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Jus Cogens

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Rough Justice

  • Robert E. GoodinEmail author
Original Article
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Abstract

Informal justice often is castigated as rough justice, procedurally unauthorized and substantively unrationalized and prone to error. Yet those same features are present, to some extent, in formal justice as well: they do not form the basis for any sharp categorical contrast between formal and informal justice. Furthermore, some roughness in justice may be no bad thing. Certain of those elements of roughness in formal justice are inextricably bound up with other features of formal justice that are rightly deemed morally important. And rough informal justice can sometimes be used to change formal justice in more just directions.

Keywords

Rough justice Informal justice Formal justice 

In a civilized society, justice should be left to the courts, not to observers of wrong-doing or to victims of wrongdoing.

– Jon Elster1

The machinery of government would not work if it were not allowed a little play in its joints.

– Oliver Wendell Holmes, Jr.2

“Direct action” is making a comeback in the wake of the subprime crisis in the US housing market and the ensuing global financial crisis that forced so many people out of their homes.3 As in the 1930s, anti-eviction and anti-foreclosure movements have once again sprung up, helping people stay in their homes legally and physically obstructing legal authorities attempting to remove them.4 Now, as then, many people without homes squat illegally in empty properties.5 All this is done, not only out of necessity, but also in the name of justice. It is in explicit repudiation of the immoral lending practices that led to those people’s precarious housing plights in the first place.6

Here is one famous story from Spain of direct action to resist eviction after a foreclosure:

The 3rd of November was the date that the court had set for Lluís, a man who had been without work and only received 426 euros in benefits, to leave his house that was to be awarded to CatalunyaCaixa through a foreclosure process.... It didn’t occur to most families to resist an eviction....[But] Lluís said, “enough.” .... During the morning of November 3rd, 2010, ... activists of the PAH [movement, the Platform for People Affected by Mortgages,] moved towards Bisbal del Penedes, on the outskirts of Barcelona where Lluís and his son resided – with banners, green shirts, overcoats, and plenty of nerves.

Lluís continues to live in his house after five eviction attempts. Not only this, the constant denunciation and pressure put on CatalunyaCaixa has forced them to surrender. Today, Lluís sleeps soundly. The eviction has been suspended indefinitely and Lluís is no longer so worried about his case. Now he worries about people who find themselves in similar situations.... He started the campaign Stop Desahucios, which [has been responsible for] ... over one hundred prevented evictions.7

Such direct action aims, most immediately, at getting or keeping people housed. But it also aims to send a political message concerning the causes of housing injustices and the need to remedy them. As Noam Chomsky says:

Direct action carries the message forward in a very dramatic fashion. For one thing it can help people. So resisting foreclosure sometimes does help people get into their homes, but it also dramatizes the issue in a way in which words don’t. Direct action means putting yourself on the line. That’s true of civil disobedience and many other types of action, which indicate a depth of commitment and clarification of the issues, which sometimes does stir other people to do something. That’s what resistance and civil disobedience were always about. In fact, direct action has often been the preliminary to really major changes. Revolutionary changes, in fact.8

New York City Tenement House Commissioner Langdon Post was more blunt still when speaking to the City-Wide Tenants Council in 1937: “You will never get anything unless you demand it. Nothing was ever gotten in this country except when the people forced it.”9

Today’s anti-foreclosure, anti-eviction, and squatter movements all employ forms of self-help traditionally dubbed “rough justice.” Historically, that term is perhaps most strongly associated with lynching, and lynching is most strongly associated with racial oppression in the American South. But lynchings there were typically acts of oppression pure and simple—all roughness, with scant pretense of justice.10

The distinctive feature of rough justice is that it is genuinely justice-seeking, after its own peculiar fashion. People engage in it in order to promote what they regard as justice, rather than simply to oppress others or to gain unfair advantages for themselves. To bring out those features better, we might look instead to cases of lynchings in the American West, at least some of which seem to have had genuinely justice-seeking motivations.11 Those will serve my initial examples of “rough justice,” although as the article progresses, I shall go on to offer raft of other examples, both past and present, to demonstrate the fuller range and wider implications of the phenomenon.

1 Rough Justice:  A Generic Characterization

Rough justice such as meted out by lynch mobs in the American West, for example, is “rough” in three respects:
  • First, it is unauthorized. No one appointed the lynch mob as judge and jury. With lynch mobs, and rough justice more generally, people are “taking the law into their own hands.”12

  • Second, the lynch mob’s justice is rough in being at best likely to be only approximately proportionate to a person’s just deserts.13 Rough justice is only approximate not only in respect of how much justice it metes out but also as regards to whom (the lynch mob may well have hung the wrong person).

  • Third, the lynch mob’s justice is vague as regards its rationale as to why it metes out the justice it does. Some members of the lynch mob act for one reason (the culprit killed the sheriff), others for another (the culprit is a foreigner). The lynch mob has no mechanism for eliciting an agreed, authoritative rationale for the actions being undertaken.

Those three features define the “roughness” of “rough justice” for purposes of my present discussion.

In some more colloquial sense, excessively harsh or cruel treatment meted out by legal authorities (such as police shooting unarmed black men on American streets) might well be described as “rough justice.” Certainly it is rough treatment. But if it is legally authorized (as US courts persistently find such police actions to have been), then it does not count as “rough justice” on my definition. Neither do “political trials”—perversions of justice although they may be, by external standards of justice—insofar as they operate strictly in accordance with the laws and constitutions of the jurisdictions in which they occur.14

Neither does all rough treatment by unauthorized agents count as “rough justice.” Roughing up someone, or worse, counts as rough justice only if it is done in the name of justice. The test is what the people themselves thought they were doing. If they were pursuing justice according to their own lights, that is sufficient to qualify their action as an instance of “rough justice” in terms of the present discussion.

“Their” judgments about justice may well differ from “ours.”15 We may thus thoroughly disapprove of what the agents did, while still acknowledging that it was (from their point of view, at least) intended as “rough justice.” About such substantive disagreements over the correct principles of true first-order justice, I shall here have nothing to say. My concern here is instead with “rough justice,” not as a category of moral assessment, but merely as a sociological category of action defined in terms of the actors’ own motivations.

The roughness of rough informal justice, as defined by the three features listed above, is problematic in two ways. Firstly, being unauthorized, informal rough justice is procedurally illegitimate.16 Secondly, being unrationalized and only approximate, rough informal justice substantively unreliable. Each is a bad-making feature to our ordinary way of thinking about justice, whatever our substantive first-order standards of justice might be.

