You and I allow each other to freely be in each other’s presence on condition that we won’t misbehave. Were this not so we’d all still be cowering in our caves, “and the life of man [sic] solitary, poor, nasty, brutish, and short.” In aid of our being able to exit the cave we forfeit our means of self-defense to authorities who promise to defend us from this misbehavior. If instead they employ the very means we’ve seconded to them to misbehave, then that misbehavior is (what jurisprudes call) aggravated by their authority.
On this much we are all of a mind. Now put this on the backburner for a moment.
Suppose you’re being raped. If there are no such authorities in earshot but you have the wherewithal to render your attacker incapable of proceeding, you’re entitled to do so. Now suppose you did not have that wherewithal. He stands before the court convicted. If you were entitled to render him incapable of rape then, why are you, or that now-present authority, not entitled to render him incapable of rape now?
Well, you’re not, but that authority is. That authority figures, quite rightly, that he would be incapable of rape if he genuinely saw the error of his ways and was not under any kind of irresistible compulsion. That would make him indistinguishable from me. Neither he nor I are exactly incapable of rape, but we’re near-enough-good-enough incapable of it. So any punishment could only be justified by its deterrent effect on others.
But suppose at least one of these conditions is unsatisfied. Either he doesn’t see the error of his ways or his behavior is compulsive. He’s rendered incapable of rape if he’s incarcerated, but only so long as he is. Once released he’s indistinguishable from the man he was just before he raped you. I understand why the authorities are loathe to render him permanently incapable of rape, either by killing him or at least castrating him. That’s not the kind of polity any of us, including you, want to live in. But what about you? If you were justified in rendering him incapable of rape then, why aren’t you justified in rendering him incapable of rape now?
The answer, of course, lies in (what’s called) the clear and present danger test. That the Turks and Caicos Islands might invade England some day is not grounds for England to invade the Turks and Caircos Islands. But that Egypt had blockaded the Gulf of Aqaba did justify Israel’s preemptive strike on the Alexandria airfields, the first and decisive salvo in the Six Day War.
That the rapist has raped before goes some distance towards satisfying the clarity component of the test, but it’s neither necessary nor sufficient. Suppose that, having raped you, he retires to the bathroom, you find a loaded pistol in the drawer of the bedside table, he emerges from the bathroom, and you put a bullet through his head. Most jurisdictions would recognize you had a reasonable expectation of further bodily harm and so acted in self-defense. But now suppose it was reasonably clear he was finished with you, at least for now. Perhaps he emerged wearing a shirt and tie as if readying himself to return to the office.
Some jurists would say shoot the fucker anyhow. But if they say this because they know you know that if you take the matter to the authorities the voluntariness of the encounter will be your word against his, then what they’re saying, in effect, is that you have the right to take the law into your own hands – to be judge, jury, and executioner. They can reason this way – and should reason this way – if conviction is a virtual impossibility. Then what the court is facing is jury nullification, and the only way for the judge to protect the accused from a violation of natural justice is to override the jury’s guilty verdict. And if he does that there’s going to be a lot of dead rapists on a lot of bathroom floors!
So there’s an interesting dialectic at play, not just in rape cases but likewise in cases of vigilante behavior in general. In evolutionary game theory getting this equilibrium right is called an evolutionary stable strategy (or ESS). Elsewhere it’s just called common sense.
Being locked in a closet with a snake that may or may not be poisonous is a present danger but not a clear one. Being buried alive in a coffin with no air tube to the surface is a clear danger but not a present one. So the score for the test is cumulative. There’s no formula for the requisite threshold to trigger a defense of self-defense. It’s what the reasonable man on the Clapham omnibus would do, or in this case the reasonable women taking an evening stroll through the park.
Can that reasonableness be informed by past experience, be it hers or that of her sisters? Certainly it can. And should. But this way too there be dragons. The less acceptable term for past experience is stereotyping, a.k.a. prejudice. A black youth wearing a hoody in a white neighborhood at three in the morning is up to no good. Stand your ground. An aboriginal man blocking your egress from the park is likely drunk and thinking himself sexually irresistible. If you don’t shoot him now you won’t be able to once he’s grabbed you. And so on.
These are precisely the issues that come before the courts, both of law and of public opinion. Juries tend to acquit the cop who kills the unarmed black man, whereas the public thinks the case should be open and shut. No doubt there’s a fact of the matter as to who’s right and who’s wrong. But is that a material fact or a political one?
