the "uncharted waters" of vigilantism

Attorney and blog neighbor Peter Wall has written Part I of an exploration of the March/April vigilantism resolution. Not surprisingly, the topic has taken him into some pretty deep--and, in his words--"uncharted waters."

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.

Wall's question about the scope of the resolution is perhaps one of the most important for the debate. I tend to think that it refers to a society where the government and the law exist in some meaningful sense, especially after reading Rosenbaum and Sederberg, who argue that vigilantism is an essentially conservative enterprise. But nothing in LD can be taken for granted.

The matter of justification within or without the law is also interesting, and something I hadn't thought of. It creates a dilemma: one who argues that the vigilante is justified by a deeper or higher law--prior notions of morality or justice--tacitly conflates enforcement of the law with justice. Yet legal systems almost universally condemn the vigilante. Whither, then, is justification to be found?

I look forward to reading, and linking to, Mr. Wall's further musings on the subject, and thank him for taking his time to dive deep into the "uncharted waters" of this fascinating topic. Comments or questions for Mr. Wall should be left on his blog.