At the fourth meeting of the research project ”When Law and Hate Collide”, which took place in Brussels in 2012, we recorded a radio documentary. It features the project members Michael Salter, Kim McGuire, Christian Munthe, David Brax (that’s me), Caroline Bonnes and Michael Fingerle along with noted experts Paul Iganski, Henri Nichols of the FRA, Paul Gianassi from the UK Ministry for Justice, Joanna Perry from OSCE-ODIHR, Jackie Driver from the Equality and Human Rights Commission and UCLAN’s Bogusia Puchalska.
I identity six types of justifications for penalty enhancements at 10:40 and the possible criteria for inclusion as a protected group at 22:47
And here it is:
For the last few days, a police scandal has been dominating swedish media. The scandal concerns a file including a very large number of people of mainly Roma origin which the press calls an ”ethnic registry”, which is clearly a rights violation and in all likely to be a punishable offense, while the police (some of them) calls it an ”analytic file”. The content of the file/registry is not entirely clear – and lets be thankful for that, police files should not be open access – nor is the reasoning behind it’s existence or it’s extent. If you believe the police, it all started with an investigation and the collection of names of people connected to it. This, of course, is fairly unproblematic. There is no fault in gathering data on people of Roma origin connected to a suspected crime, as long as they are not collected because they belong to that group, unless group membership is clearly relevant to the investigation. Similarly, the police is not allowed to have a registry of people on basis of political conviction unless their membership in a certain political group is germane to the investigation. While this qualification seems straight-forward, it means a very large gray area. In fact, it’s probably the gray area where most rights violations takes place. I’ll return to this matter below.
At some point, the file started growing to what’s seems to be an unreasonable file, not warranted by the objective of the investigation. For example, it involves a large number of children, and some deceased people. Again: there may be sound reasons for collecting data on whether a suspect has children, and other family or association based relations through deceased persons. The problem arises where the collection of such data becomes unreasonably extensive and ulterior motives can be inferred.
Discrimination by proxy
A registry on the basis of ethnicity is clearly unlawful, and violates the anti-discrimination principle. A clear case of such a registry is one which includes only members of a certain ethnic group because they belong to that ethnic group, and also includes all such members which the people responsible for the registry knows about. The registry/file involved in the scandal is not such a clear case. A clear case of a nonproblematic registry/file is one which concerns a suspected crime and collects data of people of a common ethnic origin clearly relevant to the investigation, but in which there ethnicity is not noted as such. The registry/file involved in the scandal is not such a clear case either.
A registry may violate the anti-discrimination principle in other ways, however. Even if the police is not collecting data on basis of ethnicity, they may collect data because of ethnicity. I.e. a proxy can be used. In the case, the proxy used seems to be family ties, very extensive family ties. As mentioned, you may collect data about family ties, but not if the reasons why you do so is based on your idea about the ethnicity of the people involved.
The importance of Reasons
The point is this: In order for the registry/file to be discriminatory, it’s not necessary that it’s a clear cut ethnic registry. It suffices that the extent of the file, or the method used, is one that wouldn’t have been employed were it not for the ethnicity of the people involved. In other words: if the reason why you take family ties to matter to a large extent is your idea about the importance of family to people of that origin to be relevant to the investigation when it isn’t. This is complicated, and relates to a well known phenomena from the social psychology of prejudice: Discrimination often proceed, not by taking ethnicity, sexuality, gender to be a reason in itself, but by you taking these things to be a reason to look for other reasons for disparate treatment. If, for instance, you are hiring someone and you choose your non-ethnic criteria on basis of which ethnic group you want to hire from. You thus provide post-hoc rationalization of your decision which does not coincide with your actual reason for it.
