From attacking burglars to jumping red lights, we are increasingly taking the law into our own hands. But can this be morally justified?by Nigel Warburton / January 27, 2010 / Leave a comment
Published in February 2010 issue of Prospect Magazine
Pop star Myleene Klass: a “have-a-go hero”?
It’s one thing to break a law, quite another to believe you’ve done the right thing in breaking it. Take millionaire businessman Munir Hussain and his brother Tokeer, who in September 2008 pursued a knife-wielding intruder, Walid Salem, from their home in High Wycombe. They caught him and beat his head with a cricket bat. Salem’s resulting brain damage saw him rendered unfit to be prosecuted for his crime. While recognising their right to proportionate self-defence, the judge imprisoned the Hussains in December 2009, on grounds of excessive violence. “If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice take its course,” he pronounced, “then the rule of law and our system of criminal justice, which are the hallmarks of a civilised society, would collapse.” The Hussains, however, argued they acted under extreme provocation—the intruder and his accomplices tied up and threatened Munir’s family. In January, Munir Hussain’s sentence was suspended on appeal and he was freed.
Cases of retaliation against intruders are rarer than you might think: a report in 2005 found just 11 prosecutions in 15 years. But those who do take the law into their own hands often receive strong support from the public and the media—Tony Martin, for instance, who in 1999 was jailed for shooting to death an intruder on his Norfolk farm. Most recently, pop star Myleene Klass brandished a kitchen knife at people lurking in her garden; she was told off by police but not charged. She has since said she would “do it again.” Tory home affairs spokesman Chris Grayling has suggested the law should be changed to allow more “have-a-go heroes.” After Hussain was freed, Metropolitan Police Commissioner Paul Stephenson said that victims should be encouraged to intervene and that such acts of bravery “make our society worthwhile.”
Lawlessness is evident elsewhere, too. A cyclist in central London powers through a red light, zigzags between oncoming vehicles, and disappears into the traffic, leaving car drivers raging in his wake. Yet one of the drivers is seen texting as he speeds off. Meanwhile, a student downloads music files from illegal file-sharing sites. All of these examples point to a new age of social lawlessness, in which people break the law unashamedly and even attempt to justify their actions on philosophical grounds—the law is flawed, the crime is victimless or, simply, everybody else is doing it, so why shouldn’t we? But these claims are much weaker than they seem, and ask troubling questions about the way we, as citizens, understand the role of protest, and the respect we should show to laws.
Let’s go back to the cyclist who jumped a red light. He feels exhilarated, but justified. He didn’t cause an accident and besides, many cyclists’ deaths result from lorry drivers’ blindspots—far better to get ahead of them when you can. His emotions tinge on self-righteousness: junctions, after all, are the most likely places for cyclists to die on the road, and traffic lights were invented to control car drivers. In fact, he might even see his act as a kind of civil disobedience, in which dangerous laws meant for car drivers shouldn’t apply to cyclists. How can anyone complain when David Cameron and Boris Johnson have been seen shooting red lights on their bikes? Similarly, the illegal downloader sees nothing much wrong in her actions. Music companies charge too much. It is a largely victimless crime and a common one: as many as 7m people in Britain do it; in the first week of the film Avatar’s release it was illegally downloaded an estimated 980,000 times worldwide.
Of course, we are all lawbreakers to a degree. Most internet users will accidentally infringe copyright, or not think too hard about the legality of passing on useful files. Every driver has broken the speed limit at some time, and many have driven over the alcohol limit. But such cases are different from breaking the law and claiming you have done nothing wrong.
Many arguments used to justify lawbreaking are classic examples of “neutralisation theory.” In the 1950s American sociologists Gresham Sykes and David Matza used this theory to categorise the excuses of criminals in ways that are still pertinent today. Most people who break the law, they found, only do so selectively, and have little desire to live entirely outside law, convention and morality. Typically they admire traits such as honesty, and have a capacity for guilty feelings. So neutralisation is their way of coming to terms with their wrongdoing, minimising guilt pangs through redescribing their actions.
