Two Kinds of Expressive Harm more

  1 Two Kinds of Expressive Harm Antti Kauppinen University of Amsterdam and Trinity College Dublin The Philosophy of Hate Crime Symposium, Gothenburg University, September 27, 2011 (Note: this is a draft for a presentation, not a finalized paper, which is perhaps obvious when looking at the sketchy argument at the end. Please do not quote, but feedback is welcome.) Suppose that a young Swedish man defaces someone else’s property with graffiti. Suppose the victims are a Muslim family who have recently moved in, and the graffiti consists in elaborate swastikas and a crude depiction of Mohammed having sex with another man. Should the perpetrator, if caught, receive a more serious punishment than the one he would receive for simply defacing some random person’s house with graffiti portraying Mats Sundin scoring a goal?1 I’m going to argue for an affirmative answer. My argument doesn’t draw on the ideas of increased culpability or more serious physical or psychological damage by comparison to non-bias-motivated parallel crimes. Heidi Hurd and Michael Moore, among others, have convincingly argued that these factors can’t justify enhanced punishment. Instead, my argument is based on the expressive harm caused by the failure to punish certain crimes more severely than others. I’ll first examine the thesis that enacting certain attitudes itself transforms social relationships in a way that is expressively harmful beyond the psychological harm that it may cause. This is the claim of Elizabeth Anderson and Richard Pildes, whose work I defend against some criticisms, but ultimately reject myself. The second kind of expressive harm is caused by failure to address and respond to hate- or contempt-expressing crime in a way that takes into                                                                                                                 1  Mats Sundin is a famous (former) Swedish ice hockey player. Painting his picture on the house of a Finnish person might well constitute a hate crime.    2 account that it has a different significance from ordinary crime. It’s in effect perpetrated by members of the democratic community, through their representatives, towards some of its vulnerable members. It consists in the de facto denial of equal status. The right kind of hate crime legislation, as enacted by elected representatives after public reasoning, reaffirms the equality of all citizens as a fundamental democratic value. It expresses the determination not to allow anyone to be treated as an object of disgust, contempt, or disdain, as a lower kind of being merely in virtue of belonging to a group that is for some reason disvalued. Because this argument appeals to core democratic values in justifying hate crime legislation, it does not justify hate speech legislation, however. Democratic equality cannot legitimately be defended in a way that undermines the core values of democracy itself. If the young Swede had painted a swastika on the hood of his own car instead, or blogged about Mohammed being a paedophile, those offended would have to be content with exercising their own free speech in response. Offensive speech is an exercise of political equality, not its denial. My argument depends on a number of controversial premises. The first is that actions can in some objective sense express attitudes – note that in my initial example, I said nothing about the young man’s motives for painting swastikas. Second, I say that these manifestations of attitudes as such are disrespectful and violations of our status as equals. They are constitutive of a kind of harm that goes beyond psychological or physiological harm – though ultimately, the language of harm may be misleading. Third, I assume that communities as a whole can express attitudes. Fourth, I claim that increased punishment for crimes against democratic values are justified by being expressions of the attitudes of a democratic community. This means endorsing a version of the muchcriticized expressive theory of punishment. And finally, I make a sharp distinction (which    3 I have no time to defend here) between hate crimes and hate speech, which will no doubt displease many who are sympathetic to expressive theories of law. 1. Manifesting Attitudes I will begin with the notion of an attitude or sentiment. As I will use the term, an attitude is distinct from an emotion. Rather, an attitude is a way of relating to someone or something that disposes one to have different emotions in different situations, to want certain things, to focus attention on certain things, to deliberate in certain ways, and possibly to make use of evidence in certain ways.2 Thus, if I love someone, I will feel joy when she thrives and sadness if she suffers, I want her to do well for her own sake and am committed to doing things that further her good, I notice things that are opportunities or threats for her, I take those opportunities and threats into account in practical deliberation as reasons for action, and may be more likely to believe that she is excellent at her job than the evidence warrants. Perhaps there is a distinct feeling of love that goes with the attitude, but love itself is more than that feeling. Moreover, in the case of an attitude like love, I welcome or endorse the reactions