The Volokh Conspiracy

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Defying Criminal Demands

The Right to Defy Criminal Demands: Conclusion


I've just finished up a rough draft of my The Right to Defy Criminal Demands article, and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You can also see all the posts here.

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Criminals create risks for society—risks for their intended targets, and risks for bystanders. By defying criminals' demands, the criminals' victims may anger the criminals, and the criminals may respond by retaliating in ways that harm third parties.

Yet the law ought not in effect help criminals implement their demands by imposing liability on the defiant victims. People must have the freedom to refuse to obey such demands, even when the refusal creates some extra risk.

Free citizens have a legal obligation to obey the law. But they shouldn't have a legal obligation to obey criminals. Kipling was dealing with limits on kings when he wrote of

Ancient Right unnoticed as the breath we draw—
Leave to live by no man's leave, underneath the Law.

Yet the same is equally true of living by no criminal's leave. Giving criminals' demands legal effect undermines their victims' dignity, precisely because it subjects people not only to the democratically endorsed coercion of the Law but to the arbitrary tyranny of the criminal. And it undermines the Law's rightful claim to be the one authority that may use the threat of violence to set the rules of behavior.