THE PHILOSOPHY OF
HATE CRIME ANTHOLOGY
Part I
Introduction to the Philosophy of Hate Crime
by David Brax & Christian Munthe
CONTENTS
1. Background
4
1.1 Subjects and Themes of Hate Crime Policy Debates
1.2 Types of Values and Reasons
2. Literature Selection: Bibliographic, Historical and
Thematic Considerations
2.1 The Primacy of Criminal Law
5
7
12
2.2 Roots in Statistics
2.3 Back to Criminal Law: Complexities, Values and Plurality
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14
15
3. Themes of the Philosophy of Hate Crime: A Summary
16
3.1 Theme 1: Conceptual Analysis and Semantics
17
3.1.1 The Importance of Conceptual Analysis
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3.1.2 Particular Concepts and Models
20
3.2 Theme 2: Moral Considerations
3.2.1 Hate Crimes are Worse than Other ‘Parallel’ Crimes
3.2.2 Hate Crimes are Not Worse than Other 'Parallel' Crimes
3.3 Theme 3: Jurisprudence
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23
25
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3.3.1 Hate Crime Legislation is Justified
3.3.2 Hate Crime Legislation is Not Justified
3.4 Theme 4: Explanations – Structural and Individual
3.5 Theme 5: Protected Groups
3.6 Theme 6: Neighbouring Areas: Hate Speech and Terrrorism
3.6.1 Hate Crime and Hate Speech
3.6.2 Hate Crime and Terrorism
2
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3.7 The Role of the Philosophical Discussion so Far
4. Final Discussion
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4.1 Fringe Cases and Areas of Future Interest
4.1.1 Gender Based Hate Crimes?
4.1.2 Honour Crimes
4.1.3 The Philosophy of Hate Crime Prevention
4.2 Many Concepts, One Frame?
4.3 Value Plurality, Conflicting Reasons and Policy Compromise
5. List of References and Sources
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51
3
1. Background1
The aim of this first part of The Philosophy of Hate Crime Anthology is to
introduce the topic of its accompanying, second part, the annotated bibliography
of the philosophy of hate crime authored and compiled by David Brax.2
Together, these documents provide a provides a guide to the philosophical and
theoretical issues underlying hate crime legislation and policy. These issues are
rarely at the top of the news agenda, but are important to the assessment of
various more concrete and readily debated questions. They are, as we shall
attempt to demonstrate, crucial in order to achieve well-founded hate crime
policies. In effect, this bibliography purports to explain such connections and to
present briefly the debates about the philosophical issues as they are conducted
within different fields of expertise, with pointers to relevant reading materials
and what these contribute to the discussion.
The realisation of this aim is an outcome of the project When Law and Hate
Collide, coordinated by the law school of the University of Central Lancashire,
UK, and involving researchers from the Göthe University of Frankfurt,
Germany and the University of Gothenburg, Sweden. This project was funded
by the European Commission's Daphne III program (contract no. 2009-DAP3AG-1221), which aims at providing the European Union with a strengthened
basis for designing hate crime policies at the European level, as well as support
member state initiatives of this nature.
The presentation of the items in part II is organised as a regular
bibliography, where articles, chapters and books appear in the alphabetic order
of author surnames. Each item is followed by a short introduction to its main
content, a more detailed summary of the arguments and theses pursued
(including critical points to be aware of) and a briefly stated conclusion. The
content of the items fall under a number of broader as well as more specific
themes of a general interest to anyone engaged in the design of or debate on hate
crime policies. These themes are introduced and explained in this introductory
1
We are extremely grateful for input and criticism received when a draft of this introduction was presented at
the research seminar in practical philosophy and political theory at the University of Gotheburg. We especially
owe Göran Duus-Otterström, who acted as special presenter and opponent on this occassion, for performing his
task so meticulously and for his care to provide detailed commentaries. Further critical and useful input was
provided separately and in writing by Marie Demker and Richard Aschcroft. Whatever shortcomings remain, of
course, are our responsibility entirely.
2
Brax, D (2013). The Philosophy of Hate Crime Anthology, Part II: Annotated Bibliography. University of
Gothenburg
4
essay, as well as indicated in the commentaries of individual items. In addition,
this introduction presents some of our reflections on the philosophical debate,
such as it has evolved, especially in relation to the range of policy issues
actualised by the phenomenon of hate crime. At the end we present a number of
suggestions for both issues to address in forthcoming philosophical work in this
area, and theoretical frameworks for making existing debates useful for actual
policy.
1.1 Subjects and Themes of Hate Crime Policy Debates
In general terms, the notion of a hate crime denotes an (1) independently
criminal act (such as assault, theft, murder, rape, harassment, and so on) where
(2) some sort of negatively biased, disparaging and/or discriminatory attitude on
part of the offender towards a social group to which the offender links the
victim3, is (3) in some qualified way connected to, plays a role in or explains the
occurrence of the crime. If more precision or specificity is asked for, we will
immediately open a number of those issues which are pondered and discussed in
the philosophical debate. The general definition thus connect at least three
separate parts, and a more specific definition involves settling on more precise
understandings of these three parts and their interconnections4.
It is worth noting at the outset that the word "hate" (part (2) in the above
definition) may not capture the sort of attitude that distinguishes these crimes
from others and thus defines the domain of a hate crime policy. Exactly what
sort of attitude this is (or should be) is one of the issues under debate. One
expression that has gained some popularity among participants on all sides is the
notion of a bias crime.5 This term signals that the attitude in question need not in
itself be strongly affective, phenomenally vivid or emotively forceful, but rather
consist in a disposition to believe, feel and behave in certain ways under certain
conditions. The attitude thus described is more akin to prejudice6 than an
occurrent emotional state, as normally denoted by the term ”hate”. While some
hate or bias crimes may flow out of reasoned convictions7 or conscious
sentiments about the lesser worth or right to protection of people belonging to
certain social groups, many crimes categorised as such rather result from less
conscious biases figuring among people's everyday attitudes. A hate crime may
be seen as an expression of a biased dispositions which influences choices in a
more mundane, spur of the moment fashion. These dispositions may not even be
immediately recognised as biased or discriminatory by the offender him- or
3
Or, alternatively via a property symbolically linked to the group (such as insignia, friendship with a group
member, etc), as held out by the US Anti Defamation League, see Hate Crime Laws: A Comprehensive Guide.
4
See section 4.2 below.
5
Lawrence (1994), Perry (2005).
6
Allport (1954).
7
Such as those of members of ”hate groups”. Such groups where, arguably, a significant part of the intended
target of early hate crime policies, and still is in some European countries. Crimes committed by such persons
may still form the ”typical” hate crime. Not necessarily as the most common type, but in terms of recognizability
and potential for successful prosecution. See Iganski (2008)..
5
herself; and sometimes not even by the victim. Which subset of these attitudes
and these manifestations that should be addressed by a hate crime policy and in
what way is a question that immediately takes us into the sort of disagreements
and debates, the nature of which is the topic of this introduction. Indeed, these
are precisely the sort of fine distinctions that a philosophical analysis can help to
make clear. The implications for legislation, policy making and monitoring are
considerable.
General mentions of hate crime policy as a rule make people think about
matters of criminal law – its design, application and enforcement. While hate
crime policy indeed is essentially connected to the basic task of society to
uphold security and keep the peace, contemporary hate crime policy connects to
a wider set of social issues, concerns and developments8. Arguably, the
historical roots of today's hate crime policies and debates surrounding them are
to be found in the 20th century civil rights movement of the USA9, and the issue
about unfair discrimination or selective persecution of specific social groups
(based on perceived differences of race, ethnicity, gender, sexual orientation,
physical and mental ability, and so on) continuously addressed in the European
political context since the closing of the second world war. This point is
sometimes made by describing hate crimes as human rights violations, and to be
understood in terms of discrimination.10 But that is and remains a controversial
point, especially in legal terms.,Indeed, hate crime statutes have themselves
been accused of violating established civil rights statutes11. Nevertheless, the
general phenomenon of hate crimes and the issue of how to respond to them is
clearly embedded in a salient human rights context, where states are held
responsible for developing sufficiently effective hate crime policies in order to
live up to signed human rights charters. A state may be committing a human
rights violation by not having an effective hate crime policy - but a distinct
justification may then be required for punishment enhancement statutes based
on what kind of additional wrong a hate crime involves.
The question of why a country should have a hate crime policy and, if so,
how it should be designed and applied actualises decisive issues about the
8
For the European Union’s take on this subject, see the framework decision on combating racism and
xenophobia (2008/913/JHA), which has the purpose to ”ensure that racism and xenophobia are punishable by
effective, proportionate and dissuasive criminal penalties in the European Union (EU)”. The connection between
this decision and hate crime policy is developed in a recent report from the European Union Agency for
Fundamental Rights, see Making Hate Crime Visible in the European Union.
9
Jennes and Grattet (2002)
10
See, e.g., the presentation of the area of hate crime on the webpages of the OSCE (Organisation for Security
and Co-operation in Europe) Office for Democratic Institutions and Human Rights;
http://www.osce.org/odihr/66388. Technically an individual crime cannot be a human rights violation, offence or
breach, since human rights are held by individuals against states (or possibly state-like institutions). Framing
hate crime policy in human rights terms is, however, quite natural given the aim and scope of organisations like
OSCE and FRA.
11
See Gellman (1991-92), Jacobs and Potter (1998), Hurd and Moore, (2004). In short, the argument is that if
there is differential punishment within sufficient justification, someone is being punished more (or less) than
he/she deserves. This would then constitute a rights violation. We will return to this shortly.
6
design of criminal law statutes, court proceedings, police work, monitoring and
so on. This since, as much as it connects to wider issues about fighting,
preventing and responding to social bias and unfair discrimination in general,
hate crime policy relates to crimes as defined by criminal statutes and these, in
addition, may be defined from the point of view of policy categorisation,
criminological taxonomy or crime statistics as a certain category of crimes (just
as there are similar distinctions to be had between, e.g., rural and urban crime,
violent crimes involving handguns and those not involving handguns, and so
on). Such a category of hate crime, although not itself included in criminal law
statutes, has to be defined with close attention to criminal law, its requirements,
prerequisites, scope and possibilities. In addition, as a matter of fact, all
countries declaring themselves to have a hate crime policy have, as far as we
have been able to determine, chosen to base it on particular elements of criminal
law statutes. However, it is not given that having such a "hate crime law"
suffices for having an adequate hate crime policy, since laws alone may be seen
as a ”cheap” way to express commitment to certain values without being
prepared to act in accordance (Jacobs and Potter 1998).
1.2 Types of Values and Reasons
It follows from this that the most profound issues connecting to hate crime
policy are about values and proper response to values. In relation to the notion
of hate or bias crime set out above as a loose conceptual frame, we may describe
in general terms the sort of policy questions that arise when addressing the
general issue of what a hate crime policy should look like, as well as the sort of
values and reasons that may be brought to bear when trying to answer them.
This totality is illustrated by figure 1, below.
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figure 1
While a hate crime policy must relate to and, as a matter of fact, tends to
involve the criminal law system (as a rule in the form of punishment
enhancement statutes, or sentencing guidelines), it should also involve keeping
track of the occurrence of hate criminality (monitoring) and efforts to limit their
occurrence and/or the individual or social damage that it may effect
(prevention). While these parts of a hate crime policy may be thus distinguished,
it is important to note their interdependence12. As an example, the law is an
incitement to police officers to pay attention to and report a certain kind of
factor that would otherwise go unnoticed13. It is also an incitement for victims to
go to the police and to notice and report evidence of hate motivation. These
reports, in turn, are used in most attempts to monitor hate crime. Preventive
policies need assessment and evaluation (monitoring), as well as strategies for
when efforts fail (criminal law), and so on.
As will be seen, there are aspects of the philosophical discussion that may
be taken as reasons to ponder more seriously whether or not these other (non
criminal law) aspects of a hate crime policy have been given too little priority in
actual policy solutions and/or scholarly discussion14. Within each domain,
further questions arise about the proper design of policy measures, albeit only a
limited amount of these have so far been addressed at the philosophical level. Of
course, these two types of questions (how the mix of domains should look like
and how each domain should be designed) are interrelated. For instance, if
criminal law specifies that particular hate crimes are to be responded to by the
criminal legal system in certain ways, it would seem desirable to design a
system for the monitoring of hate crime to be able to describe trends with regard
to the actions thereby seen as hate crimes by the criminal legal system. Another
example: if preventive policies are very weak, the need for more forceful
12
The preventive aspect is not isolated to prevention of hate crime, but of all ills that follows from
prejudices/bias/xenophobia (discrimination etc). There are, however, complicated issues regarding the
connection between widespread attitudes (emphasised in Perry (2001), Iganski (2008), Making Hate Crime
Visible in the European Union) and hate crimes. Hate crimes are committed by a very small minority of those
who holds xenophobic or otherwise biased attitudes and these may be the least likely to give up on such attitudes
by means of education and/or ”clear messages sent” by authorities through legislation or policy. This issue
hinges on matters regarding the best explanation of hate crime, and that area of research is fraught with
difficulties. In particular, there is no solid data linking the spread of xenophobic attitudes to frequency of hate
crimes.
13
Some states offer some such monitoring, but far from all, and the quality differs widely. An excellent
overview and a sharp set of recommendations to rectify this problem was recently published (see. Making Hate
Crime Visible in the European Union).
14
For instance, an alternative to enhancing penalties for hate crimes is to make them a matter of priority for the
police. Such a policy is likely to have a similar preventive effect, to send the same sort of ”counter-message” in
support of targeted groups, and to be more effective when it comes to collecting data. Making hate crime a
priority rather than a matter of penalty enhancement may be more effective in making hate crimes and hate crime
victims more visible. In addition, such a policy may make these crimes less likely to be dismissed by courts
because of a reluctance to apply penalty enhancement (or failure to report that one does and/or to prosecute
because of the added difficulties in securing evidence of hate motivation).
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criminal law policy measures may become stronger, and the other way around.
Monitoring is obviously crucial when it comes to evaluating different hate crime
policies15.
Underlying any pondering, debating or suggestion with regard to this set of
issues there has to be some values and normative standards that provide or
underpin positive reasons in support of, as well as reasons for moderating or
restricting policies. Such reasons will also influence how more precise concepts
of hate or bias crime should be designed in relation to different policy domains,
jurisdictions, suggested measures, and so on. That is, one desirable feature of a
concept of hate or bias crime is that it pinpoints features that are indeed
important according to the underlying reasons16. The question of to what extent,
in what way and why such concepts may be developed will be revisited several
times below.
