The Rewards of Punishment

I wondered aloud, yesterday, about the difference between falsely shouting “fire” in a theatre and causing a panic, and producing an incendiary video likely to cause murderous violence half a world away. Actually, I wondered whether there was any difference; I wasn’t able to come up with a convincing distinction. Eugene Volokh, over at the eponymous conspiracy, has a post with an interesting suggestion.

Suppose, he says, we punish the makers of the insulting video that caused riots all over the Middle East this week:

What then will extremist Muslims see? They killed several Americans (maybe itself a plus from their view). In exchange, they’ve gotten America to submit to their will. And on top of that, they’ve gotten back at blasphemers, and deter future blasphemy. A triple victory.

Would this (a) satisfy them that now America is trying to prevent blasphemy, so there’s no reason to kill over the next offensive incident, or (b) make them want more such victories? My money would be on (b).

Now I think that, theoretically, there is a distinction between punishing the a person for offending another’s religious (or other) feelings, and punishing him for endangering lives, even though the reason lives are endangered is the offence he gave. Prof. Volokh considers the former possibility, and I the latter. But, in practice, the extremists who incite riots would be unlikely to see that difference; or if they saw it, they would be likely to wilfully blind themselves to it. They would look at the bottom line: they responded violently, and got what they wanted. And they’d be back for more.

This problem simply doesn’t arise in the case of the person who shouts “fire” in a theatre. He endangers people; he is punished for endangering people; end of story―there are no perverse consequences to worry about. This is a practical difference between the two cases. And, as I said in yesterday’s post, the law should be made and thought for the real world, and so must arguably take such practical differences into account.

Still, is this all there is to it? Should we forebear from punishing the maker of an insulting video only because of the perverse consequences of punishing him? Or, alternatively, do we think it’s all right to punish the panic-monger just because we know there’s no cost to doing so? Despite my musings on the importance of consequentialist thinking about matters usually thought of in terms of pure rights, I would like to think there is also a deeper normative difference between them, which justifies their differential treatment regardless of the consequences. But I still can’t tell what that difference is.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota