Justice and Neighborliness

By Kevin D. Williamson

Tuesday, June 02, 2020

 

For reasons that do not bear going into here, the mostly forgotten novelty singer C. W. McCall came up in conversation with my brother the other day, and I ended up watching the 1978 film Convoy, which was inspired by the McCall song of the same name. In the late 1970s, truckers were the new cowboys, and Convoy is a kind of slapstick Western that pits admirable but law-breaking truckers against corrupt police officers. It ends with Kris Kristofferson’s antihero (known by his CB handle, “The Rubber Duck”) attempting to perpetrate a suicide bombing against a bunch of cops and soldiers blocking a border crossing into Mexico. A silly movie like Convoy can’t end like that, so instead a deus ex machina contrivance delivers the cops and the soldiers and the Rubber Duck, too, to safety. Even so, it is a rousing ode to lawlessness and terrorism — and the most popular film of Sam Peckinpah’s career.

 

Speaking of movies . . .

 

When Harvey Weinstein was sued by several women who claimed to have suffered sexual harassment or sexual assault at his hands and put some tens of millions of dollars on the table to settle the complaints, some blockheads denounced the accusers as women who “just want money” rather than genuine justice. The same thing was said about people who reached settlements with Michael Jackson after accusing him of sexually abusing them as children. The criticism begs the question. Who says that justice cannot take the form of money? Who says justice cannot take the form of other kinds of compensation?

 

Consider a less emotional kind of offense: Imagine that a powerful business executive had defrauded me of $100,000. That’s a lot of money. Now, imagine that I also had him dead to rights on the fraud and was ready to go to the police, when he made me an offer: What if he returned my $100,000, plus interest generously calculated for the time I was deprived of my money, plus $1 million in further restitution. Would I, the victim of the crime, rather have my money back plus $1 million, or spend months and years watching an uncertain criminal case build to a climax that might — might — end up looking something like six months in jail plus probation? I’d take the $1 million. Some people would look at that as the rich being able to buy their way out of criminal accountability; I’d look at it as the victim of a crime getting justice in the form of something that left him better off, rather than justice in the form of something that did not leave him better off. If one of Weinstein’s victims would rather have a check than add a little to his prison time, who are we — who are any of us — to tell her that she is wrong?

 

I am an optimist with a generally libertarian view of the individual’s relationship to the state, and for a long time I had very high hopes for private justice, by which I do not mean the abolition of the state and its legal mechanisms but the supersession of it by more fruitful alternatives in some circumstances. Many good-faith disputes already are better handled in voluntary arbitration than through the traditional courts, especially when they involve highly specialized matters with which judges and juries are sure to be unfamiliar. Many kinds of hurt and suffering cannot be undone, simply locking offenders away in cages is not always the best course of action for the victim or for society at large (and those interests may not be identical), and other alternatives often are preferable. There is a question of balancing restitution, rehabilitation, and deterrence. But there are also the more fundamental questions: Does this leave the victim better off in real terms? Does it make the general society safer?

 

Private justice can go wrong easily and dramatically, as events in the past few weeks have shown. There is nothing wrong, in principle, with laws permitting citizen arrests in certain circumstances, but that can quickly turn into bloodthirsty vigilantism, as in the case of Ahmaud Arbery. For a less lethal example, think of the case of Amy Cooper and Christian Cooper and that now-infamous Central Park confrontation. Christian Cooper was practicing a form of private justice: People are supposed to keep their dogs on leashes in the Ramble, Amy Cooper did not comply, and Christian Cooper, who had prior experience with this problem, was carrying dog treats, promising Amy Cooper that he was going to do . . . something, and “you’re not going to like it.” (I disagree with my friend Kyle Smith that this was an obvious threat to poison her dog; the threat was vague and might have meant any number of things.) Christian Cooper was practicing a pretty benign form of private justice in lieu of calling the NYPD every time somebody failed to leash a dog. Amy Cooper, who clearly did not like being called out on her petty offense, threatened to call the police and say that she was being threatened by an African-American man. Many of her critics insist that this was her in effect seeking to have him assassinated; if that really is the case, then the problem is the NYPD, not Amy Cooper, and it is not going to be solved by the personnel department at Franklin Templeton, with its uneven sense of justice.

 

(Franklin Templeton is much more forgiving of much more serious offenses if you happen to be the son of one CEO and the brother of two others.)

 

The case for private justice is, in part, that if we can resolve a private dispute without dispatching men with guns to the scene, then we are better off doing so; but if we are better off doing so because our law-enforcement authorities cannot be trusted to behave in a less than willfully homicidal fashion, then we have a problem that private justice is not going to solve.

 

Which brings us to Minneapolis and beyond. My friend and colleague Andy McCarthy believes that it took too long to arrest and charge Derek Chauvin in the case. (Indeed, Andy was registering this complaint on a National Review podcast when the arrest was announced.) I do not have Andy’s criminal-justice background (he is a former federal prosecutor, of terrorists among others), but it did not seem to me that the few days it took to arrest Chauvin was an unbearable delay of justice. One wants the authorities to move with some deliberation in these matters.

 

We might consider the rioting and the arson, then, as another attempt at private justice. One theory of the riots is this: Believing, with good reason, that the police will seek to protect their own and that officers who break the law will enjoy considerations that that typical offender would not, that racial injustice is systemic, and that reform is unlikely or impossible in the foreseeable future, the disorder and destruction is understood as a kind of fine on society at large. These riots fail as an attempt at private justice on the fundamental grounds: They do not leave the specific victim (or, in this case, his survivors) any better off, they do not actually advance the project of reforming police practice, and they leave society worse off, especially in the case of many of the communities on whose behalf the protesters purport to agitate. Of course it is the case that most of the looters and hell-raisers are not thinking things through in these terms, but I am not sure that really matters to our understanding of the situation.

 

Criminal violence as social sanction is not an unfamiliar idea: The theory of the riot is a lot like the theory of lynching, another violent crime that once was excused as rough justice. Lynching is a stain on American history, but there are other examples of criminal acts used as social sanction that were and are generally tolerated and sometimes even celebrated. In his famous essay on animal-trespass law, “Of Coase and Cattle,” Robert Ellickson found that the ranchers of Shasta County, Calif., rarely sued one another for damage caused by stray animals. Rather than sue one another or file legal complaints, the ranchers generally engaged in forms of private justice that had almost nothing to do with the formal assignment of rights and obligations under the actual law. This was made possible by a norm of “neighborliness,” reciprocity, and long-term relationships with repeated personal interactions, which make pettiness socially awkward. When there were actual legal disputes, Ellickson found, those cases normally involved newcomers who had not been habituated to community norms or situations in which one of the parties believed the other to be acting dishonestly and dishonorably, for example with one rancher going to law because another “had not only deliberately trespassed, but had also aggravated the offense by untruthfully denying the charge.”

 

But legal means were not the only means, and they were not the preferred means. These law-abiding, neighborly ranchers would also resort to unquestionably criminal acts.

 

Another common response to repeated trespasses is to threaten to kill a responsible animal should it ever enter again. Although the killing of trespassing livestock is a crime in California, six landowners — not noticeably less civilized than the others — unhesitatingly volunteered that they had issued death threats of this sort. These threats are credible in Shasta County, because victims of recurring trespasses, particularly if they have first issued a warning, feel justified in killing or injuring the mischievous animals. Despite the criminality of the conduct (a fact not necessarily known to the respondents), I learned the identity of two persons who had shot trespassing cattle. Another landowner told of running the steer of an uncooperative neighbor into a fence. The most intriguing report came from a rancher who had had recurrent problems with a trespassing bull many years ago. This rancher told a key law enforcement official that he wanted to castrate the bull — “to turn it into a steer.” The official replied that he “would have deaf ears” if that were to occur. The rancher asserted that he then carried out his threat.

