The Evolution of Vigilantism and the Right to Self-Defense--Returning to Locke's State of Nature

Closing arguments in the trial of Kyle Rittenhouse are scheduled for Monday.  Rittenhouse, 18 years old, is charged with murdering two men and wounding a third in Kenosha, Wisconsin.  In the summer of 2020, he traveled from his home in Illinois to Kenosha with an AR-style semi-automatic rifle, claiming that he was going to protect property from the violent protests that had been provoked by the shooting of Jacob Blake, a Black man, by a white Kenosha police officer.  He shot three men.  Two died.  The third was badly wounded.

Rittenhouse's lawyers are arguing that he shot these men in self-defense.  They contend that the first man killed--Joseph Rosenbaum--had threatened to kill Rittenhouse, and he was shot after chasing Rittenhouse and lunging for his rifle.  Rittenhouse then killed Anthony Huber after Huber had hit him with a skateboard.  Finally, Gaige Grosskreutz was wounded after he had chased Rittenhouse while pointing a pistol at him.  The defense lawyers argue that this was legal under the Wisconsin self-defense law that allows the use of deadly force only if "necessary to prevent imminent death or great bodily harm." 

It can be argued, however, that Rittenhouse was the "initial aggressor"--he provoked the encounters that led to his use of force.  He went to Kenosha with a rifle that he had illegally, and he pointed that rifle in a threatening way at all three of his victims.  All three of them could have said that they were the ones acting in self-defense.  In fact, Huber and Grosskreutz were responding to Rittenhouse's killing of Rosenbaum; and so they thought they were trying to stop an active shooter.

Although there is disagreement over whether Rittenhouse was truly acting in self-defense, most people (with the exception of some Anabaptists) agree that we all have a right--perhaps even a natural right--to use lethal force in defense of our lives.  What I find most interesting about this is how it seems to confirm John Locke's claim that we all have the right to act as vigilantes in enforcing the law of nature, which includes the law against taking innocent life, whenever we cannot rely on the state to enforce the law; and thus we are thrown back into a state of nature, where we all have "the executive power of the law of nature," which includes the power to execute wrongdoers.

If we accept Max Weber's definition of the state as a public government of officials that successfully claims the monopoly of the legitimate use of physical force within a given territory, then the state has never existed, because no state has ever had a complete monopoly of the use of force in enforcing the law and punishing violators.  

Every state must rely to some extent on the self-help of private individuals in enforcing vigilante justice.  That the state must accept killing in self-defense as justifiable homicide is the clearest and most dramatic manifestation of this.

THE GRADUAL (AND ALWAYS INCOMPLETE) EVOLUTION OF THE STATE'S PUBLIC GOVERNANCE

In the evolution of the state's enforcement of law, we can distinguish three eras: the stateless societies of the foraging era (beginning hundreds of thousands of years ago), the presumptive states of the agrarian era (beginning about 5,000 years ago), and the expansive states of the modern era (beginning about 200 years ago).  A good account of this history is the new book by Peter Baldwin--Command and Persuade: Crime, Law, and the State across History--although he says almost nothing about the prehistoric foraging era of stateless societies.

Throughout most of human evolutionary history as hunter-gatherers, the only law was vigilante law, which was what Locke called the law of nature.  There was no state to make and enforce law and punish wrongdoers.  But each band of foragers was an ordered society that was governed by customary laws made and enforced by all the adults in the band making decisions by collective deliberation leading to consensus, in which some individuals were recognized as leaders, but no individual adult could command the obedience of any other individual without that individual's consent.  In this way, all adults were equal in their freedom from domination by others and in their freedom to live as they pleased so long as they did not harm others.  Those who did harm others were punished by the group.  The punishment ranged from gossip and ridicule to expulsion from the group or the ultimate punishment--execution.

We could call this vigilante law.  The English word "vigilante" originated in nineteenth-century America as the term for those who formed "vigilance committees" to make and enforce customary laws where enforcement by the state was either absent or unreliable.  For example, in the mining camps of the American West in the first half of the nineteenth century, law and order was provided by vigilance committees.

The latest archaeological evidence as surveyed by James Scott and others confirms that indeed through most of human evolutionary history, for hundreds of thousands of years, our ancestors lived in stateless societies in bands of hunter-gatherers.  For them, all justice was vigilante justice.

About 7,000 years ago, some people in Mesopotamia formed settled villages with farming and herding, but they still organized their social life without a state apparatus.   It was only about 5,000 years ago that the first states began to appear first in Mesopotamia.  Moreover, even after the emergence of states, most human beings continued to live outside the state as "barbarians."  At the time of Locke's birth in the seventeenth century, a majority of the human population around the world was probably living in stateless societies.

