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Equality under law? Not any more

Hate crime. What it is exactly? Opinions vary but in essence it means that a given crime, such as assault, murder or defamation, will be treated more seriously if the perpetrator is judged to be motivated by certain politically disfavoured prejudices.

It means that if someone smashes a bottle in your face because you are black (or catholic or muslim or homosexual), rather than because they want to steal your wallet or because they caught you in flagrante delicto with their girlfriend, then that is more serious. The actual substance of the crime is not what makes it a ‘hate’ crime, just the motivation to commit it against a member of a designated group of people based on their race (which in reality means ‘certain races’), religions (meaning ‘certain religions’) or sexual orientations (meaning ‘homosexuals’), that then becomes a hate crime… crimes against philanderers, drunks, football supporters, loud mouths etc. are not hate crimes.

You may hate supporters of Celtic Football Club but if you bash one of them over the head with a two by four, that is not a ‘hate crime’, it is just assault and perhaps GBH. Unless of course the Celtic supporter in question happens to be a nominal Catholic but you are a nominal Protestant.

It is a criminal act which attracts extra sanction because of what the perpetrator was thinking at the time. In short, a ‘hate crime’ is a ‘thought crime’, albeit one usually only applied to thoughts held by certain politically disfavoured classifications of people.

Do you really trust something as corrupt and fallible as a political process to create laws not on demonstrable facts (who hit who with the two by four) but on what people think? Sure, motivation matters: for example being put in fear of your life can justify violence in self-defence, even (sometimes) in Britain. But to legislate that certain groups are more sacrosanct than others is collectivism at its most intellectually pernicious because it denies the individual basis of rights and assigns value on the basis of group membership. We all know where that can end up.

If you think laws should be based on crimes against individuals regardless of what race/religion or sexual orientation they have, then you might want to go over to the Hansard Society on-line consultation on Hate Crime in Northern Ireland and tell them that group rights are not a form of human rights, they are their antithesis.

42 comments to Equality under law? Not any more

  • J

    The concept of hate crime is worrying for just the reasons expressed. However, the notion of mental state affecting the severity of a crime is certainly not unique to hate crimes.

    For example, killing your partner while they sleep so that you get their life insurance payouts is considered worse than doing it because you just found out they have been abusing your children. Curiously, in this case your (presumed) hatred for the other party is a mitigating factor.

    Another example is that of intent. If you want to kill someone, but miss, that is a worse crime than wanting to scare them and deliberately missing. Yet, no one is suggesting that ‘wanting to kill someone’ should be a crime, and I don’t see any danger of it becoming one soon.

    So, I don’t think it’s necessarily wrong to predicate punishment on the mental state of the agent [arg, slipping into philosophy speak…], and I don’t think that doing so necessarily means you criminalise the mental state itself. I do think there’s a danger of slippery slopeness though, as the two things become confused in the publics’ mind.

    I’m waiting for the first law that really does attempt to criminalise racism. Then we’ll be in real trouble, but I don’t think we are there yet.

    Personally, I find hate crime worrying because I don’t consider ‘I hate Kurdish bastards’ to be a worse motivator than ‘I like hurting weak people’. However, if the majority of people do, then I’m willing to accept it. Sadly, I don’t think the majority of peole do.

  • I agree with J that we already do, to some extent, consider thought processes before judging the relative “badness” of certain crimes. However, it should be noted that the way we judge, for example, premeditation, is through *actions*. Thus, the jury is not asked to read the defendant’s mind; the jury is asked to speculate on the fact that the defendant took out a half mil in life insurance before killing the victim.

    With hate crimes, I fear that the standard for determining frame of mind will be lowered from “there are obvious steps the defendent took that show his frame of mind” to “the defendant holds a politicallly-incorrect mindset.” Whether or not the defendant *demonstrated* hate before the crime in question won’t be the concern, but merely that they *thought* about it.

    Also, as we all have noticed, the most unfair thing about hate crimes is that there seems to be no desire to apply them across the board. As Perry notes, only certain races, certain religions, and certain orientations are afforded this extra protection – which is repugnant to all no matter which groups are protected.

  • toolkien

    I look at the other side of the coin, which was brought up partially in the main article – It means that if someone smashes a bottle in your face because you are black (or catholic or muslim or homosexual), rather than because they want to steal your wallet – in that mere property is what is at stake and is nothing to get in too much of twist about.