 

This is roughly the equivalent of someone vandalizing your car for being illegally parked in front of their house. We had some neighbors’ guests pull accidentally into our driveway instead of our neighbors’ over the weekend, and we would have been perfectly happy to have them park there — we like our neighbors, and we have reciprocal ongoing relations with them that smooth over the little frictions that proximity brings. But much of modern urban life, with its institutional attitudes and endless bureaucracies, is not very well suited to cultivating the neighborliness that Ellickson wrote of, and that is especially true of relationships across cultural, racial, and class lines, which, given the fallen nature of human beings, are almost always more difficult than relationships among people who are like us.

 

Which brings me back to Convoy: It was made less than a decade past the worst bout of political violence and civic unrest the United States had seen since the Civil War, and almost exactly ten years after George Wallace had prefigured Donald Trump’s promise that “when the looting starts, the shooting starts.” Convoy was itself part of a cinematic convoy, a little peloton of films such as Smokey and the Bandit glorifying charismatic outlaws who triumphed over wicked cops, fat old white men played by such actors as Ernest Borgnine and Jackie Gleason.

 

Many conservatives have noted accurately that the same progressive media figures who had their dresses over their heads about the anti-lockdown protests engaged in practically yogic exertions to put the violence and looting in Minneapolis and elsewhere in the best possible light and to give the most sympathetic possible account of it. These same progressive solons heaped abuse on the Tea Party protests, which were portrayed as a lynch mob in waiting, and every other episode in which a Republican has stepped into his penny loafers and raised a placard, back to the so-called Brooks Brothers Riot of 2000. They are not wrong to note the double standard.

 

At the same time, it surely is the case that if Convoy were a 2020 film about black outlaws or pissed-off Arabs, it would not receive the kind of welcome it did when it was a cri de cœur from white (mostly) truckers, and poor old Sam Peckinpah would be run out of town as an America-hating so-and-so. Bias isn’t a plot against the public good — it’s a consequence of the fact that we all live inside the scanty space of our skulls.

 

We are not an entirely orderly people, we Americans. We live by a shared idea rather than shared blood, and more than any other people in the world are defined by a group of legal and political documents rather than by ancient consanguinity. We salute George Washington, but there’s a little Whiskey Rebellion in us, too, a little John Brown, a little Patrick Henry, a little μολὼν λαβέ — and we are a lot more tolerant of that among white people than among others, especially among African Americans. I want order in Minneapolis and elsewhere. I want people to be safe and secure in their homes and businesses. There isn’t any liberty without peace. The riots are not leaving anybody better off, but consider that video of George Floyd’s death: Does that look like peace to you?

 

We are looking for that peace, and the justice that sustains it, in different ways. As Ellickson wrote, one of the most common means of “self help” for people seeking justice through private means is gossip, which is, essentially, what those Twitter mobs are: weaponized gossip. One of the many shortcomings of weaponized gossip is that gossip need not be true: Ask Brett Kavanaugh, or the Covington kids, or the University of Virginia, or the Duke lacrosse team . . . A kind of private justice is what Christian Cooper was after with his dog treats, and then with the video that led to Amy Cooper’s losing her job for an incident in her private life that had nothing to do with her work. Destruction of property as a means of sanction? It is happening in Minneapolis and other cities right now. But it happened before, on a smaller scale, among those Shasta County ranchers, too. Why did they resort to that? It wasn’t a lack of courts or lawyers or police officers.

 

It was a lack of mutual respect, honesty, honor, and neighborliness — the priceless things that cannot be had for a sum of money or drilled up out of the ground but can only be cultivated, slowly, painstakingly, with great effort and in great humility.

 

The terrifying truth that we must keep in mind in troubled times such as these is that the world is what we make of it, a vast structure that we build one brick at a time with our own decisions. We can proceed with charity and grace, or we can proceed with violence and the threat of violence. The choice is yours and mine, as it always has been.