One of the most upsetting moments, for me, in Star Trek, is in the episode ‘Ensign Ro’ (TNG, 5:3), when one of the most decent characters in Trek, William T. Riker, does something really terrible. He directs the eponymous Ensign to remove her Bajoran earring. As any watcher of DS9 knows, the earring is a religious accessory of profound spiritual significance, a mark of being part of the faith of the Prophets. Star Trek, of course, believes in IDIC—infinite diversity in infinite combinations. How could Riker be so terrible as to declare that, on the Enterprise, an ensign was not permitted to wear a religious item?
Thursday, 16 March 2023
Saturday, 11 March 2023
Tuvix: Is Janeway a murderer?
Is Captain Janeway a murderer? This is the basic, elemental question at the root of the debate about ‘Tuvix’ (VOY, 2:24), one of the most controversial and polarising episodes of Voyager (itself a polarising instalment in the franchise). It is also a legal question.
As a reminder, Tuvix was a composite being created in a transporter accident, composed of both science officer Lt Tuvok and chef and soi-disant ‘morale officer’ Neelix. These two characters, despite or perhaps because of their odd couple relationship, rather successfully into a coherent individual sharing traits with both of them, but with his own distinct personality. When Janeway learns that it is possible to reverse the transporter accident which created this new individual (and thus, resurrect both Tuvok and Neelix), she orders that Tuvix, against his express will, be forced to be split apart. This risky procedure works, and the status quo is restored as our two main cast members return to Voyager.
Janeway would argue she saved two lives at the cost of one; indeed, she might argue that she did not even take the one life, since she merely unmixed the two component parts of Tuvix, which continued in independent existence. Many fans have argued that Janeway forced a sentient being, conscious enough to fear death and to have a sense of identity to involuntarily discontinue his existence. This is a fascinating philosophical and moral conundrum, one which the fandom will, no doubt, debate ad infinitum. This discussion, however, will seek to approach this as a legal question. Imagine, for a moment, that Voyager had amongst its stranded crew, an officer of Starfleet JAG. This legal officer, having received complaints over Janeway’s conduct, must consider if the Captain’s actions amounted to a criminal offence against the laws of the Federation?
We do not know the full code of the laws and regulations of both the Federation as a whole and Starfleet specifically. It may be that the Federation lacks any specific criminal code as a whole, and operates like the EU with member planets implementing directives about criminal law into their own planetary legal systems; indeed, a polity with the species diversity and sheer size of the Federation would struggle to have a high degree of legal centralisation. Nonetheless, we know that the Federation is a liberal, democratic state founded on the rights of sentient beings and the rule of law. (Leave Section 31 out of this–we’re talking about the legal ideal of the Federation, not how it may fall short) In these ideals, it parallels (the ideals of) our own liberal democratic societies founded on human rights and the rules of law. on comparative legal Thus, comparative legal analysis can shed some light on how Federation law would approach this issue.
On the face of it, killing someone to save another life is murder. In the (in)famous case of R v Dudley & Stephens, the defendants had killed and eaten their fellow shipwreck survivors on a desolate raft in order to prevent their own death from starvation.1 This, Lord Coleridge CJ held, was no defence to murder. The doctrine of necessity–which allows a defence to breaking the law where no other option was available—could not extend so far as to justify the choice of taking another’s life.
Yet, lurid as it is, Dudley & Stephens is the wrong comparison. Tuvix was not simply some bystander trapped in a shipwreck (though admittedly everyone on Voyager was essentially trapped on a stranded life-raft). Tuvix’s very existence was interrupting, and, if Tuvix continued living, irrevocably terminating, the lives of Tuvok & Neelix. This suggests a better comparison may be cases where one party is endangering the life of another. The sad comparator which comes to mind is the (generically named) English case of A (Children) ,2 which involved a pair of conjoined twins, Mary and Jodie, who were joined at the abdomen. If left alone, they would die within six months. However, the operation to separate the two twins would, in turn, kill Mary, who was not capable of surviving on her own. The horror of the situation (which parallels that of Tuvix) was described by Lord Justice Ward:
The reality here - harsh as it is to state it, and unnatural as it is that it should be happening - is that Mary is killing Jodie. That is the effect of the incontrovertible medical evidence and it is common ground in the case. Mary uses Jodie’s heart and lungs to receive and use Jodie’s oxygenated blood. This will cause Jodie’s heart to fail and cause Jodie’s death as surely as a slow drip of poison. How can it be just that Jodie should be required to tolerate that state of affairs? One does not need to label Mary with the American terminology which would paint her to be ‘an unjust aggressor’, which I feel is wholly inappropriate language for the sad and helpless position in which Mary finds herself. […]I can see no difference in essence between [the] resort to legitimate self-defence and the doctors coming to Jodie’s defence and removing the threat of fatal harm to her presented by Mary’s draining her life-blood. The availability of such a plea of quasi self-defence, modified to meet the quite exceptional circumstances nature has inflicted on the twins, makes intervention by the doctors lawful.