The evidence from those first states in ancient Mesopotamia shows a odd contradiction between their claims of absolute sovereignty and the reality of their severely limited powers.  For example, in their written legal codes, one can see what Seth Richardson has identified as "the curious absence of the state in the text." In the prologue and epilogue to Hammurabi's Code, Hammurabi claims absolute divinely granted authority over Babylonia.  But in the hundreds of laws in his code, there is almost no reference to himself or to the central state as providing judgment or enforcement of the law.  Most of the laws seem to assume private enforcement: when something goes wrong, the wronged party must act on his own with the help of local people to investigate, try, convict, and punish the guilty parties. 

What we see here is what Richardson has called the "presumptive state": the early states in Mesopotamia were presumptive in claiming a sovereignty that they did not in fact possess. Their rhetorical claims for absolute sovereignty have been mistakenly interpreted as evidence for the reality of Oriental Despotism.

Over the past 5,000 years, some states have expanded their power to rule through autocratic bureaucracies--for instance, China under the Song dynasty (960-1279).  But even the most powerful states have had to rely to some degree on law enforcement by private individuals acting through customary laws of vengeance and compensation.

Beginning in the nineteenth century, some states began to extend their law enforcement power by inventing modern professional policing.  Previously, people had policed themselves.  Robert Peel founded the London police in 1829.  The English Reform Act of 1835 extended this system of policing to all municipal boroughs.  Boston established the first American police force in 1838.

Even today with modern state policing, most policing is by private individuals.  In the United States, there are three times as many private police as public police.  Even in statist China today, half of the police are privately employed.  That we must still rely so much on private governance shows that absolute statism--the state holding a complete monopoly of power--is impossible.

Peter Baldwin shows that throughout the history of law, for thousands of years, "justifiable homicide" has been a way for weak states to permit vigilante justice:

"Even as the authorities promulgated laws, much remained left to self-help. . . . In medieval common law, victims' widows and children personally dragged killers to the gallows, and a violated woman herself castrated and blinded the rapist.  Justifiable homicide is the polite fiction whereby a weak state agrees that certain killings are legitimate.  Ancient Greek and Roman law defined justified homicide expansively, as did most Western legal codes for the next two millennia.  A highwayman in the act, a robber using force, anyone stealing at night, someone robbing clothes at the public baths, a man having sex with another's wife, mother, sister, daughter, or concubine, a rapist of free-born women or boys: according to various codes, all could be justifiably killed on the spot.  The killer of a manifest felon would likely not be prosecuted in medieval England, or he would be protected against retaliation from the criminal's kin.  Someone burning down a house in medieval Iceland could be instantly killed in the act, as could trespassers.  Absent reliable intervention by the authorities, self-help remained the victim's most likely source of satisfaction" (48-49).

SELF-DEFENSE

Allowing homicide to be justified as self-defense shows that even the formidable power of executing wrongdoers cannot be monopolized by the state.  Locke explained the reasoning for this.  In the state of nature, hunter-gatherers adopted the customary law of nature that it was wrong to harm anyone by threatening their life, liberty, or property.  They also knew, however, that harming others was justified as punishment of those who violated the law of nature.  Consequently, any individual could rightly harm others--or even kill them--if this was necessary as self-defense against aggressive attacks (Second Treatise, secs. 6-11, 16-21).

And yet even if this was true in the state of nature, when people lived in stateless societies, we might think that once the state was established to make and enforce the law, private individuals could no longer claim a right to take the law into their own hands--to act as vigilantes.  But Locke argued that even when people are living under the rule of a state, there are circumstances that throw people back into a state of nature, so that, if only momentarily, they have the natural right to exercise the executive power of the law of nature in punishing those who threaten their life, liberty, or property, which includes the right to kill in self-defense.

Locke observed: "Want of a common judge with authority puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge" (ST, sec. 19).  When a man aggressively attacks me, and there is no time to appeal to our common judge, then I have the liberty to kill that aggressor, because the law offers me no remedy for the irreparable harm that the aggressor might do to me.  By attacking me in circumstances where I cannot appeal for protection from the legal authorities, the aggressor has thrown us into a state of nature where I have a natural right to defend myself with lethal force.

To justly claim that natural right, however, I must satisfy some standards for the justifiable use of force in self-defense.  Brandon Oto has summarized the four main ideas as Ability, Opportunity, Jeopardy, and Preclusion (AOJP).

To rightly invoke your right to use deadly force in self-defense, you must show that you believed that your attacker had the ability to cause you serious harm.  If you thought he had a gun or other deadly weapon, that would have given him the ability.  Or if he was a very strong man, or even a trained fighter, that would have given him the ability to harm you.  But if your attacker was an unarmed woman, and you were a strong man, it would not be clear that she had the ability to inflict great harm on you.

You must also show that the attacker had the opportunity to harm you.  If he had a knife, but he was far away from you, you probably would not be justified in shooting him with a gun.  You have to show that he was right in front of you, and that he could have inflicted harm on you in a few seconds.