    An obvious outcome of enhancing ‘hate’ crime above others is that the others are put into an inferior class. It is no wonder that a State that holds so little regard for property rights, and the intrinsic value systems they entail, that crimes for property are put into a lesser status. The State justifies its own theivery through intellectual slight of hand, it’s no wonder that intangible ‘hate’ is a stronger motivator Statist interference than tangible property.

    Behavior is the key issue – was force unilaterally used by one person over another? The reason why doesn’t matter. If we are to have a State, it should protect peoples’ rights to property, including their wellbeing. A primary assault (meaning no prior action giving rise to the behavior) on a person by another is a behavior that is not acceptable. If we need to have collective means of security and redress, then it should still seek to make the person attacked as whole as possible and perhaps put the perpetrator out of common circulation. The reason doesn’t matter. It is the behavior and the behavior should stand equally before the the Law.

  • Guy Herbert

    “The reason why doesn’t matter.” Actually it does, or we would not accept self-defence or necessity.

    The problem with “hate crimes” is actually the spin in the name. All crimes of intent are to some degree hate crimes–at the very least they imply indifference to the victim’s feelings–because they import a willingness to harm another. What’s going on with the labelling is that some intent to hurt is classified as “hate” based on the interpolation of a motive connected with the identification of the victim as a member of a group.

    We are in the land of “victim’s rights” here: justice as societal revenge on the offender in the name of the victim. It’s not that some crimes or criminals are better or worse than others, it is that some victims come pre-victimised and are therefore deemed more deserving of retributive assistance.

  • Dalmaster

    Raise your hand, if, whenever on a political, religious or philosophical subject, you have to consider the possible consequences of what you are about to say before moving your lips, afraid of offending anyone – resulting in having to stutter a little, throw in a few improvised disclaimers and sound-bites!

    If not, I think I must be living in a far too indoctrinallefty area.

    I can’t imagine the inequality laws being annulled any time soon. One day, maybe the BNP or a similar group with holocaust-denying connections will gain popular support; kick out the chateau socialist law-lords and their intelligentsia supervisors in a grand reactionary coup.

    I’m sure there’s a more… British… way of solving the problem, but I can’t think of it.

  • veryretired

    The mistake being made is to accept the idea of hate crimes at face value, as a legitimate form of legislation. In fact, the whole category is a stalking horse for the true object of this variant of victimology, which is classifying some forms of expression as hate speech, and equating this type of speech with action.

    Thus there is the continued refrain that any critical comment regarding any issue which involves any member(s) of the protected classes is a form of assault, and should be made illegal.

    If you think I am exaggerating, you need only read through any major collegiate speech code, which is pounded into all incoming freshman, and then imagine yourself in a debate over governmental policy with a lesbian minority person in a wheelchair. It is guaranteed that you will be charged with some kind of “ism” before the hour is over, and probably before you finish your first sentence.

    Collectivists always demand that their alleged good intentions be taken as a given. In fact, this entire “hate” subset of multiculturism is aimed directly at quashing any objection or debate regarding public policy. The hate crime fallacy is only a minor part of the overall push, which is that certain people, and certain ideas, can never be questioned because they are vulnerable, needing protection, and therefore sacrosanct.

  • Jarrett

    I wrote this piece a couple of years ago. It’s based on US hate crimes legislation, because that’s where I’m living right now.

    IMHO, the only possible use for hate crimes legislation is to make the police and criminal justice system investigate all crimes equally, instead of letting them go unsolved because the victim was [insert epithet du jour here].

  • JMD

    I think it’s well established that one’s motivations (one’s intent) is a significant factor in what sort of crime one has committed (premeditated murder vs. manslaughter, for example). So it’s going to far to question the use of “intent” completely in defining crimes.

    What irks me about so-called “hate crimes” is that they miss the very point that might possibly justify them as a class. The worry with a “hate crime” isn’t that the individual was motivated by racism, xenophobia or homophobia (that motivation as mere motivation really doesn’t exacerbate the crime in any way), but that the crime was intended to send a message to a wider group. What makes a “hate crime” a special sort of crime is the intent to terrorize a particular ethnicity, sexual persuasion or nationality.

    As with arguing for a charge of premeditated murder, I would hope that the charge of a “hate crime” be accompanied by significant material evidence that the individual intended to “send a message” via the crime.