We have found that there are basically four types of related values appealed
to in favour of having a hate crime policy and to guide its more exact design;
protecting individuals against harm or injustice, or likewise protecting
communities, society as a whole or certain especially disadvantaged groups of
individuals. All of these values reflect respectable and well-entrenched
perspectives on how to evaluate any sort of legal measure, public policy
proposal or societal design and thus all express a broad social consensus on the
primacy of well-being, liberty, justice and equal treatment in societal efforts,
codified and expressed, e.g., in the European convention on human rights,
incorporated into the constitutions of all EU member states. Below, these four
values will surface in a large amount of details and variations, so at this stage we
will just give some general pointers to their roles.
First, there is the perspective of society's responsibilities to its individual
members: To protect them from harm, or – if harm is inevitable or to some
extent acceptable – to protect them from undue, unfair or unnecessary harm.
Included in this idea is the notion of having a fair restitution in the face of
having been unduly harmed17. This perspective is visible in the argument that
"hate crime hurts more”18, or the idea that public recognition of hate crimes may
serve to prevent some of this extra harm. It is also reflected in the idea of
community effects being an important reason in favour of hate crime policies,
15
At the present stage of hate crime monitoring, increase of reported incidents are generally held to be a good
thing, as it reflects variations in willingness to report, rather than increase in actual numbers (On the challenges
for hate crime statistics, see Klingspor 2007). Indeed, because of the many problems (especially with the failure
of most European states to gather data on prosecutions and verdicts) evaluation of policies remains exceedingly
difficult.
16
In other words that the ”social” kind ”hate crime” tends to co-incide with a ”moral” kind, i.e. a category of
crimes that in virtue of intrinsic or extrinsic properties are morally worse than the basic crime to which the hate
element is added. In the criminal setting, the additional question is whether, and how, to tie these moral
properties to the individual offender.
17
See Harel and Parchomovsky (1999), as well as Making Hate Crime Visible in the European Union. The
special protection that hate crime legislation accords certain groups is intended to offset or balance the increased
risk, harm and/or wrong suffered by those groups.
18
See in particular Iganski (2001).
9
since one role of communities is to provide people with contexts for security,
safety, shelter, identity, belonging and prosperity that the formal
institutionalised apparatus of a nation state seldom manages to provide on its
own19. The community of the victim may thus be seen as a sort of amplifier of
the immediate individual harm, where other community members may be
harmed as well, because of a recognition of the hate or bias element of the crime
potentially threatening each community member. In addition, through such
processes, hate crime as a wider phenomenon undermines the just mentioned
ability of the community to provide important public goods to its members20.
The community perspective can also be expanded into a more basic and
general societal perspective, where hate crime is targeted for policy due to
classic state concerns – such as public order, social stability and cohesion,
security and, ultimately, general peace – that have a bearing on everyone's
prospects. From this level, hate or bias crime can be seen as a potential threat to
such overarching public goods and thus to the ability of society to facilitate the
flourishing of either individuals or communities. While a single typical hate
crime may not plausibly be viewed as such a threat, the spreading in society of a
readiness to transgress the law and harm other people due to negative attitudes
towards the groups they belong to would indeed constitute such a threat.
Therefore, having policies specifically aimed at responding to such tendencies,
even though they may look unlikely to escalate, can be argued to be justified in
view of the enormity of the values at stake when basic societal stability and
peace is considered. But this type of reason may also be used to question hate
crime policies for risking the cementing and worsening of existing inter-group
animosities, subjection of certain communities or groups, and so on (Jacobs and
Potter 1998, Gellman 1991-1992).
Although this may be claimed to be a special instance or reasoned
consequence of those goods and societal tasks mentioned above, we want to
hold out as a special and further reason, the idea of hate crime policy as being
called for due to the apparent fact that hate crimes normally victimise people
who are already at a disadvantage, especially vulnerable, marginalised, or
19
A recurring idea in the sociological literature on hate crime – see Perry (2001), Iganski (2008) – is that it is the
widespread prejudices in the general community that makes for the particular harm caused by these crimes. The
protection offered by a social sense of security does not exist for victims belonging to minorities or otherwise
marginalised groups, which make them vulnerable and more likely to suffer harm from targeted attacks. See
Chakraborti (2010) and, more generally regarding disadvantage, Wolff and De-Shalitt (2007). It’s then argued
that society can do better by, for instance, installing these statutes and meeting out these punishments, in order to
create a better society (similar thoughts occur in Making Hate Crime Visible in the European Union).
20
This is reflected in Making Hate Crime Visible in the European Union, where it is recognised that hate crimes
do not just involve the individual perpetrator and the individual victim, but the group represented and the group
”hated” . How group size influences the extent of the harm is, however, not well known. There is strength in
numbers, and also a diminished risk for individuals to be targeted by such targeted violence, but then there’s also
a greater number of people affected. As the FRA thus connects hate crimes intimately to incitement, the number
of effected people would seem to be relevant. (This depends, however, on a contentious issue regarding whether
the relevant audience is those likely to take to violence, or those that would fear it)
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something similar21. According to established ideas about equal treatment and
basic justice, harm or injustice to already disadvantaged persons or groups is,
morally speaking, worse and more important to respond to. This general idea
may have important implications for the design of hate crime policies, since
there is nothing in the conceptual framework of hate crime that excludes policies
that target hate crimes perpetrated due to a bias against especially advantaged
people (in terms of religion, race, social status or money, for instance). None of
this implies, of course, that this or that hate crime policy is more or less
supported automatically. Rather, this starting point would have to add facts
about hate crimes and other crimes, perpetrators (who usually also belong to
disadvantaged groups) and victims, and so on in order to make clear to what
extent care for the disadvantaged actually supports special hate crime policies
and, if so, what kind.
These four values (protecting individuals, communities, society and/or the
disadvantaged) express related concerns fitting within basic ideas about the
tasks and responsibilities of a civilised society. But it is important to recognise
that they may also partly contradict each other and pull in opposite directions.
For instance, the third reason may hold also in absence of any reason of the first,
second or fourth sort. Or, in individual instances, the first reason may support
completely opposite conclusions with regard to priority than the fourth one
(since , in such cases, it may very well be that a hate crime against someone
advantaged "hurts more" than one against someone disadvantaged. These are all
examples of well-known tensions within the basic values of liberal democratic
societies that continuously need to be negotiated. We will return later to the
issue of what such balancing may involve).
In addition to the four basic values (protecting individuals, communities,
society and the disadvantaged), there are other concerns that flow out of the
more general pragmatics of having a working institutionalised society and legal
system, which constrain what practical solutions may be justified on the basis of
the basic values. These are considerations that may vary a bit regarding specifics
between countries,22 but which all have to do with basic qualities of the legal
system, such as legal security and certainty, legitimacy and effectiveness in how
legal solutions are in fact implemented, thus ensuring rule of law. In effect, lack
of ability to effectively implement a proposed hate crime policy solution, for
instance due to weak popular support, or lack of coherence between this
proposed solution and basic constitutional or legal principles, will weaken the
case in favour of this solution, even if the basic values have much to tell in its
favour. At the same time, also here, there is sometimes a delicate balancing to be
made between such pragmatic concerns and genuine moral considerations, such
21
See Harel and Parchomovsky (1999), Chakraborti (2010) and Making Hate Crime Visible in the European
Union.
22
See, for instance, the overview of the European policy situation worked out within the When Law and Health
Collide Project, to be available through the When Law and Hate Collide project website:
http://www.uclan.ac.uk/schools/lancashire_law_school/law_hate_collide.php
11
as when legitimacy is difficult to achieve due to widespread and deeply
embedded prejudice and animosity between social groups in a jurisdiction.
Examples here may regard, e.g., the situation of LGBTQ people in some Baltic
and Eastern European countries, or Roma people in Hungary, Romania, Italy
and France. A hate crime policy solution may very well be justified in spite of
being initially impractical or ineffective, and many times the reasons in its
favour may motivate changes of basic legal principles of a country. However,
the possibility of the opposite also has to be acknowledged as a part of the
realities of politics. If nothing else because of the reason that illegitimate
policies are often highly ineffective, and may as a matter of fact serve to both
hide and worsen the problems of marginalised groups, unless special pressures
against countries are applied to effect more profound change.23
Before moving on, we want to make a final, more general observation with
regard to how the mentioned values and reasons are being put to use in actual
debates. This holds in general with regard to policy discussions in this area, but
can be observed as an important aspect of the specific philosophical debate that
will be described in more detail below. Most arguments wielded in the
discussions refer to the values in a broadly result oriented manner – i.e. the
arguments are put in terms of proposed actions having actual effects of either
(probably) promoting or (probably) reducing some value. However, sometimes,
arguments are rather about relating to the values in a symbolic way: Without
openly referring to chances or risks of influencing the actualisation of any of the
values, claims are made in terms of the importance of, e.g., publicly expressing
commitment to (some of) them, or to give voice to how serious society views
any threat to (some of) them. Now, it may be that, sometimes, such ways of
putting arguments are elliptic; they silently presuppose that symbolic, public
displays of the sort mentioned will as a matter of fact have effects on the
actualisation of the values. However, it may also be that sometimes what is
apparently being said is exactly what is being intended to be said; namely, that
the function of symbolically representing a value in the public sphere may be an
argument in favour of an action that can be balanced against, e.g., facts about
this action having the actual effect of reducing the very same value. We will
return to these two ways of relating to the values in the final discussion.
2. Literature Selection: Bibliographic, Historical and Thematic
Preliminaries
In spite of this anthology being an introduction to and a bibliography of the
philosophy of hate crime, only a handful of the annotated papers are by
philosophers of the trade24 and all of the books are authored by people with
23
For some recent comments about the differences between Europe and the US, and the tensions between
protecting freedoms and combating racism see Bleich, (2011), Nussbaum (2012) and Waldron, (2012).
24
Kamm (1992), Murphy (1992), Blackburn (2001), Hurd and Moore (2004), Hurd (2001), Al Hakim (2010).
12
other academic affiliations or credentials. In this area, the discussion of the
philosophical issues takes place primarily outside of salient academic
philosophy arenas, while the academic field of philosophy itself has remained
rather passive25. The selection therefore includes a number of authors and
publications from other fields of study than pure philosophy. A large subset of
the papers have been published in law journals, for instance, but are selected for
philosophical relevance. The same selective rationale holds with regard to the
books, together – of course– with attention to their influence on the general field
and how it connects to actual hate crime policy designs, debates and
developments.
As a consequence, the purely bibliographic aspects of the selection of
material connects intimately to our interpretation and assessment of how
different discussions of underlying philosophical issues attempt to make their
connection to policy issues. So, for instance, with a few exceptions, purely
sociological aspects will be largely kept out of the commentaries – themes like
typology of offenders, victim impact statements and the mapping of specific
characteristics of affected people in terms of socio-economic or cultural
demographics26. However, some such aspects are relevant also from a
philosophical perspective and do enter the discussion of underlying issues27..
Before we move on to the more specific themes and views pursued and debated
in the philosophical part of hate crime scholarship, we will therefore briefly set
out how – as a rule – in these works, theory is linked to relevant policy practice.
2.1 The Primacy of Criminal Law
As indicated earlier, legally speaking, there is no such thing as a hate crime.
Virtually no law or statute uses the term ”hate” or defines a species of crime in
terms of hate. ”Hate crime” is rather a policy term, used in documents, debates
and decisions28, and frequently employed in crime statistics (BRÅ29, US federal
hate crime statistics30, the annual OSCE-ODIHR "Incidents and Responses"
report31). Nevertheless, issues about the design and justification of criminal law
is the main focus of hate crime scholarship.
A number of commentators argue that criminal law is the strongest means
that a society has to publicly express commitment to its values and disapproval
of acts that go against them. This is one reason why the criminal legal system
25
It is notable that the philosophical literature on hate speech is much larger. See, for instance, Sumner (2004),
Waldron, (2012), Brink (2001).
26
With the exception of Sullaway (2004), psychological aspects are also kept to a minimum.
27
Such as in the case of Levin and McDevitt (1993, 2002), Iganski (2008), Perry (2001), Garland (2010) and
Chakraborti (2010)
28
Iganski (2008). See also the web-pages on hate crime of the British Home Office:
http://www.homeoffice.gov.uk/crime/hate-crime/
29
http://www.bra.se/bra/bra-in-english/home/publications/archive/publications/9-10-2012-hate-crime-2011.html
30
http://www.fbi.gov/about-us/investigate/civilrights/hate_crimes
31
http://www.osce.org/odihr/73636
13
functions as a theoretical hub to which the rest of hate crime policy discussion
and scholarship relates. The term ”hate crime” as a name for an academic field,
this designates an interdisciplinary sphere of interest for legal scholars,
criminologists, sociologists, activists, politicians and the like32. Inevitably,
concepts will differ between disciplines, legislations, and scholars, and a number
of issues regarding communication and implementation arises33.
The criminal law is of obvious importance to hate crime policy as an
official expression of state support for targeted groups and individuals, and as
expressing a deep commitment to combating xenophobia and promoting
equality among it’s citizens. In section 3.6, we will expand on how hate crime
laws in this way relates to other pieces of legislation and policy, such as hate
speech/incitement, and discrimination more generally.
2.2 Roots in Statistics
While questions regarding criminal law are central to the academic hate crime
field and discussion, this is not how the notion "hate crime" was originally
introduced as a policy term. It was instigated by the US federal crime statistics
in the 1990's as a way of monitoring the incidence of crimes motivated by
prejudice based on race and religion.34 There are two important things to note
about this origin: First, as a category of crime, hate crime is relatively
uncontroversial - there clearly are crimes that are caused or motivated by, or that
in some other qualified way connect to, ”hate”, bias, prejudice or some similar
attitude of the offender. It is arguably (for the general reasons explained earlier)
important to keep track of these crimes, and to investigate what conditions may
influence the rate of such crime. As a criminological category, hate crime is no
different from, e.g., domestic crime, knife crime, or crime committed during the
night or in public spaces. Monitoring efforts do not as such imply that there is a
hate crime ”problem”, but rather help us to determine whether, to what extent
and in what way there is such a problem. Whether incidents are increasing in
certain contexts, for instance, such as in connection with political events
involving the targeted group. Monitoring also allows for different ways of
conceptualising hate crime; for instance, hate or bias motivated crimes and hate
or bias expressive crimes could in principle be tracked separately35. In practice,
of course, there is likely to be only one concept operationalised and utilised in
any large-scale monitoring effort, and it is important to get this right.