In both of those respects, the rough informal justice of the lynch mob is presumably in stark contrast to the formal justice that is meted out by civil authorities—or so we would like to think. It turns out, however, that a fair bit of roughness characterizes formal civil justice as well—and in the end, that may be no bad thing.

Firstly, there are reasons we should content ourselves with roughness in our justice, both formal and informal. In the realm of formal justice, certain elements of roughness are necessary corollaries of what everyone, whatever their particular views about first-order substantive justice, would agree are morally important structural aspects of formal justice. Secondly, in the realm of informal justice, rough justice can (sometimes, if not always) help to transform systems of formal justice in more just directions (from the point of view of those engaged in the rough justice, with which we ourselves may or may not agree). Those are the two main claims of this article.17

2 Rough Justice as a Social Practice

Let us begin with a catalogue of the sorts of things associated with rough informal justice as a social practice.

Lynching is an extreme case in several respects—not least in its being ordinarily lethal.18 But many forms of rough informal justice stop well short of death. Recall the practice, familiar from American Westerns, of “tarring and feathering” someone, or “riding him out of town on a rail.”19 The British version was gentler still: there, the “riding” was often done by an effigy or a neighbor symbolically representing the person being shamed.20 For another non-lethal example, consider this case from contemporary Ghana:

A [pursuer] ran after [a] young man [carrying a stolen purse] and grabbed him. Soon young men emerged from houses, businesses and connecting streets, many running with an enthusiasm usually reserved for the football pitch. Some carried large sticks. Suddenly the young man with the purse was being slapped and punched... A boy, not older than 10, followed the procession. “He won’t steal again,” he said smiling.21

Often, rough informal justice is merely in lieu of the due process of formal justice, as in miners’ courts on the goldfields during a gold rush or the “social courts” that resolved disputes among neighbors in the German Democratic Republic.22 But sometimes, rough informal justice is literally in opposition to the dictates of formal justice.

Thus, for example, when in 1890 eleven Sicilians were acquitted of murdering the New Orleans chief of police, a mob forced its way into the prison, seized the Sicilians, and hung them. Here is the report of these events that appeared in the New Orleans Picayune:

Yesterday the people of this city rose in wrath and indignation at the corruption and perversion of the machinery to which was delegated the administration of justice. They did not overwhelm and sweep away the officials, but, brushing them aside, they took in their own hands the sword of justice, and they did not lay it down until they had executed vengeance upon the criminals whom the corrupt ministers had excused and set free.23

Rough justice is used not only to remedy the maladministration of formal justice by corrupt officials.24 It often represents the literal substitution of popular morality for that embodied in the legal code. As one Colorado newspaper said, in commenting on an 1883 lynching: “Eastern philanthropists may lift their hands in horror at this violation of the written law, but they must remember that there is an unwritten law that in many cases is more just than the written law.”25

Rough informal justice occurs not only because formal courts are too soft. It can also occur because they are too distant or too slow. In Blackstone’s Commentaries on the Laws of England, there is a whole chapter devoted to “The Redress of Private Wrongs by the Mere Act of Parties.” That chapter sets out circumstances in which “the law allows [a] private and summary method of doing one’s self justice... because [such] injuries... require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.”26 Blackstone lists several, including the defense of oneself or one’s close relations or associates from attack and retrieving stolen chattels (which in Blackstone’s day included one’s wife). In such cases, Blackstone tells us the common law would allow “self-help”—“redress of one’s wrongs by one’s own actions, without recourse to legal process.”27

Sometimes rough justice is employed because there is no formal legal system in place at all. That was the case in the Yukon, at the outset of the gold rush.28 That was the case in the social contract theorist’s imagined state of nature, where “every man hath a right to punish the offender, and be the executioner of the law of nature” in the famous phrase from Locke.29 Anthropologists tell us that self-help remained the general rule, even as systems of primitive law began to emerge—and indeed, even long after enforcement mechanisms were firmly in place.30

Self-help was also the general rule within traditional international relations.31 In the absence of a system of law, and courts with power to enforce their rulings, each sovereign was left pressing his own claims.32 First and foremost, that was a right of literal “self-help.”33 But that was buttressed by a doctrine of “solidarity,” whereby other sovereigns in the international community may assist the aggrieved party in pressing its legitimate claims.34

Relying on self-help rather than independent arbiters does indeed have all the disadvantages that Locke points out. Locke is right to say that “self-love will make men partial to themselves and their friends: and on the other side, ... ill nature, passion and revenge will carry them too far in punishing others....”35 That is one way in which the two main characteristics that I earlier attributed to rough justice are linked. Unauthorized rough justice amounts to self-help and support for those with whom you feel in particular solidarity. And that fact can easily make you mistake the quantum of justice that is due.

Rough justice is swift, summary justice—with all the costs and benefits that entails. One Iowa editorialist boasted in 1884 that, whereas the wheels of formal justice turn slowly, “lynch law does its work speedily, surely and without cost to the county.”36 But errors and excesses inevitably ensue once you abandon the “cold, calculating, unimpassioned reason” of formal processes, and “substitute the wild and furious passions” of the lynch mob for the “sober judgments of courts.” Abraham Lincoln said as much in protesting the lynching of an abolitionist newspaper editor, half a century before.37

Those are the sorts of things we associate with rough informal justice, and those are the sorts of things we think are wrong with the practice. But my claim in the next section will be that all justice—formal as well as informal—is inevitably more or less rough in several of the same ways. And my further claim will be that that may be no bad thing, in certain respects.

3 Formal Justice Is Often Rough, Too (and for Good Reasons)

When thinking about rough justice, we are often tempted to draw a stark categorical contrast between formal and informal justice, and to associate rough justice with informal justice alone.38 My counterclaim here will be that both formal and informal justice can be rough, in both of the procedural and substantive dimensions already mentioned. The conventional wisdom is doubtless right that informal justice is typically “rough” in both of those respects. But the conventional wisdom is wrong to overlook the fact that formal justice itself is rough in similar respects, to some extent. It is simply not true that there is any categorical contrast between informal and formal justice, based on the fact that the one is always rough and that other never is. It may be less bad for formal justice to be rough in these ways (because, for example, its verdicts are usually subject to appeal, whereas those of rough informal justice are usually not). But there is no escaping the fact that roughness is present in formal justice, too—and for good reasons, as I shall show.

3.1 Broadbanding Justice

Consider first what I shall call the “broadbanding of justice.” One source of roughness in informal justice is that it often admits only of very rough-grained responses to differing degrees of deservingness.