Further discussion was given by Lord Justice Brooke, who noted that the policy reasons for restricting necessity in Dudley & Stephens did not apply here, because:
I have considered very carefully the policy reasons for the decision in R v Dudley and Stephens[…] The first objection was evident in the court’s questions: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality.[…]
If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern […] that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people’s lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted.
The judges in this case were clear that it is impermissible to engage in a utilitarian calculation, or to try to weigh the worth of human lives. As Lord Justice Robert Walker said:
It is not a case of evaluating the relative worth of two human lives, but of undertaking surgery without which neither life will have the bodily integrity (or wholeness) which is its due. It should not be regarded as a further step down a slippery slope because the case of conjoined twins presents an unique problem.
How helpful is this case to the matter of Tuvix? On the one hand, the rarity and uniqueness (we can assume) of transporter accidents like the one creating Tuvix suggest that the use of the necessity defence here would not give rise to a broader copycat usage of the defence. Here, also, the argument of self-defence is powerful. Tuvix was depriving Neelix & Tuvok of their independent existence and their right to life. Yet, the comparison falls flat in other ways. Mary was not only killing Jodie, but would herself die fairly soon regardless of intervention. Tuvix, on the other hand, was apparently perfectly capable of continuing in an independent existence. Furthermore, while the action for the saving of Jodie was to protect a living creature, Tuvok & Neelix were, almost certainly, dead in the eyes of the law, having failed to meet any of the normal indicia of continued legal personhood (such as a heartbeat, consciousness, brain activity, etc). Thus, it is hard to see how the proportionate action to save the life of one person by slightly hastening the death of another can truly be compared to the situation with Tuvix.
Another approach might make a collateral attack on Tuvix’s personhood and rights. Perhaps, Tuvix has no independent legal existence except as the temporarily conjoined workings of Tuvok & Neelix. In that case, the separation of Tuvix would constitute merely technobabble-based surgery on the conjoined body of these two people. Yet, this is at odds with the actions of Starfleet (by its local representative, Janeway) in awarding Tuvix the rank of lieutenant, and assigning him duties and responsibilities reserved to sentient beings. This creates a presumption that Tuvix is a legal (and moral) person. Having had the benefit of Tuvix’s service as an officer, there is a strong argument Starfleet is estopped from regarding him as less than human. The attempt to presume a Starfleet officer was property was shown legally lacking in ‘The Measure of a Man’ (TNG, 2:9); even if it had not been, as organic sentient life, Tuvix is surely entitled to the presumptions accorded any other life form. Furthermore, Tuvix’s own testimony is that he has a subjective sense of self which is not the doubling of people, but rather the result of a sort of pseudo-parentage. If Janeway had done things properly, and held a hearing in which Tuvix had the advantage of counsel, it is difficult to see how he could be seen merely as the cancerous growth of the union of Tuvok & Neelix.
