Prof. Eric Heinze, Queen Mary University of London

WHAT IS INJUSTICE?

Eric Heinze — Thu, 24 Feb 2011 11:09:02 PST

Throughout Western history, theorists have explained injustice by starting with some idea of justice. They have made justice fundamental, and the notion of injustice merely derivative of it. Since, after 2500 years of theory, we lack any consensus about what justice is, it would be easy to conclude that injustice is equally indeterminate.

However, injustice is not the sheer “opposite” or “negation” of justice. Plato set the stage for two millennia of justice theories by identifying “harmony” as justice’s essential attribute. Aristotle refined that project by adding the element of “measurement,” which has continued to structure programmatic justice theories through to our own time.

Despite those efforts, criteria for harmony or measurement constantly clash. Injustice arises not from the “failure” of justice, but from the incommensurability of rival notions of justice. Those conflicts can never fully emerge in standard law reports, not even in so-called “hard cases,” since the whole of any given legal system, in the context of ordinary litigation, can never be in question. By contrast, the law and literature movement suggests that fictional texts, insofar as they are free from such institutional constraints, show how injustice arises not merely from the violation of norms of justice, but from their active pursuit and application. Examples from Sophocles, Shakespeare, and Milton are cited to examine the ways in which injustice arises from constant clashes within and among any criteria of justice.

Cumulative Jurisprudence and Hate Speech: Sexual Orientation and Analogies to Disability, Age and Obesity

Eric Heinze — Sun, 11 Oct 2009 11:09:49 PDT

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged.

Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.

Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Extreme Speech

Eric Heinze — Sun, 11 Oct 2009 11:01:23 PDT

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts doubt on that claim. Unduly broad extrapolation from purely formal norms leads to problems of essentialism and ahistoricism. Whilst Post, Weinstein, and other exponents of the American civil liberties tradition wage strong arguments against hate speech bans, sweeping suggestions of deeper cultural differences can actually hinder more than facilitate the view that their approaches can be applied in Europe.

The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory

Eric Heinze — Sun, 11 Oct 2009 10:48:45 PDT

The concept of modernity has long been central to legal theory. It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity.

Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas. Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought. Unduly simplifying pre-modern understandings of law, they end up drawing false distinctions between modern and pre-modern legal theory.

The pre-modern example considered in this article is Plato. Unlike scholars within the Humanities, who have continued to revise their approaches to pre-modern thought (often reflecting changes in ethical or political thought today), legal theorists, including many who claim to challenge much of traditional positivism, have scarcely moved beyond traditional positivists’ ahistorical and reductionist views.

Epinomia: Plato and the First Legal Theory

Eric Heinze — Sun, 11 Oct 2009 10:19:59 PDT

In comparison to Aristotle, Plato’s general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle already find strong expression in Plato’s work. More than any thinker until the 19th and 20th centuries, Plato rejects the rank individualism and self-interest which, in his view, emerge within democratic legal culture. He rejects schisms between legal norms and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture of rampant litigation. He rejects the alienation of individuals, from each other and from their communities, that is so easily bred within highly complex political and legal systems. An understanding of his approach to some of the classic questions of legal theory provides insight not only into some central ideas of his own thought, but also into the roots of critical and communitarian critiques of law.

Public Awareness of Human Rights: Distortions in the Mass Media

Eric Heinze et al. — Mon, 01 Sep 2008 02:58:12 PDT

This article examines distortions of human rights reporting in the mass media. We examine human rights coverage in four of the most influential newspapers, two from the US and two from the UK. The US papers are The New York Times and The Wall Street Journal. The British papers are The Financial Times and The Guardian.

Most current scholarship on international human rights draws its information from specialized sources, such as the published reports of intergovernmental and non-governmental organisations. Wholly absent has been any systematic study of the mass media. To date, no one has examined the dominant media agencies, with a view towards their possible effects on perceptions of human rights among the broader public, and among governmental and institutional policymakers.

In focussing on “distortions,” we do not argue that these newspapers deliberately falsify their facts. To the contrary, we argue that these papers show a clear concern with reliable human rights coverage. Nevertheless, journalistic imbalances inevitably arise through the pressures of appealing to a non-specialised readership within a competitive market.

We examine the four newspapers with a focus on distortions arising from coverage of violations in Afghanistan, Iraq, Sudan, China, the US and Israel. While we would not expect radical changes in mainstream journalistic practices, we argue that some improvements would be desirable and feasible. At the beginning of the article, we introduce methodological issues that would be relevant to other mass media, such as radio, television or the internet.

Book Review

Eric Heinze — Tue, 08 Apr 2008 15:03:07 PDT

Book Review of: MURRAY DRY. Civil Peace and the Quest for Truth: The First Amendment Freedoms in Political Philosophy and American Constitutionalism. Lanham, Maryland: Lexington Books, 2004. x, 307 pp. $88.00 (cloth); 29.95 (paper). Murray Dry attempts to draw a number of links between the ‘speech’ and ‘religion’ clauses of the First Amendment. Unfortunately, he fails in a number of respects. He confuses core elements of the Establishment and Free Exercise Clauses, and fails to examine Freedom of Speech within the context of fundamental controversies that have arisen throughout the post-World War II era. The errors he makes stand as important warnings for scholars of Constitutional Law.

Book Review

Eric Heinze — Tue, 08 Apr 2008 14:34:52 PDT

Book Review: Randall Baldwin Clark, "The Law Most Beautiful and Best: Medical Argument and Magical Rhetoric in Plato’s Laws", Lexington Books, 2004 (pp. 178 + xiv) Randall Clark has distinguished himself among a growing number of scholars taking a new look at theories of law in ancient Greek texts. The review examines a number of original features of Clark’s approach, and shows how the book sheds new light on important themes in Plato’s Republic and Laws.