Sykes and Matza outlined five common neutralising excuses. First, there is denial of responsibility, in which the actor was forced by circumstances (“I couldn’t stop my bike at the red light, it was icy”). Second comes denial of injury (“no one was hurt”). Third, denial of the victim (“they deserved it”). Fourth is “condemnation of the condemners”: those who condemn the lawbreaking act are accused of themselves being corrupt or selfish (“well, the music industry would say that, wouldn’t they?”). Fifth, and finally, you appeal to higher values than those embodied in the law—“music should be free to all.” But are such excuses ever philosophically sound?
Take the red light question. Drivers do cause many more accidents involving cyclists than cyclists do among themselves. As cycling lobbyist Chris Peck says, “the biggest problem for cyclists is bad driving”—an example of the fourth excuse, in which the victim condemns the condemners. Given Jeremy Clarkson’s frequent rages against them, you can see why cyclists might not warm to drivers. But showing the faults of your accusers is in itself no justification for lawbreaking. A thief can prove you are embezzling, but that doesn’t mitigate their own wrongdoing. And on the road, there is a clear gap between breaking the law for self-serving ends, and claiming you have the moral high ground.
Boris Johnson has proposed changing the law to allow cyclists to go through red lights to make a left turn (provided they give way to pedestrians). This might improve matters. Yet part of the risk in this idea stems from a new unpredictability in cyclists’ actions—some will shoot lights, while others screech to a halt, or balance in toe clips trying to stay upright until the light goes green. Those of us who cycle, drive and walk might then have difficulty adapting to a world in which “stop” only sometimes means “stop.” This then raises the question of consistency: if it’s OK to make such risk assessments on a bike, why not in a car? If a cyclist can be allowed to judge when it is safe to jump a red light (perhaps at night, when the roads are quiet) why not apply the same logic to a car driver?
If cyclists want to break the law, there may be better arguments for doing so. Jack Thurston, of Resonance FM’s Bike Show, argues that cyclists are different from other road users: “I see a bicyclist as a kind of hybrid pedestrian that should be granted the freedom to keep rolling as long as it’s safe to do so. Those who say cyclists should follow precisely the same laws as drivers of motor vehicles are making a basic category mistake.” This is more promising ground, suggesting an Aristotelean approach in which we clear up what the “essence” of a cyclist is understood to be, and also what the telos—or goal—of traffic signalling really is. If the aim is to create a safe flow of traffic without unduly hindering progress of the various users (including pedestrians) then perhaps cyclists should be deemed a special class of road user, and given their own appropriate laws. People like Thurston think that cyclists are not quasi-car drivers, but a species of quasi-pedestrians. Running a red light, on this logic, should be treated more like jay-walking.
On the other hand, if the telos of traffic signalling is to halt, at key moments, absolutely all traffic, so that there is no risk of ambiguity about what action a driver of any kind will take, then a special law for cyclists becomes more problematic. In many cases philosophy will tell us that the best solution is likely to be this sort of rough justice, which impedes the progress of some for a greater public good. In any case, laws giving cyclists license (like those Boris Johnson may introduce) do not yet exist in Britain. Until they do, those who break the rules are certainly wrong to see themselves as heroic challengers of the status quo.
What of copyright-infringing file sharers? Here almost all the methods of neutralisation come into play. File sharers declare they are forced to act by excessively high prices. More seriously, they tend to deny causing injury, arguing that downloading is a largely victimless crime; one where, unlike shoplifting, the original item remains intact for someone else to buy. Most interestingly, there is often an appeal to higher values: the idea that culture itself should be free. But are any of these good arguments? It is true that stealing from a shop and downloading are not exact moral equivalents, but it doesn’t follow that no one is harmed from the latter. Creative industries still rely on paying creators, with copyright fees as their dominant income. The claim that culture should be free, and not controlled by media conglomerates, is more intriguing. Eminent thinkers like Lawrence Lessig have provided powerful support for this vision of universal free access. Yet this logic too easily blurs the line between a notion of how the world might ideally be and individual acts of copyright infringement. In truth, internet piracy is not a heroic act of civil disobedience; it is almost always a self-serving way of avoiding paying for content, just as cyclists running red lights are keen to get home quickly.
