Vigilantism, Part 1

About a week and a half ago, Jim at decorabilia asked me if I was interested in writing something about the 2009 March/April topic for Lincoln-Douglas debate from the National Forensics League. Here is the topic:

Resolved: Vigilantism is justified when the government has failed to enforce the law.

Thinking about that topic has led me into some pretty deep water, and I am not yet ready to draft a full discussion. The resolution seems straightforward at first, but the major concepts at play are huge: vigilantism, justification, government, and law. Defining those concepts is a big task, let alone discussing their interaction in the resolution. When I sat down to sketch out an essay, my thoughts quickly veered into (for me) uncharted waters. Here is where everything dropped off the map:

If law and government are independent, then you can have one without the other: law without government, or government without law. If we assume some broad definitions for law and government—that law is an ordered system of behavioral norms and government is an exercise of power over others—then government without law would be a capricious exercise of power and law without government would produce a society where behavioral norms are followed so thoroughly that no enforcement is needed. In other words, if law and government can each exist independently and wholly without the other, then history should reveal some societies that are irrational and capricious dictatorships and some where hierarchy is utterly pointless because every member of the society already knows how to behave, and behaves that way. But no society looks like either of those. So what happens if we keep those definitions of law and government, but retreat toward the center of the spectrum, to societies with both law and government? Do we come to anything that looks like reality? Maybe—but when law and government interact, do they maintain separate but interrelated existences, or do they coalesce into unity?

The problem is not to discover what actually exists—we can experience that in our everyday lives, see it in the news, and read about it in history. The problem is how to answer the moral question of whether vigilantism—taking the law into your own hands—is justified when there are no government enforcers of the law. But if law and government have no separate existence, so that law has no determinate moral content outside of a governed society, then “when the government has failed to enforce the law” might by synonymous with “when the law has ceased to exist.” (This also raises further questions about the scope of the resolution: Are we talking about a failure to enforce a law across the board, or a failure to enforce a law within a subset of the entire jurisdiction? Does the difference matter for the discussion?) And if we are talking about “when the law has ceased to exist,” where do we derive our justification?

The reality answer seems straightforward: we just know if something is justified. And there are probably good biological and sociological reasons for that. But having an inkling of those reasons, I am still not clear on how they fit with the philosophical and legal theories that drive our public discourse, our social narratives, and our political ideologies. If we are going to assert certain political theories as the basis for our “way of life,” then we ought to have a convincing and satisfying explanation for them, so that the reality answer fits with the theory answer. I have not yet seen that explanation.

After witnessing the sometimes-rancorous debate over the stimulus bill that the United States Congress recently approved, and how the Democrats and Republicans alike seemed utterly incapable of finding an argumentative bridge between their economic theories, I am more convinced than ever that investigations of legal, political, and economic theories are not just intellectual masturbation. If we hope to have a society that coheres, persists, and serves our needs, then we need something more than just ideological bickering.

And if we’re going to make moral assessments or potential justifications of conduct that, in reality, actually occurs but which, in theory, is hard to define, then we need some solid ground. Especially if we are going to impose penalties where there is no justification for certain conduct.

At any rate, I need to do some more reading.