associated with the sentiment, rather than being in their grip. In one sense of the word, I can identify with the pattern of passive responses. Only once I do so, the attitude will be genuinely mine. This doesn’t mean that the attitude is under direct voluntary control, but neither is it purely passive, as it is sometimes portrayed. In fact, I would argue for an asymmetry between our control over loving someone and not loving them. We can’t will love into existence, but we may be able to will it out of existence. That is, if thoughts about someone give rise to no positive feeling or spontaneously focus our attention,                                                                                                                 2  Cf. Anderson and Pildes: “An attitude toward a person is a complex set of dispositions to perceive, have emotions, deliberate, and act in ways oriented toward that person.” (1509)    4 there’s nothing we can directly do to change that. That’s the problem with some arranged marriages. In contrast, if I’m already in a relationship and find myself spontaneously attracted to a co-worker, say, I may well be able to deliberately set aside the feelings and refocus my attention on something else, and catch myself before falling in love. Hate, as I understand it, is in many ways the mirror image of love. If I hate someone, I want her to do badly, whether or not it is of instrumental benefit for me. I feel bad if she does well, get easily angry with her, and may be delighted if misfortune befalls her. I tend to notice things that are opportunities or threats, and take those as reasons for action – though obviously in the opposite way to the case of love. In fullblown hate, I don’t regard these dispositions as something I want to get rid of, but embrace them, perhaps even take pride in them. Again, I may not be able to will hate into existence, but still able to will it out of existence. Perhaps I realize that I’m responding to Jewish people in the same negative way, regardless of their individual qualities. Insofar as I refuse the allow these feelings and thoughts to influence my deliberation and action, I am not an anti-semite – though of course, I’m not yet free of the disease yet either, until and unless the passive responses cease. One important consequence of this understanding of attitudes is that unlike occurrent emotions, attitudes are not transparent. It may be that you can’t be mistaken about whether you feel joy or sadness or rage right now, but you can be mistaken about whether you love someone – or whether you hate someone. When having an attitude goes against social norms, false belief about it may even be the normal condition. In many circles, anti-semitism, for example, is very disreputable, so people who are prejudiced towards Jews may sincerely but falsely believe that they are not. We can manifest or express our attitudes in two different ways. We can do so by way of using language or some other convention-based system of signs that is designed    5 to convey our stance to others. I can express my love to my wife by telling her that I love her or by buying her an iPad when I have to go away to a conference again. (This is what I actually did this time.) As I use the term, expression is non-causal, non-factive, and not necessarily intentional. Speech and symbols can express psychological states we don’t actually have, as happens when we’re insincere. They can also express attitudes we’re not aware of having or don’t mean to express. Otherwise psychoanalysts would go out of business. The other way of expressing attitudes is acting in a way that is best made sense of by attributing the attitude to the agent. I’ll talk about enacting the attitude in this case to contrast it with symbolic expression. For example, I enact my love for someone by going out of my way to comfort her when she is in need, whether or not I say anything about my feelings. I just express the love by performing the actions that it motivates me to do. (As Charles Taylor and Elizabeth Anderson have argued, the line between internal and external is very hard to draw here: a love that is never enacted is, perhaps, no love at all, and certainly not the same kind of love as the enacted sort.) Now, as I’ve defined enacting, it is also potentially non-factive. It may be that what makes best sense of my behaviour is an attitude I don’t actually have. It may be that what I do and the way I do it is such that any reasonable person examining my behaviour would conclude that I love someone, when in fact I am entirely indifferent. Still, on my view, I have enacted love, and people who attributed the attitude to me would be justified though mistaken. Or, to put it differently, they would be mistaken about my actual attitudes, but not about the attitude embodied by my behaviour. My view belongs to what we may call the externalist family, since according to it the meaning of an action isn’t determined by what goes on inside the agent’s mind. Here is a representative statement of this sort of view from Anderson and Pildes:    6 The expressive meaning of a particular act or practice, then, need not be in the agent's head, the recipient's head, or even in the heads of the general public. Expressive meanings are socially constructed. … [A] proposed interpretation must make sense in light of the community's other practices, its history, and shared meanings. Thus, to grasp the expressive meaning of an act, we try to make sense of it by fitting it into an interpretive context. 