Imagine you are herding cattle out on the high plains far from any court of law, and discover someone stealing some of your cattle. Your options are pretty limited: you can hang him; you can bullwhip him; you can brand him; or you can just let him go. In a court of law, there would be many more fine-grained options: fining the rustler the price of one, two, twenty, two hundred cows; incarcerating him for one, two, twenty, two hundred days or months or years; and so on. But the informal justice available on the open range is necessarily rougher, insofar as it admits of no such fine-grained responses.

One way of putting that point is to say that there is a certain “lumpiness” in the remedies available through rough informal justice, unlike more formal codes of justice. But notice that there is lumpiness in formal codes too—and for good reasons. The lumpiness derives from the “rule of law” itself.39

Governing people through a system of rules, known in advance and applied impartially, obviously has huge moral appeal. But notice what rules invariably do. They lump together cases that are similar in respects picked out by the rules—regardless of how different those cases may be in all sorts of other respects. That’s what we do whenever we subsume particular cases under general rules.40 If there were as many rules as there are cases, there would be no rule of law at all. The accretion of precedents over time might render formal rules increasingly sharp41—but inevitably at the cost of making any given rule apply to fewer and fewer cases. At the limit, each case becomes sui generis, and the rule of law has collapsed altogether.42

3.2 Roughly Justified Justice

Another aspect of the roughness of informal justice is that it is only “roughly justified.” It has no mechanism for providing an authoritative rationale for the justice that is dispensed. This is ostensibly in sharp contrast to courts of law, where judges paradigmatically provide reasons for their decisions.

The contrast is more apparent than real in several respects, however. For one: trial juries (at least in Anglo-American jurisdictions43) do not provide reasons, merely verdicts. Individual jurors may talk to reporters afterwards.44 But there is no collective rationale for the verdict that is rendered by the jury as a whole.

Even on appeal, reasons for decisions are not always clearly given. When an appellate court declines to hear a case, it need give no reasons for doing so. Or again, in multi-member appeals panels, the whole bench need not agree on a single rationale; different judges can, and often do, write separate opinions offering different reasons for one and the same outcome in the case at hand.

Legally, there are good reasons for courts to content themselves with “incompletely theorized agreements” that “leave some things unsettled” in just that way.45 Democratically, too, in a pluralistic community, there are good reasons to content ourselves with a policy that can be acceptable to all, albeit each for their own reasons.46 The pragmatic point, in both cases, is not to pick fights needlessly. What we need to agree is “whether to φ,” we do not strictly need to agree “why to φ.”

But it is arguably right, and not merely convenient, to refrain from issuing edicts that are more general than are strictly required for the purpose at hand. The reason is this. Those general edicts threaten to bind us in circumstances that may be importantly different than the present one—in ways that we cannot anticipate in advance, or craft our general edict around accordingly.

3.3 Roughly Authorized Justice

A third element of roughness in informal justice is that it is dispensed by people who are not authorized to do so. The lynch mob operates outside the law. Courts of law, in contrast, are legally authorized to adjudicate cases.

There, the contrast is clear enough. Backing away from the limiting cases of the courts, however, the contrast becomes less clear. Once again, the same features of rough informal justice sometimes reappear in formal systems of justice as well.

For a start, remember that what looks like rough informal justice might itself actually be more-or-less formally authorized. Think again of the American West. Members of a sheriff’s posse operate under legal authority, that of the sheriff.47 Indeed, insofar as they have been formally deputized, members of the posse are lesser authorities in their own right—at least as long as they operate within the terms of their authorization.48

In between the lynch mob and the properly constituted posse are cases of “Committees of Safety” or “Vigilance Committees” also found in the American West.49 The former were para-legal bodies, whereas the latter operated completely outside the law. But even Vigilance Committees were sometimes highly organized. Some had formal bye-laws, an Executive Committee, and thousands of formally enrolled members.50

Beyond their formal membership, vigilantes claimed the authority of the larger community. Recall in this connection the New Orleans editorial upon the lynching of the Sicilians that was quoted earlier. As The Virginian put it:

[The people] are where the law comes from, you see.... And so when your ordinary citizen sees [the formal system fail] he must take justice back into his own hands where it was once at the beginning of all things. Call this primitive, if you will. But so far from being a defiance of the law, it is an assertion of it–the fundamental assertion of self-governing men, upon whom our whole social fabric is based....51

Whether or not you accept the republican ideology in terms of which their authority is claimed,52 at least the Vigilante Committees had a story to tell about how they were actually acting with authority. And they often enjoyed considerable popular support, extending to some eight-tenths of the San Francisco population even according to the estimate of the brother of the California governor opposing their activities.53

Turn now to consider the other side—the way that formal systems themselves work. Ignore courts, which may seem a special case, being authorities in their own right.54 Think instead about systems of public administration, in which one set of people operate on authority delegated to them by someone else in higher authority.

As with posses in the old Wild West, so too with today’s street-level bureaucrats: they operate with legal authority, so long as they operate within the scope of their delegated authority.55 To the justified rage of the Black Lives Matter movement, US courts keep saying that police officers who have killed unarmed black men have indeed acted within the scope of their authority. Hence, whatever we may say about the unwarranted roughness and excessive force involved, those killings—being legally authorized—do not count as “rough justice” as I am here using the term.

Of course, if agents act ultra vires, outside the terms of their delegation, they are from a legal point of view acting as private individuals rather than public officials.56 But that is an issue to be settled in a court of law, after the fact. The reality on the ground is that street-level bureaucrats have the power that they do, both to use and abuse their authority, purely by virtue of the fact that they are the authorized agents of the state. The very fact that they are authorized empowers agents (in practice if not at law) to act in ways outside the scope of their authority. In this way, unauthorized rough justice happens within—and because of—systems of formal justice and the authorizations and delegations contained within it.

Step back now from extreme cases of rogue officials operating beyond their authority, and look at the content of those delegations of authority themselves. When delegating a task to subordinates, superior authorities typically give those subordinates some discretion in how they are to exercise their role. That is done for the same reason that courts decide cases in a minimalist fashion, leaving whatever the present case permits “undecided,” rather than setting precedents the full ramifications of which they cannot foresee. When delegating tasks to subordinates, we likewise leave much open in the instructions we give them, precisely because we cannot fully foresee in advance the circumstances in which our delegates will have to act. Of course, higher authorities cannot delegate more authority than they have, and if their delegations are too broad, the courts will strike them down. But there is good reason for those delegations to be as broad as possible.