The other thing of importance with the origin in crime statistics monitoring
efforts is that this means that the word ”hate crime” was not chosen to indicate
32
Jennes and Grattet (2002) and Iganski (2008)
For a critical assessment of hate crime statutes based on this observation, see Jacobs and Potter 1998.
34
See the history summary of FBI's hate crime web-pages: http://www.fbi.gov/aboutus/investigate/civilrights/hate_crimes/overview
35
It should be noted that this depends on treating ”expression” not as a mere causal relation betseen motive and
act, but of the content of the act itself. In this sense, an act can express a view that does not correspond to the
agents motives. See Blackburn (2001).
33
14
any particular degree of seriousness of individual criminal acts, or some special
culpability of individual offenders. From the outset, hate crime was viewed as a
societal problem. The development from attempting to monitor and detecting a
societal problem to mobilising criminal law as a means to respond to this
problem is not straightforward. As we shall see, a lot of the philosophical
discussion concerns the justifiability of addressing societal problems using the
instruments of the criminal legal system, rather than (other) policy measures.
2.3 Back to Criminal Law: Complexities, Values and Plurality
The relation between the design and application of criminal law, monitoring and
other types of policy measures is complicated and intertwined. Most policy
makers and scholars argue that criminal law measures constitute an
indispensable part of both prevention and monitoring. The Swedish hate crime
statistics (to pick one example) relies largely on police reports and started in
relation to the introduction of what is commonly known in the country as the
”hate crime law”; i.e. a sentencing guideline prescribing punishment
enhancement on the basis a certain connection between the criminal act itself
and certain biased attitudes of the offender. Via the basic principle of the
proportionality of punishment, criminal law thereby mark these crimes out as
particularly severe and – in effect – as being of special interest to police,
prosecution and the defence. The criminal law is also calculated to influence the
tendency of victims to notice and mention these aspects when reporting crimes
committed against them36. Overall, the general message sent out as a
consequence is that those crimes thus selected by the law are, in virtue of this
very fact, being viewed by society as especially important to respond to in
general. It seems to be a general assumption that this, together with measures
such as punishment enhancement, may have preventive effects (if not on the
incidence of hate crimes, so at least by mitigating the assumed extra harm of
these crimes). That is, what may look like a technical adjustment of a very small
part of criminal law may have traceable communicative impact all across the
societal and policy board. To what extent the impact will go beyond such
general messages, however, will depend on to what extent and how these are in
fact being put to use by the mentioned parties, and what the actual outcome of
that will be. This connects to the earlier mentioned distinction between symbolic
and result oriented ways of arguing for and against hate crime policy
proposals37.
For this reason, when addressing deeper issues about the justification of
hate crime policies in all of their complex aspects, starting with looking
critically at involved criminal law measures will often be a key. The
36
Hate crimes are often supposed to be particularly likely to be underreported due to victims fear of secondary
victimisation (by authorities) and desire to avoid conspicuous visibility.
37
Hate crime legislation and policy are often held to send a ”counter-message” to the message sent by these
crimes. Hate crimes on this conception is treated as very much akin to, perhaps even a species of, hate speech.
See, e.g., Making Hate Crime Visible in the European Union.
15
concentration on issues about the design of criminal law with respect to hate
crime present actual disagreements between qualified scholars. These
disagreements must ultimately be settled, and are of particular importance. As
indicated earlier, the criminal legal system comes with a strong tradition of
general values and basic moral standards that will have to constrain and be
worked into any idea of policy (ultimately connected to the fact that criminal
law measures imply the use of force by the state). This tradition, among other
things, brings with it an insistence on fine distinctions and careful justification
and also for this reason, a focus on criminal law/jurisprudence becomes a
suitable focus for developing a philosophical approach to hate crime. It is also
here that philosophy - moral and political philosophy in particular - have the
most to offer, in form of critical assessment of justificational grounds (including
overarching issues of how and on what basis to justify and delimit criminal law
and policy in general) and the contribution of conceptual clarity.
Now, while the aim of this bibliography is to give an overview of
philosophical work on hate crime, which – as indicated – addresses quite
general and foundational issues with regard to criminal law, it also relates to
particular legislatures and jurisdictions that differ from each other in substantial
and detailed respects. The expression ”hate crime”, when used to talk about the
design of criminal law, is a loose umbrella term for a large number of different
actual legal formulations, procedures, practices and other solutions developed in
different political and cultural contexts and traditions – all of which are
differences that may be philosophically very important indeed. This means that
the justification and/or criticism of one particular "hate crime law" may not
work for another. This is part of a more general issue addressed below in
sections 4.2 and 4.3.
3. Themes of the Philosophy of Hate Crime: A Summary
This summary is structured thematically. Many of the publications cover more
than one of these themes, so the structure does not divide the literature into neat
piles. This summary will point out the problems with different formulations of
hate crime legislation as they occur, but focus on as general, principled, issues
as can be found pertaining to all or most of these laws. Some points will accrue
more to certain states than others, and some patterns of reasoning may not be
recognised from every context.
The main source of philosophical considerations of hate crime issues is
debates between legal scholars and philosophers in the USA. This bibliography
thus have a clear tendency towards legal questions, and to questions regarding
hate crime legislation in the American context. As the ”hate crime” concept has
US origin, this is not necessarily a bad thing to be getting on with. But there are
sometimes salient, sometimes subtle differences between continents, countries
16
and jurisdictions. As – indeed – there is between individual states in the US.38
The first main thematic distinction is one that informs the rest of the
structure. It comes out of the general pro and con question. I.e., a fundamental
line is to be found between supporters and critics of the standard type of hate
crime legislation in the form of punishment enhancement. This is an
overarching theme as it brings out most of the other themes. In particular,
criticism and defence of hate crime legislation has turned on the issue of
whether motive should be directly relevant in the criminal law. The criticism, in
short, is that offenders' basic rights are violated if they receive extra punishment
not for what they did, but for why they did it. Hate crime, it is sometimes
argued, criminalises thought, albeit thought expressed by criminally sanctioned
actions. The conflict here relates to the sensitive matter of criminalising content,
rather than expected and intended consequences - of actions and/or speech39.
While this is not the only philosophically relevant question about hate crime,
discussing it leads into other philosophically relevant questions, which in turn
may lead to more complex views on policy. It is a relevant discussion as it
actualises the basic value conflict perceived to be inherent in hate crime
legislation40, as well as giving rise to a number of alternative formulations of
what a hate crime is, only some of which can be said to strictly speaking target
motive as an object of penal measures. Criticism of punishment enhancement
for hate crimes may, for instance, be compatible with support of hate crime
prevention programs. Nevertheless, in defending and criticising hate crime
statutes in their various forms, these and several other philosophical questions
are brought out in the open.
3.1 Theme 1: Conceptual Analysis and Semantics
Most of the publications mentioned and annotated below includes a section on
the meaning or content of the expression "hate crime". That is, one tries to
elucidate what concept of hate crime is used by oneself and/or others involved in
the discussion, and thereby clarify the semantics of the expression – what ideas
and thoughts it is intended to communicate and what actual entities or events are
to be counted as hate crimes, hate crime laws, policies, and so on41.
Barbara Perry has explicitly dealt with the semantics of the term "hate".42
As mentioned earlier, most commentators in the debate on hate crime policy
point out that ”hate” is a misleading word, given what the label is intended to
cover, and in fact covers. Some suggest that ”bias” or ”prejudice” would be
38
See Jacobs and Potter (1998), Bleich (2011), Waldron (2012), see also Nussbaum (2012).
These tensions particularly noticeable in the North American context due to the 1st amendment of the US
constitution.
40
For a recent account of the conflict between values of freedom and equality in relation to hate speech matters,
see Bleich (2011)
41
This applies, for instance, to the case of whether Germany has a hate crime law or not.
42
Perry (2005).
39
17
preferable43 and Perryhas offered a long list of alternative suggestions.44
Repeated observations are that virtually all "hate crime laws" are formulated
without use of the term ”hate” and that no monitoring tool requires the presence
of the emotion ”hate” to be established in order for a hate crime to have
occurred. Hate crimes are, almost all scholars agree, not a species of "passion
crimes".
The apparent fact that the expression "hate crime" is in this way a
misnomer is often downplayed by scholars and experts, who tend to hold that,
since it happens to be the established term, as long as the real or proper meaning
is explained, there is no problem to keep using it. Against this, Swedish
criminologist Eva Tiby (interviewed in the Swedish magazine for professional
solicitors, Advokaten45) has argued that the wrongful associations of the word
"hate" may actually be more problematic than thus acknowledged: Even if
scholars, prosecutors and judges are aware of the fact that ”hate” does not
designate an emotion, police officers (who receive very little training on these
matters) and victims may not be and the possibility that different groups have
different ideas about what counts as a hate crime in this way may create
problems46. For instance, reporting of hate crimes may become seriously flawed
from the outset due to a de facto conceptual pluralism, where the same
expression make people think about very different things. In effect, a desired
degree of conceptual clarity might have to involve terminological reform, and
this would hold regardless of exactly what concept of hate crime is seen as the
proper one.
3.1.1 The Importance of Conceptual Analysis
Conceptual analysis lies at the heart of contemporary philosophy, and
conceptual clarity accounts for a large part of what philosophy can contribute to
hate crime scholarship. Hate crimes, to attempt a most general, minimal and
inclusive, definition, are crimes that in some way are connected to bias. This
definition does not say (1) which these so-called ”basic” crimes are, it does not
say ( 2) how they are connected to bias47 and it does not say (3) what counts as
bias in this context48. These variables need to be filled in if the concept is to be
applicable in a specific legal or monitoring context. Some vagueness is may be
inevitable, as in all legal and political contexts, but a modicum of clarity will be
required if the law is to provide sufficient guidance. This minimal conception is
intended to be maximally inclusive in order for it to be possible to assess and
43
cf. Lawrence (1994), Dillof (1997), (Iganski) 2008, Perry (2003).
Perry (2005).
45
Brandberg & Knutson (2011).
46
See for instance the almost universal experience (especially in Europe, see Making Hate Crime Visible in the
European Union) of great variation in hate crime data from police report-based hate crime statistics and
victimisation surveys.
47
Must the bias be entertained by the offender, or merely be expressed by his/her actions, or merely provide a
social explanation of those actions?
48
I.e., what mental attitude may be involved and towards what or whom it may be directed.
44
18
compare the different hate crime concepts that fall within its scope.
There are hence a number of potential "hate crime concepts", and anyone
involved in designing, debating, thinking about or using a hate crime policy will
on different occasions have to choose between them. From a policy assessment
and debating standpoint, this choice is essential. As Jacobs and Potter (1998)
and Hall (2005) points out: whether we chose an exclusive or inclusive
definition determine how widespread the hate crime ”problem” is49. If hate
crimes are all crimes committed by offenders that have some bias or other
towards the victims group, virtually all (at least all inter-group) crimes may very
well be hate crimes. If we have a stricter definition, so that the bias of the
offender need to be the single or dominant cause of the crime, clearly expressed
by the offender, or something similar, much fewer crimes may qualify. Such
more exclusive concepts are often criticised as being too narrow and
misleading50 – distracting from the ”ordinary” nature and mundane
circumstances of most crimes that from a more overarching perspective of social
policy may seem to belong to the hate crime problem. But, of course, this claim
presupposes yet another hate crime concept, with a wider extension that would
then have to be explained and defended. The discussion and ultimate choice of
concept to employ turns on what function it is supposed to have in law and
policy. Is it, for example, primarily intended to address extremismt political
violence, or is less blatant criminal expressions of bias part of what a policy is
targetting as well?
There are two main reasons why the choice of concept is essential: First, if
we are unsure about the justification of hate crime legislation, or only believe
that one particular kind of hate related crime is the one relevant as a societal
problem, we want to pin point that particular concept, or go through a number of
such concepts, to see if a justification can be had. Second, a number of essential
components of hate crime policies, such as monitoring, and having legal rules
that satisfy basic legal security and rule of law standards, require that there is
some determinate concept guiding those aspects of policy, but perhaps not that
important which one, as long as basic requirements of clarity, uniformity and
usefulness are satisfied. This is important not only within jurisdictions, but also
for the possibility of international comparison of hate crime statistics,
cooperation in law enforcement, and so on.
The choice of concept is not arbitrary. For instance, it is inadvisable to have
a concept the extension of which is very difficult to keep track of. If the ”hate”
or bias element is allowed to be too subjective, i.e not manifest, we would have
to rely on spurious circumstantial evidence to establish it, and monitoring as
well as legal certainty and security may suffer as a result. In addition, there is a
particular issue regarding concepts as applied to monitoring: Changing a
49
Dillof (1997) similarly argues that there is an acceptable version of hate crime that seem to warrant
punishment enhancement, but it is a much more narrow concept than the one ”on the books”
50
Cf. Iganski (2008), Perry (2001).
19
concept, even if it involves improving on it, is problematic at it renders
comparisons with previous data more difficult and less exact. Considering the
flaws recognised in current hate crime data, and the fact that international
comparisons are virtually impossible because of current conceptual (and
methodological) variations, this should prove less of an issue, but it does involve
a concession of the limitations of previous work.
3.1.2 Particular Concepts and Models
Frederick Lawrence has made a useful and often utilized distinction of two
models for explaining what a hate crime is: The Victim Selection Model and The
Racial Animus Model51. This distinction is employed by many organisations52,
but is too crude to account for more subtle variations in how concepts of hate
crime are designed. Such variations are central from the perspective of moral
philosophy and philosophy of law. There are ways of conceiving of what a hate
crime is where it is not clear if either of Lawrence's models fit very well. In the
literature, we can distinguish at least six broad types of hate crime concepts. The
first three are all within the frame of the racial animus model, the fifth is
identical to the victim selection model, and numbers four and six may be may
perhaps be loosely related to either, depending on how the respective notions of
a racial animus and victims selection are interpreted more precisely. These
concepts take hate crimes to be...
(1) Motivated by hate/bias/prejudice.
(2) Caused/explained by hate/bias/prejudice.
(3) Intended by the offender to cause a certain harm/have a certain effect more
generally (e.g. incite fear)
(4) Causing/risking additional harm of a particular sort.
(5) Involving a discriminatory selection of victims.
(6) Involving expressions of hate/bias/prejudice towards the victim's group.
Allowing for further internal variations (e.g., regarding what exact "hate" or bias
attitude is intended and the nature of the sort of group towards which this
attitude may be directed, i.e. what the criteria for inclusion are53), as we shall
see, these concepts are at the heart of the ”hate crime debate”. For instance, a
number of critics argue that hate crime legislation explicitly targets motive
(concept 1), that motive cannot be boiled down to specific intent54(concept 3) ,
and that motive is not a proper ground for punishment . There is also, as will be
51
Lawrence (1994, 1999).
