On the Decriminalization of Private Violence
By Andrew Kydd
The acquittal of George Zimmerman in the killing of Trayvon Martin highlights an interesting change underway in the legal treatment of private violence in America. Historically, an important goal of states has been to eliminate as far as possible the private use of violence within their territories. Weber even famously defined states as organizations with a monopoly of the legitimate use of force. In areas with weak states, private organizations would still take the law into their own hands. On the Scottish highlands clans still built fortified houses into the 1500’s, long after the practice had been abandoned as unnecessary in England, because they also continued to raid each other’s farmsteads, murder the inhabitants and steal their possessions. But once the rule of law was imposed, the raids ceased and the castles became quaint relics of a bygone era. The pattern can be seen around the globe: where the state is weak, private violence flourishes.
The United States is now embarked on an unprecedented experiment, in that it is a strong state, fully capable of suppressing private violence, but it is increasingly choosing not to. Freely elected state legislatures are enacting laws to encourage people to own and carry guns. New ‘stand your ground’ and self-defense provisions are being passed and interpreted to make it much easier to kill someone without legal penalty. It is now possible to arm oneself, pursue a stranger in a public place, engage in a confrontation with that person, and then if they throw a punch, possibly in response to one’s own, to shoot them dead with impunity as far as the state is concerned. By encouraging private armament and weakening the penalties for private violence, the US is entering new territory, as a strong state that no longer chooses to prevent private bloodshed.
An implication of this process that has so far been underappreciated is that as private violence becomes more widespread, it will become increasingly organized, if still on private lines. Fantasists of the libertarian right and the anarchist left alike are prey to the same delusion, that is, that the absence of the state will lead to a paradise for individuals. In fact the absence of the state leads to the tyranny of smaller scale private organizations and the disempowerment of the individual. In places like medieval Europe, Sicily or Afghanistan, unaffiliated individuals are easy prey and quickly seek the protection of local strongmen. That protection is not free, in fact it is usually very expensive. There is no reason to think the same will not happen when the state voluntarily stops punishing private violence. In fact one can anticipate the full spectrum of responses to anarchy that have been displayed in other settings. The rich will employ private mercenary forces to provide security, as their forebears have done since time immemorial. The poor will join gangs that offer protection in exchange for loyalty and military service. The middle class will form vigilante organizations based on localities. Clans or extended families may return to prominence, as kinship ties form an excellent basis for the management of small-scale violence.
What this will look like in the context of a state that could but doesn’t prevent violence is uncertain. Perhaps the state will step in to curb larger scale organizations. However, it seems unlikely that the armed individual will have much ability to defend him or herself. Instead, predation by one organization will be kept in check only by an equally strong opposing organization. Gang warfare in urban areas is a harbinger, but street gangs will find the terrain contested not just by other gangs, but by vigilante groups, clans and the private security firms of the rich. Retaliatory killing will be the primary deterrent to murder, and indeed it will be all quite justifiable as self-defense because the organizations will pose real and imminent threats to each other. Hobbes thought an absolute sovereign preferable to such a condition. A well-functioning democracy that outlaws murder would be better than either.