State of the union report: a road map addressing reform possibilities based upon a comparative analysis of the legal regulation of hate speech and hate crime

Abstract

This report provides a "State of the Union" account detailing the current legal, political and policy position relevant to EU member states. It expressly recognises that this is a field where analysis of law cannot be abstracted from the policy implications of its application, and a variety of constitutional and political debates concerning the limits and scope of state power. Hate crime laws are thrust into a field of tension, sometimes conflict, between competing constitutional and political values, where policy cannot be analysed in purely technocratic and depoliticised terms. Indeed, legal analysis confronts aspects of "identity politics" involving contests between different groups for enhanced recognition of hate crimes committed against those identified as "their" specific members. In addition, technical issues are identified. The difficulties with both identifying and enhancing the punishment of hate crime offenders by reference to an after-the-fact interpretation of discriminatory "motivation", located within the elusive inner recesses of their subjectivity (as opposed to demonstrable or assumed harm identifiable from a "third person" perspective)are considered.