For instance, the OSCE-ODIHR, see Hate Crime Laws - A Practical Guide.
53
A number of scholars and authorities, including the OSCE-ODIHR, argue for restricting protected
characteristics on grounds of immutability. This is not entirely clear, however, as the mechanism connecting
targeted crimes to particular harm may rather work via subjective importance of characteristics. See Garland
(2010)
54
Especially Hurd (2001) and Hurd and Moore (2004).
52
20
seen shortly, a strong tendency among scholars to tailor or choose the general
concept they use to identify what the hate crime issue is about to fit the
normative point (for or against hate crime laws) that they want to make. To take
a very fresh example, two hate crime scholars arguing the point that EU hate
crime policy should be directed more by attention to the extent to which
different groups are vulnerable to victimisation (regardless of other aspects, e.g.,
if the group is a minority or previously subjected to persecution or
discrimination or not), do this in terms of recommending a new concept of hate
crime described in these terms.55 This strategy implies that these scholars will be
talking about different things than scholars adopting other concepts, so they may
not disagree with someone proposing another way of making priorities in hate
crime laws, since they mean different things when using the expression "hate
crime". A more wise strategy, therefore, may seem to keep a common concept
of hate crime that is distinguished from the criteria for what is to be required of
a good or justified hate crime law. Such a concept may then allow for having
more specific concepts put to work in the form of certain formulations and
criteria in specific hate crime statutes and law enforcement solutions guided by
the requirements of good policy, e.g. the ideal of Garland and Chakraborti to
protect vulnerable groups.
It is important to see that neither of these specific concepts, while they are
indeed related, are necessarily co-extensive, and that they may sometimes pull in
blatantlyopposite directions. An action that is not motivated by bias may
nevertheless express bias, for example. Hate expression will tend to be part (and
frequently parcel) of the evidence of hate motivation, however, and it is quite
possible that crimes which satisfy both the hate motive and the hate expression
condition are the only, or the most likely, to be successfully prosecuted. Still, as
independently argued by Perry and Iganski, this idea of the ”typical” hate crime
may be misleading.56 A crime may be caused by bias, while not necessarily
being consciously motivated by it nor involve a discriminatory selection. These
distinctions carry moral and legal significance and make differences in actual
cases, as well as affording various defences. A number of legislations use
definitions where a hate crime is implied to be a crime committed, or the victim
targeted, ”because of” bias, or even ”because of” those of the victim's
characteristics that triggers such bias.57 This formulation is consistent with a
large number of the more specific concepts listed above, and seem to involve a
mixture of the discriminatory selection model and racial animus model.58
55
Garland and Chakraborti (2012)
Perry (2001), Iganski (2008).
57
This is the notion referred to earlier of the bias of the offenders of hate crimes sometimes being channeled via
specific features of the victim that effectively function as symbolic markers of the victim's perceived
membership of whatever social group that the offender is thus biased against.
58
See the OSCE-ODIHR working definition in Hate Crime Laws: A Practical Guide, as well as the US AntiDefamation League's model hate crime statute, which has had a considerable influence on North American
legislation, Hate Crime Laws: A Comprehensive Guide.
56
21
However, even such attempts at very inclusive hate crime concepts exclude
some of the more specific ones, such as numbers 4 and 6 above. In a European
context, the latter exclusion may seem particularly problematic since that would
concern, e.g., the UK hate crime law, which in practice employs an expressed
hate/bias/prejudice clause as its hate crime criterion (the legal term is
"hostility")59. We will return to the prospect of clearing up the seemingly very
messy conceptual situation in section 4.2.
3.2 Theme 2: Moral Considerations
The introduction of hate crime statutes in many jurisdictions across Europe and
the rest of the world during the early 1990’s suggests that crimes connected to
bias in the qualified way taken to make it into a hate crime were viewed as a
particular problem, worthy of special political attention and of separate legal
treatment. But are hate crimes worse than so-called ”parallel” crimes? The fact
that so many state policies favour punishment enhancement for these crimes
suggests that they are held to be morally worse than the ’same’ crime, absent the
’hate’ element. The ’hate’ part is treated as an aggravating feature that makes
the crime legally more severe, e.g. for the purpose of sentencing.
As mentioned earlier, hate crime is generally recognised as a particular
instance of a more general problem of social prejudice. Prejudice in this context
refers to false or unfounded dispositions to believe and behave in certain
denigratory manners towards people because of some of their social
characteristics (Allport 1954). Prejudice thus understood limits social
interaction, causes unfair discrimination and unwarranted and socially corrosive
inter-group hostility, and is likely to have negative economic, emotional and
social impact not only on the individual directly exposed to it, but on his or her
community, the wider society and occasionally on the holder of the prejudice as
well.60 The passing of hate crime laws is generally held to be part of the general
societal response in order to limit the occurrence and mentioned impact of
prejudice. Hate crime laws are held to express a commitment to equality by
offering protection to groups frequently targeted because of their affiliation, and
so on. But this, in itself, does not show that all hate crimes are worse than
parallel crimes in the way that hate crime laws seem to suggest to us that they
are, or to be worse in a manner that justifies punishment enhancements.
So what is it about hate crimes that makes them more morally serious than
parallel crimes? If, indeed, they are (or tend to be) more morally serious –
perhaps they are not, in spite of the apparent general societal interest in
responding to them. In policy documents it is common to find this question
being answered by lose formulations about hate crimes targeting people because
59
A similar conception seems to be employed by the FRA , see Making Hate Crime Visible in the European
Union
60
Consider, for instance, the employer who fails to hire the best applicant because of a prejudice against his/her
race/religion, etc.
22
of their ”identity” or because of ”what they are” . While this type of phrasing,
may capture the general spirit behind the idea of why hate crime is important
and why it is worth having hate crime policies, it’s insufficient for more specific
analysis61. Distinguishing between various ways in which the general idea of
hate crimes as attacks against people's social or cultural identities, and how that
makes them extra noteworthy from an ethical point of view, must be elucidated
if it is to make further assessments of more specific policy proposals possible62.
There are a number of ways in which one may try to systematise the
presentation of ideas on this issue, of which we will here mix two different ones.
One is the distinction between (1) the question about the moral seriousness of an
act, or a type of acts, and (2) the question of how society should respond to this
act in terms of law in the light of its seriousness. The second of these issues will
be addressed in the next section as theme 3. The other road to systematisation is
the idea of seriousness as, in turn, consisting roughly of two dimensions,
connecting to, on the one hand, (1) the badness of the behaviour and/or its
(expected) outcome and, on the other, (2) how that badness relates to the acting
party (in this case the offender of a crime). Readers familiar with jurisprudence
or legal theory will recognise these two dimensions as related to the distinction
between the harm done (in a wide sense that includes any type of interest of a
person, including that of being fairly treated by others) through an unlawful act
and the culpability of the perpetrator of this act, together making up the legal
seriousness of an offence63. In the next section we will return to these particular
notions. However, a similar distinction may be made also in the basic ethical
classification of the morality of an act. We may distinguish between those of our
moral judgements that respond more to the nature of this action or its
consequences, or to the mental features or personal character of the agent. In
different ethical theories, these two dimensions of moral response can be more
or less emphasised and interconnected in a multitude of different ways.
Therefore, all the standard ethical theory packages (consequentialism, virtue
ethics, deontology, rights-based ethics) can potentially treat hate crimes as a
morally separate category, if they can be connected to what is held to be of basic
moral importance according to these theories. And, of course, the other way
around: closer analysis may reveal that the "hate" element of hate crimes does in
fact not make them more morally serious.
3.2.1 Hate Crimes are Morally More Serious than Other ‘Parallel’ Crimes
In the literature, grounds for holding out hate crimes as especially morally
61
One way to make more specific sense of this formulation is to say that the victim is interchangeable for
anyone else sharing that particular characteristics. A victim in this sense need not ”identify” particularly with
the characteristic in question, though it may be important that others do in order for the to be a group harm
effect.
62
As described, e.g., in Lawrence (1999), Iganski (2008), or Hate Crime: A Practical Guide.
63
See Harel and Parchomovsky (1999) and Hurd and Moore (2004). This is basically the common law
distinction between actus reus and mens rea (guilty act and guilty mind).
23
serious include the following ideas, of which the first five are clearly about the
badness of the behaviour or its consequences, and number six to eight are
clearly about the moral quality of the person committing the crime.
(1) They cause more harm to the primary victim64
(2) They cause more harm to the targeted group/community65
(3) They cause more harm to the wider society66
(4) They violate (additional) rights (e.g. against undue discrimination)67
(5) They are especially unfair or unjust68
(6) They have especially bad motives69
(7) They expresses especially bad values70
(8) They are expressions of especially bad character71
Whether or not – or to what extent – these arguments hold with respect to hate
crimes depends in part on which of the hate crime concepts (listed earlier) that
are being used. For instance, if the concept of hate crime is a crime that
necessarily involves the expression of bias or prejudice is applied (i.e. the
concept listed as (6) under 3.1), arguments (7) and (8) seem to be natural
grounds for their moral status72. Similar observations hold for the other
definitions: If hate crime is defined in terms of bringing or risking a special type
of additional harm – arguments (1),(2) and (3) are likely grounds for treating
hate crimes as morally worse than other crimes. If and when there is such a
connection between the concept and the grounds for its moral status, this pattern
emerges: what makes a crime a hate crime is also what makes it particularly
severe. The benefit of such a close connection is that hate crime becomes not
just a social, but a moral category/kind, which means that there is a prima facie
moral justification for special treatment via law and/or policy73. The drawback
of such a close connection is that differences between scholars, authorities and
other interested parties on either normative or conceptual grounds will tend to
64
Iganski (2001, 2008).
Iganski (2001, 2008).
66
Kamm (1992), Lawrence (1999), Blackburn (2001), Perry (2005), Iganski 2008).
67
Perry (2001), Making Hate Crime Visible in the European Union.
68
Harel and Parchomovsky (1999), Chakraborti (2010).
69
Murphy (1992), Kahan (2001).
70
Kahan and Nussbaum (1996), Kahan (2001).
71
Taslitz (1999).
72
If the jurisdiction in question also has a hate speech legislation, it may then be that hate crimes become a
species of hate speech crimes (or something very closely related to such crimes) The relation between hate crime
and hate speech laws is further discussed in several places below. The recent FRA report (Making Hate Crime
Visible in the European Union ) basically treat hate crime as expressive, or ”message”, crimes. I.e. as hate
speech or incitements where the crime is the speech/inciting device.
73
Cf. Levin (1999). Note, however, that, for instance, harm-based arguments in favour of hate crime legislation
are often empirically, not conceptually connected to hate crime. Even if you hold, say, an expressive view on
hate crime, the moral diagnosis may appeal to the harm that such expressions tend add to the harm caused by the
base crime. The various patterns of interplay between normative arguments and choice of concept also appear
among critics of hate crime laws. See also the jurisprudential discussion that will be outlined below as theme 3.
65
24
render the discussion impossible. As observed in connection to theme 1, a
regrettable side-effect of the connection between normative outlook and
conceptual scheme is that seemingly disagreeing debaters may in fact not
disagree about the described situation but rather, in spite of using a similar
expression ("hate crime"), they are talking about different things. At the same
time there is, as expressed by suggested more inclusive concepts, e.g., by the
OSCE-ODIHR,74 also a general sense of there being something fairly
determinate that is hate crime and that is worthy of normative inquiry and policy
development75.
3.2.2 Hate Crimes are Not Morally More Serious than Other 'Parallel'
Crimes
Critics of the idea that hate crimes are especially morally serious usually agree
with supporters that hate crimes in general are indeed especially bad, harmful,
serious, et cetera, and that the general phenomenon of hate crime is clearly
undesirable. However, they point out, this does not imply that every, single hate
crime is thereby extra bad, harmful or serious. Having the "hate" or bias element
trigger extra legal severity (thus motivating harsher sentencing) would therefore
amount to routinely punishing an offender for a general tendency of the type of
crime committed or for some general motivational state of this offender (such as
being prejudiced). Alternatively - it is a bad thing, but one that we are not
allowed to legally punish. For a number of different reasons it has been thus
argued that such a practice of retribution would be unjust, since it would mean
meeting out a more harsh punishment than what the offender deserves and/or to
do so on the basis of a thing (a person's thoughts, convictions or general
feelings) that is not the business of the criminal law.76 Also in this case, we can
see that some arguments clearly deal with the question of the badness of the act
or its consequences (1) and others with the moral quality of the offender (2) and
(3).
(1) Hate crimes do not necessarily cause more or additional harm than
'parallel' crimes77
78
(2) Prejudice or bias are not worse than (all) other motives
79
(3) We are not responsible for our motives or characters (in general)
All of these variants of the standard ethical arguments against hate crime laws
74
Hate Crime Laws: A Practical Guide.
We will return to this phenomenon of trying to "solve" the hate crime policy problem by way of definitions
and the parallel striving to formulate an all-inclusive concept in the section Many Concepts, One Frame, below.
76
It may also be claimed to be unjust in virtue of a resulting basic inequality of treatment being built into such a
sentencing practice, where different offenders will be punished differently in spite of having committed equally
severe crimes.
77
Dillof (1997), Hurd and Moore (2004).
78
Gellman (1991-92), Murphy (1992), Jacobs and Potter (1998), Hurd (2001), Hurd and Moore (2004).
79
Murphy (1992), Dillof (1997), Hurd (2001).
75
25
rest on assumptions about the proper connection between the moral qualities of
acts and agents and the responses to these by the legal system. They raise
important concerns regarding how to fit hate crime laws into legislation. This
motivates a move to the next stage of the analysis.
3.3 Theme 3: Jurisprudence
The philosophy and theory of law – often called jurisprudence – deals with
basic issues about the nature, function and justification of legal rules, systems
and sanctions. It is primarily the latter of these aspects that has been deemed
relevant for the hate crime debate. The reason for this focus is that the matter
under discussion is the justification of applying enhanced punishment due to the
presence of a hate or bias element in connection to a crime. Among the more
general issues in jurisprudence is the possibility that the different functions of
the law may occasionally come into conflict. Hate crime legislation seems to be
one area where such conflicts exists.