1525 If you find this hard to swallow, think about a case of everyday jealousy. A friend of mine is a very good singer and musician. Recently, he went to a wedding party with his wife, who urged him to grab an acoustic guitar lying around. When he reluctantly did so, some twenty-something girls gathered around him, showering him with requests and adulation. He complied with the requests and welcomed the adulation, with the result that his wife subsequently accused him of flirting with the girls. My friend felt unfairly judged, since he wasn’t in fact interested in the young women. However, his wife had a point, too: his behaviour did reasonably express an interest. I don’t want to go too deep into what makes for a reasonable interpretation, but I think a good starting point is asking oneself about the goals that an informed and rational agent in the relevant cultural context would pursue by engaging in the observed kind of behaviour. There will inevitably be indeterminacy here, but such is life. One relevant issue in this area will be whether groups of people can have or express attitudes above and beyond the attitudes of the individuals that comprise them. I have nothing to add here to the analyses of Gilbert, Tuomela, or Blackburn, among others. I will take it as given that the attitudes of a collective (such as a state) are determined by the goals, assumptions, and inferences that its relevant members jointly accept as the basis of collective action. As members of a group, people can take as given premises that they wouldn’t make use of in their personal practical or theoretical reasoning, which means that we can attribute to a group goals or beliefs that a minority of members, or no one, has. For example, military planners might agree to design an    7 armament program starting from the assumption that the Chinese will have a new fighter plane in 2012, even if few of them personally think they will be ready yet. Which attitudes should be ascribe to a group, then? I will take Blackburn’s Credibility principle as a starting point: A group may be said to have been committed to a belief (goal, principle) if there is no way - no credible way - that the group could rationally sustain their open affirmations were they not also prepared to stand by the belief (goal, principle). (2010, 81) The most straightforward way a group can commit to a goal is announcing, after going through the procedures its members consider as authoritative, that it has decided to do such-and-such. Thus, the European Central Bank may make it known that it will lend money to Greece. But Credibility also leaves room for groups having beliefs and goals (and indeed attitudes) that are not directly affirmed by any of the relevant spokespeople. The ECB might be committed to preferring a rise in unemployment to a rise in inflation, if it couldn’t credibly deny such a preference, given the pattern of past and present decisions, even if it is never openly affirmed by anyone. 2. Expressive Harms No one, I think, would deny that some of the attitudes we have are morally inappropriate. But should having or manifesting such attitudes be the business of the law, as advocates of hate crime and hate speech legislation want? Isn’t law concerned with our external behaviour rather than motives, as Kant, among others, argued? It is often argued that hate crimes merit stricter punishment than parallel crimes, because they cause greater harm, or because the degree of culpability of the perpetrator is higher. But as Heidi Hurd and Michael Moore (2005) have shown in a magisterial article, these justifications are highly questionable. First, they argue that enhanced punishment for hate crime can’t be    8 defended on the grounds that such crimes cause greater physical, psychological, or social harm than otherwise motivated crimes. This, they rightly point out, is a contingent matter. If a greed-motivated crime, say, causes the same harm, why should it be punished more lightly? Motivation here is only a poor proxy for what really makes for the wrongdoing. Conversely, as Anderson and Pildes point out, thick-skinned victims of hate crime may be psychologically unaffected by the hate aspect. This leads to the ridiculous consequence that “only the thin-skinned and psychologically fragile are entitled to be treated with dignity” (AP 1543). So it’s no good to appeal to greater conventional harm to justify enhanced punishment for hate crime. Hurd and Moore are also fairly convincing on the issue of culpability. They argue that traditional mens rea provisions concerning premeditation, intentionality, or specific intent are different in kind from taking character-based motives into account. Consequently, hate crime legislation amounts to a radical extension of law’s traditional focus on external behaviour. They also argue that we are not in control of and therefore not responsible for our attitudes in the same way as for our intentions. There is some truth to this, though as I’ve emphasized, attitudes are not mere emotions or feelings. It does make sense to tell someone they need to change their attitude, and