Thus, we are left with a situation where, Janeway made an executive decision to terminate one innocent life to preserve two others. Is this compatible with the democratic and constitutional values of the Federation? Here, a helpful consideration may come from Germany, whose constitution (the Basic Law or Grundgesetz) is often hailed as one of the best in the history of democracy. The first paragraph of the first article of the Basic Law reads:
Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
This mandate has been copied into the European Union’s Charter of Fundamental Rights, and we can easily imagine the Federation having some similar provision (substituting ‘sentient’ for ‘human’). The Federal Constitutional Court of Germany (Bundesverfassungsgericht or BVerfG) has had to wrestle intensely with what exactly human dignity means. One key principle is that it requires all human life to be accorded value, and bans treating human lives as merely countable or comparable tokens. The worth of every human being is at the core of this constitutional ideal. In 2006, the BVerfG considered the question of if the federal government could be authorised (in a hypothetical situation, which mercifully has never occurred) to pre-emptively shoot down a hijacked airliner containing innocent passengers, in order to prevent the hijackers from crashing the aeroplane into a populated area.3 The following excerpts from the judgment make clear precisely why killing Tuvix to save Tuvok & Neelix is fundamentally incompatible with sentient dignity and cannot have a constitutional basis in any Federation worth the name (internal citations have been ommitted) :
Taking as a starting point the idea of the constitution-creating legislature that it is part of the nature of human beings to exercise self-determination in freedom and to freely develop themselves, and that the individual can claim, in principle, to be recognised in society as a member with equal rights and with a value of his or her own, the obligation to respect and protect human dignity generally precludes making a human being a mere object of the state. What is thus absolutely prohibited is any treatment of a human being by public authority which fundamentally calls into question his or her quality of a subject, his or her status as a legal entity by its lack of the respect of the value which is due to every human being for his or her own sake, by virtue of his or her being a person. When it is that such a treatment occurs must be stated in concrete terms in the individual case in view of the specific situation in which a conflict can arise.
[…]
The desperateness and inescapability which characterise the situation of the people on board the aircraft who are affected as victims also exist vis-à-vis those who order and execute the shooting down of the aircraft. Due to the circumstances, which cannot be controlled by them in any way, the crew and the passengers of the plane cannot escape this state action but are helpless and defenceless in the face of it with the consequence that they are shot down in a targeted manner together with the aircraft and as result of this will be killed with near certainty. Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived of their rights; with their lives being disposed of unilaterally by the state, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to a human being for his or her own sake.
[…]
The assumption that anyone who is held on board an aircraft under the command of persons who intend to use the aircraft as a weapon of a crime against other people’s lives within the meaning of § 14.3 of the Aviation Security Act has become part of a weapon and must bear being treated as such also does not justify a different assessment. This opinion expresses in a virtually undisguised manner that the victims of such an incident are no longer perceived as human beings but as part of an object, a view by which they themselves become objects. This cannot be reconciled with the Basic Law’s concept of the human being and with the idea of the human being as a creature whose nature it is to exercise self-determination in freedom), and who therefore may not be made a mere object of state action.
Tuvix has been turned, by Janeway, into a mere object of state action, and his dignity denied simply to be used as a means to achieve some other state action. Tuvix was viewed, precisely as the BVerfG warned against, as simply part of a weapon against Tuvok and Neelix rather than an innocent and coherent being endowed with the same dignity attached to any sentient being under Federation jurisdiction.
Janeway, then, cannot have a lawful or proportionate reason for her actions against Tuvix. However, did her actions constitute murder? We do not have the definition of murder in Starfleet military law or in the Federation generally, but let us imagine, for the sake of argument, that it is something akin to the common law definition of murder still used in England ad formulated by Chief Justice Coke:4
Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law,
Despite the occasional ‘Psycho Janeway’ compilations one finds on YouTube, let us posit that the Captain is indeed of sound mind. We can also accept that Tuvix is a reasonable creature—he was able to reason and express his own desires and accepted as such as an officer. Voyager was not at war, and though it was a quasi-military vessel, Tuvix was hardly an enemy soldier (he was an officer of the ship!). The killing of Tuvix was deliberate and planned, which meets the malice requirements. The only remaining bit is the ‘unlawful’ characterisation, which, it is submitted, is shown by this preceding analysis to be the only interpretation of Janeway’s decision to take Tuvok’s life. In other words, Janeway, as a matter of law, is a murderer.
BVerfG, Judgment of the First Senate of 15 February 2006, 1 BvR 357/05 [Official Translation]↩︎
Modified by statute in England to remove the year and a day rule, which isn’t relevant here.↩︎
Tuesday, 7 March 2023
Welcome!
This blog is a look at Star Trek and the law! Posts will cover legal issues in Star Trek, drawing on comparative law, the canon of episodes, the extended universe, and more. Most importantly of all, there will always be a good sense of humour about it.
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