Majestic Law, Balkanized

Written by Lionel Tiger on . Posted in Breaking News, Posts.

Implicit in the legislation
is the notion that crimes against people who can be categorized as members of
a group someone wants to victimize should enjoy greater protection under the
law than people who lack any such clear-cut socioeconomic hazard. This is of
course a legacy of formal racism, in which people were in fact sharply and dangerously
categorized. The legacy now expands to add new scope to a legal instrument designed
for the especially warranted historical purpose of responding to racism. But
it is now in danger of becoming a sociologized catalog of an array of well-represented
victims of the terrible and heartbreaking things some people sometimes do to
other people.

But what are hate crimes?
Are they different from love crimes? Agnostic crimes? Casual crimes? Ideological
crimes? Money crimes? Incompetence crimes? Aren’t all victims human beings
first and members of a particular group second? Where are the purist advocates
of human rights in all this, the ACLU for example? Have they yielded to the
power of the idea of constituency rights crafted by the all-powerful lawyers
of America? As we make this legal journey that seems so meaningfully valid,
is it clear we know what our destination may be and what kind of legal system
will result overall?

The march of special categories
seems emotionally and politically unstoppable. No one can justify the use of
prejudice to support malevolence. Who can be "for" hate crimes? Congressional
voting on the matter took a somewhat partisan form. But this was unfortunate,
because the moral issue is hardly partisan at all.

However, the legal questions
may generate partisan answers even if they should not. There is a danger that
the majesty of American egalitarian law–that everyone is equal before the
law–will become a negotiated set of deals, in which one person’s suffering
will become emblematically more drastic–because they are homosexual or
Kurdish or paraplegic–than if they endured the same trauma without a poignant
and worthy civic category in which to fit. Surely this was not the intent of
Sen. Kennedy and other supporters of the bill trying to respond to desperately
unpleasant signs of human evil with a plausible legal remedy.

But in a broader and long-term
sense, it may well lead to a kind of moral balkanization of legal civic society.
This is supposed to be a society of laws, not of groups. In a bitter paradoxical
way, stigma suddenly generates a kind of strangely passionate privilege. This
is a wholly understandable feature of Judeo-Christian society, with its concerns
for the welfare of victims. It is a feature of the United States in particular,
with its racist history.

Nevertheless, serious questions
about this legal enterprise present themselves, often with uncomfortable and
acidic impact. Can protected categories be merged–that is, should special
judicial ferocity follow an attack on a disabled homosexual person? When some
feminist leaders imply that the Central Park disaster was a hate crime against
women, does it then follow that the attacks by English soccer thugs on the fans
of other teams are therefore hate crimes against men? When Al Sharpton so gruelingly
played the race card in the Tawana Brawley case, was he not denying other women
who actually were raped at least the dignity of their own tragedy without confounding
it with the shabby constituency politics so central to this (and his) kind of
legal manipulation?

The categories on which
the legal instruments are founded are frail. For example, in the opinion of
nearly all serious anthropologists the concept "race" is fatally flawed,
because everybody is a bit of everything. Every one of our ancestors–the
very latest DNA evidence suggests–were citizens of Africa until 50,000
years ago. I have in these pages argued that the term "race" should
not be permitted in public discourse because of its scientific fraudulence.
The intellectual gerrymandering surrounding the use of the term in the recent
census was racial profiling of the worst kind, if only because of the intellectual
dishonesty involved, and because an ostensibly dignified government engaged
in this mean exercise. And to compound the problem of the category by endowing
it with special legal status is hectically confounding.

I’m not avoiding the
utterly real problems of frank prejudice, and the fact that there may be organizations
such as the Nazis or the Klan that generate criminal behavior. Such behavior
takes on frightening added drama when the all-too-apparent human capacity for
doing evil unto others is stimulated by our ever-fertile capacity to create
real or symbolic in-groups and outsiders.

But the terrible question
remains: Is a beating or a murder worse because it derives from reading and
accepting propaganda or from the peer pressure of a rotten group than if it
stems from an individual’s private decision to afflict another human being?
Obviously the legal intent here is to invoke the massive power of the federal
government when local authorities are either too biased or hateful or incompetent
to generate justice. But in my opinion it’s a flawed tactic. The interim
steps may be justifiable. But the overall national moral outcome may be fraught
with unintended and unwelcome consequences.

This is not the judgment
of a lawyer or professor of law. But it is not difficult in the social sciences
to be made painfully aware of the fractiousness of social groups, especially
when such fractures are sanctioned by the cover of apparent authority or tradition–for
example, as in the caste system in rural India.

The current legislative
initiative about extending the reach of hate-crimes statutes is emotionally
bewildering because it reflects such obvious commitment to the remedy of often
deeply wrongful human malefaction. Yet there may be a long-term price to pay
for palliative satisfaction, for scratching this particular itch. What human
beings do to each other may in simple, uncategorical and unadorned ways be the
most honest and realistic basis on which to judge guilt and seek justice. Finally,
it may be also the harshest. Just as gerrymandering reduces the fair impact
of one person’s vote compared with another’s, gerrymandering the legal
system is hostile to its core tradition that is also its eternal value.