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Rough Justice

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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.

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Notes

  1. Elster 2012, 83.

  2. Holmes Jr 1931, 501.

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

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

  7. Colau and Alemany 2012, 119–20.

  8. Chomsky 2013.

  9. Naison 1986.

  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. 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. 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. “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. Kirchheimer 1961; Shklar 1964.

  15. MacIntyre 1988.

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

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

  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. Thompson 1991.

  21. Quoted in Tankebe 2009, 245.

  22. Stone 1979; Betts 2008.

  23. Quoted in Pfeifer 2004, 23.

  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. Quoted in Pfeifer 2004, 1.

  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. OED 2014, qv. “self-help.”

  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. Locke 1690, sec. 8.

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

  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. 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. 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. Locke 1690, sec. 13.

  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. Lincoln 1838.

  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. 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. MacCormick 2005, esp. ch. 5.

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

  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. Thaman 2011.

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

  45. Sunstein 1995, 1996.

  46. Gaus 2011.

  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. 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. 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. 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. 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. Cf. Pettit 1997; Goodin 2003.

  53. Quoted in Waldrep 2002, 57.

  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. Lipsky 1980; Brodkin 2012.

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

  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. 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. 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. 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. 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. 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. 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. Quoted in Allen 2001, 10.

  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. Alston 2013.

  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. 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. 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. 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. 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. 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. Lu 2006; Evans and Sahnoun 2001.

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

  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. Blair 1999 (see also Holzgrefe and Keohane 2003).

  78. Henkin 1999, 827.

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

  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. Thompson 1971, 113.

  83. Thompson 1971, 131–2.

  84. Morales 2006.

  85. Anon 2006.

  86. Perreault 2008, 17.

  87. Anon 2006.

  88. Ruzza 2013.

  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. Kirkpatrick 2008, 1; Hodges 2010.

  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).

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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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  1. School of Philosophy, Australian National University, Canberra, ACT, 2601, Australia

    Robert E. Goodin

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  1. Robert E. Goodin
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Correspondence to Robert E. Goodin.

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Earlier versions of this paper have been presented as the Brian Barry Memorial Lecture at LSE and as lectures at the Universities of Barcelona, Bergen, Frankfurt, Geneva, Leuven, Luzern, Milan, Sciences-Po and York and the annual conferences of the Society for Applied Philosophy in Oxford and of the Association for Legal and Social Philosophy in Stirling.

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Goodin, R.E. Rough Justice. Jus Cogens 1, 77–96 (2019). https://doi.org/10.1007/s42439-019-00003-z

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