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Responding to Insults with Violence–Self-Help

January 9th, 2010 Leave a comment Go to comments

Prof. Volokh has a good example where self-help beats using police.

From the Chicago Daily Herald. Throwing a rock through a car window might not at first seem like much by way of self-defense, especially if the fear is that the car will run you over. But I take it that the court’s rationale — which seems sensible — must have been that showing signs of a willingness to retaliate might deter bullies, who might worry that the next rock will hit them directly, or might even just psychologically intimidate them:

A [17-year-old] girl who hurled a rock through a car window after its occupants repeatedly drove by yelling threats and homosexual slurs [at her 15-year-old] male companion] was found not guilty of a criminal damage to property charge Tuesday by a McHenry County judge who ruled she acted in self-defense….

This is a great example of where self-help ought to be allowed. Remember the objective of criminal law— to deter bad acts in the most convenient way. Here, let us assume that the punks circling around in the car shouting insults is a bad act. Consider two public policies:

Policy 1. The victims may complain to the government, who will prosecute and fine, briefly imprison, or lightly whip the offenders if they are found guilty. If the victims throw a rock, though, they are themselves subject to criminal and civil liability.

Policy 2. The victims may throw a rock at the car without criminal or civil liability, and the punks’ behavior will be a defense against victim civil or criminal liability. The government will not itself, however, punish the punks.

Policy 1 would be completely ineffective, wouldn’t it? Well, not quite— the police could arrest the punks and inconvenience them, even if they couldn’t be convicted beyond a reasonable doubt. And I guess it would prevent abusive insults when police or TV cameras were present, though having a trial would still be costly.

Policy 2 would be cheaper— no getting third parties involved— and more effective. Not everybody would throw rocks. but the policy would work for those who would, and help deter for anybody who looked like he might. Also, the penalty is proportionate— a damaged car, not death.

One point I worry about is government failure, even with Policy 2, though. Policy 1 is subject to abuse because the government could punish someone for being insulting even if he wasn’t (that is, if the judge is corrupt or false witnesses can be produced). Policy 2 is subject to abuse because the government could refrain from punishing someone for throwing rocks even if the car occupants had not been insulting— again, if the judge is corrupt or false witnesses can be produced.

Maybe I should write on this. I should bring it up at the law-and-econ lunch today.

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