    At least, that’s how I interpret the original intent of such laws. The focus on the “opinions” of the perpetrator apart from evidence of “message sending” to my thinking is just the self-indulgent politics of victimhood.

  • I already live with this garbage in Canada. It’s all really about using designated ‘victim’ classes as shock troops and weapons in the statist war on dissent and critical discourse. I suspect the buzzards in charge really couldn’t give a fig for the actual ‘victims’, they just happen to be the handiest instruments.

  • J

    JMD:

    Yes, very good point. I think in hate crime cases, the protagonist’s racism (or whatever) has to be central rather than incidental. So, if A assualts B and is heared to shout various racist insults while doing it, but everyone in the pub agreed that the fight started over an unpaid debt, that would not be a hate crime.

    If A assaults B for no obvious reason, but shouts various racists insults while doing it, it probably is assumed to be a hate crime.

    I suppose the logic is that if racial hatred is the prime motivator for the attack, then one can reasonably assume the perpetrator is, as you say ‘sending a message’.

    There would still be lots of grey areas – a gang that mugs people, but only people of x ethnic group. Is the mugging or the persecuting group x the prime motivator?

    In any case, what I’m certain of is that when this stuff gets ‘debated’ in the media, the insinuation is almost always that we should attempt to stop or supress ‘bad thoughts’ like racism.

  • Justin Lawlor

    One thing missing in the debate regarding intent is the concept (at least in the States) of the “reasonable Man.” This supposes that the *intent* of a given action can’t be viewed in the light of the reasonability of his action. Self-defense is usually the case, i.e. “Was X in reasonable fear of his life to shoot Y while Y was in the process of breaking into X’s home.”

    The very concept of a hate crime is to frame the defendant as “unreasonable,” out of the gate, thus trying his guilt in a unspoken way.

  • jon

    The prosecution of crimes has two aspects: what was allegedly done to the victim and what that crime did to society. Smashing someone’s face in deserves punishment, but smashing someone’s face in because they’re gay/black/Asian/immigrant/et cetera can be argued to be worse because that crime affects all other gays/blacks/et cetera, who get scared and harmed and whatevered.

    In theory, hate crimes make sense. In practice, they make a mess of legal questions. Like affirmative action, hate crimes are a program that looks unseemly but does actually have some justification behind it. The fact that both have turned into holy tenets of the church of victimology doesn’t make them popular, but it doesn’t make them 100% wrong either.

  • JMD:

    I think it’s well established that one’s motivations (one’s intent) is a significant factor in what sort of crime one has committed (premeditated murder vs. manslaughter, for example).

    Indeed and I say as much in my article.

    jon:

    The prosecution of crimes has two aspects: what was allegedly done to the victim and what that crime did to society.

    And there is where I have the problem. Society is not more than the sum of its parts and should not be treated legally as a seperate thing. If something is not a crime against a person than I do not accept that something is a crime at all.

    And if something is a crime against a person, then the type of tribe/religion/sexual preference group to which they belong should not be important if humans do in fact have objectively definable rights. As far as I am concerned ‘society’ has no superior rights, only people have rights.

  • Verity

    very retired had a good point, which was (if I read it right) that ‘hate crimes’ have the sole intention of shutting down the debate. What debate? Any debate.

    Jon – I don’t agree that the category of hate crimes have any justification whatsoever in our legal systems. If I murder the woman next door because she plays loud rock morning (well, not morning, but) noon and all night, it matters not whether I hated all rock fans and was driven to try to destroy them, or just this one. She be daid.

    It would take a Solomon to judge whether a Muslim in Leicester murdered a white girl he tried to pick up in a bar because she was a member of the society he despises or because she’d rejected his advances. Once the girl’s dead, who’s to say? (I know no Muslim will ever be charged with a hate crime; just the indigenes, but just a thought …) Or if a white person stabbed a W Indian neighbour to death because he was a W Indian or because he refused to cut back his leylandi.

    As the Canadian above said, it’s all about encouraging a culture of victimology with the Big Brother government your only friend and refuge. In other words, to officiously shut down the debate or take control of the debate and to hell with the participants.

  • Verity

    Perry just said it all.

  • Guy Herbert

    Gosh, isn’t it nice to have such a general agreement for a change? Mustn’t make a habit of it, or it will seem like the Big Conversation.

