Obviously, the election is at the forefront of all of our minds. Many national and global issues are at stake here. Sometimes, though, when I watch the local news, it is apparent that our candidates lose focus on the trees inside the forest. The moderate city that I reside in, like many other cities, faces rising crime rates every year. Yet we focus on whether or not a stockpile of weaponry ever really existed. It is clear that it didn't exist. Meanwhile, citizens are murdered by their own every day here...at a rate higher than during the recent war in Iraq. The government largely fails to protect its citizenry on the domestic front, and stepping back a bit in time provides a reflection on what these consequences may be.

[T]he threat of retaliation is the basic mechanism by which public order is maintained in primitive societies . . . Deterrence could be a motivation. The vigor with which a victim or his kinship group avenge[s] the present wrong may influence the probability of future aggression against them. One reason why vengeance is a family obligation in primitive societies may be precisely an entity with a sufficiently long future to have a substantial interest in deterrence.
---Richard A. Posner, The Economics Of Law

Criminal law lies at the continental divide of law and philosophy, while simultaneously it occupies a common space in the overlap of moral and political thinking. Crime parasitically and obviously threatens its host society. It easily follows that for any country, state, city, or village, society and law must co-exist, and it is no novel revelation that humans fundamentally disagree about the application of norms or law to certain situations, including tolerating homicide for reasons of self-defense. Society cannot perpetuate itself without laws to avoid anarchistic uprisings, and rules of law are of no value unless they belong to a society that will disseminate these rules. Consistently, in any civilized culture, it is against the society’s mores to kill another human being. This is the general rule, however, and for every general rule in law, there exist exceptions.

One might wonder exactly what relevance the viewpoints two seventeenth-century political theorists have to say about imperfect self-defense and vigilantism, but there are indeed reasons for taking their perspectives into account. As an initial matter, the texts relating to vigilantism by Thomas Hobbes and John Locke are pure and can be read as independent analyses of self-defense and its rationales. Their works are generally “untainted by judicial discussion” and wholly “uncontaminated by the legalistic distinctions we have evolved in the common law.” As such, their theoretical works can function as a new filter through which we can view the intricacies and inconsistencies of our current American doctrine of self-defense, particularly vigilantism.

THE THEORETICAL GROUNDWORK OF REMEDIAL SELF-HELP

A person’s right to self-help, as we will see illustrated by Locke and Hobbes, results from a government’s breach of a social contract, and this concept has evolved over the last three centuries. This can be applied to the vigilante actions of Bernard Goetz the predicament of the battered woman. Punishment is a government’s way to defend itself and the lives of its citizens. Self-help occurs when the citizen is a private enforcer of the state, when the state cannot or decides not to punish. When the state fails to adequately punish those who attempt or succeed at killing its citizens, the citizens have a right to defend themselves.

JOHN LOCKE’S THEORY OF SELF-PRESERVATION

Although John Locke [and Thomas Hobbes, whose theories of self defense follow] are mainly attributed to the rise of the analytical positivism school, fundamentally, he [they] was [were] leading natural law theorists. Natural law theorists generally find that law and morality are inseparable, and speak of the unqualified authority of the sovereign. As such, Locke that there is exists not only a law of nature but also rationale to proscribe it. AlthougAn important tenet is that in society, “no one ought to harm another in his life, health, liberty, or possessions.” More clearly stated, this statement can be interpreted to bestow upon man liberty but not license to interfere with the liberty of others. Locke of course articulates the general rule against killing another man, since mankind shares ”all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another.”

A citizen of a state, pursuant to natural law, must not cause fatal harm to another citizen. It follows that for the ultimate “preservation of all mankind,” “the execution of the law of nature is, in that state, put into every man's hands, whereby every one has a right to punish the transgressors of that law” so that they may deter others from committing grevious bodily harm upon other men. Emphasizes “no absolute or arbitrary power,” thus no absolute privilege to use deadly force against an attacker, but this is allowable “according to the passionate heats,” as long as the victim’s purpose is “only to retribute to [the attacker]” according to so “calm reason and conscience.” In addition, Locke imposes the requirement that the force used in self-defense must be proportionate to the “transgression.”

Locke’s rationale justifying self-defense, or the right of man to use deadly force in retaliation against an attacker, is twofold. First, in making the choice to violate natural law, “the offender declares himself to live by another rule than that of reason and common equity.” Therefore he is not only committing harm against a citizen, but also the entire society and the natural law that governs it. Locke also of man’s right, in certain situations, to taking natural law into one’s own hands:

[E]very man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who hath transgressed that law . . . [a]nd in the case, and upon this ground, EVERY MAN HATH A RIGHT TO PUNISH THE OFFENDER, AND BE EXECUTIONER OF THE LAW OF NATURE.

With these words, Locke asserts that in the societal interest of self-preservation, and in the absence of society’s ability to defend itself and its citizens, man has the right to enforce natural law against those that threaten society’s existence. An entitlement to self-preservation, by Locke’s perspective, serves the self-preservation goals of the community in more than one way. On one hand, “every man, in the state of nature, has a power to kill a murderer” not only to protect himself and others, but also to deter further crimes against the community. If those who reject natural law and reason to do such heinous acts against others have, according to Locke, “declared war against all mankind, and therefore may be destroyed [like] savage beasts” are destroyed. It further follows that man, standing in the shoes of his community and pursuant to natural law, is allowed to defend himself with deadly force.

Allowing self-defense to function as a justification for homicide “reflects a moral entitlement to repel wrongful violence where there is no viable alternative.” Some theorists view man as being in a natural state of war, which is muted only by a social contract with the state. In this covenant, man agrees to follow the state’s rules, and the state undertakes the protection of its citizens, thus ending the condition of war.

Note: A person can only be justified in self-defense against an “imminent, unlawful deadly force,” but the actual elements may differ between jurisdictions. Of course, analysis of the elements of self-defense lie beyond the scope of this essay. To be continued in Part Two....