There are two broad traditions with regard to how one should approach the
issue of justifying the institution of criminal punishment80. One of these, often
called retributivism, applies a backward-looking perspective, focusing on desert
and the aim of providing all parties with "their due" in relation to a past event,
and thus underscoring proportionality between the seriousness of a particular
offence and the severity of the sanction applied to the offender. The other
tradition focuses on the expected consequences of (a system of) punishment
(thus it is often called consequentialist) in terms of , e.g., deterrence, crime
prevention, rehabilitation of offenders and/or restitution of victims. In practice,
supporters of these basic perspectives tend to agree (for different reasons) on a
lose "standard model" of proportionality, where the harshness of the
punishments should track both how much of harm (in a broad sense that
includes also risks of harm, psychological damage and, e.g., unfairness or public
humiliation81) the criminal act involves, and how culpable the offender is for the
occurrence of this harm. I.e. even if, in a single case, there would be good
expected consequences of punishing an innocent, or non-culpable, person, there
are reasons not to do so, directly or indirectly based on the fact that punishment
is not deserved. The standard model is accepted in one form or another by most
of the writers represented in this bibliography82.
Some critics83 have questioned the wisdom of hate crime statutes on
consequentialist grounds - arguing that they may make things worse. But in
general, critics seem to lean more towards a strict retributivist view of
80
Honderich (2005).
On the centrality of harm to the criminal law see Mill ”On Liberty” (1859) and Feinberg (1984). For a recent
assessment of the role of harm in criminal law, see Tadros (2011).
82
With the notable exception of Harel and Parchomovsky (1999), who contrast their view, ”the fair protection
paradigm” with this ”standard model”. As we shall see below, fairness violations may be understood in terms of
risk of harm.
83
Crocker (1992), Jacobs and Potter (1998).
81
26
proportionality, where it is important to have a strong link in every individual
case between the harm done or risked through the offence, the culpability of the
offender for this particular harm, and the harshness of the punishment. This is
where the debate on the relevance of the hate or bias motive that we encountered
under theme 2 comes into it. Does the idea of enhancing punishment on the
basis of the presence of such a motive amount to the introduction of a novel
mens rea (i.e. a mental or attitudinal aspect of offenders that influence the nature
or severity of the offence) beyond the traditional list of purpose (to do harm),
knowledge (of harmfulness), negligence (of taking care to be aware of the
probable harmfulness of the act), and recklessness of performing the act in spite
of such awareness)? And if so is this justified or does it run afoul of freedom of
thought?84 Some critics argue that hate crime laws punish offenders for general
tendencies of extra harmfulness of the type of crime they have committed, but is
not caused (or risked) by the particular crime committed. A further criticism
along these lines is that, as some accounts imply, the extra harm is caused
mostly by social developments and widespread societal attitudes and thus by
factors outside of the offender's control85, This line of criticism may be related
both to such questioning of the presence of proper culpability and to the claim
that this extra harm cannot justly be laid on the offender, since it is not a part or
consequence of his or her particular offence.
With a less purely retributivist or, possibly, a more clearly consequentialist
idea of what may justify punishment, however, it becomes possible to apply a
more flexible idea of the notion of proportionality, e.g. by having a less strict
interpretation of limitations set up by the mens rea types just listed.
Consequences do not depend on mere motives, however, but rather on reasons
made public either by expression or by being inferred by most people as the best
explanation for the crime taking place. Consequentalists may also take a broader
view of what may make an act harmful. For instance, it is possible to argue that
the harmfulness of an offence may indeed be partly about general or potential
tendencies of the type of act it is – for instance, in terms of risk or the values that
would be at stake if many people would perform such acts86. Similarly, the way
in which an individual offender is thought to be culpable for such harm can
possibly spelt out at least in terms of negligence or recklessness. The arguments
for hate crime laws largely seem to apply such a more relaxed or less strictly
retributivist view. The general tendency of these arguments is forward-looking
and broadly consequentialist. In comparison, only one (6) of the arguments
against hate crime laws clearly applies such a perspective and another (5) may
(but must not) be given such an interpretation.
Looking at the rest of the critical arguments, they are all about an alleged
84
As argued by Hurd (2001). See also Kahan (2001).
Card (2001)
86
Indeed the presence of incitement laws (particular in Britain) suggests that you can be held responsible for
creating such a risk. (Again, see Making Hate Crime Visible in the European Union for a strict application of
incitement to hate crime)
85
27
absence of (the retributivist type of) proportionality between the seriousness of
the crime and the punishment enhancement of hate crime laws. Arguments (1) to
(3) stress the point that the sort of personal feature or mental state targeted by
hate crime laws, or the supposed additional harm linked to this feature or
attitude, is not something for which we are plausibly held responsible - or not in
a sense that should carry weight in a court of law. Argument (4) stresses a
proposed injustice in that hate crime laws introduce enhanced sentencing for
"bad motives" in a random or arbitrary way (since other bad motive-types are
not used in a similar way for punishment enhancement). Rather than the
relationship between the offender and the criminal law system as such, this
alleged injustice thus is about an inequality before the law with regard to
different offenders whose offences are claimed to be alike in relevant respects.
Argument (5), besides being read as a consequentialist worry about hate crime
laws not being possible to implement in a functional way, may also be
understood within a retributivist framework and would then stress a supposed
unacceptable risk of disproportional sentencing.
In short, the arguments can be summarised as follows:
3.3.1 Hate Crime Legislation is Justified
(1) Hate crimes are getting more frequent87
(2) One or several of the moral reasons 1-7 above88
(3) Hate crime laws are effective means to limit the occurrence or effects of
these crimes, or to limit hate/prejudice in in general89
(4) Hate crime laws send a societal message of tolerance and equal value90
3.3.2 Hate Crime Legislation is Not Justified
(1) It punishes motives/ thoughts rather than actions91
(2) It punishes character for which individuals are not culpable92
(3) Offenders are not responsible for the additional impact the hate or bias
aspect of a hate crime93
(4) It randomly picks out hate or bias as worse motives although other motives
may be as bad94
(5) It cannot be made sufficiently secure and certain95
(6) It is not needed to adequately respond to the hate crime problem, and may
87
Levin and McDevitt (1993).
Iganski (2008).
89
Perry (2001), Iganski (2008).
90
Blackburn (2001), Kahan (2001), Perry (2001), Iganski (2008), Making Hate Crime Visible in the European
Union.
91
Dillof (1997), Gellman (2001), Hurd (2001), Hurd and Moore (2004).
92
Hurd (2001).
93
Card (2001).
94
Murphy (1992), Jacobs and Potter (1998).
95
Jacobs and Potter (1998).
88
28
actually contribute to the problem and increase tensions between groups96
3.4 Theme 4: Protected Groups
As mentioned earlier, one central aspect of what needs to be made more specific
when actual hate crime policies are designed is what (sort of) social groups that
the policy targets and involved laws protect. (Garland 2010, Jacobs and Potter
1998). This, in turn, actualises an underlying philosophical issue of what is
supposed to be the basis of such decisions. Jacobs and Potter (1998) argue that,
if not based on principles, the selection of protected groups will rather follow
from ”identity politics", i.e. be an outcome of a process of political lobbying and
bargain, where those most disadvantaged usually have poor chances to become
recognised. For similar reasons, organisations, such as the OSCE-ODIHR have
provided some considerations to use for selecting relevant groups to protect97
and the subject has been revisited recently in hate crime scholarship motivated
by the particular variability across Europe in this respect98
It is interesting to note that, so far in the evolvement of hate crime laws, there
has been a gradual broadening of focus and inclusion of new (types of) groups
(from only race/ethnicity, political opinion and religion to, e.g., sexual identity
or orientation, economic status, philosophy or world view in general), but so far
no decision anywhere to exclude formerly protected (types of) groups99. At the
same time, it is obvious that some suggestions for principles to select groups
based on the typical basic reasons and values justifying hate crime policies
mentioned earlier might motivate exclusion as changes in society makes a (type
of) group lose features motivating special protection (such as being
disadvantaged). Similarly, there is some apparent reluctance to let too many
(types of) groups into the sphere of protection of a hate crime law, as evidenced
by the debate of whether or not to let sub-culture or life-style in general be a
matter for hate crime policy100. If hate crimes are especially bad because they
are based on false and unfounded views, the law should presumably not provide
protection for groups "deserving" to be the object of disparaging attitudes101.
This is an area where we have found the philosophical discussion to be most
underdeveloped. Criteria for inclusion are clearly needed102.
Here are a number of possible principles, selected both on the basis of
standard motivations for actual hate crime laws and suggestions in the academic
philosophy of hate crime literature. It is possible to combine the types of criteria,
96
Gellman (1991-92), Jacobs and Potter (1998).
Hate Crime Laws: A Practical Guide.
98
Garland and Chakraborti (2012).
99
The discussion relates to what groups should be protected by discrimination legislation, and the odd state of
affairs that not all grounds for discrimination are recognised as grounds for hate crime.
100
Garland (2010).
101
Mason (2001), for a development of this ”evaluative” view, see Kahan (2001), and Kahan and Nussbaum
(1996). Compare with the notion that crimes based on prejudice minfested as fear or disgust at certain groups
has, in the past, had a mitigating function in criminal proceedings.
102
Jacobs and Potter (1998).
97
29
as evidenced in a recent suggestion to use a combination of numbers two and
three103.
(1) History of persecution, exclusion or discrimination (slavery, racist politics,
(2)
(3)
(4)
(5)
religious oppression, discrimination of, e.g. sexual minorities or disability, et
cetera)
Actual risk or trend of persecution, exclusion or discrimination (is the group
being more frequently or more severely targeted?)104
Vulnerability (to what extent hate crimes will harm individuals belonging to
the group, and undermine important community functions)105
All (types of) social groups
Innocence and desert: no group that "deserves" being the object of biased or
disparaging attitudes should be protected106.
Because of the rather meagre philosophical treatment of the issue of criteria for
group selection, it is interesting to briefly assess these ideas on the basis of the
basic values and moderating reasons set out at the outset of this introduction. It
is easy to see how (1) to (3) may all be connected (instrumentally or
conceptually) to either of the four basic values (protecting individuals,
communities, the disadvantaged or society as a whole against harm or injustice).
(1)may receive extra support by considerations of legitimacy, but if the general
population is unwilling to recognise a history of persecution or to view it as an
injustice, it may work the other way. (2) connects to the function of criminal law
to address community issues. It also connects to an economic analysis of
criminal law that argues that if a type of crime becomes more frequent, the price
is not high enough107
Presumably, legitimacy may strongly support (5), provided that a widely
embraced notion of who deserves to be the object of negative attitudes is
applied. At the same time, for this very reason, legal security and rule of law
would tell strongly against such a group-selection criterion, since it would bring
strong risks of upsetting basic equality before the law and having populist
prejudice direct the working of criminal law, or to effectively allow legal
disfavours beyond what is prescribed by statute. This is illustrated by the often
repeated case of a convicted child molester who has served his or her term and is
now observing all prescribed measures not to commit further offences, but who
becomes the victim of a crime where the offender is clearly acting on a negative
attitude towards pedophiles or child molesters in general. To avoid the grave
problems implied by such a case, the idea to exempt those ”deserving” negative
103
Garland and Chakraborti (2012).
Weisburd (1994), Garland (2010).
105
Chakraborti (2010).
106
Mason (2001), (2007).
107
Posner (1974). Note that an economic analysis may just as well favour police priority over punishment
enhancement.
104
30
treatment from the protection of hate crime laws would have to be very
individualised, thus taking the rather disturbing form of the notion of particular
people deserving less of legal protection against, e.g., vigilante mobs or other
forms of targeted violence.108 All of the basic values would seem to provide
strong reasons against that, as would all of the moderating consideration, except
perhaps legitimacy. Somehow deserving to be the object of a negative attitude
does not imply deserving to be a crime victim selected on the basis of such
attitudes. (5) does not suggest that selecting on these bases should be a
mitigating factor, only that it is not one of the aggravating ones. However,
especially from a general societal perspective, it is still a major concern when
people take the step from entertaining (however well motivated) dislike to
allowing such attitudes to motivate or lead to transgression of the limits of the
criminal law.
Such patterns of reasoning should, then, rather speak in favour of
suggestion (4). However, that suggestion may be criticised for lack of priority in
light of legitimate and important considerations, such as the ones mentioned by
(2) and (3). On the other hand, that would mean that any type of social group
where an actual trend of persecution or vulnerability in the face of such
persecution can be demonstrated may qualify for hate crime law protection.
What particular groups would be selected on the basis of that could then be
allowed to vary depending on the context and actual situation of a
jurisdiction109. We will return to how this sort of flexible basis for policy may
be developed further in section 4.2.
3.5 Theme 5: Explanations – Structural and Individual
We are now leaving the philosophy debate that directly addresses the
justification of hate crime laws. However, there is a theoretical discussion about
the frame for understanding and explaining hate crime as a phenomenon that is
of relevance to a more broadly conceived debate on hate crime policy110. As
previously mentioned, no matter what our view on the moral and legal status of
hate crimes, hate crime makes sense as a criminological or policy category, just
as ”crimes committed because of jealousy or greed”, ”crimes committed in a
public space” or ”crimes committed while under the influence of intoxicants”.
The question of what explains the occurrence of hate crimes is of obvious
interest, quite independently of the issues discussed earlier, but also if one wants
to address what would be suitable preventive policies in this area.
Why do hate crimes occasionally become more frequent and occasionally
less so? What are the conditions and the causes of these crimes? By virtue of
terminology alone, it is easy to assume that there is a straightforward causal
108
An apt illustration is provided by the recent example of a French, local, self-appointed mob "evicting" and
burning down the housing of a group of Roma settlers. See: Vigilantes burn Roma camp in Marseille, France.
109
Garland and Chakraborti (2012).
110
It does hold indirect relevance for issues of criminal law, as it pertains to the matters of causation and
responsibility; see Moore (2009).
31
relationship between hate motive and criminal action in these cases111. A
attacked B because A hates the group to which B is perceived to belong. This
idea is congruent to the view that counteracting hate crimes is part of the larger
project of limiting prejudice/bias/hate in general. If we can rid people of their
prejudices we can, presumably, stop this causal chain, while also making
discrimination etc. less likely. This is also the idea that the important causal
chain runs from the prejudice of offenders to their actions. Preventive efforts
that starts from prejudice reduction often presuppose that those likely to commit
hate crimes are among those who would loose their prejudices if exposed to the
right sort of evidence/contact with the hated group.112
This model, to repeat a complaint raised by Barbara Perry (2005)
individualises the hate component in hate crime. It takes away focus from
prejudices pervasive in the population, and from the role of racist, homophobic
etc structures in instilling those values in potential perpetrators. Iganski (2008)
also acknowledges this aspect and argues that the actual target of hate crimes
laws should be these more widespread norms and structures. The message sent
by hate crime legislation has a wider audience than just would-be offenders. The
justification for targeting the prejudices of those that would not themselves
commit such crimes is twofold. (1) Widespread prejudices form the basis for
potential offenders’ subjective sense of justification. And (2) widespread
prejudices are the reason why these crimes hurt more - as the victims lack the
broad societal support that others enjoy.
