The Volokh Conspiracy

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Volokh Conspiracy

'Taking the law into your own hands,' deadly self-defense, and Islamic arbitration tribunals


This comment on my Islamic tribunal post:

This can be a very dangerous occurrence. No one has the civil rights to take the law into their own hands in the United States of America. Period! …

Our Local, State and Federal Governments all need to intervene in this matter and shut this tribunal down pronto. This is not an option and we do not self govern on any level.

This is not a chaotic nation, YET! Let's not make it one!

reminded me of a common trope I've heard in opposition to people's carrying guns for deadly self-defense, e.g.,

It is shocking that a school which experienced the terror of an active shooter incident barely a year ago would endorse the carrying of guns on campus.

How much worse would the carnage have been if more armed vigilantes had decided to take the law into their own hands …?

The problem is that the argument either misstates the law, or is trying to hide a normative claim behind what seems like a descriptive claim.

"Take the law into their own hands," I think, generally conveys the message "illegally do something that only the legal system and its governmental enforcers may do." After all, a power is being characterized as properly in someone else's hands—the hands of the courts or the police—and a person is being condemned for usurping that power: for taking something that is someone else's.

But the law has long recognized people's rights (within broad limits) to agree to binding arbitration of their disputes. When parties go to binding arbitration, they are thus complying with the law by exercising their legal rights. Likewise, the law has long recognized people's rights to use deadly force when necessary to try to protect either himself or a third party against a reasonably perceived imminent threat of death or serious bodily injury. When armed citizens try to stop mass shooters, they are thus complying with the law by exercising their legal rights.

In both instances, people are using only the rights that the law has said are already lawfully in their hands (or that, by hypothesis, the law would say are lawfully in their hands, if we're talking about the right to possess deadly weapons in places where one couldn't have possessed them before). To be sure, some things that could rightfully be called "taking the law into their own hands," such as a private citizen's punishing someone who is no longer a danger, or seizing someone else's property just because he thinks it's a fair compensation for money that he thinks is owed to him. But that's so precisely because the law doesn't put such punishment or dispute resolution in private people's hands. The law does allow private lethal self-defense, and private binding arbitration enforced through court orders.

Now if you think that the law properly shouldn't allow binding arbitration, lethal self-defense or the possession or carrying of tools for lethal self-defense, you can certainly argue that. But the "people shouldn't take the law into their own hands" isn't a sound way of putting that argument.