Criminalizing Hate: Law as Social Justice Liberalism

Presenter Information

Mark Walters, University of Sussex

Location

Bigfoot Room 124

Start Date

21-4-2023 10:30 AM

End Date

21-4-2023 11:45 AM

Publication Date

2023

Disciplines

Arts and Humanities | Law | Social and Behavioral Sciences

Description

Much has been written about the purpose and justification of hate crime laws. Though not unequivocally settled, it is often claimed that hate crimes are pre-existing offences that “hurt more”, and under conventional theories of liberal criminal law, are therefore deserving of an enhanced punishment at sentencing. In this paper, I argue that such an approach to defining hate crime has restricted our understanding of the true nature and harms that acts of hatred cause. It has also enabled legislatures to focus their attentions almost solely on punitive responses to addressing what is a complex individual and structural problem. This paper challenges this conventional wisdom by outlining a new theoretical framework for conceptualising hate crime based on what I refer to as “social justice liberalism”. Using this framework I argue for the expansion of traditional conceptions of the harm principle – often restricted to measuring direct harms to other individuals – to include impacts that are directly causal to the social injustice of entire groups of people. Building on Young’s “faces of oppression”, the paper draws on empirical research to evidence how hate crimes directly undermine individuals’ interests and capacities to participate equally in society. I argue that if the law is to truly grapple with both the individual and structural impacts of hate, hate-based offences ought not just to be defined as “aggravated” forms of pre-existing criminal offences, but ought to be codified as distinct forms of criminality. It is only by conceptualising hate crime as a distinct type of wrong in law that can we begin to construct forms of regulation and criminal justice measures that adequately reflect and address its multi-layered harms.

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Session Title

Hate Crime and Speech Laws: Social Justice or Oppression

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Apr 21st, 10:30 AM Apr 21st, 11:45 AM

Criminalizing Hate: Law as Social Justice Liberalism

Bigfoot Room 124

Much has been written about the purpose and justification of hate crime laws. Though not unequivocally settled, it is often claimed that hate crimes are pre-existing offences that “hurt more”, and under conventional theories of liberal criminal law, are therefore deserving of an enhanced punishment at sentencing. In this paper, I argue that such an approach to defining hate crime has restricted our understanding of the true nature and harms that acts of hatred cause. It has also enabled legislatures to focus their attentions almost solely on punitive responses to addressing what is a complex individual and structural problem. This paper challenges this conventional wisdom by outlining a new theoretical framework for conceptualising hate crime based on what I refer to as “social justice liberalism”. Using this framework I argue for the expansion of traditional conceptions of the harm principle – often restricted to measuring direct harms to other individuals – to include impacts that are directly causal to the social injustice of entire groups of people. Building on Young’s “faces of oppression”, the paper draws on empirical research to evidence how hate crimes directly undermine individuals’ interests and capacities to participate equally in society. I argue that if the law is to truly grapple with both the individual and structural impacts of hate, hate-based offences ought not just to be defined as “aggravated” forms of pre-existing criminal offences, but ought to be codified as distinct forms of criminality. It is only by conceptualising hate crime as a distinct type of wrong in law that can we begin to construct forms of regulation and criminal justice measures that adequately reflect and address its multi-layered harms.