The subject raises a number of connected issues. For instance, what does it
means for bad values, motives and characters to cause the often supposed extra
harm of hate crimes?113 The foundational question here is whether hate crime
should be viewed primarily as a societal or as an individual problem114. This,
presumably, shifts the balance when it comes to the relative importance of
criminal law versus other policy measures. The psychology of hate crime115 is
also of importance for framing the discussion of responsibility and culpability
addressed under themes 2 and 3 above, but also for matters of prevention
involving the potential for rehabilitation of offenders - especially if prejudice is
seen as a cognitive failing, which would suggest diminished responsibility for
the consequences of these crimes.116
The individual and social or structural takes on the explanation of hate
111
The relation to more widespread xenophobia as measured by surveys has not yet been established
scientifically, one reason of which is that hate crime statistics is still in such sorry state. So far, theory is all we
have to go on - one can also make the argument that violence is a desperate mode of action which may well be
inversely related to attitudes and developments in the rest of society. In sum, this is an empirical, albeit difficult,
matter
112
See the contact hypothesis developed by Allport (1954). For a review of prejudice reduction methods, see
Paluck and Green (2009).
113
Taslitz (1999), Kahan (2001), Hurd (2001), Sullaway (2004).
114
Perry (2001), Levin and McDevitt (2002), Iganski (2008).
115
Card (2001), Sullaway (2004), Sternberg (2004), McDevitt, Levin and Bennett (2005).
116
Al Hakim (2010).
32
crime may thus not only compete, but just as well complement each other in
relation to central policy discussions. From a general philosophy of science
perspective, both approaches to the explanation of hate crimes are valid, and
connected via the fact that the prejudices held by individuals clearly come from
somewhere. While people may be born with the tendency to form ill-founded
attitudes, or develop (or fail to develop) the disposition early in life, the content
of those attitudes is in all probability culturally formed.
One obvious focus of hate crime scholarship is thus the psychological
make-up of offenders. Is the ”hate” that drives them compulsive or otherwise
clearly pathological? Is it a character trait, a ”standing disposition”, or is it a
more temporary state? Is it a conviction, or may it be a sub-conscious state?
Whatever it is more exactly, could the disposition to transgress strong social
norms that is involved in the psychology of hate crime offenders – by being
understood to be unwarranted and irrational – amount to a dysfunction117? This
medicalised, individual outlook is certainly one sort of explanation that these
crimes can be given. Another approach suggests that the prejudice or bias at
work in the case of hate crimes stem from prejudices that are pervasive in
society, and that this pervasiveness provides apparent justification and
background conditions for the offender118. Choosing the blend of such
drastically different explanatory pathways will frame any further discussion of
what measures are likely to have a preventive impact and to what extent they
may be justified.
The explanation of hate crime also involves inquiry into establishing what
function hate crimes are supposed to perform for offenders. If it is part of a
project to protect a privilege and keep the people who are different119 in a state
of apprehension and marginalised by fear, it may for instance provide fuel for
the notion of the hate or bias element as being a specific intention that fits well
into standard ideas about proportionality between punishment and the legal
seriousness of an offence. Similarly, it would provide fuel for the ”hate crimes
hurt more” argument. It also would underline hate crime as bordering on
terrorism, something that we will discuss more below.
3.6 Theme 6: Neighbouring Areas: Hate Speech and Terrrorism
In order to narrow in on the concept of hate crime, and address the legitimacy of
hate crime statutes, it is relevant to describe its relation to other acts that spring
out of or relate to inter-group conflicts, hostility or prejudice and that are treated
as worthy of special criminal law responses. Exactly where in this
neighbourhood of laws hate crime as an object of policy is situated depends on
which of the interpretations of hate crime listed above is ultimately chosen120.
117
See Rydgren (2004) on the logic of xenophobia.
Card (2001), Perry (2001), (2005), Iganski (2008).
119
Levin and McDevitt (2002).
120
Hate speech/incitement is, for example, one of the most common forms of hate crimes in sweden, as reported
by the Swedish crime prevention agency, BRÅ. See: http://www.bra.se/bra/brott--statistik/statistik/hatbrott.html
118
33
This is of interest both from the point of view of the conceptual issue and the
issue of what kind of hate crime policies can be justified. Clarifying how hate
crime is similar to phenomena from which it is still distinct helps us understand
exactly what features may be left out of a definition of hate crime and what
features that are essential in that respect. This is so since a comparison of this
sort can illuminate how arguments used to justify or question these other laws
also apply to hate crime. This is especially useful for such areas where a specific
philosophical discussion attached.
Based on this strategy, it is useful to situate hate crime somewhere between
hate speech and terrorism. In fact, on certain interpretations/conceptionshate
crimes can be understood as an instance of either. While most of the
commentators mentioned in this bibliography keep clear of hate speech, as it
involves further controversy especially regarding first amendment issues in the
US context, the relevance should be obvious. Hate speech laws too have been
criticised as an attempt to ”criminalise thought”, for instance. Controversy
looms in terrorism laws as well, with their focus on draconian measures
motivated by keeping and protecting exactly the same sort of peace and social
stability that hate crime laws connect to in their justificational basis. There are
international guidelines in both cases, but no universally approved definitions. A
common feature of all three areas is that, according to critics, applied laws bring
risks of serious misuse by oppressive regimes.
3.6.1 Hate Crime and Hate Speech
Some jurisdictions that include hate crime statutes also provide so called hate
speech or incitement statutes. i.e. certain limitations on free speech, like
intimidation of or incitement to hatred against particular sorts of social groups.
Hate speech laws involve the criminalisation of certain speech acts.121 The
reasoning behind these laws is usually based on the claim that speech of the type
targeted by the laws can cause a certain kind or amount of harm.122 Formulations
differ, but considerations that apply regard, first, to what extent a direction to a
wider audience is necessary, if this audience needs to include the targeted group
or potential offenders, thus creating a risk of actual violence or taking offence.
The latter is emphasised in some jurisdictions, while others (like Sweden and
Germany) include in the legal definition of the offence also the public display of
symbols, such as nazi style uniforms, swastikas, et cetera.
Hate speech laws target the (open or symbolic) expression of prejudice,
bias or hostility and thus relate particularly close to the expressive view of what
121
Based merely on content or, more frequently, dependent on mode of expression and intention in a way that
ideally allows all types of content to occur in reasonable discussion. (Note that while the U.S does not have
incitement laws, the ”fighting words” doctrine, while remaining controversial and virtually never applied, still
exist on the books. See Waldron (2012) and Bleich (2011). The EU has generally taken another view on the
matter.
122
The origin of this line of thought and the legislation that followed may be assigned to the case against the
editor of Der Stürmer – see Waldron (2012).
34
a hate crime is and also the expressive view of what is wrong with hate crimes.
In both cases, ideas about what is wrong with these sorts of expressions may
appeal to the harm done, to the inherent wrongfulness of the attitude expressed,
or even to a supposed badness of character thus manifested. If hate crime is
defined according to the expressive analysis, and this also tracks what accounts
for the extra wrong committed or culpability revealed, we are basically counting
the crime as a mode of speech123. Indeed, hate crimes are occasionally called
”message crimes” or ”symbolic crimes”. Hate crime can, on this analysis, be
understood as a ”parallel crime” that as such involves also a hate speech offence
(due to the presence of the bias or hate element). This is to be contrasted with a
view that say that a hate crime is a basic crime that is connected in some other
way to a bias or hate element (such as a biased motive) which makes it as a rule
be accompanied by a hate speech offence. This since hate speech is one type of
documentation often used as evidence of, e.g., a hate motive.124.
The latter view of relating hate speech to hate crime may be favoured by
those accepting hate crime laws but being critical of hate speech laws due to
freedom of speech considerations125. On this notion, criminal hate speech
becomes a hate crime only if it has the additional motivational element of undue
bias (rather than, say, being motivated be the need to create a diversion). Hate
speech and hate crime legislation is closely related with regard to the underlying
political rationale and the connection to human rights considerations, not least
on the international policy level.
There is discussion of philosophical, ethical and jurisprudential aspects with
regard to hate speech that may be brought to bear on the hate crime context. For
instance, the critical views on hate crime laws that centre on their apparent
nature of criminalising speech or underlying motivation could be compared to
ideas that have influenced views on the limits of free speech. There is, with
regard to this, repeated points being made that speech is not, should not and
have never been, totally free, and that the act - speech distinction cannot be
upheld.126 This could be brought in to problematise the criticism against
penalising expression or motivation in addition to the criminal act itself. At the
same time, many scholars seem reluctant to make the connection between hate
crime and hate speech very tight, e.g., due to the difference invoked by the
broader social importance of free speech from a constitutional, basic political
and/or ethical point of view.
The relevance of considering the philosophy of hate speech, also actualises
the philosophical basis of libel law and laws against intimidation and harassment
due to social identity127. This comparison appeals to the wider harms (physical,
123
This conception may be what the FRA has in mind in Making Hate Crime Visible in the European Union.
Some commentators complain (reference?) that as hate speech is virtually the only acceptable evidence,
speech is in fact criminalized in these cases. Of course this is not formally true.
125
Crocker (1992), Lawrence (1993)
126
Brink (2001), Sumner (2004), Bleich (2011), Laengton (2012), Waldron, (2012),
127
Waldron (2012), Hate Crime Laws: A Comprehensive Guide
124
35
emotional, societal and/or structural128) that are supposed to be added by the bias
element of hate crimes according to basic reasons in support of hate crime
policies. These parts of law may thus be related to each other by expressing the
interest of society to limit and respond to factors that may promote strong
feelings of animosity and hostility between groups in society.
Speech is not, arguably cannot be, and never has been, entirely free. Legal
limitations exist for libel, advertising, fraud, threat, causing panic, inciting riots
and so on. These limitations are determined by assessing the seriousness of the
harm caused or risked in these cases, in addition to the judgment that no
disproportional harm is caused by the regulation. In addition, a clear distinction
between acts and speech is difficult to uphold, especially when it is
acknowledged that consequences of what one is doing may motivate legal limits
.129 The classic liberal argument for free speech concerns certain protected
modes of speech in certain contexts and hate speech is an established example of
what is not considered worthy of protection on this type of basis.130
Many hate speech laws do not appeal to merely the intellectual content or
public context of the speech, but requires a certain tone or mood to be present
(thus making the speech in question "hostile", "inflamatory" or "inciting"). Any
intellectual content can then be seen as possible to formulate in a reasonably
conducted debate, also in the presence of people who may not take some points
very well. Other cases stress that also speech that is not thus affectively or
emotionally loaded, may still be obviously aimed at intimidation of the people
addressed in a way that qualifies as hate speech131. In addition, hate speech laws
may be compared to libel – indeed, Jeremy Waldron argues for re-introducing
the term ”group libel”,132
The comparison between hate speech and hate crime laws appeals to the
wider harms (personal, social and societal) assumed to be caused or risked by
these crimes and these forms of speech. Hate crimes may have an impact on the
targeted group's behaviour, and the public perception of that group – perceiving
it to be weak, abnormal or socially dysfunctional; somehow deserving the
treatment they are subjected to and thereby further escalating the problem.133
Similarly with hate speech, of course. Hate speech laws formulated in terms of
incitement are even more to the point, as they expressly address the causing of
societal and group harm. At the same time, it would seem that a larger audience
is required by hate speech than by hate crime, for something worthy of the
state's attention via criminal law to have occurred. If hate crime statutes would
128
That is, in addition to harming victims, their communities and undermining societal security and stability,
hate crimes may have an impact on the behaviour of individuals of the targeted groups (e.g., for protection, they
may isolate themselves from the rest of society), and as a result affect public perception of that group in a way
that further strengthens bias.
129
Gellman (1991).
130
See, e.g., Lawrence (1993), Brink (2001), Sumner (2004), Laengton (2012), Waldron (2012).
131
Hate Crime Laws: A Comprehensive Guide
132
Waldron (2012).
133
Taylor (1994) calls this "the special treatment dilemma".
36
be found to be acceptable merely on grounds of harm ”indirectly” caused by
how they may function as acts of a hate speech of sorts (through strongly
expressing the biased attitude of the offender), there might seem to be a case for
a similar moderation of hate crime laws. However, for most commentators, this
is not the only reason in favour these laws134.
So, although there are areas of overlapping concern addressed by hate
crime and hate speech laws, the problems targeted by these laws are not
identical. An important difference between hate crime and hate speech statutes
which illustrate this is the fact that the latter is a unique offence in it’s own right
that is surrounded by a number of careful qualifications, whereas the former is
an aggravating circumstance attached to any independently defined offence.
There is therefore a significant difference between criminalising speech that
express certain attitudinal features (bias or prejudice in a qualified way and/or
context), on the one hand, and using similar features as either an aggravating
factor or as evidence of an aggravating factor to be attached to any type of
crime. In both of the latter instances, it is possible for a case of hate speech to
both be and not to be a hate crime. This, as mentioned, will depend on both how,
more exactly, the aggravating factor is defined in the law (whether it is defined
in terms of a motive or in terms of what is expressed by the offender) and the
more exact circumstances of the individual case. Since due to the public nature
of meaning, we may express messages or mental states that we do not agree to
or share, the mere expression of inflamatory or hostile bias or prejudice may be
consistent with the absence of a biased or prejudiced attitude or motive of the
offender.135
3.6.2 Hate Crime and Terrorism
According to one of the interpretations of how the bias aspect of hate crimes
connects to the "parallel" crime presented under theme 1 above, hate crime is a
specific intent crime in that it is taken to be committed with the further intention
to instil fear in, or undermine the social standing of, a targeted group. We also
saw (in that context as well under theme 2) that the notion of hate crimes
causing additional and special harm is often spelled out in terms of the creation
(intentional or not) of fear and insecurity throughout the victim's community.
This reading of the concept of hate crime and/or what is especially problematic
with such crimes suggests that a hate crime is something akin to terrorism in the
classic sense: The attempt to instigate political change by violently or otherwise
unlawfully instilling fear and insecurity throughout a community or society,
thereby sabotaging the ability of its socio-cultural mechanisms or political
institutions protect and care for its members.136
134
Lawrence (1993), Perry (2001).