Clear cases, criteria and explanations
As mentioned previously in this blog, there is a problem with treating to obvious cases as exemplars. It makes it difficult to deal with the less clear cases, where some of the distinguishing marks of the obvious cases are missing. In the scandal, a clear case would be a registry based on ethnicity alone, with no other rationale. But as mentioned, this is not necessary to make it a case of discriminatory conduct. So what is necessary? In the case above, the sort of evidence germane to the problem will concern the intents of the police officers involved, but this will be notoriously hard to come by directly. The more indirect route will come through a careful investigation and an informed judgment regarding the reasons why the investigation took the form that it took, and involve an appeal to the best explanation. For a philosopher, at least, it seems that the way to do this is to compare with files concerning similar cases where the people involved have other, or diverse, ethnic origins. If it’s standard procedure, there’s no particular problem with this case (there may be a general one, though). If it isn’t, someone needs to provide a very good explanation.
It would seem that semantics is the least interesting aspects of things like islamophobia and antisemitism. This may well be the case, but if you’ve ever happened to investigate into anything, you know that the least interesting aspects of things are often quite crucial. While linguistic-turn era early 20th century Oxbridge-type philosophy is often caricatured as claiming that semantics is everything that matters, the more accurate claim made is that semantics matters too.
It is, at the very least, noteworthy that while antisemitism and islamophobia are treated as examples of the very same attitude (a negative one) with a variation in object (Jewish people/Muslims), they take different lingusitics forms even on the attitude side. Why use ”anti-” in the one case, and ”phobia” in the other? Are they interchangeable? It’s clear that they are often used as interchangeable, but this may hide an important aspect: There’s a distinction at work which connects to different modes of negative attitudes and behavioral responses. These modes afford different types of explanatory schema.
Aggression and Aversion
The word ”anti-” connects to aggression, the word ”phobia” to aversion. These are both negative reactions, but aggression is connected to the behavioral response of approaching the object, while phobia is connected to the behavioral response of withdrawal. If I have a fear of spiders, I don’t primarly seek them out, even to kill them, unless there’s another way to avoid them. I’m sure there are people who are anti-spider, and will seek spiders out to kill them, but the groups of spider haters and spider fearers are probably just barely overlapping. The relation between fear and hate is not straightforward. Because of this, fear-based explanations of acts of aggression are incomplete at best. You always need a further explanatory step to show why this instance in particular provoked an aggresive response, rather than an act of avoidance.
If the semantics of ”phobia” and ”anti-” reflects this distinction, it suggests that the common perception is that Jewish people are attacked as a consequence of anti-semitism, whereas muslims are avoided as a consequence of islamophobia. Of course, both groups suffer from both types of responses.
The distinction between aggression and avoidance is further of interest as they neatly divide the problems of racism up in two piles, it’s relatively easy to target aggression with the use of criminal law, but not so easy with avoidance (Discrimination laws targets a very limited set of the latter). Yet avoidance is probably the greater problem, as it is likely to account for most inequalities and as much of the perpetuation of antipathies between groups as the aggression does.
Hi. Below you’ll find a short interview with me about (wait for it) the philosophy of hate crime. It’s in swedish and it’s made by the really quite admirable crew at fjardeuppgiften.se, a website that makes short interviews with scientists of all shapes and sizes and then distribute the interviews without charging.
About the content: basically, I reiterate some claims familiar to (the fiction known as) readers of this blog: that there are a number of hate crime concepts, that the issue of justification of punishment enhancement is not precisely settled, and that we still lack a good theory about the relation between everyday xenophobia and hate crimes, and thus of why and when these crimes occur.
The face of racism is often characterized by a swastika crudely painted on a wall, or a group of young white men screaming out their hate and anger towards a member of a hated group. The consequences of racism is often portrayed as a beaten up, dead body. This, most of us think, must stop. Presumably, open, convinced, ideologically driven racists thinks so to. Presumably, as with any kind of war, they regret that it had to come to this.
These expressions of hate and prejudice are highly problematic, and the long term effects, especially if they are not swiftly and forcefully dealt with, should not be underestimated. But what would happen if they disappeared? Would the problem av everyday racism – expressed in mild aversions, the unlikelihood of succesful encounters, covert discrimination – diminish as well, or would it, in fact, become worse? The question is this: what is the relationship between overt and covert instances of racism?
