Updated: Sep 25
Recently, a verdict of a criminal case in the US has drawn great public attention - both criticisms and appraisals. It is not a surprise to see such a sharp division amid this extremely politically polarized country - well up to now. But does this reveal to us anything about the "Blue Ocean" in the US legal system?
For those of you who are unfamiliar with the case, here is just a quick summary:
On August 25, 2020, in Kenosha Wisconsin, Kyle Rittenhouse (17 years old) had fatally shot two men and wounded another man. He claimed that he was there to provide medical aid and protect local businesses. Last Friday, Kyle is found not guilty on all charges (unlawful possession, curfew violation, and homicide charges).
It is now pretty obvious how the division had come about. Yes, yes - Republican-Democrat division. But this is not the focus of today.
I like to pull our focus back to the topic: Do you think Kyle Rittenhouse is a "vigilante" or a "volunteer"?
Of course, it is well-respected that everyone may hold their own opinion on this matter. But whether your answer is "vigilante" or "volunteer", the two choices have something in common — private enforcement. The two terms, discarding the dysphemism/euphemism aspect, all pull our attention to the actor himself.
What is wrong with allowing private enforcement in the legal system? One side argues that this case is a "dangerous legalization of vigilantism" which hinted at "political regimes dependent on paramilitary organizations". An example parallel to this train of thought is the SB8; it is Texas' anti-abortion legislation which its punishments are being enforced by private individuals. It financially incentivizes and gives power to the individual to sue against medical practitioners who have violated the law ban on abortion (six weeks into pregnancy).
Contrastingly, it is worthy to consider the other aspect of private enforcement. Have we ever seen any private enforcement[s] in our lives? Now, it becomes interesting when we make a parallel between law and economics.
In economics, the idea of private and laissez-faire often comes up. Particulary in the US, by having a "small government" and development of free market, individuals take the steering wheel of their economy. However, it is not to say that individuals have total control; US federal government still installs some brakes and air bags to prevent the economy from getting out of hand. It is essential for us to have someone draw the boundaries for us. Is it possible if we could do the same for the legal system?
Or is this just complete bizarre - law and economics is incomparable? Giving individuals the power to enforce brings more uncertainty than justice. It will only go down the slippery slope and ultimate chaos/anarchy - like Red Guards in China during Cultural Revolution.
So is private involvement necessarily completely a bad thing? It is for legal scholars to explore further.
Short pitch inspired by article "Kyle Rittenhouse, SB8 and the Dangerous Legalization of Vigilante Justice" by Austin Sarat.