Hate, Politics, Law – Critical Perspectives on Combating Hate
Hate has become a political outcast in liberal democracies. Whether expressed in speech, enacted in everyday criminal conduct, or seen as the fuel of terror and extremism, hate is considered a vice, an evil, and a threat. In public discourse, hate is typically ascribed to the Other (criminals, enemies, strangers, or terrorists) and to cry out ‘hate’ is a call for action: New or more elaborate statistics, criminalization or penalty enhancement clauses, police training and human rights advocacy. In any case, the result of effective agitation against the perceived threat of hate is mobilization and often extension of state power. Much scholarly work on hate seem to share the basic assumption that hate is bad and that the world would be a better place without it. We doubt that all hate is bad and we insist that the fighting of hate is in need of critical scrutiny. This is the basic idea behind our edited volume Hate, Politics, Law: Critical Perspectives on Combating Hate that came out with Oxford University Press in 2018. Our aim was to extend the scholarly gaze to include not just hate, but also the fighting of hate. That is, to initiate a critical exploration and discussion of the basic assumptions, ideals, and agendas behind the modern combating of hate: What are the normative presuppositions, the ideological roots, the promises, the limits, and – not least – the blind spots of the modern war on hate? When and why did it become legitimate to fight hatred? What do we mean when we frame an act or expression as hateful? How does the modern and public use of the term ‘hate’ relate to the longer and broader history of the concept of hatred? And what is at stake in the awkward relationship between hate and liberal democracy? To that end, the book opens four areas exploration.
Hate was not always considered an evil to be fought, and hate and democracy was not always at odds with each other. In the book, classicist David Konstan, explains how in ancient democratic Athens and in republican Rome, certain forms of hate were considered socially appropriate, associated with legitimate enmity rather than social pathology. The emotion that was considered a driver of problematic social conflict was envy (phthonos) rather than hate (misos). The classical understanding of envy might be interesting not just for the purposes of historical contrast, but also for our understanding, today, of crimes motivated by hate or prejudice. A closer consideration of envy, encourages us to take more seriously the feelings of unfairness, shame or humiliation that may be a factor in many hate crimes. Focusing on the history of the category of “hate” in our modern democracies, political scientist Erik Bleich, shows that the current political and legal focus on hate largely is the product of a gradual accretion of specific laws and policies emerging from a concern with racism over a more than 50-year period. This trajectory implies that racism – for better or for worse – still occur as the paradigmatic hatred, and this continuously structures the public understanding of hate as a particular kind of evil.
What do the people engaged in combating hate need to know about – well – hate? As much as possible, one might assume. How else to fight it? However, most scholarship on hate crime and hate speech seems largely uninterested in detailed conceptual reflections on hate. One might have to put up with the references to ‘hate’ in public and political discourse. The rhetoric of hate may even be granted to be apt for securing media attention and for the making of political coalitions between otherwise disconnected actors and organizations. But what according to many scholars is at stake in the fighting of hate speech and hate crimes is not ‘really’ hate, but structures of prejudice, illegitimate power hierarchies and discrimination. Consequently, some scholars advocate shifting the terminology and uses expressions such as defamatory speech or bias crime. Such rejections of hate as the appropriate term has served an important purpose, namely to draw attention to the structural embedding of hate speech and hate crime, hence their normality and systemic character. However, the general dismissal of the relevance of a more elaborate thinking about hate may in fact be too hasty. Philosopher Thomas Brudholm revisits the writings of Plato and Aristotle, showing that there is a long tradition for thinking about certain forms of hatred as prejudice or as a pathological syndrome, but also that hatred has been (and perhaps can be) seen as a normal emotional response to perceived evil, responsive to reasons and amenable to restraint in so far as people who hate are not always or necessarily led or consumed by their hatred. Psychologist Niza Yanay analyses hatred as a deeply ambivalent and complex constellation of longing and rejection, disgust and desire, that works within and beneath the -isms and –phobias of interest for the combatting of hate. Hence, a deeper understanding of the ambivalence of hate, and its intricate relation to love, is needed to sustain a sufficiently nuanced response to hate in liberal democracies. Finally, legal scholar Eric Heinze shows how hate emerges as a legal concept in the attempt to target forms of illegitimate, hostile attitudes that cannot be accommodated within the framework of anti-discrimination law. However, targeting such attitudes through speech regulations put the liberal democratic state at odds with its obligation to avoid viewpoint punitive measures. Thus, the state is always walking a tight rope, when seeking to regulate attitudes.
