Towards a Legal Concept of Hatred: Democracy, Ontology, and the Limits of Deconstruction

Abstract

Discrimination law focuses on material conduct. A legal concept of hatred, by contrast, focuses on attitudes, as manifest most notably through hate speech bans. Democracies by definition assign higher-law status to expression within public discourse. Such expression can, in principle, be legally curtailed only through a showing that it would likely cause some legally cognisable ‘harm’. Defenders of bans have overtly or tacitly appealed to ‘anti-Cartesian’ phenomenological and socio-linguistic theories to challenge dominant norms which largely limit such harm to demonstrable material causation. Such notions of harm cannot, however, be reconciled with higher-law norms barring viewpoint-selective penalties on expression. Still, a democracy retains alternative means of combating hateful attitudes, including formal and public educational policy, and codes of professional practice in the public and private sectors.

Keywords: antisemitism, critical legal theory, democracy, discrimination, hate speech, hatred, homophobia, Islamophobia, law & language, legal phenomenology, racism, sexism