while it may be hard for us to directly control whether we feel sad about someone’s departure, for example, we do have some direct control even over who we love or hate, as I argued above. Nevertheless, I will not pursue this option of greater culpability. Instead, I’ll concede that the most obvious defences of hate crime legislation in terms of physical or psychological harm and culpability are suspect. Recognizing this, some advocates have turned to a novel kind of harm and or a novel kind of justification for punishment, both having to do with manifesting attitudes. The core of the first kind of expressivist picture,    9 which I’ll call the Expressive Wrongdoing view, is that expressing certain attitudes itself constitutes a specific kind of harm that is not reducible to its psychological effects. Insofar as this is the case, enhanced punishment can be justified on the basis of greater wrongdoing. The second kind of account I’ll call the Expressive Punishment view; I’ll return to it in the next section. Since the Expressive Wrongdoing view doesn’t depart from traditional justifications for punishment, it is a modest and promising option for a hate crime legislation advocate. The key question for it is obviously explaining how someone can be harmed merely by expressing attitudes. Here are three quotations from Anderson and Pildes that summarize their account. First, they say that “A person suffers expressive harm when she is treated according to principles that express negative or inappropriate attitudes toward her.” (AP, 1527) This definition does not by itself say what makes expression of inappropriate attitudes a non-psychological harm for a person. Their answer draws on a link between expression of attitudes and social relationships: “The communication of attitudes creates social relationships by establishing shared understandings of the attitudes that will govern the interactions of the parties.” (1528) Given this, “Communications can expressively harm people by creating or changing the social relationships in which the addressees stand to the communicator” (1529), where these social relationships include “friendship and enmity, collegiality and rivalry, and superior and inferior caste status” (1530). So the argument seems to have three premises: 1) Social relationships supervene on a shared understanding of the attitudes that govern mutual interactions. 2) Shared understandings of interaction-governing attitudes result from actions that express attitudes. 3) Standing in certain social relationships is bad for a person, regardless of how they feel about it. 4) Hence, actions that express attitudes can harm a person via changing the relationships in which they stand to others.    10 Let’s examine these premises a little. The first thesis concerns the nature of social relationships. It says that what makes us colleagues, for example, is that we mutually understand that we are to relate to each other in certain ways, and, perhaps, not in other ways – for example, we share an understanding that we won’t hate or love each other. (If we do, we don’t do so qua colleagues.) The second thesis says that the shared understandings are created by expressing attitudes. To be sure, the understanding that governs our relations may not be the result of anything you and I specifically did. In most cases, we inherit the conception of what goes with what role from our cultural and historical background. But our expressive actions reaffirm and possibly shape the understanding we have, and perhaps the way we acquire the tradition is by way of expressive action. At least, this is not wholly implausible. The last, bit, then, is that some social relationships are as such bad for us to stand in. Which relationships? Anderson and Pildes don’t say, but their example, not of hate crime but of expressive harm of state action, illustrates what they mean: A State may communicate its contempt for blacks by requiring the racial segregation of public facilities. Racial segregation sends the message that blacks are untouchable, a kind of social pollutant from which "pure" whites must be protected. For the communicative goal to be realized, its meaning must be acknowledged. This does not mean that the addressees must believe, approve of, or accept the message. They simply have to understand it. Once people share an understanding that segregation laws express contempt for blacks, these laws constitute blacks as an "untouchable," stigmatized caste. (AP, 1528) So on this view, the expressive harm of hate crime, independently of its psychological effect on people, consists in its manifesting attitudes toward the victim that place the offender and the victim in an undesirable relationship in which one dominates the other.    