This is simply the flip side of the rule of law. Rules, as I have said, are rigid one-size-fits-all instruments. As such, they are blunt instruments, rough in the justice that they prescribe. Any given rule will provide some people with more and others with less than they should really receive, according to the principles underlying the rule—as we would see if we were able to reflect on the full circumstances of each case. By empowering lower level officials who process cases one-by-one to exercise discretion in the administration of the rules, we loosen up the rules so as to take better account of those varying circumstances.

In one way, that makes justice more precise. Assuming the lower level officials exercise their discretion correctly, “in the spirit of the rules,” people will get more nearly what they are really due. In another way, however, giving lots of discretion to lower level officials makes justice rougher—in that, it expands the scope of officials’ semi-arbitrary power.57 When we worried that rough justice was unauthorized justice, what we were worrying about, after all, was that it was unconstrained power. Broad delegations with a great deal of discretionary power should be worrying for the same reason.

3.4 The Forgivable Roughness of Formal Justice

In short, formal systems of justice are rough in many of the same ways informal justice is rough.
  • Formal justice, too, is often only roughly right. Specific cases are brought under broad general rules. There are obviously very good reasons for doing that. But the fit is always inevitably more or less imperfect, and the justice achieved is more or less rough in consequence.

  • Formal justice is often only roughly rationalized. Judges and juries sometimes give no reasons for what they do; other times they give mixed and partially conflicting reasons. Again, there can be good reasons for allowing that. But again, the consequence is a failure to rationalize those formal decisions fully.

  • Formal justice is often only roughly authorized. The administration of public policies is delegated to lower level officials who are given broad discretion in the application of general rules. Again, there are good reasons for doing that. But the fewer and blurrier the constraints on what officials cannot do, the less meaningful it is to say that they are acting within any tightly bounded authority.

In short, we had better learn to live with rough justice, because more-or-less roughness is a necessary corollary of morally important features of formal systems of justice adhering to precepts of “natural justice” and conducting their affairs in a rule-bound way. We might be able to tweak those institutions to reduce the roughness of their justice in any given respect—but that typically comes at the cost of increasing the roughness of their justice in some other respect.58 Roughness of one form or another will thus always be with us, and for good structural reasons to which all can agree, whatever their first-order views as to what substantively justice requires.

4 Informal Rough Justice Can Be Justice-Forcing

In the informal sphere, rough justice might sometimes be welcomed as “justice-forcing.”59 That is to say, it can be used by people with the intention of prodding formal systems of justice to change in what they regard as (and we might sometimes agree are) more just directions.60 Civil disobedients do that all the time, “sending ... a moral message” to the wider community by acting contrary to the formal legal code.61

For any given instance of “rough informal justice” to count as justice at all, its agents must of course think that what they are doing might (albeit in an unauthorized way) result in people getting at least some rough approximation to their just deserts.62 When talking about “justice-forcing strategies,” therefore, the act of rough informal justice must (1) be thought by the actor to be just in itself (albeit in its rough way) as well as (2) being intended to have the further consequence of spurring formal systems of justice to become more just.63

In cataloguing instances of the justice-forcing strategy, I shall continue operating strictly in terms of agents’ own standard of justice. My aim, again, is merely to point out the existence of a distinctive category of action, defined in terms of what the agents themselves thought they were doing. “Justice-forcing strategies of rough justice,” like “rough justice” itself, is thus a sociological category of action, not a category of independent moral assessment.

4.1 Lynchings as Justice-Forcing

My first example of rough informal justice being used in a justice-forcing way returns to my running example of lynching. As I have already remarked, lynchings were sometimes in response to a mob’s perception that the court’s verdict was (or would have been) too lenient, by the prevailing standards of popular morality represented by the lynch mob.

In the first instance, those lynchings were (in the eyes of the mob, anyway64) justice-doing. That is to say, the lynch mob in such cases gave the lynched person what he, to their way of thinking, rightly deserved. But the lynching also aimed (at least sometimes) to be justice-forcing. That is to say, the lynch mob was also aiming to send a signal to the authorities as to how the formal rules and practices ought, in their view, to be changed.

Precisely how much lynching was of this form is, of course, hard to determine. Reading the collective mind of an unorganized mob is notoriously fraught. Still, there are cases in which those responsible for the lynchings were organized groups with authorized spokespersons; and where so, we often find this sort of thing being said. The Montana Vigilantes were one such group. They entered into what amounted to an ongoing negotiation, conducted in the pages of the local newspapers, with the federal judge for that the territory. A leader of the Montana Vigilantes wrote in one 1866 article that the Vigilantes would disband “as soon as they can feel assured that the Courts and Juries will meet the demands of society” for what they regard as justice.65

You may not approve of the vigilantes’ bloodthirsty idea of justice (I do not). In many cases, you may well doubt their sincerity.66 But at least on their own proffered accounts—at least sometimes probably true—they were deliberately employing rough justice remedies as justice-forcing strategies to make the formal system more just, from their perspective.

That is a Wild West version of the story. Today’s version of that story concerns what the UN Special Rapporteur’s remit calls “extrajudicial killings.”67 Of course, many of those extrajudicial killings are done by officers of the state running amok.68 Insofar as such practices were more-or-less authorized by the state, they might not count fully as “rough justice” in the sense I am here using the term.69

But the UN Special Rapporteur’s reports also contain a litany of cases of “killings by vigilantes and mob justice” across many countries.70 Being clearly unauthorized, those might indeed qualify as instances of rough justice. Naturally, circumstances vary both across countries and within them. Many extrajudicial killers, today as of old, seem to be little more than gangs of thugs acting for their own financial benefit or serving political or ethnic or racial ends, rather than in self-conscious pursuit of “justice” in any sense.71

Many other cases, however, do seem genuinely to involve the exercise of “rough informal justice,” motivated by the absence of any established, trustworthy system of law enforcement. They occur in response to clear wrongdoings, either in areas that are unpoliced or where the integrity of the police is in doubt.72

When someone ends up getting killed for what was actually a relatively trivial offense, that treatment may well have been excessively harsh, perhaps even upon reflection in the eyes of those perpetrating it.73 But often, it was nonetheless seen by them as “rough justice,” intended to serve a dual purpose. It was undertaken with a view to “doing justice” in the first instance (the victim had something of the sort coming, in the view of the perpetrators, and there are no police who can be trusted to mete out the justice). But it was also done, at least in part, in hopes of “forcing justice”—as a demand for a proper, trustworthy system of law enforcement to be put into place in the neglected community in which the rough justice occurred.