As for hitting criminals with cricket bats, it is easy to see the temptation. The argument that “the victim deserved it”—as Myleene Klass implied in an interview with the Sunday Telegraph, referring to the Hussain case—is the obvious excuse, as neutralisation theory predicts. Indeed, the question of what the right level of force to use against intruders is can be a thorny one, with a philosophical ancestry that dates back at least to the 17th century. In his “Second Treatise of Government” John Locke argued that, outside of society, anyone would be justified in enacting the harsh retribution required by natural justice against thieves: where there is no civil society, each has the right to inflict the death penalty against a transgressor of nature’s law, which ultimately is God-given. But part of the point of coming together into a civil society was to increase self-protection: a powerful state would deter and punish wrongdoing, so you didn’t have to. Sadly for Myleene Klass, once you enter civil society, you give up the automatic right to take the law into your own hands. For Locke, tacit consent to live within civil society means letting the state dispense justice.
And whether he got this right or not, the risks of condoning retributive measures carried out by individuals are great, not least because, as American judge and theorist Oliver Wendell Holmes has pointed out, “detached reflection cannot be demanded in the presence of an uplifted knife.” This was a thought originally inspired by a killing in self-defence, but one which equally relates to the escalation that may be provoked by actions such as Klass’s, if they were sanctioned by law.
Underlying all this is a basic question about our relationship with the law. Most lawbreakers don’t seem to care much that they are transgressing the rules. Those who try to employ slightly more sophisticated philosophical justifications usually come up short. But some do see themselves as morally justified. They are unlikely to be philosophical anarchists, feeling that they are under no obligation to obey state-imposed legislation. Within a general framework of law-abiding behaviour, they are usually just frustrated by one particularly inconvenient law they deem unhelpful or immoral. They believe that there are good arguments for overturning such laws, and in turn that their small acts of transgression might, in some way, contribute to an eventual change in the system.
Most people accept that it can be morally right to break an unjust law—think of Rosa Parks and her refusal to give up her seat on a racially segregated bus, and of those who joined her by boycotting the Alabama bus system. Perhaps some of our new social lawbreakers like to think that they are acting within a tradition of civil disobedience, ennobled by Henry Thoreau, Gandhi and Martin Luther King Jr. But how plausible is this?
The philosopher John Rawls neatly defined civil disobedience as “a public, nonviolent conscientious yet political act contrary to law, usually done with the aim of bringing about a change in the law or policies or government.” His ideas stressed that civil disobedience, in the tradition of Martin Luther King’s famous “Letter from Birmingham City Jail,” is not self-interested, and is always performed in public—for the good reason that civil disobedience is a form of communication that appeals to a community’s sense of justice. As such, it should always be a last resort, once legal protests and demonstrations have failed.
This means that downloading a pirated film you want to watch but can’t afford, or ignoring a red light on the way to work, is not a principled act aimed at producing fairer laws. Smashing a fleeing intruder’s head is not true justice. If cyclists and file sharers want to change laws, they should find public means of protest. One example was 2004’s “grey Tuesday” campaign—a co-ordinated act of civil disobedience in which hundreds of websites infringed EMI’s copyright of the Beatles’ White Album by distributing free MP3s of the so-called Grey Album, an unlawful mix with rapper Jay-Z’s Black Album. It didn’t change the law, but it made its point more effectively than a private illegal download could. The same could be said of the “Critical Mass” bike rides, which periodically clog up traffic in cities around the world to protest the rights of cyclists. If red lights really are unjust, this is the model: act publicly and face the consequences. Otherwise, those who choose self-serving ways of breaking the law will continue to have more in common with looters who steal television sets than with Rosa Parks.