The fact to which I’m referring here is not what happened that day. I’m referring to whether the shooting was justified. And justification, as it’s used in jurisprudence, is a political term. We decide what we’ll accept as justified and what we won’t. And we decide that by balancing conflicting interests.
The onus of proof on a charge of rape is being lowered because there are enough women who want it to be and too few men who don’t. If this be doubted ask yourself why else was it mutatis mutandis until recently that a man couldn’t be charged with raping his wife? What does the work here is power, physical power, sexual power, and now economic power. Arguments for and against come ontologically afterwards, and are therefore epiphenomenal. And if this be doubted, in turn, ask yourself how the legal status of the fetus could be settled metaphysically. Or the age of consent could hang on some discoverable material fact about nonage. Omar Khadr has been called a ‘child soldier’ because he was fifteen when he got his licks in at Ayub Kheyl that day, notwithstanding that fifteen is at or above the mean age at which men have gone to war pretty much since we emerged from the cave. Cats get pregnant in their first heat. So did our own females within a month of their first period. That we’ve decided it should be otherwise has been a political decision, and a local one at that.
But I digress. Let’s scroll back up the page and move that pot about aggravated misbehavior from the back burner to the front. Because we’re so habituated to authority we often forget the conditionality of our having given uptake to it. The merely corrupt cop we can understand. There are temptations wherever there are, well, something tempting. But the core of the cop’s entitlement to the monopoly on the means of violence we afford him is that with it he will protect our lives. Everything else can be recouped, but not that. So when a cop kills one of us, in neither self-defense nor in the defense of others, he returns himself to the jungle – and us along with him – and to the law of the jungle, which is precisely that “life of man [sic] solitary, poor, nasty, brutish, and short.”
In less ‘civilized’ polities it’s understood that the police are just one gang of thugs morally indistinguishable from any other. (Or in Libya, the Coast Guard just another cartel of human smugglers.) But in more ‘civilized’ polities, like America is presumed to be, the recent spate of cops emptying their sidearms into innocent (mostly black) bodies is undermining the very raison d’etre of the police. They are becoming to black America what the IDF has been to the Occupied Territories. Nor does the recruitment of black officers counteract this, any more than the recruitment of Palestinian collaborators has made the Occupation less intolerable.
I do not presume here to be telling the American people something they don’t already know, if not in the forefront of their minds then at least in the periphery. But not unlike the Israelis, their solution of choice seems to be to double-down rather walk it back. Just as with rape, what’s needed in America is, mutatis mutandis, a lowering of the bar for conviction in cases of police-authored homicides.
Or so it’s being argued. But apart from every such lowering inviting violations of natural justice, what would be the autonomous effects of this? Certainly fewer police-authored murders. But also fewer police. No one wants to place himself in a position where he is in fear of losing his life and, at the same time, in fear of losing his liberty. So the smart money goes to finding something else to do for a living. So once again we have a balancing of interests in search of a stable equilibrium.
As with the climate, the stability of an equilibrium between the police doing their job and being willing to do their job, can’t be measured over the duration of a few news cycles. Decades is probably the right calibrant. About two or three decades behind the climate alarmists, the talking heads are just beginning to talk about America’s descent into another Civil War. Since I likely won’t be around to see either, I can prognosticate without having to buy a cookbook on how to prepare crow. It’s like I tell my students. “Every marriage eventually ends in divorce.”
“But Professor Viminitz, my grandparents have been happily married for …”
“Look,” I interject. “I never said some people don’t die before they have to chance to get divorced.”
I’ve argued elsewhere that Guantanamo Bay has set jus in bello and jus post bellum back at least two thirds of a century, to the beginning of the Second World War. And for the same reason that these police-authored murders of unarmed black men is setting race relations in America back to the early Sixties.
The counterargument – and it’s a good one – is that ‘twas always thus. There’s nothing new about post-Geneva violations of the Geneva Conventions, nor about American cops murdering black American kids. In fact if anything the rate of such murders has been steadily declining since the outset of the civil rights movement.
Right on both counts. But two things have changed. Social media has made it almost inevitable that these murders will go viral within minutes, complete with video. And we’re living in a much more symbol-sensitive age. The killing of a black teenager means something it didn’t mean before.
But on second thought I take it all back. The one thing I promised myself I’d never become is just another Laocoon like my colleagues. Their end-of-civilization-as-we-know motif is anthropogenic global warming, and I mock them mercilessly for it. Surely I deserve no better.