The smaller the private role in law enforcement, the less functional is revenge. Police officers and other civil servants employed by the criminal justice system are not motivated by vengeful feelings. They are paid to administer a criminal justice system based primarily on a deterrent rationale. To be sure, even a public enforcement system relies to some extent on the “thirst for revenge” to motivate victims and sometimes bystanders to assist the police.

--Richard Posner

(Continued from Part One)

It has been said by many a citizen that "The wheels of justice turn slowly," and indeed they often do. Given this slowness to change, the decisions that lawmakes make today plainly reflect the moral judgments of the past, as well as contemporary mores. Hobbes and Locke, as social and political theorists, explore the existence of the self-defense justification based upon “general issues about the nature and justification of political and economic systems.” This broader view helps us consider the far-reaching societal consequences and moral implications of our present use of self-defense. It further follows that the Lockian concept of self-preservation, along with the essentially equivalent Hobbsian social contract applicable to society as a whole, lend themselves easily to the necessity and imminence elements of self-defense. These two theorists look at self-defense not simply as man-versus-man or man-versus-himself, but instead that “the issues that arise are so extreme that we should think of the people involved as being in a state of nature, governed by the law of nature, rather than in a situation governed by positive law.”

Indeed, when excusable homicide first became recognized in Medieval England, it was by common law an excuse, not a justification. Due to the belief that no man acting in self-defense was believed to actually have a set of choices from which to use free will, excuse was employed for its subjective, agent-relative [as opposed to justification as more objective or agent-neutral] in nature. Indeed, the medieval period saw the instinct of self-preservation as overriding any free will that defendant could have used to take charge when attacked with deadly force. Due to the overriding interests of self-preservation, and thus, preservation of the state, medieval law did not view self-defense as culpable, and although this was not a full excuse, the medieval court pardoned those who killed in self-defense. Slowly, English courts grew more willing to look after those who killed their attackers rather than die themselves, and in the initial part of the nineteenth century, self-defense became increasingly viewed as a justification defense. This fervor spread across the Atlantic Ocean, and by the midpoint of the twentieth century, American views began to recognize self-defense as an excuse under the proper elements.

Generally, self-defense is limited as a remedy in that it protects only against lethal threat. Accordingly, it is reasonable to only respond with lethal force against a person who is attempting to take his life. It follows that an aggressor should only “be exposed to reasonable responses to his attack.” This leads to determining what situations are reasonable, which requires a determination by a court that, in self-defense, lethal force was necessary. There must also be a finding that the threat of lethal force was imminent. Imminence is particularly relevant in the context of battered woman syndrome, and such necessity is a necessary part of the defense in a majority of jurisdictions. However, an elemental vagueness remains between jurisdictions, and even between different juries and judges.

THOMAS HOBBES’ THEORY OF SOCIAL CONTRACT

[T]he Law of Nature, that I may define it, is the Dictate of right Reason, conversant about those things which are either to be done, or omitted for the constant preservation of Life, and Members, as much as in us lyes.”–Thomas Hobbes

Hobbes, as a natural law theorist, articulated cornerstone reasons why society (man) seeks a peaceful state without war. In doing so, he recognized that in certain instances, killing another man is justifiable: “Men condemne the same things in others, which they approve in themselves; on the other side, they publickly commend what they privately condemne.” Thus, generally although it is generally prohibited to commit homicide, to save society or one’s own life, one may commit justifiable homicide words. Although man by nature was inclined towards war, as all things run towards chaos, certain rationales lend themselves to quest for peace.

As man’s natural state is one of war, Hobbes has articulated two fundamental laws of nature. The first law, that man strives for peace, results from the twin rationales, fear of death and the desire for a comfortable existence, above described rationales for man to seek peace through self-preservation. The second law is that man has the liberty to use whatever means necessary, within reason and judgment, to preserve his own life. From the first law, the second law follows, and it further follows that “that a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things.” This is the source of a contract, “the mutual transferring of a right,” between man and society, in which man promises to give up certain liberties and follow society’s laws. In exchange, society undertakes the responsibilities of ensuring safety and survival for its citizens, “the motive and end for which this renouncing and transferring of right is introduced is nothing else but the security of a man's person, in his life.” Therefore, a social contract has been formed, and certain consequences will follow in the event of either party’s breach, which Hobbes describes as the “that action, or omission, is called unjust, insomuch as an injury, and an unjust action, or omission, signifies the same thing, and both are the same with breach of Contract and trust” It further follows that this right to self-defense is inalienable and cannot be transferrer, renounced, or given up.

VIGILANTISM

Vigilantism is the extra-judicial use of self-help, and it naturally follows that vigilantism is see a Lockian form of self-preservation resulting from the vigilante's aspiration to maintain his idealized social order. The vigilante sees his actions as necessary and therefore justified. The community supports vigilante behavior when it is reasonable. This of course spawns potential issues of imminence, mistake and imperfect self defense.

Vigilante conduct is quite paradoxical in nature, for “how can one violate the law in the name of law and order?” Of course to begin to answer this question, we need to consider what the law is and how it came to exist in a particular society. Of course, any positivist would observe this “paradox [to be] irreconcilable and view the vigilante as more repugnant than the criminal he apprehends.” However, a natural theorist such as Hobbes would find vigilantism to be not so puzzling. In fact through very simple logic, we can accept that since “the ‘right’ to commit the original crime is not a protected legal interest, action by a vigilante in violation of that ‘right’ is not criminal.” However, no jurisdiction in the United States acknowledges the “justified vigilantism” defense as a separate theory of culpability. As a theoretical result, the “established legal system treats vigilantes no differently than other citizens.” Although codified law generally treats vigilantism as criminal behavior, it may be said that society and the vigilante both approve of the practice, and therefore support the practice of extra-judicial self-help. The hope is that by “reintroducing the possibility of apprehension and punishment,” the vigilante aids in the deterrence of future criminal behavior.

[T]he murderer, most of the time, feels innocent when he kills. Every criminal acquits himself before he is judged. He considers himself, if not within his right, at least excused by circumstances . . . He will fear death after the verdict but not before the crime. Hence the law, to be intimidating, should leave the murderer no chance, should be implacable in advance and particularly admit no extenuating circumstance. But who among us would dare ask this?

---Albert Camus