4.2 Foreign Interventions as Justice-Forcing

In describing the traditional regime of “self-help” at international law, I have already alluded to the ways in which that was supplemented by “solidarity.” Under that doctrine, friendly states were entitled to assist one another in pursuit of their just claims. In the contemporary world, this doctrine has taken on a new life under the banner of “humanitarian intervention” and most especially the “responsibility to protect.”74

Whereas the older doctrine involved state-to-state assistance, the newer versions tend more typically to involve states intervening in solidarity not with states but with people whose own state has dissolved or has proven unable or unwilling to discharge its primary duty to protect them. Sometimes, such an intervention is duly authorized in advance by the UN Security Council, in which case it is in accordance with international law. Sometimes, as with NATO’s intervention in Kosovo, it is not. (Supposing advance Security Council authorization would have been blocked by Russian and Chinese vetoes, it was not even sought.75) Then, intervention is against international law and amounts instead to rough informal justice.

I do not want to get embroiled here in debates over whether, or under what circumstances, humanitarian intervention is morally justified.76 I merely mean to point out that such humanitarian intervention, like rough justice, often aims at serving a dual purpose. It aspires to achieve an outcome in the present situation that is more just than what would have happened in the absence of that intervention. In the case of the Kosovo intervention, for example, it aimed at stopping the mass expulsion of ethnic Albanians and enabling them to return home safely. But the intervention also often aspires to press the international system to establish proper mechanisms for dealing with such situations systematically in the future, so that ad hoc interventions of this sort will no longer be needed.

Thus, for example, Tony Blair, the principal cheerleader for that intervention, ended his defense of the unauthorized NATO intervention in Kosovo with a plea for reform of the UN to avoid the “deadlock that undermined the effectiveness of the Security Council during the Cold War. This should be a task for members of the Permanent Five to consider once the Kosovo conflict is complete.”77 What Blair had in mind was reform of the Permanent Five’s vetoes on Security Council action. But in another way, the Kosovo precedent might have produced the same effect without any formal rule change. As Henkin wryly remarks:

Unless a decision to authorize intervention in advance can be liberated from the veto, the likely lesson of Kosovo is that states or collectivities ... will shift the burden of the veto: instead of seeking authorization in advance by resolution subject to veto, states or collectivities will act, and challenge the Council to terminate the action. And a permanent member favoring the intervention could frustrate the adoption of such a resolution.78

Not only did the rough justice of the Kosovo intervention aim at the reform of UN procedures. It also aimed at changing international norms of state behavior. Norms, by their nature, are practice-dependent: something is a norm among a group only if it is the generally accepted practice within that group.79 Social as opposed to legal norms are not legislated: they simply emerge. The only way in which one state or group of states can “move an amendment” to existing norms is—as with rough justice—to start following a new practice, and hope it catches on.80 That is just what NATO did in Kosovo. And then (more controversially) in Libya. And so on, until the new norm gradually takes hold. The rough justice of the initial unauthorized humanitarian intervention will then have forced the norms of the international community to become less tolerant of palpable injustices.

4.3 Seizing Property to Force Justice

My final example concerns the seizure of property as a justice-forcing strategy of rough informal justice. I will come to contemporary cases shortly. But let us begin with one of the most famous cases of old: food riots in eighteenth-century England.

During times of severe shortage, crowds rioted—destroying properties of price-gouging millers and bakers, and compelling farmers to bring their crop to open market for sale at a fair price. On at least one famous account, they rioted not as an autonomous response to hunger but out of moral indignation. They were acting on “the belief that they were demanding traditional rights or customs...”, and their action was informed by a consistent traditional view of social norms and obligations, of the proper functions of several parties within the community, which, taken together, can be said to constitute the moral economy of the poor.81 The main proponent of this account, E. P. Thompson, is the first to admit that:

It would be foolish to suggest that... many did not take the opportunity to carry off goods without payment. But there is abundant evidence the other way, and some of it is striking. There are the Honiton laceworkers, in 1766, who, having taken corn from farmers and sold it at the [fair, traditional] price in the market, brought back to the farmers not only the money but also the sacks...82

The rioters were fighting a rearguard action that ultimately proved unsuccessful. But clearly, on the evidence Thompson presents, what they were attempting was not only “to do justice” in the particular circumstances (compelling the sale of grain at a fair price in times of dearth) but also “to force social institutions once again to become just.” They were trying (ultimately unsuccessfully) to reinstate the old rules that had long governed the distribution of grain in times of dearth—rules according to which it was deemed “‘unnatural’ that any man should profit from the necessities of others.... [I] n time of dearth prices of ‘necessities’ should remain at a customary level...”83

In the contemporary world, too, we can see some elements of “justice-forcing” in nationalization and expropriation of properties illegally or immorally obtained. Writ small, it is—as I said at the outset—seen among squatters occupying empty buildings and houses across the world, partly in protest at the laws and financial regulations that caused repossession of their own homes during the global financial crisis.

Perhaps the largest scale recent example comes from Bolivia, where on May Day 2006 President Evo Morales issued a Supreme Directive nationalizing the country’s oil and natural gas.84 Morally, he justified that by saying those resources had been “looted” by foreign companies: “For more than 500 years our natural resources have been pillaged and our primary goods exported. This has to be ended now,” he said.85 More than 70 people had been killed in the so-called Gas War of 2003 protesting the export of Bolivian gas to the USA: “Gas for Bolivians” had been the slogan of their movement.86 A binding 2004 referendum registered overwhelming support for the proposition that “the Bolivian State should recover ownership over all hydrocarbons at the wellhead.” The privatizations that Morales’ Directive reversed were arguably unconstitutional in the first place, not having been authorized by the congress. Under those circumstances, Morales said, “there is no reason why we should think about compensation.”87 Yet whatever the strength of the moral and domestic legal case for nationalization of those natural resources, the expropriation without compensation that Morales initially proposed would be illegal under international law.88 It may be just in all those other ways, but under international law such an act of expropriation would have to be seen as an unauthorized act of rough, informal justice.89

Nationalization and expropriation are self-help remedies aimed at remedying the effects of exploitation and injustice. They aim to “do justice” in the first instance, by stripping current owners of wrongfully obtained possessions. And they aim to “force justice” in the future, by providing a precedent that undermines the security of title in any properties thus obtained.

4.4 The Potential Value of Rough Informal Justice

To reiterate, my purpose here is not to adjudicate matters morally. My aim is merely to note that rough informal justice is a sociologically distinctive form of action characterized by distinctive aims. In it, people with no formal authority act outside (and often against) the law to promote outcomes that they regard as more just. They seek what they regard as justice in the present instance and, in justice-forcing mode, they do so in hopes that that will induce formal systems of justice to change in what they regard as more just directions.