See Blackburn (2001).
136
This particular take on the hate crime problem is particularly dominant in the German legislation, which
targets crimes based on includes political or religious activist extremism, but not, as of yet, hate crime in any of
the more wider senses listed earlier.
135
37
If hate crime is defined as a specific intent crime, the link to acts of
terrorism is thus conceptual and thus very strong. Hate crimes, simply put, is by
definition a political strategy that consciously employs unlawful acts to try to
scare people and communities into submission. However, as has been argued by
many commentators, such a narrow definition miss a lot of instances where
similar harmful effects occur, and bias plays a pivotal role, but where such a
specific and elaborate intention is absent. The specific intent interpretation is
moreover rather difficult to press onto the aggravating factors employed in
actual hate crime laws. It should at the same time be mentioned that the
distinction between a more broadly conceived motive and specific intention is
not obvious.137
More important, even if a wider understanding of hate crime is accepted.
the specific intent instances (where the link to terrorism is conceptual and very
strong) will not be excluded, but form a particular subspecies of the hate crime
problem. At the same time, other hate crimes can be acknowledged as akin to
terrorism, as their actual effects are of a sort typically sought by terrorists. Even
if the connection is not conceptual, therefore, some reasons for hate crime
policies connect to reasons behind anti-terror policies – namely concern for
overall societal peace, security and stability.
3.7 The Role of the Philosophical Discussion so Far
Our take on the overall tendency of the philosophical discussion of hate crime
policy so far is, to simplify, that the deeper it has ventured into underlying
philosophical issues, the more it has tended to be a rather narrow reaction to an
agenda – actual hate crime laws and policies – set by someone else. This in
contrast to contributions that aim to take a more proactive or constructive grip
on hate crime policy discussion, but where problematisation of underlying
philosophical or ethical assumptions has been less developed.
In both cases, there is the further challenge that there is no philosophical
consensus on the function/scope of criminal law and/or the function and
justification of criminal punishment. There are, as indicated, several more exact
stances on these matters and the choice among these will be relevant to whether
different types of hate crime laws are justified or not.138 Punishment, criminal
law and related policies can be justified on consequentialist grounds,
deontological grounds, retributivist grounds, expressivist grounds. In other
words, the classic spectres of basic ethics and political philosophy remain as
challenges to be specifically dealt with in relation to the hands-on of actual
policy making in this area.
137
138
Morsch (1992), Dillof (1997), Hurd and Moore (2004).
For overviews, see Feinberg (1988-90), Honderich (2005).
38
4. Final Discussion
To conclude this introduction, we would like to point to some areas where we
think that there is substantial food for thought to be had, either for further
philosophical work regarding hate crime policy, or to take home from the
existing philosophical works related in this bibliography into the further work on
policy design in and across different countries and jurisdictions, especially with
regard to Europe. We will start by highlighting some remaining ambiguities and
vaguenesses that have been assessed to warrant further attention. On the basis of
that, we will then address two related questions regarding policy pluralism and
variability in this area – regarding concepts, and regarding values used to justify
solutions in terms of these concepts.
4.1 Fringe Cases and Areas of Future Interest
Any area of policy or lawmaking will be confronted with difficult cases where it
is unclear if they should either fall under the policy or in some other way be
regarded as important on a similar basis as the cases that are seen as clearly
belonging to the area of this policy. There will also be areas of application that
have (yet) not been as attended to as others. So also in the hate crime case.
The former phenomenon becomes visible in hate crime policy debates
foremost through the issue of what social groups or features should be protected
by a policy. But also in debates regarding whether racial slurs thrown around at
the time of the crime is enough proof of bias held by the offender. While
vagueness may be unavoidable in these cases, the risk is that a very small
portion of hate crimes are successfully prosecuted. And the perceived openness
of the question ”what counts as a hate crime?” may quite likely hold back
effective policy measures due to difficulties of matching effective actions to a
type of crime that is so variable. Due to the concentration in many debates on
the criminal law side of hate crime policy, attempts to decide the limits of hate
crime policy mostly takes the form of debating about the exact design of a
proposed or actual punishment enhancement statute, where over time and
between jurisdictions there are notable differences. For instance, while some
countries display the bare minimum of possibility to enhance punishment in case
of crimes biased with regard to race, ethnicity or religion (Cyprus is an example
in Europe when this is written), others concentrate on explicit political
motivations (Germany being the prime example) or add more recent highlights
in anti-discrimination policy, such as sexual orientation and/or identity,
disability and so on (for instance, the UK), while yet others present long lists of
types of features adding to the already mentioned such things as language,
financial status or lack of religious affiliation (Belgium and/or Poland). There
are also debates and law cases pointing to possible additions, such as that of the
quite inclusive categories of sub-cultural belonging or life-style (e.g., the Sophie
39
Lancaster case, debated in the UK139). Some countries, like Sweden, have tried
to handle the resulting fringe problem by including in the statute an open-ended
formulation allowing anything of sufficiently relevant similarity to qualify. In
any case, this sort of fringe issues challenge the design of existing hate crime
laws, for instance, by asking why only some and not all social-group types
typically included in equal treatment or anti-discrimination legislation are not
taken into the "protected" group-types in hate crime laws.
4.1.1 Gender Based Hate Crimes?
Particular criticism has been directed against the omission of including gender
violence as a sort of hate crime in existing hate crime laws140. This omission
may seem particularly odd in light of an obvious ideological link between the
thinking behind hate crime laws and the evolvement of legal or general policy
thinking about sexual abuse/harassment/violence as constituting partly an attack
on the victim's social (gender or sexual) identity – thereby affecting fundamental
aspects of his or her sense of security and belonging (on top of the other obvious
harm inflicted)141. The increasing trend of including sexual orientation as a
protected group-type in many hate crime laws adds further strangeness to this
omission. Looking at the basic values underlying hate crime policies it is also
difficult to explain the omission of gender or sexual identity (the latter being a
more inclusive term admitting also identities not fitting into official gender
taxonomies) as a protected group category in hate crime laws.
Perhaps it has been felt that gender violence, which is mostly made up by
men's violence against women, will be difficult to distinguish in a legally secure
way from violence between, e.g., spouse that comes out of individual conflicts
and feelings of animosity, albeit partly dependent on existing gender or sexual
identity structures or "roles" or domination patterns, and the expectations and
conflicts they create. In domestic violence, the victim is not interchangeable in
the way he/she is in a typical hate crime – but in many instances of sexual
assault or rape where the offender is unrelated to the victim, this condition
seems to be fulfilled, so possibly only those cases should count, even though
gender bias arguably play a role in domestic violence as well. The difficulty to
secure a legally secure protection on the basis of gender in hate crime laws
would not seem to be different to the challenge of a court to distinguish between
a private quarrel of neighbours that happen to belong to groups between which
there exists a documented prejudicial or biased hostility and when criminal acts
resulting from this quarrel are based on biased or prejudicial presumptions
(and/or express these) about the victim's group. It would, it may be noted, also
139
Garland (2010). See also the webpages of the Sophie Lancaster Foundation:
http://www.sophielancasterfoundation.com/.
140
Weisburd (1994).
141
This connection can even be expanded to (the public display of) pornography, which in a recent analysis has
been held out as being problematic in a way that reminds very much of how hate speech is problematic. See
Langton (2009).
40
be particularly fitting to all of the basic values underlying the very idea of hate
crime policy to affirm sexual violence (such as rape) or harassment connected to
prejudicial or biased views, e.g., of how women are allegedly supposed to be
dressed, talk or otherwise behave themselves.142
Another fringe problem instead has to do with how to demarcate the
general phenomenon of hate crime to related ones in criminal law policy. As
noted earlier, there is a salient relationship between the defining characteristics
of hate crimes and those of political or religious acts of terror or terror-like
criminal actions (such as violent campaigns against particular groups instigated
by states qualifying as human rights or war crimes), but how much should
policy design and thinking in these different areas be guided by similar
rationales? Another example discussed at length above is the phenomenon of
hate speech, and in the former paragraph we connected to another related area of
policy, namely gender discriminating or sex-related criminality.
4.1.2 Honour Crimes
A further example that does not embody the complex question of how to relate
national and international law or demarcate the constitutional protection of free
speech, is that of so-called honour crimes. In these cases, someone is typically
being victimised due to a perceived membership of a social group to which
certain (moral) norms are taken to be attached, but not due to a general dislike of
that group, but of a dislike of his or her behaviour in relationship to the
perceived membership. The victim him- or herself, however, may not share any
of these perceptions, quite beside not authorising the criminal act itself. Clearly,
this is related to the typical case of a hate crime – where the offender allows
him- or herself to transgress the limits of the law in connection to how he or she
perceives and judges the victim in terms of membership to some social group 143.
At the same time, since hate crimes are as a rule occurring between people
perceived (by themselves or just one of them) to belong to different social
groups, there is that difference to the typical honour crime. The question is, to
what extent is that a relevant difference from a policy justification perspective?
If the main reason for hate crime policy is the care for social stability and related
concern to prevent or respond to inter-group frictions it may indeed be relevant.
If the main reason is instead the avoidance of particular harm due to the attitude
of the offender in these cases, the relevance may disappear, since an honour
142
It should be observed that a gender or sexual identity group-category in a hate crime law may very well be
neutrally defined in relation to what identity or group an individual belongs to (or is taken by an offender to
belong to). So, if sexual harassment can be a hate crime if adequately connected to bias against a gender or
sexual identity, this holds regardless of what gender or identity is considered.
143
Barbara Perry’s (2001) conception of hate crimes as ”doing difference”, where someone is attacked because,
according to the assailant, the victim or his or her group peers behave ”improperly”, this type of connection
becomes very close.
41
crime may confer extra degradation and insecurity very similar to many hate
crimes144.
4.1.3 The Philosophy of Hate Crime Prevention
A final fringe problem (though not necessarily the only one remaining) concerns
the issue of how to mix the basic ingredients in a sound hate crime policy –
those of criminal law, monitoring and prevention. While it seems easy to
motivate that possible criminal law statutes should be designed so that actions in
their name can be effectively monitored, and that monitoring systems should be
set up to accomplish that in a reliable way145, it is less clear what should be
included in hate crime prevention and how the monitoring system should
possibly be expanded in light of that.
Two things may be pointed to as food for forthcoming thought in this area.
First, the basic concerns or values underlying the case for hate crime policies in
the first place that were mentioned earlier in this introduction (protecting
individuals, communities, society and the disadvantaged) do seem to be possible
to use to motivate action of a broader sort than merely targeting what are clearly
(potential) crimes. In particular, action to fight prejudice, bias, discrimination
and inter-group animosity in general would seem to be possible to hold out as
clearly belonging to the area of hate crime policy, thus integrating it with many
other policy areas attended to for similar underlying reasons. This idea assumes
that there is a correlation between these types of attitudes in the general
population and the frequency (and severity) of hate crimes - an assumption that
is not well established, but nevertheless underlies many initiatives in this general
area and is apparently viewed as a sensible view by many policy makers.
However, that viewpoint also brings into hate crime policy debate the wellknown problems of how far policies aimed at shaping people's values and
beliefs should go in light of the fact that the very same values of protecting
individuals from harm and injustice, communities and society from destructive
structural developments that may undermine public goods and attending to the
special needs of the disadvantaged would seem to motivate that people, within
the limits of criminal law, are allowed to develop and hold their own views on
society and each other, even if these happen to include a lot of prejudice and
bias.
To be be clear, liberal democratic societies may – and, of course, do –
consistently push for its population to embrace a general attitude of tolerance of
144
A recent ruling on attacks and harassments within the US Amish community exemplifies a case with several
rather typical honour crime elements (where an orthodox part of the community tries to unlawfully punish or
restrict a less orthodox part of the community for straying from the 'right path'), where the legal system chose to
classify the offense as a hate crime. See: Jury Convicts 16 Defendants on Federal Hate Crimes Charges for
Religiously-Motivated Assaults on Members of Amish Community. Press release of the United States
Department of Justice, September 20, 2012. Online access: http://www.justice.gov/opa/pr/2012/September/12crt-1141.html
145
Effective monitoring of how these cases are treated may favour punishment enhancement statutes over
sentencing guidelines for hate crimes (see Making Hate Crime Visible in the European Union).
42
pluralism with regard to thoughts and opinions, not least through their
educational systems. There is nothing paradoxical in having as a central tenet
the toleration of such plurality and to mind especially about this tenet being a
widely embraced thought and opinion, e.g., through educational policies146. It is
also well within the limits of a liberal democratic ideals to actively uphold and
remind citizens of the crucial line between opinions and sentiments and acts
based on opinions or sentiments (for the latter there are limits, defined by law).
However, the idea of having a preventive hate crime policy that helps to
forestall inter-group prejudice and bias would seem to be possible to push
beyond such well-established measures. Given that we have the types of policy
that have just been mentioned, but still have a hate crime problem, it may be
tempting to consider further actions, such as state-run campaigns to promote
more particular positions with regard to the values and qualities of this or that
world-view, life-style, tradition, and so on. The question is how far such
attempts at hate crime prevention through the active promotion of certain ideas
may plausibly be taken if, at the same time, society is to apply typical liberal
standards and values, according to which a basic value is for the state to
celebrate and respect diversity of opinion and the ability of adult people to
decide and express responsibly their own view and way of life.
4.2 Many Concepts, One Frame
There are several hate crime concepts, and several partly conflicting reasons
why any of these would or should be applied in law and law enforcement, in
other types of policy measures or in scholarship. This sort of conceptual
plurality threatens to create confusion and unintended – even unwitting –
disparities, and thus be seen as a weakness of a policy. In the area of hate crime,
we have especially pointed to, e.g., the differences between hate crime laws in
different jurisdictions and the apparent mismatching of what is picked up by
monitoring systems and what is held out as or hinted to be the problem that hate
crime policy is intended to address. In scholarship, the main problem created by
plurality is uncertainty to what extent different scholars are discussing the same
thing and, as mentioned, such uncertainty can be attended to with the standard
tools of improved terminology, clearer definitions and meticulous explanation of
usage. A problem with improving on a concept, however, is that one may loose
comparability with previous research. This is a concern that has to be addressed
or, at least, accepted. If data from different countries are to be compared, it
means that at least some of the authorities collecting data have to change their
concept, and thus loose perfect comparability between new and old data. If we
believe that there is a considerable benefit in getting a better overview of these
crimes on a European level, this should be the best conceivable reason to
146
This is a commitment of the European Union, as expressed in the 2008 framework decision on racism and
xenophobia
43
instigate such a change, and provide a perfect opportunity to improve on current
practices.