If we want to point out why racism is a bad idea, we are well served to point to these worst cases – the lynching of James Bird, the murder of Matthew Sheppard, and we do that rather than point to a job applicant narrowly losing out to another due to the foreign sounding nature of his or her name.
Yet the latter kind of situations are in all likelihood much more common and their effects much more widespread in modern racism. Most people overtly believe in the value of equality, but still suffer from unconscious prejudices. We can deal with the easy cases, but when it becomes complicated, and we can make up a reason that justify our aversion, prejudices have a chance to win out.
Explanations are afforded by generalizations, but motivations and emotions often draw their power from individual cases.
We are on the watch for populisitic right wing parties, because we still got the more obvious racists to keep before our eyes. We remember. We often recognise and react towards our own racist tendencies by the self loathing that comes with sharing beliefs with violent and obviously misinformed perpetrators. But what if they disappeared? Would we lack these markers of racism and thus loose our bearings?
Or, alternatively: do these instances now serve the function of carrying the weight of all racism, and the problems with it? So that if they DID disappear, we would have to face the fact that it’s actually as much the implicit racism of convinced egalitarians and liberals, that cause the unfair outcomes? Or would such a scenario rather be used in support of the racist idea that any inequality remaining in the absence of overt racism must be due to inherent inequality between the ”races”?
Hello! If you’ve just found your way here, odds are that you did so because of this article http://www.dn.se/insidan/insidan-hem/for-att-lyckas-med-lyckan-far-man-inte-vara-for-krasen
Feel free to look around. The last two years of posts deal almost exclusively with hate crime. If you want something more substantial on that topic, you may start off with this video
And maybe take a look at this rather hefty text, co-authored with Christian Munthe:
If you are more interested in my work on hedonism, here’s the full text of my dissertation ”Hedonism as the Explanation of Value”:
We pride ourselves of our tolerance and we chide others for their lack of it. Surveys of attitudes towards the foreign and policies addressing those attitudes often use the term ”tolerance”. The concept and its use has come under some scrutiny lately, and some of those with interests tied to the issues it is intended to cover have started to move away from it. The driving idea behind this resistance is that ”tolerance” is held to somehow imply dislike. Being very tolerant, then, would seem to require a great deal of dislike, and that’s certainly not a healthy measurement of attitudes. We’re not aiming for stoicism, surely.
The implication is held to be conceptual, but conceptual analysis is a tricky thing. If the implication you draw is one that is at odds with common usage, it’s possible that you’re using it wrong. Some concepts may be such that there are clear criteria for how they should be used independent of context or of current actual usage. But it is also quite clear that ”tolerance” is not such a concept.
”Tolerance” may not imply dislike. In medicine, tolerance seems rather to involve not having an adverse reaction to the introduction of something unknown or foreign to the system. ”I’m lactose tolerant, but I also happen to love milk.” There’s no conceptual tension in that statement. In fact, a lactose intolerant person (I know several) may love milk too, so in this sense, there’s no conceptual implication from tolerance to the attitudes of like or dislike.
Surveys operationalize concepts. ”Tolerance” in a survey of tolerance is nothing over and above a summary of the items in the survey. When science cover vague concepts (and they’re all vague concepts, dear) it relies on stipulation and on an argument that the stipulation is at least consistent with common usage, even if it does not exhaust it.
So it’s quite possible, even likely, that the tolerance we pride ourselves of and chide ourselves and others for lacking is not a concept that implies dislike. It’s more likely to imply a lack of adverse reaction to the introduction of something unknown or foreign to the system. Usually with the add-on that the thing in question is not malign. But that’s actually not my point. My point is rather this: Don’t let too much of your argument depend on the implications from your interpretation of a loosely defined concept.
On the 25th of november the youth wing of the swedish social democratic party held an action they called ”nätfight” (”net-fight”). The idea was, for this day at least, not to let all the xenophobic nonsense that flourish on various internet fora to stand unopposed. Arguments were to be made. It’s a ”take back the internet from the Trolls” kind of initiative. Most non-xenophobic people dislike engaging in these conversations (especially those that have tried without result) as very little good is likely to come out of such an engagement. Perhaps we believe that engaging will only make things worse. Xenophobic views are not primarily based on arguments, and are unlikely to disappear or be made more moderate on the basis of argument.