11 If that is the case, enhanced punishment is justified on the basis of greater wrongdoing than in the parallel crime. Does this justification work? As I said earlier, on the view I share with Anderson and Pildes the enactment relation is non-factive. This means that on the picture just outlined someone can expressively harm another without having an inappropriate attitude at all, as long as they act in a way that justifies attributing the attitude to them. Using this as justification for enhanced punishment invites another objection pressed by Hurd and Moore, making use of Blackburn’s Credibility principle I mentioned earlier: Like all conventionalist construals of social meaning, Blackburn’s constructivist construal would make a defendant more blameworthy (and thus deserving of greater punishment) not because of any fact about him or his deed; rather, he would be subjected to increased punishment because of the appearance of there being a fact about him, namely, the appearance that he possessed a hateful or bigoted motivation for his crime (regardless of whether he in fact possessed such a motivation). (Hurd and Moore 2005, ??; emphasis mine) This objection misconstrues the Expressive Wrongdoing view, as I see it. It is a fact about the deed that it manifests a hateful attitude and thereby transforms the relationship. The increased punishment isn’t for a false appearance, but for the reality of creating a harmful relationship, if the expressivist analysis of relationships is correct. Alas, I don’t think that Anderson and Pildes’ account will quite work. Some social relationships may be all about how we feel about each other: what makes us lovers is that we love each other. But other relationships involve more than a shared understanding of interaction-governing attitudes, and some of those are highly relevant in the context of hate crime. Relationships of domination and subordination and oppression, in particular, may exist in the absence of such understanding. I may think that I am the social or legal equal of someone above me in a hierarchy – and in some cases, they may think the same way – but sadly, that isn’t sufficient to make us equals. Relationships of relative power do not reduce to how we understand ourselves and how    12 we relate to each other. To claim that simply understanding that the behaviour of others expresses contempt towards me as a disabled person, for example, while nevertheless not accepting that it is in any way merited, suffices to make me stigmatized or disadvantaged makes little sense.3 3. Constituting a Democratic Community What we are looking for is a kind of non-psychological harm that is non-contingently linked to enacting hostile attitudes. The argument of the last section showed that it isn’t the harm of standing in a bad relationship, since there is more to such relationships than attitudes. What I want to do now is to explore a different kind of expressive harm that consists in damage to an individual’s status, in particular standing as an equal member of a democratic community. Such harm does not exclusively supervene on the attitudes expressed by a hate crime perpetrator, but also on the attitudes expressed by the rest of us through the law-making of our elected representatives. I will call an account that justifies enhanced punishment on these grounds an Expressive Punishment view. To make my way toward this argument, I’ll begin with the notion of dignity as a status-concept. In a moral sense, it may be that dignity is something that we all possess as rational agents, for example. Our moral dignity consists in the fact that there are things that no one may do to us, not even to benefit other people. This is something that Thomas Nagel emphasizes when he says that “not only is it an evil for a person to be harmed in certain ways, but for it to be permissible to harm the person in those ways is an additional and independent evil.” In a similar spirit, Frances Kamm suggests that “we                                                                                                                 3  In fairness to Anderson and Pildes, their focus is state action, which may be different from individual action in this respect. But that doesn’t change the fact that their model won’t work for hate crime.      13 care about nonkillability, not just not being killed” and talks about the importance of our inviolability over and above the importance of not being actually violated. Moral dignity is something that we can’t lose as a result of the action of others, but we can meaningfully speak of a kind of de facto dignity that we may or may not possess. We can say that someone is stripped of his dignity by being treated in a certain way, for example. What I want to emphasize, in line with Nagel and Kamm’s views on moral dignity, is that what takes away our de facto dignity is not that someone harms us. Causing harm, even serious harm, may after all be entirely unintentional, and won’t affect our standing. Neither does disrespecting us take away our dignity. But if you can disrespect me with impunity, I will have little dignity left. Our de facto dignity is thus constituted not by the fact that others treat us as rational autonomous agents or fail to do so, but by the fact that others must, on pain of external sanction, treat us as such. This is the sense in which law can confer on us a social standing that befits an equal member of a democratic community. It can’t stop others from engaging in a disrespectful behaviour such as stealing or assault, but it can penalize such behaviour and thereby manifest respect for everyone. If, conversely, the law didn’t penalize such behaviour against a particular group, leaving them open to attack with impunity, that would amount to denying them equal respect and thereby constituting them as having a lower standing than others, even if