In the reality of policy, the confusions resulting from lacking a common
concept, while also needing different concepts for specific functions and
countries are not easily repaired in any similar way and may severely undermine
the effectiveness, reliability, justification and legitimacy of hate crime policies.
This may become especially pressing in complex and flexible jurisdictions like
that of the EU. Without a common concept147, there will be no such thing as a
European hate crime policy or problem, but choosing any of the more particular
ones on display in the scholarly market threatens to exclude existing policies in
member states as being "real" hate crime policies. This has been addressed in the
attempt of OSCE-ODIHR to formulate a working definition of hate crime for
monitoring purposes148. However, as we saw earlier, even this attempt may
exclude some jurisdictions, such as the UK, if applied strictly. On the other
hand, trying to formulate a concept that is even more inclusive, giving room for
all existing policies may be viewed as too allowing, and to forestall justified
criticism of countries that offer very minimal responses to hate crime, e.g. with
regard to what types of social groups are protected.
The problem arising out of these conflicting tendencies has been addressed
in a recent contribution149, where it is argued that a hate crime concept that is
construed out of a victim vulnerability idea could overcome some of the
problems of finding a pan-European solution to what group-types are to be
awarded protection in hate crime laws and other policies. A particular point
made is that, due to variations between EU member states as to which groups
are in fact especially threatened and/or vulnerable, it is possible to allow a lot of
variation while still allowing all of these policies to be hate crime policies,
without sliding into an anything goes position.
While we believe that this suggestion is a step on the way to manage the
conceptual problem, it still suffers from a flaw in that it confuses, on the one
hand, the issue of what policies are to be counted as hate crime policies and, on
the other, what policies are to be viewed as justified. As pointed out under
theme 1 earlier, if everyone defines hate crime in terms of those aspects that
they think make hate crime policies justified (or not justified), there is risk of
creating a situation where no one agrees or disagrees about anything, since
everyone insist on using different pet concepts, thus talking past each other. For
this reason, Garland's and Chakraborti's victim vulnerability account of what
justifies a group to be protected by a hate crime law together with their
presentation of this account as a new concept of hate crime is risky. Simply put,
anyone whishing to deny their suggestion with regard to justification can simply
chose another definition (and thereby talk about something else). If one then
147
See Charkaborti and Garland’s aptly named ”divided by a common concept” paper (2012).
And is a main concern of the recent FRA report Making Hate Crime Visible in the European Union.
149
Garland and Chakraborti (2012).
148
44
responds with the claim that they are in that case not talking about "real" hate
crime, it has suddenly become conceptually impossible for a hate crime policy
not to be a justified hate crime policy. For, according to the concept then
proposed, if a policy fails to protect vulnerable victim groups, it simply is no
hate crime policy in the first place. But clearly, any concept of hate crime must
allow for the conceptual possibility of bad or unjustified hate crime policies. At
the same time, Garland and Chakraborti has an important point: specific
concepts of hate crime at work in national laws and other policies, need to target
groups that are indeed important to target on the basis of the values and reasons
motivating these laws and policies in the first place.
Based on this observation, the obvious solution is to insist on keeping apart
the conceptual and the justificational issues on an overarching level, where we
set out what we are talking about when talking about hate crime across different
countries, laws and policies. At the same time, the conceptual issue must be
solved in a way that is of use for the further discussion of what hate crime
policies are justified and why. To do this, the concept must be able to describe
what a hate crime is in a way that sets it apart from other types of crime, it must
allow for different views on the justification issue to be consistently formulated
without resulting in triviality or paradox, and it must allow for different
solutions at different policy levels and in different jurisdictions that are as a
matter of fact counted as hate crime policies (albeit not necessarily agreed on as
ideal ones) to be included by the concept.
We believe that it is possible to thus describe a loose conceptual frame that
captures a single, albeit sufficiently variable and relevant idea of what a hate
crime is. The way in which this ideas is then varied in the form of actual policies
in different areas and jurisdictions may then be assessed on the basis of the
framework of values and normative perspectives presented earlier together with
facts about the situation in a country, the prerequisites of effective monitoring,
and so on. In relation to that, we view Garland's and Chakraborti's vulnerability
idea as a fruitful development and illustration of how this base of values may be
employed to assess the choice of protected groups in a national hate crime
policy. Our suggestion with regard to the conceptual issue is the following:
A Framework Hate Crime Concept
If a country has some sort of policy with regard to crimes committed having a
normatively adequate sort of connection to a negatively biased attitude of the
offender towards the victim in virtue of a perceived social group-membership of
the latter (or other connection), then this country has a hate crime policy. To be
adequate, the connection mentioned has to take the form of either a state of the
offender that contributes to the explanation of the offence (such as an intention,
45
a motive or a disposition), or something expressed by the offender through or in
connection with the offence.150
Whether or not such a specific hate crime policy is a justified, good or efficient
policy is a different matter, to which the many considerations we have presented
apply. Similarly, within a single jurisdiction or policy region, if it has policy
measures to prosecute and punish, prevent and/or monitoring crimes committed
with an adequate connection to a negatively biased attitude of the offender
towards the victim in virtue of a perceived social group-membership of the
latter, this jurisdiction will have a hate crime policy in the corresponding area
(criminal law, monitoring and/or prevention). Again, whether the content and
mix between these areas in the policy is a good one or not is another matter, and
depends on the normative issues under discussion.
Viewing things in this way makes it possible to adopt what we believe is a
fruitful starting point for further work of use in more specific circumstances and
jurisdictions much as Garland and Chakraborti describes. We can embrace the
notion of having several different and more specific operational hate crime
concepts performing distinct but related functions within the frame of one hate
crime policy. What makes it a hate crime policy in the first place is the fact
mentioned in the framework concept. However, distinct operational parts of the
policy will have to use much more specific and precise notions than that of a
crime committed in adequate connection with a negatively biased attitude of the
offender towards the victim in virtue of a perceived social group-membership of
the latter, although all of these notions will fit within this loose conceptual frame
for what designates a hate crime. For instance, the criminal law part of a hate
crime policy will have to apply solutions and instruments that fit the legal
tradition and context of its particular jurisdiction, thus making possible
justifiable variations between states, e.g. with regard to what more exact among
possible adequate connections between offender, bias and crime should be used
in statutes. Moreover, states may find reasons to delimit the more exact target of
the policy differently, depending on what social groups are in fact being targeted
in criminal actions fitting the loose frame for what a hate crime may be. From
this perspective, if nothing else, the framework concept, together with the basis
of values and reasons, will serve as tools to create greater clarity and
transparency of what solutions that are in fact adopted and what reasons may
justify them.
Similarly, if preventive measures are to be applied with any success and
possibility of evaluation, they will have to address themselves more specifically
with regard to what exact types or instances of hate crimes are being targeted,
150
The latter clause includes what is probably excluded by the working definition presented by OSCE-ODIHR
(see Hate Crime Laws: A Practical Guide) through its use of expressions such as hate crime being crimes
committed "because of" or "out of" bias or prejudice, while still including everything that this suggestion
includes.
46
what type of prevention is aimed for, and so on. Moreover, they will have to be
operationalised in manners promoting the qualities aimed for in measurement
and statistics, such as precise quantifiability, reliable detectability and
commensurability between areas and jurisdictions. Again, it is quite conceivable
that hate crime policies will be found to vary (as they in fact do) between
different states or regions within states. Finally, depending on what exact such
variations are in fact occurring, monitoring systems will have to adapt in order
to monitor that which hate crime policies as a matter of fact relate themselves to,
again allowing for quite some variation. None of these variations, however,
cancel the fact that policies made up of such parts are hate crime policies – as
long as they continue to relate to crimes committed with an adequate connection
to a negatively biased attitude of the offender towards the victim in virtue of a
perceived social group-membership of the latter. - this is the minimal
conception needed to start with. We can then say that a particular case falls
under this most general conception and ask why a particular jurisdiction does
not treat it as such.
On this conceptual basis – and the range of possible hate crime policies on
different levels that it provides room for – we can then discuss how the policies
should be designed, changed, developed, or perhaps repealed in particular
aspects, parts or larger sections. Similarly, an overseeing body like the EU in
relation to its member states, can decide more precisely what it demands of them
in the hate crime policy area and to what extent to allow them to vary policy
details in relation to national need, culture, legal system and so on. This
weighing of considerations is possible from the EU perspective by relating local
concerns to the basic normative framework of fundamental human rights on
which the union rests. It should be noted, however, that such rights may come
into conflict, and careful ethical analysis is required when they do. Similarly, a
federal government can oversee the policies of its states according to a similar
assessment, or a nation's central government can oversee its regions and
municipalities. Doing that, the overseeing central body will have to take a stand
on how to weigh the various value aspects and pragmatic reasons for restrictions
or moderation pointed out earlier. This brings us to the last final remark of this
introduction.
4.3 Value Plurality, Conflicting Reasons and Policy Compromise
As indicated at the outset, there is a complex, multi-layered collection of
suggested or hinted values, reasons and possible bases for restricting otherwise
motivated measures that may be taken as relevant for deciding the scope and
content of hate crime policies. Protecting people from harm and offering justice
and restitution when they have been unduly harmed, minding about equality and
protecting the disadvantaged from further downsides, caring for the basic
stability of society and its ability to produce public goods such as liberty,
security, peace and prosperity, taking care not to have the eagerness to attend to
47
those values lead to undermining of the rule of law, legal security and certainty
or ignorance of the importance of legitimacy for the legal and political system to
function well. All of these are, we suggest, perfectly sound and important
considerations. However, as we have seen, sometimes some of these
considerations pull in opposite directions, or partly undermine or counteract
some of the other considerations. This creates a challenge for hate crime policy,
that is an instance of a more general one: how to decide in which way and on
what basis to resolve conflicts between initially and apparently sound
considerations.
Within philosophy – in particular ethics and political philosophy – attempts
are made to simplify and systematise this picture, usually by means of
distinction and reduction. For instance, one may distinguish questions about
what to aim for in hate crime policy from questions of to what extent legal
security or rule of law may be tampered with to realise important social goals; or
between practical considerations of implementation, such as to what extent
people will adhere to a policy, and more abstract questions about the desirability
of this policy. As for reduction, it is time-honoured practice within philosophical
ethics to construct theories where one or a few among a multitude of seemingly
plausible considerations is appointed the role as fundamental; sometimes
inspiring the invention of novel, more general types of consideration that are
claimed to explain or justify the other considerations, thereby providing basis
for priority setting in cases of conflict. Many of the arguments to and fro on
various issues outlined above (and detailed below in the annotated bibliography
itself) illustrate such attempts, mirroring some among a family of competing
general approaches within ethics, such as consequentialism, deontology, theories
of rights, social contract theory, and so on.
At the more practical policy making level, such work can help elucidate
how patterns of reasoning may be applied in support of some policy designs
over others, and to provide a deeper and clearer understanding of political
conflicts that are actualised when policy is debated. For instance, above we have
tried to explain how different concrete questions with regard to hate crimes and
hate crime policy design and implementation awake basic tensions within a
structure of norms and values generally subscribed to by states across Europe.
These tension, in turn, can usually be understood more clearly by presenting
how they relate to worked-out theories from ethics, political philosophy or the
philosophy of law – something we have attempted a bit above and is continued
below in the bibliography. Some of the ones highlighted have been about: How
the liberal core value about everyone's equal right to form his or her own life
and world-view as he or she sees fit may both support the idea of having a hate
crime policy and question how far such a policy should be taken, e.g., regarding
prevention. The same idea about equal treatment may go for a much broader
outlook on how to define the proper scope of such a policy (e.g. with regard to
what types of groups are protected in a hate crime law) than, e.g. general reasons
48
to protect overarching social stability and functionality or reasons to attend to
special interest considerations attached to particularly vulnerable groups.
Attention to formal qualities of the legal system having to do with efficiency,
security and general equal treatment of people may lead to much less strong
support of criminal law solutions in hate crime policies than what is supported
by reasons referring to the harms and injusticies related to hate crimes. This
attention may also, on the basis of formal equal treatment norms, question
solutions that allow for differences between areas or jurisdictions, e.g. with
regard to what type of groups enjoy the most explicit protection in hate crime
laws on the basis of considerations of equality that allow for adjustments of
policy to differences of need between countries or regions. And so on.
Philosophy may in this way indeed continue to promote better
understanding of the differences between positions and argumentative patterns
in the hate crime discussion – sometimes perhaps revealing some differences to
be more apparent than real, sometimes adding clarity to what is at stake in
various policy decisions and debates, sometimes pointing out the need for
debate in cases where shallow consensus or mere inattention prevails. However,
it would be unrealistic to think that philosophical work could make the general
tensions and deeper conflicts revealed by philosophy go away for those policy
makers that ultimately need to decide the issues. The other side of that is the
conclusion that when we come back to the actual policy issues actualised by
hate crimes from the depths of philosophical analysis, we have still not lost any
of the initial general reasons to affirm the multitude of values possible to appeal
to when justifying particular designs of hate crime policy. This plurality then has
to be handled by policy makers also when these values pull apart, necessitating
compromises between values which all may appear to have a claim to being
non-negotiable.
Such compromises are, of course, well-known to experienced politicians
and others involved in policy making. However, what is perhaps less developed
is the art of making clear exactly what compromise has been struck and why.
This is due to the side of politics where reason, argument and clarity is looked
upon as problems that tend to create practical problems for the other aspects of
politics, where decision makers seek to protect themselves from too much of
accountability. In short, it is very easy to strongly affirm all of those basic
values and reasons that we have mentioned (protecting individuals from harm
and injustice, protecting social stability, attending to the disadvantaged,
guarding rule of law and legal security) in a public speech or general declaration
of intent, but as we have seen, very difficult to fully live up to such
proclamations in practice. An important role for the philosophy of hate crime is
to continue to deliver conceptual and intellectual tools that may help going
beyond and unpacking that which in public political presentation is often
glossed over, and thereby provide fuel for further debate and development to the
benefit of a more transparent, well-founded and legitimate politics in this area.
49
One particular aspect of this that we have underscored above is the way in
which the philosophical reasons and analyses put to work in the discussion
about sentencing enhancement for hate crimes could do a lot of good when it
comes to broader issues about how to adequately mix such "hate crime laws"
with desirable prevention and suitable monitoring systems. It may then be asked
whether, on reflection, this broader outlook may give reasons to focus less on
the issue of punishment and more on law as a vehicle for public communication
and education to the benefit of the basic values underlying the importance of
hate crime as a policy area.
50
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