De-Ciphering Self-Help

Abstract

The dominant view of self-help is that it is a remedy exercised by individuals as an alternative to seeking state-sanctioned aid. In other words, self-help consists in ‘legally permissible conduct that individuals undertake absent the compulsion of law and without the assistance of a government official in efforts to prevent or remedy a legal wrong.’ Indeed, self-help is often vaunted as an efficient, or at least potentially efficient, alternative to the slower, costlier, and more cumbersome civil justice system. In our world of increasingly exorbitant legal costs, in which few have meaningful access to the civil justice system, remedies that can be initiated and executed without prohibitive expense merit scholarly attention. Notwithstanding this potential promise, the legal scholarship on self-help is meagre, and, moreover, just what behaviour counts as self-help is left unclear. Self-help, as it is currently understood, risks becoming a meaningless term, a cipher through which almost any behaviour initiated by an individual in furtherance of her legal rights can count as self-help. This article defends a narrower conception of self-help than that recommended by the dominant view. In so doing, it clarifies some of our misgivings about, and checks some of our hopes for, self-help. Self-help, properly understood, is not an alternative to the civil justice system. It is a privilege to act vis-à-vis another in a certain way when certain circumstances exist, and its exercise is always defeasible to a final determination by a court. Self-help, in other words, is not equivalent to taking the law into one’s own hands, as some have implied. This conclusion should comfort those who might worry about the extra-legal nature of self-help and who ask with some trepidation how the unilateral action of one individual can determine the scope and existence of the rights of another. Based on this article’s understanding of self-help, it simply cannot. This conclusion, however, might disappoint those who hope that self-help can be a part of the solution to our current access-to-justice crisis. If it is not a true alternative to the civil justice system, then the specter of costly, inefficient litigation and adjudication remains.