Thursday, March 8, 2012

Justice and the Individual

This post is a specific response to comments raised by my friend Dan on his blog, as well as in the subsequent Facebook discussion. The major gist of this post is a general bit of theorizing on the nature of justice and how it pertains to individuals and their rights. The end is a direct response to Dan's question regarding vigilantism in three scenarios.

First of all, I want to distinguish between different types of "justice." AS I see it, there are four different kinds of justice, and they all ultimately stem from basic rights but have different caveats and stipulations. First, there's the interruption of aggression, then deterrence of aggression, followed by the enforcement of restitution, and finally the concept of retribution.

The interruption of aggression refers to actions that specifically stop a crime that is in progress (this time period is somewhat vague, so technically this also stretches a bit along the time axis and where exactly preventing a crime becomes exacting restitution becomes a bit sticky). This is the "man breaks into your house and you shoot to kill" situation, but it also applies when you are not the direct party being attacked (you see a woman's purse being snatched and tackle the would-be thief, preventing a crime). While certain limitations obviously apply, it is my firm belief that this sort of action must be permissible in virtually all circumstances. First of all, it is important that you should be able to personally defend your rights, because any time where your rights can be violated without affording you the right to defend them leads to a situation where rights are "permitted" by the government, which is contrary to the founding principles of this country and most of western civilization. An important misconception here is that this task is specifically a job for the police. Many states reinforce this misconception through "duty to report" laws, but except in very extreme circumstances I find it difficult to support the idea that it's not OK to stop a crime that is currently in progress. There is one important caveat here: for an average citizen, the fact that a crime is in progress does not grant permission to violate anyone's rights other than the actual aggressors. This means that trespassing is still trespassing, even if it's to stop the thief leaving your neighbor's garage. Now, presumably the neighbor would not prosecute you if your actions helped to minimize his losses, but it is important for all private individuals to know that they risk opening themselves up to reprisal if they accidentally become aggressors instead of defenders. I mention this because of an equally important point with regards to government agents: as government is an institution where certain rights are sacrificed under the premise of preventing much larger potential violations. Because of this, police and other government agents have a special dispensation, subject to very specific limitations, to violate certain rights in order to pursue and apprehend criminals. When on official duty, certain cases of trespassing and detainment (kidnapping when not official) are permitted to increase the chance that crimes are stopped. On these special powers, it's also important to notice that any time when an agent is acting outside of the narrow limits on his powers, then he is not subject to their protections. A cop who enters a house without a warrant is a trespasser and subject to being treated as one (in addition to any evidence he gathers not being admissible in court).

Slightly different is the deterrence of aggression, which involves actions taken when no aggression has (yet) taken place, but are designed to prevent it from being possible or to mitigate the adverse effects of aggression automatically. One example would be laws against speeding: while such driving is potentially dangerous, no actual aggression must be demonstrated before a penalty may be assessed. So-called "aggressive" driving is a stickier matter, as simply being reckless would fall into the same case as speeding, while actual threat against another person or his property would be legitimate aggression and as such punishing force could be justified without appealing to the principle of deterrence. What sorts of things are permissible here are a little more difficult, but in general I tend to side with property owners: without violating the property or rights of anyone else, you are free to do what you like to your own property to deter aggression. If this means owning a gun, that should always be permissible. Putting up a fence and razor-wire is also the right of the owner. Booby-trapping your garage would also be fine, but at this point we start getting to a point similar to the one I made in the previous paragraph: you rights do not permit you to violate the rights of anyone else, so any non-aggressor who is harmed by your deterrence measures would have standing to initiate force against you. As to public legitimacy of this tactic, my only comment is that it must be used only rarely, as punishing those who have not yet committed aggression is a very dangerous path to walk. Speeding is usually considered acceptable, but it should be noted that this is necessary only because of the public nature of the roads. Without enforcing very clear rules in this regard, we eventually end up with the Minority Report style "precrime", but with the caveat that people can be punished without ever "knowing" that they would commit a case of aggression.

The concepts of restitution and retribution are where things really start to get less clear. When one person's property has been violated, it becomes difficult to draw the line as to what actions he may take to resolve that injury. Restitution is the act of making right or of evening a debt. When one person backs into another person's car, the first owes the second the cost of making the car as good as it was before, plus a potential premium for difficulty his (presumed) carelessness caused. While in many basic circumstances it is completely justified for an aggrieved party to obtain restitution on his own, these cases are the ones that blur the line between stopping aggression and exacting retribution. for instance, you might not initially prevent a pickpocket from getting your wallet, but you're certainly within your rights to chase him down and retrieve your property. Things get more complicated as time and other people get involved, and it as at this point that the state's additional power to bypass rights begins to come into play. Say you were robbed and the item in question ends up in a pawn shop. Unless the thief is the owner (unlikely), you cannot justly seize your property back from him, as he in a non-aggressive party. The law, on the other hand, has certain provisions that can lead to your reunion with your property. Where the line starts to get really blurry is when it comes to helping another person secure restitution from a third party. In theory I have no problems with this, but recognize that things are murky because you're ultimately trusting one person over another (maybe for good reason), and like with most things you are liable to end up an aggressor without knowing it.

Retribution is a very difficult area to deal with, simply because there's really no way to clearly define just retribution. While restitution is the act of making whole, retribution is the act of asserting vengeance, or punishment, upon an individual who has wronged another. While some degree of punishment can be considered catharsis to help make the injured party whole (especially in cases where the crime cannot really be made "right"), opening of the Pandora's box of retribution as a right for an injured person is very dangerous. Sometimes it can pull double-duty as a deterrent, but this is a case where I would definitely limit these actions to those with governmental authority, and even then I'd be very hesitant to consider most acts of retribution as valid.

