Making Room for Hate Crime Legislation in Liberal Societies

Criminal Law and Philosophy 4 (3):341-358 (2010)
Abstract
There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a ‘character’ based approach in criminal law is necessarily illiberal and violates the state’s commitment to political neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd’s characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes.
Keywords Heidi Hurd  Criminal responsibility  Hate crimes  Enhanced punishment  Character theory  Liberalism  Conception of the good  Character traits
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