This action is similar in idea, but different in content, to two other recent attempts to counter the dark sides internet. The first was launched by a swedish journalist and involves ”love bombing” of sites and Facebook pages where young people are subjected to bullying. The other started with the #signyosonisgay hashtag, which started as a homophobic method of ridicule, but was turned into a medium to show love and support for homosexuals.
The first initiative is based on argument, the other two is based on ”crowding out” bullying and xenophobia. But they have one central feature in common: they are based on the idea that the harm being done in the name of free speech (especially on the internet) is effectively countered by more speech.
Some will say this is the ONLY acceptable way to counter harms done via speech. The ”more speech” solution is preferable to regulation of speech – it’s results outperform in every regard, or so goes the argument. It’s more effective in discouraging harmful speech, it empowers the victims of such speech by demonstrating that both the arguments and other people are on their side, and it does not threaten free speech (and we should be reluctant to equip authorities with the means to restrict speech).
There’s no question that ”more speech” is for the most part a good solution. But the reasoning applies to almost any cause of harm: we should alert the police when we see an assault taking place but we should also intervene. Intervention, when possible, is often more effective on the precise same grounds. But should such a duty, and such initiative, replace the police and laws? Surely not.
Even if the ”more speech”, and ”intervention”, solution, is effective when active, it is basically unfair. It only protects those with friends or advocates active and good enough to make enough of a difference. The law exist, or should exist, to provide protection for those who are not protected by such resources, those who are not currently popular. To argue that ”more speech” should replace hate speech laws is similar to a rich person saying that the police is not needed when one may as well hire body guards.
The other reason is that, as stated above, evidence suggest that xenophobia is not based on argument, and thus will not disappear by argument. Arguments are effective in other ways, by strengthen the victim, and the victims advocate, but it is unlikely to deter the assailant. Criminal sanctions have the benefit of providing reasons to desist no matter whether you accept the argument or not. This, to, is the rationale behind the two non-reasons based initiatives above. Even if you cannot persuade the haters to stop, you may crowd them out, you can bore them and limit the impact of their statements.
But there’s nothing to suggest that these effects would be lessened by the presence of a hate speech law.
The locus of the problem
In policy documents and in the scholarly literature, the idea recurs that the contemporary problem with xenophobia and racism is not primarily located in extremist acts of violence but rather in prejudices prevalent in the general population, and primarily expressed in minor acts of discrimination and behaviors well below the threshold of the criminal. These acts and attitudes when combined, when systematic, accounts for many avoidable problems facing society in general, and targeted groups in particular, and are quite clearly a proper target of policy measures. In addition, these widespread attitudes are often held (see Barbara Perry’s 2001 book ”In the name of hate” for instance) to provide the background conditions and justification for more severe hate crimes. Hate criminals may take everyday racism as their mandate to offend
The inclusiveness of the legal definition
Hate crime and hate speech laws target, depending on jurisdiction, more or less extreme versions of discriminatory actions. In the hate crime literature (See Iganski 2008 and Perry 2001) a case has been made in favor of an inclusive definition of hate crime, not limited to cases of extremist violence, but including more or less any crime in which a bias element plays a central role. The argument in favor of such a definition is usually made on the grounds that less extremist, less obviously racist, yet still hate motivated crimes, have the same sort of particularly harmful impact as extremist crimes has, and this is the morally relevant distinction between hate crimes from other crimes. Focus on the obvious cases can make us blind to the prevalence of these relatively ”minor” crimes , and can thus have a detrimental an impact on victims tendencies to report and on authorities tendency to respond. It may also make us blind to the occurrence and impact of non-criminal covert racist behavior.
Harm and Prevention
Hate crime and -speech laws and statutes are often justified on the basis of the harm caused by these crimes. The justification may be retributory, but for the most part, the assumption and justification is that punishment has a preventive function. It is supposed that legislation will limit the occurrence these crimes, and of their harmful effects. It is also viewed as an expression of the state’s commitment to equality. It is presumably assumed to have a discouraging influence on prejudices in general. It’s to the latter function I’ll now turn.