    Here’s a question: motive may be irrelevant to the definition of the crime, but it may not be irrelevant to appropriate punishment (depending on your views of the purpose of punishment). Can “hate” factors be legitimately be regarded as exacerbating elements from that point of view, and to what degree?

    To avoid the issue of externally attributed classification of actions on the Macpherson model, consider the fairly well-known case of the Soho nail-bomber. (For US readers: In the late 90s an isolated maniac in three separate bombing incidents attacked well-known Asian and Carribean shopping areas and a famous gay pub in London, only in the latter case being “lucky” enough to cause deaths and many injuries.)

    The bomber’s declared intent was to harm and cause fear to people unknown to him at random based purely on assumptions about their likely race and sexual orientation. Is this worse than deliberate murder of known individuals for a specific motive?

  • Julian Morrison

    JMD’s point is good. A “racist assault” is two crimes
    – an assault against one person
    – intimidation of many other people

    A case might be made that these “hate crimes” are basically a form of terrorism directed against targets other than government.

    “Wogs go home” and “USA out of Iraq” are pretty close as messages go, don’t you think?

  • Jacob

    “I think it’s well established that one’s motivations (one’s intent) is a significant factor in what sort of crime one has committed ”

    One can turn the “motivation” argument on it’s head. For exaple: the millions murdered by some communist regime (any of them) don’t count as crimes, because the motivation was “noble” – that of creating the utopian society. (This is standard opinion in leftie circles).
    Or: the Beslan atrocity was not a hate crime – the murderers din’t hate their victims at all, they were politically motivated.

    So, I’m with Perry – a crime is a crime, motivation is a minor consideration, if at all.

    The purpose of the hate crime promoters is to try to legislate away racism, homophobia, or whatever they don’t like. Racism or homophobia might be bad ideas, but you cannot legislate away ideas. The lefties live under the “fatal conceit” that ideas and behaviours (and everyting else) can be controlled by applying (massive) state force through legislation.

    As to considering motivation when determining the punishment – that is already done by the Judges, no need for extra legislation.

  • Will H

    OK, just for arguments sake:

    What if someone broke into a synagogue, scrawled anti-Semitic graffiti, swastickas etc, but did very little in the way of damaging anything of monetary value – the synagogue could be cleaned up with minimal expense, should the perpetrator just be charged with criminal damage and trespass?

  • Guy Herbert

    Yes.

    Though in Britain trespass per se is not a crime, and you can’t be charged with it. Here there’d be breaking and entering, if there was breaking necessary to achieve entry. Possibly burglary might fit.

  • Guy Herbert

    I still think the question of punishment is worth considering, not least because, pace Jacob, judges in Britain are on pretty tight guidelines in sentencing. But also, though libertarians tend to have fierce considered views about criminal law, I’m not aware of much libertarian discussion of punishment.

    I am (following the example of the late Auberon Waugh) instinctively dismayed by the punitivity of the British (and, still more, American) right in general, but struggle to find a coherent rationale for my position.

  • Will H

    Although I agree, I can’t help feeling that in certain cases there is room for greater severity of punishment of offenders such as in this example. I suppose this should be up to the magistrate/ judge’s discretion.

    If the defendant was charged with criminal damage and perhaps burglary, I would hope that the magistrate would take into account the aggravating factor that it took place in a house of worship, and if the graffiti was of a threatening nature, then these issues should, I believe, influence the severity of the sentence.

    However, as Guy Herbert points out, there may not be the opportunity to do so under the present legal guidelines. Therefore, perhaps some amendment in the law would be required. Doesn’t this take us back to where we started vis a vis ‘hate crimes’?

  • J

    “Wogs go home” and “USA out of Iraq” are pretty close as messages go, don’t you think?”

    No, these are very different messages. ‘Wogs’ refers to an ethnic group. ‘USA’ refers either to a state, or to all people who are citizens of that state. Further more ‘go home’ is self justifying – it is obviously meant to insinuate that the object of the command is not currently at home – i.e. that wogs don’t belong in some particular place.

    Back to hate crimes…

    Personally I’m happy with the idea of a crime against society, because unlike a true libertarian, I _do_ think society is more than the sum of its parts – although I certainly don’t go so far as to suggest it has rights.

    I really don’t accept that a crime is merely an action. At the very least it _must_ have intent, and that is simply a mental state. As I suggested in my original post, intending to wound someone and wounding them is obviously a lesser crime than intending to kill someone and wounding them. Or does anyone here really thing we should get rid of ‘attempted murder’ as a crime? If everyone manages to run from the pub before my bomb goes off, should I just be charged with criminal damage?