RESPONSES TO HATE
People all over the world are exposed to violence and intimidation because of their status or their belonging to particular groups. It has been like that for ages. What sets apart the modern concern with hate is not the violence or harassment as such. It is the interpretations of the violence as a particular kind of social problem and the introduction of a variety of legal and political responses to solve it. What we call responses to hate (criminalization, penalty enhancements, victim-offender mediations, victim surveys, public campaigning, education etc.) is the business both of states and non-state actors. In either case, such responses to hate will be intricately connected to the values and principles of the responding society, and as such they tell us something important about the normative underpinnings of liberal democracies, e.g. regarding criminal justice, toleration, equality and fundamental liberties. One prominent response has obviously been criminalization and punishment, but is criminalization an appropriate answer, and if so, is enhanced penalties the best way to go? Two chapters (by philosophers A R Duff and S E Marshall, and criminologist Mark Walters) seek to bridge a crucial gap between confirming the wrongfulness of hate on the one hand and the rush to criminalize and punish on the other; a gap, which is often either ignored or treated offhandedly in current anti-hate discourses. Obviously, there are also other responses to hate than the legal mechanisms of individual criminal accountability. Sociologist Birgitte S. Johansen problematizes the wisdom of mobilizing toleration (as a classical liberal virtue) as an anti-dote to hate, and political theorist Mihaela Mihai makes a case for the merits of art in working on collective embodied dispositions and unreflected hostilities.
Finally, our ambition with the books was also to probe the potential blind spots of current anti-hate law and policy. Namely, by asking whether there is such a thing as liberal democratic hatred and if so, what this might look like. Historian of ideas, Mikkel Thorup, answers this question conceptually, by investigating the different grammars for enmity that can emerge from democracy as a political order, which ideally substitutes hate for disagreement, the enemy for the competitor, and violence for voting. The idea constitutive to democratic self-understanding is that violence is the evil from which democracy may save us – and violence only exists in this world because of the non-democratic, hateful others. Another chapter answers the question empirically, by investigating whether liberal democratic states de facto perpetrates what they otherwise claim to fight as ‘hate’. Legal scholar Kathryn Abrams argues that this may in fact be exactly what the state of Arizona is doing under the regime of ‘enforcement by attrition’ deployed against undocumented immigrants. The case shows how particular features of state hate can more readily be legitimated when the objects are not recognized members of the polity, and when the hate is cloaked in rhetoric of concern rather than hostility.
Embracing the ethos of anti-hate and taking on a fight against hate speech and hate crimes have become ways in which liberal and democratic states define their enemies and identify themselves. However, fighting hate is neither unambiguous, nor without costs. As legal scholar Robert Post points out in his closing epilogue, mobilizing the concept of hate as the lens through which to address issues such as prejudice and discrimination potentially opens for an exclusion of perpetrators: ‘In the name of tolerance, we excommunicate those guilty of hate crimes; we place them outside the sphere of “possible dialogue.” Creating hate crimes does not purge society of hate; instead it redirects democratic hatred toward hate crime offenders.’ Do we in our fighting of hatred risk to hatefully excommunicate the odious others in our midst? The book does not provides an answer to this difficult question, but we hope to invite and inspire debate about the difficult relationships between hate, politics and law.
For those interested in hate in relation to genocide, Thomas Brudholm and Birgitte S. Johansen scrutinize the concept in another recent volume, Emotions and Mass Atrocity, edited by Thomas Brudholm and Johannes Lang (Cambridge University Press, 2018)