The point of the preceding paragraphs was mostly that there are many parts of "justice," and as individuals we are certainly justified in taking certain matters into our own hands. Other actions, however, inherently violate rights and should either be avoided entirely or performed only within the careful adherence to limitations present in the law. An important note is that the US Constitution really has little to say about most standard "law enforcement" details, so this is almost wholly up to the constitution of whatever state you happen to live in. This makes it very difficult to comment on real details of the "justice system" as we have today in the US, so I really won't even try.

Finally, to get to Dan's original question. If it's right to fight back/kill an intruder in one's own home (based on my comments above you should be able to deduce that I believe it is), is it also right for someone to take it upon himself to end Joseph Kony's life? How about an abortionist who makes his living killing the unborn? As with most things, the exact details of the situations presented make a one-word answer insufficient, so instead I'll spent a little time unpacking both scenarios.

For those of you who don't have the internet (not sure how you're reading my blog, buy whatever), Kony is currently the subject of a massive viral campaign to bring recognition to his two and a half decades of remarkable human rights violations in Africa. Dan's question is a response to many who have mentioned their wish that "someone" would simply take it upon himself to go over there and end matters with a bullet to the head. Would such a vigilante be justified? Let's look at the question not in stark yes/no terms, but rather in the framework of the types of justice I've outlined above. In a situation where the hypothetical someone was legitimately and peacefully in Africa when Kony personally initiated violence against someone in that person's immediate vicinity, then I say yes, it's perfectly justified to step in and stop that crime from occurring. This applies whether the "somebody" is an African local or an American mercenary, or any other sort of person. Deterrence would be a similar case, and I can definitely see why people would want to help the local people being terrorized by Kony and his army, whether this be achieved through aid or by physically traveling to Africa and helping to protect the lives and homes of the people there. But note that this is different from someone who sits down, watches the video (which is propaganda, by the way. It may well be true, but it's still blatantly designed to grab the emotional hooks of its audience and manipulate their actions. Whether this is justified is another question entirely) and decides to head over there and take matters into his own hand, as this implies either pursuing restitution or retribution. And let's be honest: at this point, restitution is simply not possible. The damage has been done, and there's no way it can be made right. Lives have been lost, families destroyed, houses burned to the ground. There's no making whole, there's only punishment and end to the problem. And while if there's any case where it's right for an injured individual to pursue retribution on his own then this would be an example of it, honestly this is a problem for the society itself to deal with. Note that I said society, not government. If government is willing to step in then that's great. I'm even actually fine with the government seeking support, and the US providing some (very) limited tactical aid to help them deal with their own problem (I'm not for the commitment of any substantial group of US troops, though I've not decided if I find the troops already deployed to Congo and as advisers fall into the permissible category or not). Were one person who'd suffered under Kony to suddenly snap and decide to end things himself, I don't know that I would really be able to condemn him for it, but ultimately it's the responsibility of the communities that are effected to come together and support the rights of each and every one of them. Not for some gung-ho American cowboy to ride to the rescue.

As to Dan's other question on abortion, I really could do a whole post here (and plan to, once I feel I've gotten things nailed down as much as possible), but the short answer is this: because law and legality is ultimately dependent on rights rather than morals, pursuing such a drastic solution to something you consider morally wrong but is not, in fact, aggression would be completely unjustifiable. Now, the problem here is that the question of abortion is so incredibly convoluted and difficult to analyze from any sort of objective viewpoint that this really makes having any sane discussion problematic, but let me try to defend my reasoning here. Abortion is clearly a moral issue, and I think Christians are completely right to assert that the killing of an unborn child is a sin and should never happen. But the point of the law is not to match any particular moral code, it is to protect certain core rights and to enforce their defense equally to all. So the question is really if abortion is a violation of those core rights, and this is where things start to get impossible. Anyone who tries to reduce the question of abortion down to a single issue (be it "choice," "life," or any other single concept) is so grossly over-simplifying things that the conversation pretty much has to grind to a halt. However, there are plenty of reasons from a rights/libertarian perspective to oppose abortion, just as there are many arguments against state intervention preventing it, and this is not a debate that will be solved any time soon (or ever, for that matter). So my point is that anyone who chooses to exercise violence against someone who performs abortions cannot make the argument that he is using violence to prevent aggression, as that requires one to make assumptions about the law to get the law to support his position. Even under the standard of preventing imminent aggression, his actions aren't justified because that requires the assumption that abortion is aggression, and if he assumes that the another party can use the same process to assume that his actions are aggression and justify violence against him. This is simply an unfortunate consequence of the fallen world in which we live.

That ended up being quite wordy, but I hope that it makes my points fairly clear. Justice is not the sole province of the state, but the state does have the monopoly on using coercion against non-aggressive parties to further justice, so in many cases the state can do what individuals cannot. But the sword cuts both ways, and the state can violate the rights of individuals by not staying within the confines of its limited powers, and in doing so it actually justifies the use of force to resist its actions (since they are therefore being committed by individuals no longer under the protection of authority). Likewise, it is important for any individual to realize that he never has the right to violate the rights of a non-aggressor to achieve justice, and even his rights against an aggressor are limited.

1 comment:

  1. I agree. Your view of justice is very Judeo-Christian.

    ReplyDelete