no one ever actually attacked them. (When I talk about ‘the law’ here, I mean the entire criminal justice system. As discussions at this workshop have made clear, law on the books alone means nothing. It must also be fairly and consistently deployed.) What I’ve very briefly sketched is an expressive justification for standard criminal law. I don’t want to commit to the strong claim that all crimes express disrespect or that all laws are justified by expressive considerations. But some laws, I believe, are. What I’ll do next is apply this model to enhanced punishment for hate crimes in particular. Here    14 the core idea is that if you can enact contempt or hate or disgust toward me with impunity, I am thereby constituted as having an inferior status. And because the offender’s behavior manifests these attitudes, this will be the case even if they are already punished for the base crime. Basically, the argument goes like this: 1. Committing a base crime against someone as an interchangeable member of a group regardless of personal profit or pre-existing relationship manifests an attitude of disgust, contempt, hostility, or hate, for short rejection as an equal member of a democratic community, toward all members of the victim’s group. 2. A criminal justice system that fails to impose an additional sanction for a crime that manifests rejection as an equal itself manifests indifference on the part of the public toward the rejection. 3. Social or legal status is in part constituted by dispositions to sanction manifestations of attitudes. 4. So, manifesting public indifference to rejection as an equal constitutes the status of all members of the victim’s group as inferior, making the public complicit in the hate aspect of the crime. 5. Having an inferior status is in itself bad for a person, regardless of other physical or psychological harm. 6. So, public indifference to the hate-aspect of a crime that manifests it itself constitutes expressive harm for the victim over and above physical or psychological harm caused by the crime. The first premise delineates some of the grounds for concluding that a crime expresses a demeaning or degrading attitude toward a group in addition to whatever disrespect or disregard the base crime already manifests. If you burn my house because it’s in the way of a new development you want to build, you disrespect me; if you burn my house because you don’t want my kind to live in the neighbourhood, you also show contempt and disgust toward me and my people. The second premise points to the link between imposing sanctions and the attitudes of the public this manifests. The third one links sanctions to status, as just discussed. The fourth premise draws the preliminary conclusion that the public’s attitudes manifested by the failure to sanction the hate aspect constitute the victim’s group as inferior to others. This is a strong claim, of course. But it seems to parallel the case with disrespect: again, if we do nothing while someone is being    15 assaulted, for example, or adopt norms that fail to direct us to do anything, we are thereby making the victim into someone de facto insignificant. The fifth premise says that an inferior status is bad in itself. In the real world, having such a status and being aware of it is of course also psychologically harmful. If you realize that no one is going to do anything if you are raped or beaten, this will have effects beyond the rape and beating itself. But from a philosophical perspective, we can make the case that inferiority itself is bad. It amounts to standing in what Philip Pettit (1997) has called relations of domination, famously arguing that even a slave who is never actually interfered with is worse off than a free person, since the owner is always in a position to interfere with the slave’s life on arbitrary grounds. The conclusion, then, is that the attitude of indifference to demeaning or degrading behaviour toward someone constitutes an expressive harm. In their discussion of what they call radical expressivism, a version of which I have just defended, Hurd and Moore raise the following question: What makes expressing a society’s disapproval of the motive of a criminal’s act intrinsically good? It cannot be because of desert, so what is it? We can think of no plausible answer to this question. (HM, ) If the line of argument I have sketched can be made to work, we will indeed have a plausible answer to the question. Expressing society’s disapproval of the motive of a hate crime is intrinsically good, because it prevents the harm of constituting the members of the victim’s group as inferior, as outcasts from the democratic community.    Bibliography 16 Anderson, Elizabeth (1993), Value in Ethics and Economics. Anderson, Elizabeth and Pildes, Richard (2000), ‘Expressive Theories of Law: A General Restatement’. University of Pennsylvania Law Review 148 (5), 1503-1575. Blackburn, Simon (2001/2010), ‘Group Minds and Expressive Harm’. Reprinted in Practical Tortoise Raising, Oxford: Oxford University Press, 64-89. Frankfurt, Harry (2004), Reasons of Love. Hurd, Heidi and Moore, Michael (2005), ‘Punishing Hatred and Prejudice’. Kamm, Frances, Morality, Mortality. Lawrence, Frederick (1999), Punishing Hate. Cambridge, Mass: Harvard University Press. Nagel, Thomas Taylor, Charles