    I think we need to accept that mental state affects the crime committed and the severity of that crime. Then we can discuss if ‘hate of a ethic group’ should be one of the mental states that exaccerbates a crime.

    J

  • ian

    Like J I accept that society i smore than the sum of the parts and like J I don’t see ‘society’ as having rights – but the people who are that society do. On that basis…

    JMD’s point is good. A “racist assault” is two crimes
    – an assault against one person
    – intimidation of many other people

    If therefore, for the sake of argument, we accept this point then whats wrong with two charges?

    One can turn the “motivation” argument on it’s head. For exaple: the millions murdered by some communist regime (any of them) don’t count as crimes, because the motivation was “noble” – that of creating the utopian society. (This is standard opinion in leftie circles).

    All I can say to that is – cobblers! You won’t find more than a tiny proportion of nutters arguing like this. To call it ‘standard opinion’ is just garbage.

  • veryretired

    There was a very good article a couple of weeks ago about the refusal of the academy of historians to deal honestly with the transgressions of Marxist regimes. Maybe someone can remember how to find it. I can’t keep track of what I had for lunch yesterday.

    The purpose of multi-culturism is to divide people along various tribal lines and engender in them a feeling of identification with their group above all else. It is to the advantage of those who operate from and appeal to collectivist priciples that as many groups as possible be created, and that some sort of external threat be identified so that the members of each group will feel threatened.

    Thus we have the “protected classes”, the vulnerable and oppressed, who are perpetual victims, and can be saved only by the enlightened protection of the benevolent state. And, of course, we have the mean, evil oppressors, a role, not too surprisingly, which just happens to be tailor made for those pesky european, heterosexual, religious, capitalist types who are busily involved in subjegating the entire world in their ever expanding web of greedy machinations.

    “Hate crimes” and “hate speech” and “protected classes” are part and parcel of the same dreary, never ending war against individual rights, individual identity, and individual dignity that has been going on ever since the collectivists looked at that brazen affront to all things holy, the Bill of Rights, and its accompanying obscenity, a governmental design which tried to limit the power of government, and went on the offensive.

    The reason the new left pushes hate crimes is the same reason the old left pushed class warfare—there has to be a bogeyman to scare the kiddies or they might not need you to rock them to sleep any more.

  • The reason the new left pushes hate crimes is the same reason the old left pushed class warfare—there has to be a bogeyman to scare the kiddies or they might not need you to rock them to sleep any more.

    I like that >:)

    Multiculturalism (as we call it in Cana-dy) is essentially “apartheid lite”, with 90% of the people who support it having no idea what it is really all about.

  • Dave J


    I think it’s well established that one’s motivations (one’s intent) is a significant factor in what sort of crime one has committed (premeditated murder vs. manslaughter, for example).

    Er, no. I don’t blame you for it, but you’ve demonstrated the classic error of conflating intent and motive. Plainly stated, intent is what you want to do; motive is WHY you want to do it. Intent is an element of every crime (even by its absence); motive may go to evidence of the crime’s commission, but as an actual element of the crime was regarded as irrelevant until the creation of the concept of “hate crimes” (for which, read “thought crimes).

  • J

    Dave J:

    Yes, good point, bad me for being sloppy.

    But isn’t motive still considered a modifying factor in sentencing at the very least? Sure, that’s quite different to actually making it a different crime, but…

    My mother was recently on jury service (true story). There was a case of attempted GBH – a neighbour dispute in which a had continually persecuted b, and was generally a mean and nasty man. Then one day b lost it and tried to run a over.

    The jury recognising the motivation of b acquitted him of attempted GBH and found him guilty of dangerous driving.

    So, in effect the juries sympathies with a’s motivations resulted in him being found guilty of a different crime. There’s no doubt that a did really intend to run b over (b just managed to jump out of the way).

    In any case, could we not frame hate crime to be based on intent?

    “Violence with the intent of wider intimidation of an ethnic group”

    and not:

    “Violence motivated by hatred of an ethnic group”

    Maybe we could. But I now agree that in the UK the second, motivation based definition is basically the one used. And it shouldn’t be.

  • Julian Morrison

    ian asks:
    [in relation to my seperating out hate crime into assault and intimidation] If therefore, for the sake of argument, we accept this point then whats wrong with two charges?

