (Imagine a zoologist in the jungle, in the midst of a distressed group of monkeys.)
But having negative rights traditionally includes the right not to be threatened with physical force.
And if the last two propositions are true, then procedural rights can no longer be sui generis, over and above negative rights. Procedural rights are a consequence of a negative right. They flow from the right not to be threatened with physical force.
Kouga had already provoked fear at the moment of his seizure. When placed under legal suspicion, he was already guilty of having threatened others with physical force – even if his intention was not so. His punishment is to follow procedures. Special positive actions as specified by legal procedures must be taken simply for the cancellation of threat unintentionally signaled to others.
The argument shows why Kouga preventive detention was legitimate and solved Nozick’s problem by deriving procedural rights from the negative right of not being threatened with physical force.
The first reason why this is an attractive solution for me is philosophical: it deflates the number of fundamental rights.
The second is it defends libertarianism.
A third is aesthetic, at least for us as Christians: people bear the mark of guilt, even if they never intended to do evil; it is the motif of the original sin.
A fourth, again aesthetic, at least for us who like Japanese feudal culture and have an understanding of tradition: The argument has the implication that law should not be the same for everyone. It is stricter and objectively more cumbersome to those who are special in some way, for example to those powerful, in a position of authority upon others. Special positions of authority bring special risks with them, and so, these people must submit to stricter procedures: „You must bear the responsibility of carrying our great house’s name.”
Why hasn’t anybody thought of the solution before? Probably because people were mislead by Nozick’s framing of rights as ‘intrinsic’ in people, and by his focus on what the vigilantes do to those whom they punish. In Nozick’s framing, it is the latter that have their procedural rights trespassed. But procedural rights as I see them, are owed not so much to those one comes to punish when one is taking justice in one’s own hands, as to bystanders.
One trouble I see with the solution is that it’s not terribly intuitive: procedural rights seem exclusively preemptive procedures. But I can live with this. I admit that the essential virtue of procedural rights is preemption, but so what? There are full blown theories of punishment who claim this for all punishments. They go well with the negative theory of rights.