Whether we think that they are right about what justice really requires is a separate question. With the lynch mob’s morality, we might have little sympathy. With Morales’, we might have more. We might have yet more again with the 1854 abolitionist mob that broke into the Boston courthouse to prevent a fugitive slave from being returned to slavery in Virginia and to overturn the Fugitive Slave Act more generally, or with the New York Vigilance Committee founded in 1835 as part of the Underground Railway to help smuggle escaped slaves to the safely of Canada.90

Even if we think that much rough informal justice is in a good cause, few people would think that all of it is, and most would want to reserve the moral right to judge it on a case-by-case basis. They would hesitate to condone it in any blanket fashion, by for example incorporating it into the law of the land, as Bolivia did in 2009 by including provision for “community justice” in its constitution.91 Still, just as we sometimes approve of acts of civil disobedients, despite the fact that they break the law, so too we might be prepared sometimes to approve of acts rough informal justice, and in much the same way and for much the same reasons.

5 Conclusion

In short, we might want to tolerate some roughness in our social practices of justice for two reasons. Firstly, in our formal systems of justice, some such roughness is an inevitable corollary of other morally important second-order rule-of-law features that we want those systems to display. Secondly, rough informal justice can be deployed both to achieve true justice (after a crude fashion) in the present and to make the formal system more just in the future. We may or may not agree with the perpetrators’ views of what true justice requires. But even where we do not, we ought at least respect the fact that their motives are importantly different in kind from those of mere thugs or thieves.

Footnotes

  1. 1.

    Elster 2012, 83.

  2. 2.

    Holmes Jr 1931, 501.

  3. 3.

    “In the peak years of the foreclosure crisis, from 2007 to 2012, almost one American adult in twenty lost a home because of the inability to afford the mortgage payments” (Martin and Niedt 2015, 5). Subprime, exotic, and zero-down-payment mortgages were mostly to blame (Immergluck 2008).

  4. 4.

    Their exploits are chronicled at the websites of “Eviction Resistance” https://evictionresistance.squat.net/ and “Eviction Free Zone” https://libcom.org/blog/sxb1831 (see further European Action Coalition (2016)). On the 1930s, parallels see Naison (1986) and Albrecht (2009).

  5. 5.

    Manjikian (2013, 13) quotes a Ministry of Justice report that “squatting has doubled in Britain since the beginning of the 2008 recession.”

  6. 6.

    AFFLIL 2006; Colau and Alemany 2012; European Action Coalition 2016.

  7. 7.

    Colau and Alemany 2012, 119–20.

  8. 8.

    Chomsky 2013.

  9. 9.

    Naison 1986.

  10. 10.

    Certainly there was much talk—even in Senate filibusters against anti-lynching legislation as late as 1938 (Thomas-Lester 2005)—of lynchings as an ostensibly moralized response to rapes of white women by black men. But such lynchings were much more often public spectacles rather than private redress by family and friends alone, which leads many to conclude that their aim was much more boundary maintenance and reinforcing the racialized order than meting out justice to particular perpetrators (Myrdal 1944, 587, 606; Smångs 2016).

  11. 11.

    Pfeifer 2004, 2011; Waldrep 2002, ch. 3. There too, of course, some lynchings and other forms of rough justice were also motivated by racial, ethnic, or religious prejudice or a desire for social or political oppression. The San Francisco Vigilance Committee of 1856 railed, somewhat indiscriminately, against “Catholics, Jews, immigrants, Negroes, laboring men and labor leaders, political radicals and proponents of civil liberties” (Brown 1975, 197; Little and Sheffield 1983, p. 803 n 17). And in the borderlands, there were many racially motivated lynchings of people of Mexican descent (Carrigan and Webb 2003).

  12. 12.

    Vigilantism more generally is defined as “a voluntary activity engaged in by ... private voluntary agents... without the state’s authority or support” (Johnston 1996, 226).

  13. 13.

    “Just deserts” may be imprecise or indeterminate at the margins—the point is just that rough justice operates outside the bounds of that indeterminacy. The Oxford English Dictionary similarly defines “rough justice” as “harsh, arbitrary, or heavy-handed treatment or punishment, esp. that which is regarded as approximately fair but which is not necessarily in accordance with the law” (see similarly Alson 2013b, para. 66). Vermeule (2012, 163) similarly calls reparations for historical injustices “rough justice” on the grounds that, although inadequate, “no compensation would be even less tolerable than a spasmodic lurch in the general direction of justice.”

  14. 14.

    Kirchheimer 1961; Shklar 1964.

  15. 15.

    MacIntyre 1988.

  16. 16.

    Hussain (2012, 112) similarly dubs boycotts organized by ethical consumers an improper form of “vigilantism” on procedural grounds.

  17. 17.

    The examples I shall be using alternate indiscriminately between negative justice (punishment for wrong doing) and positive justice (distribution of social benefits). Much the same issues arise in both domains. It may be worse for justice, whether formal or informal, to be rough in one of those domains than the other. But roughness occurs in both domains, for broadly the same reasons.

  18. 18.

    Original nineteenth-century parlance differed in this respect (Waldrep 2002, 29, 33 and chs 1, 3 passim).

  19. 19.

    When asked if he was enjoying his job, President Lincoln is said to have replied with the anecdote about a man who had been tarred and feathered and was being ridden out of town on a rail: when someone asked if he was enjoying the ride, he is said to have replied, “if it wasn’t for the honor of the thing, I’d rather walk.”

  20. 20.

    Thompson 1991.

  21. 21.

    Quoted in Tankebe 2009, 245.

  22. 22.

    Stone 1979; Betts 2008.

  23. 23.

    Quoted in Pfeifer 2004, 23.

  24. 24.

    If not in that case, perhaps in the Nepalese case of Maoist women beating to death men who kidnap girls for sale in India as sex slaves.

  25. 25.

    Quoted in Pfeifer 2004, 1.

  26. 26.

    Blackstone 1765, bk. 3, ch. 1, sec. iv, emphasis added. Obviously, those are different sorts of cases than those just presented, where the victims of the rough justice pose no ongoing threat to its perpetrators.

  27. 27.

    OED 2014, qv. “self-help.”

  28. 28.

    The miners’ committees yielded without protest to Canadian law as soon as the Mounties appeared—to the pleasant surprise of officials in Ottawa (Stone 1979).

  29. 29.

    Locke 1690, sec. 8.

  30. 30.

    Epstein 1968, 2–3. Anthropological evidence suggests that primitive law evolves beyond this point quickly (Campbell 1988), but popular justice persists alongside formal systems of justice for some time (Forsdyke 2008).