    I reply: there’s nothing wrong with that. If I got to choose, I think I’d deal with the problem by adding a new legal definition for “actions intended to cause intimidation”. That would conveniently catch “hate crimes”, as well as terrorism and mafia activity.

    In another post J says:
    [about my comparing “Wogs go home” and “USA out of Iraq”] No, these are very different messages. ‘Wogs’ refers to an ethnic group. ‘USA’ refers either to a state, or to all people who are citizens of that state. Further more ‘go home’ is self justifying – it is obviously meant to insinuate that the object of the command is not currently at home – i.e. that wogs don’t belong in some particular place.

    I reply: no, they’re hardly different at all. The only difference of kind is the intended audience. One is aimed at a state, the other, at a group of individuals. If “go home” is self justifying, how is “out of Iraq” not? They both show the graffiti-scrawler’s desire for a group of people to leave a particlar place where he believes they ought not to be.

  • mike

    Hmm interesting point J, allow me to offer an elaboration.

    What if we replace the term ‘hate crime’ with something like ‘crimes of unwarrented contempt’. My argument is as follows..

    We take into account the motive for a crime by assessing whether the defendant, although clearly in the wrong for commiting a crime, nevertheless had a justified cause for complaint e.g. the guy in your story who tried to run over the long-time annoying neighbor.

    (I’m not saying that the defendant’s motive would be justified relative to what he then did but that his motive was something we could all understand and sympathise with although we condemn his actions.)

    Now on what grounds should ‘we’ decide when a motive is a justified cause for complaint? We might offer infringement of negative liberty. So if A is a black person and contempt of black-people per se is what motivates B’s assault on A (in the abscence of any other motive like an unpaid debt) then we can say that since A’s being black does not infringe upon the negative liberty of B, B’s contempt of A was unwarranted.

    By contrast, if B infringes the negative liberty of A by assaulting him say, and A then goes and intentionally puts a bullet in B’s brain out of contempt for the racist nutcase – then although A will be charged with murder, we will not charge him with a crime of ‘unwarranted contempt’ since his contempt for the racist nutcase who earlier had beaten him up was in fact warrented, but the action he took in shooting B was not warranted.

    The advantage of this position, as it seems to me, is that it keeps the possibility of a more serious charge than, say, GBH, by taking motives (specifically contempt and whether it is warrented or not) into account – and yet it doesn’t identify this more serious charge with the defence of any one particular group (e.g. black people) since it is still based on the concept of individual rights – in the shape of negative liberty. Contempt is shown to be unwarrented, not because it was directed toward a black person (or a disabled person, or homosexual, or woman) but because what it was directed to had nothing to do with the infringement of the defendant’s negative liberty.

    Or have I got it all completely wrong?!

  • Verity

    Veryretired – Very interesting post. Yes, multiculturalism is the division of a population along tribal lines. I’ve never read that before, but you are correct, and this shines a spotlight on the motives of the people responsible for its introduction to monocultural countries like most European countries.

  • Guy Herbert

    At the risk of following this fox very off-topic, I don’t think multiculturalism = tribalism as against a monculturalist stasis quite holds water. Multiculturalism as ideology seizes on the more or less fluid tribalism and groupishness common to all humanity and formalises it–as in the “hate crime” laws.

    As a former Yorkshireman who knows punks, goths, sailing city folk, literary people and policemen, it is news to me that European countries lack tribalism. If people don’t have available tribes to join they can be relied upon to invent them.

    We had a discussion a while back about fruit-salad multiculturalism, in which all the ingredients naturally and freely affect one another to a greater or lesser extent. I claim that that is a normal, unobjectionable social state. The real existence of cultural mixture neither undermines nor supports the case against “multicultural” group fetishism. Individual behaviour ought to be evaluated as it affects real others, not in relation to abstracted groups.

  • Jacob

    veryretired:
    Here is the article you mentioned, “Fools for Communism”.(Link)

  • mike

    Actually something occured me last night after reading about Alan Milburn’s ridiculous new title of “chancellor of the duchy of lancaster” (has there ever been a more poncy title so fittingly bestowed?!) so he can scrap with Gordon Brown…

    If an intentional crime was commited against A by B and the motive was not because A had infringed B’s negative liberty, but because A had interfered with B’s exercise of *positive* liberty in some way (e.g. with the effect of preventing B achieving some personally significant project) and B thus held A in contempt – should we judge B’s contempt of A as warranted or unwarranted?