You must also show that you were in imminent jeopardy of being harmed.  Even if your attacker has threatened you, he might turn to walk away, and then you are no longer in imminent jeopardy.  Or even if he attacks you, but then he walks away, you cannot shoot him in the back.

Perhaps the most complex standard for justifying the use of force in self-defense is preclusion.  The idea is that you should use force only when the circumstances preclude you from choosing any alternatives to force, so that there are no other safe options.

One feature of the preclusion rule is the principle of proportionality: the kind and the the degree of force that you use against an aggressor must be in due proportion to the threat.  If a man punches you, you are not justified in shooting him, unless you believe that he is capable of killing you with his fists--perhaps he's a trained boxer--and shooting him is the only way to remove his threat.  Or if you're a battered wife, in fear of being killed by your husband, you might justify shooting him as your only safe option.

One form of the preclusion principle is the "duty to retreat."  You cannot rightly use force against an aggressor if you can easily run away and safely avoid a fight.  In the United States, 12 states impose a duty to retreat when one can do so with complete safety.  But in all of those states, the duty to retreat does not apply when someone is in his home and defending it against an intruder.  This is called the "castle doctrine," based on the maxim that "one's home is one's castle."  In some states, this castle doctrine is extended to apply to when a defender is in the defender's vehicle or place of work.  This is a partial exception to the preclusion rule.

Another kind of exception to the preclusion rule is the "stand-your-ground law."  In the U.S., 38 states have laws providing "that there is no duty to retreat from an attacker in any place in which one is lawfully present."  There has been intense debate about the wisdom of such laws.  One famous example is the killing of Trayvon Martin by George Zimmerman in Florida in 2012.  Martin was a 17-year-old African American.  Zimmerman was a 28-year-old Hispanic American.  Zimmerman was a volunteer for a community watch group patrolling a gated community in Sanford, Florida.  He thought Martin looked suspicious, and he reported him to the Sanford police.  Before the police arrived, Martin and Zimmerman had an altercation; and Zimmerman shot him dead.  Zimmerman convinced the police that he had killed in self-defense, and that this was justified by Florida's stand-your-ground law.  A year later, Zimmerman was acquitted of second degree murder and manslaughter.  Many people saw this as showing how a stand-your-ground law could encourage a "shoot-first" attitude in the minds of racist people acting under the pretense of self-defense.

Even though this illustrates the disagreement over the exact standards of self-defense, there does seem to be a universal--or nearly universal--acceptance of the natural right to self-defense in all legal systems, because this right is rooted in our natural human psychology shaped in our evolutionary history in the foraging state of nature.

There are, however, some possible exceptions to this.  Joyce Lee Malcolm has suggested (here and here) that while the natural right to self-defense was once generally recognized as one of the basic rights of Englishmen, England in recent decades has moved towards denying that right.  In England, the state has really insisted that the government has a complete monopoly on the justified use of force, so the the citizens of England are prohibited from using deadly force in self-defense.  Citizens are told that when they are attacked on the street, they are prohibited from using force against their attackers.  They should shout "Call the Police" rather than "Help."  And bystanders must not help them.  A few years ago, an English householder called the police when burglars broke into his home.  He held them with a toy gun that looked real.  When the police arrived, they arrested him for a firearms offence.

In 1999, Tony Martin, a 55-year-old man, was living alone in his farmhouse in rural England.  His house had been burgled many times, and he had complained that the police had refused to protect him.  One night, two burglars--29-year-old Brendon Fearon and 16-year-old Fred Barras--broke into his house.  They had many prior convictions for various crimes.  Martin shot at them with a shotgun.  Barras was killed.  Fearon was wounded.

Martin claimed that he shot in defense of himself and his home.  But amazingly, he was charged and convicted of murder.  Later, this was reduced to manslaughter.  He served three years in prison.  He had been denied parole, because he refused to express remorse for what he did.

Cases like this suggest that the English no longer have a right to self-defense.  But there also has been an intense public outcry in England against the injustice of these cases, which might indicate that they run contrary to our natural moral sense, which includes the moral intuition that all human beings have the natural right to use force in defense of their lives, their liberty, and their property: vigilante justice is natural justice.

THE TWO FACES OF VIGILANTISM

Vigilante justice is morally ambiguous, because it can serve either good or bad causes.  We can feel moral sympathy when we see the good face of vigilantism:  citizens in the nineteenth-century American West who enforced order in an otherwise lawless territory; Guardian Angels with red berets volunteering for safety patrols in high-crime neighborhoods; or people organizing to drive drug dealers out of their communities.  Many fictional vigilantes evoke the same sympathy--such as Robin Hood, Batman, or the Virginian.

But vigilantism also has an ugly face--as in the hate-filled mob justice of lynching in the American South, or in the long history of killing Jews in pogroms.

The jury in Kenosha will have to decide whether Rittenhouse was showing the good face or the ugly face of vigilante justice.