  31. 31.

    Which Locke 1690, sec. 14) immediately recognized as akin to his imagined state of nature (for the history, see Hindmarsh 1932).

  32. 32.

    Even with the advent of the International Criminal Court, that Court remains at the mercy of states to permit investigations on their soil, to apprehend wanted persons, and to enforce the Court’s judgments (Bosco 2014, 4).

  33. 33.

    Hindmarsh 1932. Kelsen 1952, pp. 14–16. ALI 1987, sec. 905. Schwartz 1994, pp. 373–8. Mancilla 2016. The “right of self-defense” remains even to this day under the UN Charter (1945, article 51).

  34. 34.

    Kelsen 1952, p. 15, building on, e.g.: Grotius 1625, bk. 2, ch. 2, secs 6–10; Pufendorf 1699, bk. 1, sec. 5, subsec. 23; Wolff 1749, ch. 3, sec. 338–41; de Vattel 1758, bk. 2, secs 3–4, 120 (see, more recently Crawford (2002, 61), Nissel (2006), and Evans and Sahnoun (2001)).

  35. 35.

    Locke 1690, sec. 13.

  36. 36.

    Quoted in Pfeifer 2004, 112. Indeed, the official motto of the Indiana Regulators of 1858 was, “No expense to the County” (Little and Sheffield 1983, 804 n 18).

  37. 37.

    Lincoln 1838.

  38. 38.

    The temptation arises from a fusion of positivism (all law must derive its ultimate authority from being authorized by some rule of recognition of the system) and functionalism (to persist, law must be reasonably effective in serving its social function of providing justice).

  39. 39.

    Notice that even practitioners of rough informal justice often strive to do so in rule-bound ways. They set up informal courts, hear testimony from all parties who are often represented by advocates, and decide the case by majority vote (Pfeifer 2004; Kirkpatrick 2012, 277–8). Some Vigilance Committees wrote literal constitutions structuring the organizations, containing a statement of purpose and detailing procedures that would govern its activities (see, e.g., the “Regulations and Bye Laws” of the Montana Vigilantes (reprinted in Birney (1929, 218–21)).

  40. 40.

    MacCormick 2005, esp. ch. 5.

  41. 41.

    Cf. Levi (1948, 2) on the “dynamic quality of law.”

  42. 42.

    For example, a failed amendment to the 1975 tax code in the USA, couched in general but highly precise terms, would have benefited only a small handful of people and fully a tenth of its benefits would have gone to H. Ross Perot alone (Hardin 1982, 78–9).

  43. 43.

    Thaman 2011.

  44. 44.

    Unless the court forbids it, which it is empowered to do (ABA 2004, Standard 18.C).

  45. 45.

    Sunstein 1995, 1996.

  46. 46.

    Gaus 2011.

  47. 47.

    Just as were those individuals exercising self-help through “private reprisals” authorized by their sovereign under treaty and customary law that grew up during the Middle Ages surrounding that practice (da Legnano 1360, chs 122–162; Hindmarsh 1932, 316–8). Notice that the US Congress is explicitly given the power to grant letters of reprisal (US Constitution, art. 1, sec. 8, cl. 11).

  48. 48.

    Pfeifer 2004, 40. Even if not literally deputized, members of a posse comitatus would under common law have, Blackstone (1765, bk. 4, ch. 21) tells us, “the same powers, protection and indemnification, as if acting under the warrant of a justice of the peace.” That applies, in his example, to “raising a hue and cry”—a process in which “both officers and private men are concerned ... of pursuing, with horn and with voice, all felons.” Kelsen (1952, 14) similarly remarks that “if the legal order leaves these [self-help] functions to the individuals injured by the delict, ... the individuals appear to “take the law into their own hands,” [but] they may nevertheless be considered acting as organs of the community... The avenger does not violate the law; he executes the law and hence may be considered as an organ of the legal community constituted by the legal order.”

  49. 49.

    Judge Upton, presiding over the trial of soldiers involved in a lynching in Walla Walla, WA, in 1891, bemoaned the circumstances that made “vigilante committees seem to have [an] excuse for existing.” He went on to express hope that the “action of a determined, active, fearless grand jury will avoid the necessity of a large, less desirable, and more expensive organization, the committee of safety,” which he called “the last resort of a civilized community against organized lawlessness” (quoted in Pfeifer 2004, 99).

  50. 50.

    Perhaps the most elaborate are the “Regulations and Bye Laws” of the Montana Vigilantes (reprinted in Birney 1929, 218–21; see further Smurr 1958). But if Edgar Allen Poe’s (1836) possibly apocryphal account is to be believed, even Judge Lynch’s original group of vigilantes had a formally written charter.

  51. 51.

    Wister 1902, pp. 435–6. Note similarly the 1856 San Francisco Vigilance Committee justifying their action saying, “they did right, having in view this grand republican principle—the will of good people should be the law of our land,” or a vigilante leader who rose to become Chief Justice of the Oregon Supreme Court asking, “if the people possess the power to appoint one man to hang another, may they not make a court to hang, if need be, another court that they have made?” (quoted in Kirkpatrick 2008, 45, 47, see also introduction and ch. 2; see also Pfeifer 2011, 15).

  52. 52.

    Cf. Pettit 1997; Goodin 2003.

  53. 53.

    Quoted in Waldrep 2002, 57.

  54. 54.

    Note, however, that everything I say about delegated authorities is true of courts, too: they are only genuinely acting with authority when acting within the terms of the laws that confer jurisdiction upon them.

  55. 55.

    Lipsky 1980; Brodkin 2012.

  56. 56.

    Consider the case of privateers of old: the letters of marque under which they were legally empowered to seize other countries’ ships typically specified which countries’ ships could be seized and in what waters; and privateers who operated outside the limits of those powers granted in their letters of marque were operating outside the law and were subject to sanctions. Thus, Captain William Kidd, originally legally commissioned as a privateer, was eventually hung for piracy.

  57. 57.

    “Semi-arbitrary” because its exercise is usually subject to review and appeal—but, as I have said, that happens later and elsewhere.

  58. 58.

    We can make the allocations to each more precisely conform to their just deserts by giving lower level officials more discretion in the application of the rules. That makes our decisions less rough in their “rightness”—but at the cost of those making them more “roughly authorized.” Or we can make reduce roughness in the rules we make by avoiding committing ourselves to rationales that set precedents that would apply in unfortunate ways to situations we cannot foresee. That once again purchases less roughness in the “rightness” of the rules and their application to particular cases—this time, at the cost of more roughness in the “rationalization” given for those rules.