    On the one hand we can surely appreciate B’s contempt of A for preventing him from achieving his ‘life-dream’ as it were, that is we recognise B isn’t a nutcase even if we disagree with him – and in my previous post I used the nutcase as the prime example of someone who might be charged with being motivated by unwarranted contempt.
    However, I suppose I should add the qualification of intent – if A intentionally interfered with B’s exercise of positive liberty, then B’s contempt of A may be easier to appreciate (though other motives A may have had may then modify our judgement, especially if they were known to B) than if A unintentionally interfered with B’s exercise of positive liberty.

    So on the grounds that we can appreciate and perhaps even sympathise with B’s contempt of A especially where we have good evidence that A was acting out of spite, we would not charge B with ‘unwarranted contempt’ but just the regular crime (though if A acted unintentionally or had little choice or had other additional motives then perhaps we could charge B with unwarranted contempt even if we appreciate his motive).

    So where does this leave us? I have used the intentional infringement of both negative liberty and positive liberty as grounds for considering a crime to be also a crime of ‘unwarranted contempt’. I am not just concerned with the motive of the defendant – whether his contempt was warranted or unwarranted – but also with the motive(s) of the victim, whether in his preceding actions he had improperly disregarded a basic respect for the defendant’s liberty – whether negative or positive. Hmm that was quite interesting.

    As I said before, the advantage of a charge of ‘unwarranted contempt’ is that it gets at exactly what the lefties seem to be concerned about (stupid conspiracy theories aside) and yet it doesn’t offer ‘special protection’ to any politically favoured groups whatever since it is planted firmly in the soil of individual rights.

    Have I solved this hate-crime debate then or what?

  • Jacob

    mike,
    Life has many nuances and variations. You imagined some of them, but an additional infinite number of cases may be imagined, and still you will never be able to anticipate all possible cases.

    You can’t make a specific law for every case out there (real or imagined). You want to keep the laws simple, compact, generic, general (as opposed to specific).
    So keep motivation out of the Law.
    Judges/magistrates will use their brains to judge each particular case on it’s merits.

  • mike

    Jacob: my argument is not tied down to any specific case – I merely used convenient examples for the purpose of illustration. It seems to me that in principle, the reasoning has broad applicability (since the concepts of negative and positive liberty are abstract and thus subsume many kinds of behaviour) – though I don’t think anyone would go so far as to actually *claim* (rather than conjecture) for any piece of legislation that it really would capture all possible cases! Only a fool would make such a claim.

    As for keeping motivation out of the law – Perry accepted in his original article that motivation was an important aspect of legal classification (without it, one would not have the concept of ‘self-defence’ or ‘attempted murder).

    (sound of Beethoven’s moonlight sonata playing sadly in the background…)

  • Jacob

    mike,
    concepts of negative and positive liberty are abstract
    Yes, they are so abstract as to be fiercely disputed and rejected by many (that is: the negative vs. positive part). You can’t base laws on ill defined or disputed ideas.

    “As for keeping motivation out of the law”
    What I meant: keep “hate crimes” out of law. This thread wasn’t about a major overhaul of the existing legal system, only about “hate crimes”.

  • A_t

    Guy, “As a former Yorkshireman who knows punks, goths, sailing city folk, literary people and policemen, it is news to me that European countries lack tribalism. If people don’t have available tribes to join they can be relied upon to invent them.”

    Well said.

  • mike

    Oh dear.. of course this thread is about hate crimes – and I put forward an argument which dissolves the primary objection to them (rights for politically favoured groups) without losing the essence of what they are about.

    The concepts of positive and negative liberty are well-defined enough for the purpose I have stated. Just in case: positive liberty is your freedom *to do* the things you want to do whilst negative liberty is your freedom *from* the things other people may want to do to you (such as shoot you for instance). Positive and negative liberty are two of the most basic concepts of any liberal society (and any future libertarian society).

    You claim that they are so abstract as to be “fiercely disputed”, “rejected” even. By whom? By ‘many’? Examples please – I would be very interested (not to say pissing my pants in hysterics) to find an example of a lawyer for instance, who ‘rejected’ the concept of negative liberty – “it doesn’t exist goddamit!!” – can you supply such an example?

