Toward a Legal Concept of Hatred: democracy, Ontology, and the Limits of Deconstruction

Abstract

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