Private Actors & (and) Structural Balance: Militia & (and) the Free Rider Problem in Private Provision of Law
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abstract
Miners in Montana in the 1860s created "common law," nongovernmental legal institutions which dispensed millions of dollars of public resources to private individuals. Armed Vigilantes rode across the territory administering private justice. They hung twenty-two men, including an elected sheriff and his deputies. Even as Montana finally became a territory in May 1864, "it nevertheless chose still to regard itself as back of beyond, as a remote, independent, and untouchable empire. It resented and continually obstructed, ungratefully, the federal controls which accompanied the blessings of territorial recognition." Such activities were not limited to the early days of the Montana Territory: cattlemen led by Granville Stuart in Montana pursued and hung rustlers in the 1890s, to widespread popular approval. Today the State of Montana and many Montanans celebrate and honor these men and their activities. Montana's state capitol building includes what is almost a shrine to the 1863-64 Vigilantes; the state highway patrol includes the Vigilante symbol on its shoulder patches; Helena's main street, still called Last Chance Gulch, follows the site of mining activity and celebrates as heroic the miners' exploitation of the public domain; guided tours of Bannack State Park glorify the Vigilantes; and cattlemen such as Granville Stuart appear as heroes in most modern Montana history books. Times have changed and celebrating a vigilante past need not mean we want to live in a vigilante present. However, there are striking similarities between the Militias' complaints about the balance between the State and private society and the problems faced by Westerners in the nineteenth century. These links between our past and our present ought to make us hesitate before rejecting the Militias' contributions to political dialogue, even as we recognize the significant flaws in their ideologies. The Militias are a response to changes in the structure of our society. Although these changes have many diverse impacts, one of the most crucial is the increasing reliance on State legal institutions rather than on private, customary legal institutions to solve societal problems. While the Militias are not the only response possible, they are a response well within the traditions of United States political discourse. In Section I, I provide some definitions and describe the free rider problems inherent in private solutions to public problems. In Section II, I discuss the role of different types of law in our society's structure and the Militias' views on these issues, which I compare to historical examples from the nineteenth century American West. I then suggest ways in which the Militias can contribute to solving the problems identified earlier. Finally, I conclude with a brief analysis of the Militias' potential to play a constructive societal role.
