There has recently been controversy over a case of alleged racist abuse. The accused is a 10-year-old boy, alleged to have used racist language in an insult to a fellow classmate.

The case has gained prominence because of the remarks of the judge who, in requesting that the prosecution reconsider their case, branded the case "crazy".

The BBC reports his comments:

"Have we really got to the stage where we are prosecuting 10-year-old boys because of political correctness?

"I was repeatedly called fat at school. Does this amount to a criminal offence?

He added: "Nobody is more against racist abuse than me but these are boys in a playground, this is nonsense.

This case has divided commentators. At the Guardian's Comment is Free site, two commentators - Hannah Pool and Cameron Duodu - argue that the judge was wrong. At Spiked Online, Josie Appleton argues that the judge was right.

It should be obvious to all that such racial epithets should be regarded as wrong, and their use discouraged - by punishment if necessary. There can be few who would argue otherwise.

So why is there an argument? The case appears to hinge on a crucial point: whose responsibility is it to mete out punishment? In my view, nobody can have any complaint if the school decides to punish such language. It is clearly wrong and children must be taught right from wrong. But, having reached that conclusion, I cannot understand why this case is going to court. Do we really need to use the full weight of the law to explain to a 10-year-old that it's wrong to use racial slurs? Are teachers and schools that afraid of tackling these issues directly?

To me, it seems as if this whole case could have been avoided if the school had handled it. There should be unanimous agreement that racial slurs are bad and that schools have a right to discourage them. The child could have been punished and educated about the wrongs of racial abuse without the matter ever leaving the confines of the school, save perhaps to inform his parents. Surely this is the sensible course of action, and any well-meaning commentator would point this out?

But that's not what happened, and that's not what the commentators are saying at all.

Hannah Pool makes the following argument:

Either we are against racial abuse or we're not. Either it is legislated against or it isn't. You can't start exceptions because thing have become a little uncomfortable.

This seems, to me, to be a tragic confusion of means and ends. The end - that racial abuse be discouraged and eventually eliminated - is clearly correct. But the means of the courts are almost certainly the wrong way of achieving that end. I am loathe to turn this into a free speech matter, because it is not; nobody is defending the right to use racist insults. But the law is not always the best tool in changing behaviour and the police and state are not always the best agents for ensuring respect within society.

The argument that "if we're against something, we must legislate against it" is, in my view, an illiberal one. It reminds me of the famous Thatcher (mis)quote, that there is "no such thing as society". The argument that we have a binary choice between legislating and not legislating is tantamount to asserting that there is no such thing as society and only the law can be used to condition behaviour, that only the force of the courts and police count for anything. If we give up on the idea that schools, communities and families have the biggest role to play in ensuring respect and good manners, we give up on the idea that there is a society worthy of the name.

Hannah Pool goes on to make several sensible points, and at the end agrees that the matter should not have reached the courts. But, if that's the case, then we do need to develop a better understanding, as a society, of just what the law is for. And we need to develop a better trust in schools and families and their ability to impart the right values.

Cameron Duodu makes a better argument in favour of the use of the law though, although I think he stretches the facts of the case somewhat. His argument is that the harm caused by racist abuse can be so severe that it causes permanent disruption to the education of the child receiving the abuse. This is a much stronger argument and, in cases where there is persistent abuse, expulsion from the school and even legal proceedings are called for. As I said, nobody has a right to use racist insults and schools are perfectly within their rights to take strong exception to their use.

But this brings me back to a point Hannah Pool made:

Finestein, who apparently has a reputation for speaking his mind, went on to reminisce about his school days, during which other children taunted him about his weight. "I was repeatedly called fat at school. Does this amount to a criminal offence? This is political correctness gone mad, it's crazy," he said. Ah yes, that old chestnut. When will people realise racism is not just about the words said but the history of oppression behind those words.

This I have to disagree with. I very much doubt that the child concerned is fully aware of the history of oppression and certainly can't be held responsible for it. The test is not the words used, or what the speaker did or didn't know, but the harm done. Taunting a child for being fat, wearing glasses and any of the multitude of insults that are used to isolate and ridicule in the playground has the potential to cause just as much insult and injury as a racist taunt. The schools has a duty of care to its pupils and therefore has a duty to punish those who cause such suffering. There should be no 'magic words' that are punished more harshly and no exceptions that are punished more lightly.

Whilst the judge is accused of triviliasing racism, I could equally accuse the commentators quoted of trivialising other forms of bullying which can have effects just as severe. This whole case reminds me of the fact that what's important is not trying to carve out special cases, but establishing and enforcing, primarily through society rather than the state, good principles that we can all agree on. That bullying is wrong is something we all agree on; that racism is wrong is something we all agree on. How about placing a bit more emphasis on getting these values across rather than point-scoring and legal proceedings?