    But if your objection is supposed to be serious let me retort that any ‘fierce dispute’ over concepts of positive and negative liberty would likely be, I’d imagine, over their application in a seemingly ambiguous situation. This is fine, such difficulties are often resolved. It does not mean that the concepts are a complete failure from the start and should never even be considered as a basis for legislation as you seem to think.

    In fact may I be so bold as to ask how you can consider yourself a libertarian Jacob (which I presume you do) if you would ‘fiercely dispute’ or ‘reject’ even, the concepts of positive and negative liberty?? Nay, I press my charge further ye Lords, how could you, Jacob, even have any concept of a crime against an individual (and what is a crime if it is not a crime against an or several individuals?)? Consider for instance, the crime of GBH. If I beat the hell out of you outside a pub, have I not commited a crime against your person? Yes? Why? Why would that be a crime? Is it not perhaps because in a liberal society respect for the liberty of individuals is agreed to be paramount and in this case I would have violated your moral claim to negative liberty? I think so.

    If you are interested in responding to my argument, perhaps you would care to try actually thinking about it and looking for its’ weak points (I have already given you one, and no doubt there may be others) instead of blowing raspberries at me. Or, if you in your wisdom judge that I have pretty much hit the nail on the head, perhaps you could raise yourself to such a standard of magnanimity so as to graciously bestow upon me your deepest appreciation of a job well done.

  • Jacob

    Mike,
    About positive vs. negative rights:
    These are ideas that libertarians understand and promote. Of course, the distinction between the two is clear and well defined for me.
    But libertarians aren’t the whole story. In fact most people and thinkers are, alas, not libertarian. They don’t distinguish at all between the right to free movement, or free speach and the right to basic needs such as food, shelter or medicine. They would claim that the right to free speach (for example) is meaningless if you have not eaten a coule of days.
    For a conventional definition of rights – see the bill of rights of the UN.

    Some people may claim, not implausibly, that even the negative rights require intervention by society. For instance: you are mugged; you call on the police to protect you. Your right to be left alone would be meaningless, practically, unless there was a policeman, provided by society (or it’s organization), to help you.

    I’m afraid you are so submerged in libertarian thought that you are oblivious to the world outside it.
    The subject is too huge to tackle here, but I didn’t think that my claim that positive vs. negative rights isn’t a universally accepted idea – is controversial.

  • mike

    Jacob: I fail to see the relevance of any of that.

    This is a libertarian blog is it not? I’d have thought positive suggestions for resolving a moral question in keeping with a libertarian outlook would be appreciated perhaps with thought and criticism. I’m obviously naive aren’t I?

    Besides, whatever the faults of our society it is basically liberal in its premises, as are our laws – doesn’t really matter whether the great unwashed can think critically on moral matters or not, liberal principles will be used in court deliberations against them anyway.

    I realise that the defence of rights requires the rule of law requires the police and that is state intervention. Of course – I merely pointed out to you that the basis of those rights in the first place lies with concepts of liberty. It was these concepts I was bringing to the foreground to show where we could apply a decision of ‘warranted’ or ‘unwarranted’ contempt with regard to the motive behind a crime.

    The point you seem to want to make about the police and negative liberty is that the liberties of people have to be balanced – e.g. unlimited positive liberty for one person would allow an unacceptable infringement of the negative liberties of other people, and conversely, unlimited negative liberty for one person would require an unacceptable curtailment of the positive liberties of other people. Of course. This is common sense Jacob. The question of balance requires our best judgement (which may sometimes demand a moral cost, i.e. doing something we think is a wrong, in order to do a greater good) – not some abstract moral calculus to which we can appeal for definite right or wrong answers in each case. No-one (or certainly not me at any rate) is out to try to achieve any absolutely perfect moral certainty here, just to suggest a better way of thinking about these moral questions when we are not satisfied with things.

    Though perhaps I am ‘submerged in libertarian thought’ as you say. Sorry I went OTT with you in that last post, but maybe I can (in my arrogance!) make it up to you with a suggested reading: Isaiah Berlin’s ‘Four Concepts of Liberty’. You’ll find it at the liberty library link in one of the more recent articles above. I haven’t read it myself but I hear it is rather decent.

  • I agree. Once I realized that there is no such thing as a “love crime”, I realized that all crimes are about some kind of hate. One kind of hate is really no different than another. I accept the notion of contemplating the seriousness of a crime, based on the situation, but that is better for a jury to contemplate than a politician to legislate.