Wider effects on prejudice
The point is this: even if the non-criminal, less obviously xenophobic expressions of prejudice is the true locus of a societiy’s xenophobia problem (and the source of target groups remaining disadvantaged), punishing the more extreme manifestations have effects on the prevalence of the attitudes thus distinguished as aggravating. This, presumably, is their rationale. There is little point in the criminal law expressing commitment to equality if the predicted effect is not a reinforcement of support of equality.
Are hate speech laws effective?
In his 2004 book The Hateful and the Obscene, philosopher Wayne Sumner argued against hate speech laws on the grounds that they are largely unnecessary. The kind of racist expressions that presumably warrants criminal sanction in this way is likely to be counter-acted by public opinion and reactive support for victimized groups. Society would indeed be worse if racist speech would stand un-opposed, but it isn’t. At least not for established minorities (which tends to be the ones protected by this sort of legislation). This, of course, is part of the classic liberal defense of the first amendment: the solution to hate speech is more speech, not restrictions on speech. Hate speech legislation, on this view, is not effective and thus lack justification. Indeed restrictions are likely to make would-be offenders self-righteous and martyr-like and may thus exacerbate the problem.
The extreme and the everyday
The relation between extreme/criminal acts and speech and everyday xenophobia is crucial to policy and legislation pragmatically construed. If hate crime and – speech laws may in fact make things worse in this way (as argued in Jacobs and Potters seminal 1998 attack on hate crime legislation) and it is the widespread prejudice in the non-criminal population that accounts for the severe impact of these crimes (the impact of hate crime is presumably more severe in a society where the victim is also subject to widespread prejudices), we have a dilemma. If the public reply to hate crimes is diminished prejudice in the general population, each hate crime is likely to diminish the conditions for their particularly harmful impact. While this should not be counted as a mitigating factor, it does rather undercut the rationale for it being an aggravating factor. In particular if the attitudes that actually determine the impact is not that of the offender, but that of the general public.
One mechanism by which punishing hate motivated speech and acts may have a detrimental effect is, as stated in the introduction, if it means we ignore and accept everyday racism as relatively unworthy of attention. Hate crime legislation, especially when it is not enforced, can be a relatively cheap way of ”taking prejudices seriously”. It can express commitment to equality while not making a commitment to work towards equality.
The case for legislation
The argument that hate crimes and -speech is naturally counteracted by public reactions, because tolerance is the prevailing attitude in most modern societies, does not necessarily undermine the case for legislation. In fact, it may offer a further argument in favor of these laws: Legislation (plus prosecution and sentencing) is part of the public ”reaction” to these crimes and to this type of speech. The public condemnation of these acts (be they acts of violence or of speech) means that they are held to warrant extra punishment. The laws are legitimate. The support offered to victims should not just come from public reactions (which a fickle and too dependent on ones groups prior standing) but from legislation that ensures equality of consideration.
The empirical question, crucial for policy
Do laws (and prosecutions, sentencing etc) have a reinforcing impact on attitudes thus expressed? This, is an important question. And it would seem to be an empirical one, the settling of which depends on careful (and methodologically very complex) evaluations. Do effects on general attitudes depend on an inclusive hate crime concept, for instance, showing that non-extremist and non-violent crimes can be hate crimes too? Does it depend on law-enforcement making these crimes their priority? Or might such a policy result in a worsening of the situation, by putting the emphasis on group conflicts? These, as I say, are clearly crucial question to answer if hate crime- and speech legislation is based on and ultimately justified by their role in, a general anti-prejudice policy project.
A few months ago, the German partner of the ”When Law and Hate Collide” project hosted a splendid symposium on hate crime.
You can find all the presentations on youtube.
My presentation on the Hate Crime Concept(s) (the spoiler is in the title: there might be several such concepts) is here.
The slides, if you find that you need to look at something a little less distracting than me moving about nervously, are here: The Hate Crime Concept(s)