The retired New York City cop stared at me with the eyes of someone who knew too much. He said matter of factly,
“It’s standard practice here not to prosecute child rapists for a first offense. They have to rape a kid ten, maybe fifteen times before there’s a good chance of conviction”.
“You mean it’s not a crime to rape a child, in practice?” I replied.
“Not really. Not under our legal system it isn’t”
Whenever people ask me why we’ve established our own common law court of justice, I simply tell them that story.
New Yorkers engage strangers with a familiarity unknown to most Canadians, and so it wasn’t long before I fell into a conversation with the cop in question during my all-night vigil at JFK airport last week, awaiting my flight home. He was a Brooklyn precinct veteran who knew the score. At one point, to emphasize what he’d told me about child rapists, he handed me that day’s New York Times.
“Small world” he remarked, pointing to one article.
“People are going to have to take the law into their own hands” I said to him, after skimming the article in disgust.
“Damn straight” the cop replied.
Someone once said that if the sun comes up every morning, it is only because of people of good will. I disagree. There are more than enough of us with good will; that has never been the problem. What is needed is to act on what we know is true and necessary, for action alone will stop the hand of the criminal. But few if any of my good willed neighbors will act to save our children if that means having to defy conventional authority.
The law is a lot like the church: a mysterious institution ruled by a high priesthood that is self-governing and unaccountable and thus, a magnet for criminality and corruption, and yet which is, absurdly, relied upon to render justice and salvation for the rest of us. It was not always so.
A thousand years ago, a common law existed among my English and Celtic ancestors that sought to ensure the liberties and security of the people. Based in village courts known as “the Hundreds”, this law rested in the hands of the people, who enacted their own justice independently of the far-away power calling itself “the Crown”.
In this tradition, sheriffs were appointed by the Hundreds to create local juries to name and present anyone guilty of theft, murder or rape. It was up to every able-bodied man in the village to bring such offenders into these local courts for trial and sentencing. These men were known as “posses”, taken from the Latin term "pro toto posse suo", meaning "utmost in his power". Our ancestors were each obligated to take responsibility for the law and the safety of the community, by stopping the criminals themselves, to the utmost of their power.
Naturally, such local justice didn't sit well with the centralized authority of kings and popes, and for centuries, they and their intellectual hacks have convinced us that acting for our own benefit is tantamount to chaos and anarchy. Our long common law tradition of direct citizen action is equated now with "vigilante justice" and (to quote one Canadian Supreme Court jurist) "arrogant mob rule".
Arrogant, in fact, comes from the Italian word "arrogati", which means, "to claim for oneself". Yes, indeed.
The learned big wigs who preside over our present criminal-protecting legal system should really check out their vocabularies and their own precedents before condemning the rest of us. For under Canadian and British law, a principle known as Lawful Excuse or a Claim of Right allows any citizen to break the law for the benefit of the community, and even make arrests of suspected criminals when the authorities refuse or are unable to do so.
American courts call this right a Necessity Defense, and it's been used successfully by civil disobedience activists who blockade missile bases and military operations because of a Necessity to defend their communities from a clear danger. But the idea is the same: a very subversive idea, actually, which says that citizens can and must take the law into their own hands when their lives are in peril, or when the system is not functioning as it should.
Who of us can deny that today the law no longer protects our liberties and our lives, and those of our children? And yet over time, we have unlearned the habits of liberty and action, lulled by the lie that rights are somehow intrinsic to a society, and not in need of winning, over and over again.