Vigilantes in the State of Nature

Link to the website for the “Vigilante Rick Grimes Deluxe” action figure pictured above, which has the following passage: 

…. as he discovers that there is more than just the undead to worry about,Rick makes the ultimate choice to do whatever it takes to keep his family and friends alive in this less than moral post-apocalyptic world.

McFarlane Toys’ Rick Grimes Vigilante Edition deluxe figure depicts this transformation from a peace keeping deputy to judge, jury, and executioner. This blood splattered 10-inch figure features the exact likeness of the actor, taken from a full 3D scan of the actor himself, Andrew Lincoln.

Two Models of the State of Nature

One of the best ways to better understand Thomas Hobbes’s and John Locke’s notions of the “state of nature” is to watch “The Walking Dead.” Within a few episodes, the zombies become merely backdrop and detail, as the focus shifts to the struggle of human against human. But this is not an amoral struggle: Issues of right and wrong trouble occupy a big share of the screen time, both purely as moral questions and as key factors motivating loyalty in some cases and antipathy in others.   

Before the rise of the zombies in “The Walking Dead,” one of the most vivid pictures of the Hobbesian and Lockian state of nature is the picture most of us have in our minds of the American Wild West. In movies about the Wild West, and in the historical reality of the Wild West, people had a keen sense of right and wrong, often enforced by vigilantism, since formal law courts were often far away and slow to act. Compare that picture of the Wild West to section 7 of John Locke’s  2d Treatise on Government: “On Civil Government”:

And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.

John Locke’s train of logic is:

  1.  There is right and wrong, even in the equivalent of the Wild West or in the Zombie Apocalypse, 
  2. Right and wrong must be somehow enforceable,
  3. In the equivalent of the Wild West or the Zombie Apocalypse, everyone starts out equal, so in principle, anyone could be justified in enforcing the rules of right and wrong. 

Right and wrong, according to John Locke, focuses on this principle:

[Each] may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

(See “The Religious Dimension of the Lockean Law of Nature.”) That is, Locke, focuses on the wrongness of directly killing, injuring and stealing.

Robert Nozick on Vigilantism

Inspired in important measure by John Locke, Robert Nozick discusses right and wrong in the state of nature, and what he considers the fundamentally identical issues of right and wrong in more organized states of society in Anarchy, State and Utopia. Robert Nozick views vigilantes “taking the law into their own hands” as fundamentally no different from the government “taking the law into its own hands.” The issues in both cases is whether enforcement decisions are taken in accordance with what is right and wrong, not who does that enforcement. Of course, certain ways of organizing things may be more conducive to enforcement decisions being taken in accordance with what is right and wrong, but it is the decisions themselves that must be right, regardless of who makes them. If an enforcement action is wrong, the fact that the government did it does not make it OK. If an enforcement action is right, the fact that a private individual did it does not make it morally wrong. 

Robert Nozick does recognize the right to insist that if one does not know whether someone is guilty or innocent, that person be judged by a procedure likely to be accurate. But an insistence that people not use a procedure that might or might not be accurate would require compensating those eager to impose such justice. Then Robert Nozick argues that because of the value to people of having some means of enforcing their rights, compensating someone for a prohibition against an inexpensive mode of imposing justice of somewhat questionable accuracy will typically involve providing to them another mode of imposing justice in a way that is affordable to them.  To Robert Nozick, this is the moral justification for a the minimal state, which enforces rights to life and limb and property for everyone. 

But one of the key implications of freedom is that people may not be prohibited from using an alternative form of justice that is known to be at least as accurate as that use by the dominant form of justice in an area. In this view, a government only has legitimacy as the main form of justice that people choose to be protected by. It differs from other forms of justice only in (a) being the most popular choice and (b) by having the raw power to enforce its own view about what, in fact, are accurate modes of delivering justice. A government has no right to a monopoly of justice if someone comes into the market providing a close substitute of equal accuracy in dispensing justice that the government knows to be of equal accuracy to the government’s own procedures.  

Nozick often speaks of a minimalist government as “the dominant protective agency.” In addition to being a reminder that the government has no right to a monopoly of justice, that view also implies that the government has no absolute duty to protect the rights of someone who does not pay the government to protect herhis rights, except to the extent that government is preventing that person from using an alternative mode of justice. That is, if person A does person B wrong, then the government either needs to let person A hire someone else to punish B and get redress, or it needs to itself punish B and get redress for A.    

The limitations on the government’s duty to protect everyone’s rights when the government is viewed as simply the dominant protective agency opens up an interesting possibility for punishment in doubtful cases that was highly relevant to the Wild West. Suppose there is not enough evidence to punish someone directly for a crime that they in fact committed with some substantial probability. The government or dominant protective agency could deal with  this situation of some evidence but not enough for direct punishment by refusing to provide any more protective services to that person, except in specific cases where the government directly blocks that person from enforcing herhis own rights through some other agency or by self-help. These “outlaws” (not yet convicted, but deprived of the services of the dominant protection agency), would have to use methods of rights enforcement against other outlaws that could not take advantage of all the economies of scale the dominant protective agency has. In practice, they might also be subject to procedures that were not as accurate as those of the dominant protective agency–procedures the dominant protective agency could legitimately stop, but chooses not to. 

There is, of course, the potential problem of a dominant protective agency choosing to treat someone as an outlaw simply because poverty meant they couldn’t pay the fee; let me leave that discussion for another day. Here, I am talking about the dominant protective agency refusing to serve someone because of a strong and well-justified suspicion of wrongdoing, not sufficient to warrant direct punishment. This seems to me to be a phenomenon that was quite common in the Wild West. Most people in the Wild West did not get too upset if plausibly bad actors were killed by other plausibly bad actors. And according to Nozickian logic, maybe that fact wasn’t so terrible. 

What would be illegitimate are the many cases in the Wild West, when the government did not have enough evidence to punish person A directly, vigilante B attacked A without any more evidence, the government refused to deliver justice against vigilante B and prevented A from pursing herhis own vigilante justice against vigilante B. That just isn’t fair given the limited knowledge of A’s actual guilt or innocence.