  59. 59.

    That can also be true of practices within and formal systems of justice as well, of course. Lower court judges can decide cases contrary to the existing body of case law in hopes of getting a bad precedent overturned on appeal, for example. And juries can exercise “jury discretion,” refusing to convict people of crimes that they think should be removed from the statute books.

  60. 60.

    Or to establish a system of formal justice in the first place, as on the goldfields; or to securing enforcement of laws already on the books, as when eco-warriors harass illegal whalers in international waters (Sea Shepherd 2014).

  61. 61.

    Nozick 1981, 391. According to one standard definition, civil disobedients must act openly and be prepared to accept punishment for their actions. It may be prudent for practitioners of rough justice to do likewise whenever trying to force formal systems of justice in more just directions. But their behaving in that way should not be built into the very definition of “justice-forcing rough justice,” in the same was as it is into the definition of “civil disobedience” (see Kirkpatrick 2012).

  62. 62.

    Consider the early medieval practice of seizing the property of your debtor’s compatriots in payment of his debts (Hindmarsh 1932, 317). That could be regarded as even a rough form of justice only by those who subscribe to the doctrine uti singulis et uti universitas according to which each member of the community is responsible for the debts of all fellow members.

  63. 63.

    There are of course ways other than rough justice of trying to force systems to become more just: that would be the case with someone (a revolutionary, e.g.) who undertakes acts that he knows to be unjust in the present, hoping that those injustices will be justified by making the system more just in the future.

  64. 64.

    Alston reports mob attacks on “witches,” “‘honor’ killings of women” and “‘social cleansing’ killings” (2013, 53–65, 78–83, 87–100), all of whom members of the mob claim to believe deserve to die. Remember, all that I am attempting to do at this point in the paper is to characterize the members’ motive, and whether it was moral from their own point of view.

  65. 65.

    Quoted in Allen 2001, 10.

  66. 66.

    Under the guise of “crime control,” for example, the San Francisco Vigilance Committee of 1856 strove to wrest control of government from Irish Democrats (Johnston 1996, 229).

  67. 67.

    Alston 2013.

  68. 68.

    Either during armed conflicts (in the form of targeted assassinations) or in aggressive but authorized law enforcement (“shoot to kill” policing policies, for example). Other extrajudicial killings are done by officers of the state acting outside the scope of their formal authority, but with the state turning a blind eye to it. Yet other of those extrajudicial killings are done by groups (some organized others not) that systematically target other groups, with more or less acquiescence from the state.

  69. 69.

    They are certainly “rough” in the more colloquial sense of being out of all proportion to any wrong (certainly any proven wrong) committed by the victim, of course.

  70. 70.

    Alston (2013, 29–43) discusses the following: Albania, Hungary, Guatamala, Brazil, the Central African Republic, the Democratic Republic of the Congo, Nigeria, Burundi, Benin, Ghana, Guinea, Tanzania, Liberia, Uganda, India, Nepal, Cambodia, Indonesia, the Philippines, Papua New Guinea, and Australia.

  71. 71.

    As noted at the outset of this article, many lynchings (especially in the American South) were aimed at oppressing blacks and some in the West were aimed at keeping newcomers in their place.

  72. 72.

    In Ghana, Tankebe (2009, 259–60) finds that “vigilante self-help was fundamentally linked to people’s judgments about the trustworthiness of the police” (see similarly Alston (2013, 29–30)).

  73. 73.

    In the Philippines, the Davao Death Squad vigilante group has killed over 500 people since 1998, mostly “suspected petty criminals, drug dealers, gang members and street children” (Alston 2013, 38).

  74. 74.

    Lu 2006; Evans and Sahnoun 2001.

  75. 75.

    It was however retrospectively given, after a fashion, by Resolution 1244 (Henkin 1999, 827).

  76. 76.

    Insofar as the “responsibility to protect” doctrine on which all those interventions are based has now been accepted by a resolutions of the UN General Assembly (2009) and the UN Security Council (2006), we might regard any action taken under that doctrine as being authorized at international law, after a fashion.

  77. 77.

    Blair 1999 (see also Holzgrefe and Keohane 2003).

  78. 78.

    Henkin 1999, 827.

  79. 79.

    Brennan et al. 2013. What is true of norms in general is true of international norms in particular: “the lack of any single source of rules or ultimate arbiter of disputes in international affairs means that state practice remains key to the shaping of legal norms” (Wedgwood 1999, 828).

  80. 80.

    Goodin 2005; Brennan et al. 2013, ch. 11. Again, this is clearly true of international law (Stromseth 2003).

  81. 81.

    Thompson 1971, 78–9. The rights and duties had been codified in the Book of Orders between 1580 and 1630, which fell into abeyance during the Civil War, but which persisted in popular memory and local practice in many places (Thompson 1971, 107–9).

  82. 82.

    Thompson 1971, 113.

  83. 83.

    Thompson 1971, 131–2.

  84. 84.

    Morales 2006.

  85. 85.

    Anon 2006.

  86. 86.

    Perreault 2008, 17.

  87. 87.

    Anon 2006.

  88. 88.

    Ruzza 2013.

  89. 89.

    Both proponents and opponents of Morales’ action called it “nationalization,” when in fact all that happened is that the government unilaterally tore up existing contracts and rewrote them (Perreault 2008, 13). But that is illegal, too, of course. Whether “nationalization” or not, it was therefore still clearly an act of legally unauthorized “rough justice.”

  90. 90.

    Kirkpatrick 2008, 1; Hodges 2010.

  91. 91.

    Hammond 2011. In Bolivia, that came as part of recognizing the rights of indigenous peoples, specifically a right to live in accordance with their customary traditional law. Opponents alleged that it would encourage lynching, although apparently that is not part of indigenous law, and while punishing theft by death was sometimes done under indigenous law, the 2009 Constitution bans the death penalty in both ordinary and indigenous legal proceedings (Hammond 2011, 671–2, 659).

Notes

Acknowledgements

I am grateful for comments from Jelena Belic, Joachim Blatter, Patrick Dunleavy Matthew Festenstein, Katrin Flikschuh, Rainer Forst, Charles Girard, Simon Hope, Turku Isiksel, Peter John, Alejandra Mancilla, Mihaela Mihai, David Miller, Serena Oslaretti, Stefan Rummens, Kai Spiekermann, Ana Tanasoca, Nicolas Tavaglione, Tom Theuns, Andrew Williams, and Lea Ypi.

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Authors and Affiliations

  1. 1.School of PhilosophyAustralian National UniversityCanberraAustralia

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