New Resistance to Hate Crime Legislation and the Concept of Law

I. Introduction

The concept of hate crime has been a subject of legal debate in Canada and the United States for almost three decades. The main contours of the debate are by now well developed but this article is concerned with a new resistance to hate crime legislation that has yet to be addressed in the mainstream debate. The new resistance is noteworthy in that it comes from groups that advocate for lgbtq people who are poor, trans, and/or of color. These communities are particularly vulnerable to victimization by hate crime yet the groups have repeatedly opposed the inclusion of sexual orientation and gender identity/expression in hate crime legislation. This article addresses the underlying rationale for this opposition and its implications for the mainstream hate crime debate. It also draws on legal theory to generate an alternative concept of law that is compatible with the new resistance. The first section undertakes a comparative analysis of hate crime legislation in Canada and the US. The second section considers the mainstream legal debate and some statistical data on the distribution of hate crime. The third section turns to the new resistance as well as emerging empirical data on the relationship between victimization and the criminal legal system. This section highlights the uneven distribution of victimization throughout the lgbtq community, as well as the connection between this violence and the criminal legal system itself. The fourth section of the article draws on the legal theory of Walter Benjamin to reveal limits in the way that criminalization has been conceptualized in the mainstream legal debate. The fifth section considers the implications of Benjamin’s concept of law for the new resistance and concludes by reframing the hate crime debate by centering criminalization as a form of violence. ¹

II. Hate Crime Legislation in Canada and the US

The concept of “hate crime” has developed in Canada and the US to refer to multiple phenomena. The first distinction is between hate speech and hate crime. When it comes to hate speech, the legal situation in Canada and the US has evolved a bit differently. The basis of the difference is how the right to freedom of expression has been interpreted. The US Supreme Court has ruled that the content of speech cannot be criminalized. To do so would be a violation of the right to self-expression, which is seen as natural and inalienable. In the US, therefore, no content of speech is prohibited, which is to say there are no laws against hate speech. ² In contrast, in Canada there are laws against hate speech, technically referred to as “hate propaganda.” Section 318 of the Criminal Code of Canada prohibits “advocating genocide against an identifiable group” and section 319 prohibits “publically inciting hatred” and “wilfully promoting hatred” against an identifiable group in a way that makes likely a breach of the peace. Unlike in the US, courts in Canada have interpreted these laws as prohibiting the content of speech when it denies individuals respect and dignity on the basis of prohibited grounds of discrimination. While these laws limit the right to freedom of expression, this limitation is seen as reasonable from a constitutional perspective because speech that limits a group’s ability to participate in society undermines the free debate and exchange of ideas required for a democratic society in the first place. ³ Thus, unlike in the US, in Canada the content of speech (i.e.: the ideas being expressed) can be prohibited within constitutionally defined limits. As discussed below, this difference in jurisprudence regarding hate speech is related to some of the differences in the legal reception of hate crime legislation in the two countries.

In contrast to hate speech, the term “hate crime” also refers to crimes against persons and property motivated by hate against an identifiable group. Laws that define hate crime in this way take two forms: one is sentence enhancement legislation. In this case, the presence of hate becomes relevant after an individual has been convicted of a crime during the sentencing portion of a trial. If an individual is convicted of a crime, for example, committing assault, and “hate” against an identifiable group is found to be a motivating factor in the commission of the offense, the judge may impose a more severe sentence. In this way, any ordinary crime can be classified as a hate crime if it is determined to have been motivated by hate. A sentence enhancement provision was added to the Criminal Code of Canada in 1996 that allows for an increased penalty beyond the usual range if an offense was “motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.” ⁴ The second form of hate crime legislation involves the creation of unique offenses in which the presence of hate is part of the determination of guilt. There is one unique offense of hate crime in Canada. Section 320 (4.1) created the offense of mischief against religious property in 2001, which carries a harsher penalty than ordinary mischief. ⁵

The legal situation in the US is more complicated than in Canada but the nature of the laws that define hate crime are essentially the same. There is sentence enhancement legislation at the federal level as well. The Hate Crime Sentencing Enhancement Act enacted in 1994 introduced enhanced sentencing for federal crimes motivated by bias based on race, color, religion, national origin, ethnicity or gender. ⁶ This was followed in 2009 by the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which expanded the list of protected categories to include sexual orientation, gender identity, and disability. In addition, almost all states in the US have their own hate crime laws. ⁷ Most have incorporated sentence enhancement legislation while others have created unique offenses. For example, Washington State created the crime of “Malicious Harassment” in 1981. ⁸ This charge requires proof that an accused injured a victim because they believed the victim was a member of an identifiable group. The two approaches to criminalizing hate represent different formal legal processes but they have the same outcome: harsher punishments for crimes motivated by hate. ⁹

III. The Mainstream Legal Debate

Given the similarity of hate crime laws in Canada and the US, it is not a surprise that the legal debate has developed similarly in both countries as well. The arguments in favor of hate crime legislation are essentially the same. They are based on the concept of harm that emerged in the 1980s and early 1990s in the wake of some highly publicized incidents of hate crime, including the murder of Kenneth Zeller in Canada (1985) and Matthew Shepard in the US (1998). ¹⁰ It was argued that criminalization was needed to condemn such violence. When these arguments were made, data collection initiatives on hate crime were non-existent or in their infancy in both countries. As a result, there was a lack of empirical evidence to show whether the tragic incidents being reported by the media were exceptional cases or representative of broader social trends. ¹¹ In other words, there was no way to prove they were indications of a systemic social problem. Therefore, the mainstream legal debate in both countries initially centered on whether hate crime was a real phenomenon.

Since the initial iteration, information has emerged that sheds light on this question. In the Canadian context, national police data on victimization and sexual identity has been available since 2004, which is when Statistics Canada began collecting demographic information on sexual identity as part of the General Social Survey (GSS). The GSS is a victimization survey; victimization surveys ask individuals about their experiences of being the victim of crime. ¹² According to the GSS, there are disproportionate rates of victimization based on sexual identity in Canada. Individuals who identify as homosexual or bisexual are between 2.5 and 4.5 times more likely to be the victims of violence than individuals who identify as heterosexual, including physical assault, sexual assault, and robbery. ¹³ The data also indicate that crimes that are motivated by hate are more often violent than crimes that are not motivated by hate. Every year in Canada around 15% of crime involves violence but the proportion of hate crime that involves violence is higher, around 40%. ¹⁴ The difference is greater for hate crimes motivated by sexual identity. ¹⁵ For instance, in 2010, 65% of hate crimes motivated by sexual identity involved violence. In comparison, 34% of racially motivated hate crimes and 17% of religiously motivated hate crimes involved violence. ¹⁶ Of these violent hate crimes those that are motivated by sexual identity are also more likely to result in physical injury. In 2010, 59% of violent crimes motivated by sexual identity caused injuries to the victim compared to 40% of racially motivated violent crimes and 14% of religiously motivated violent crimes. ¹⁷ Thus, data has emerged that indicate that lgbtq people do face a disproportionate risk of victimization by violence and that this violence is relatively more severe.

A key component of arguments in favor of hate crime legislation has been that hate crime causes more harm than non-hate crime. ¹⁸ According to the GSS, 91% of victims of violence perceived to be motivated by hate were affected emotionally by that victimization, compared to 81% of victims who did not perceive the incident to have been motivated by hate. ¹⁹ Research also finds that victims of hate crime are more likely to change their behavior after the incident, including being less trusting of others and experiencing depression and suicide. ²⁰ In addition to harm to individual victims, it is also suggested that hate crime inflicts “secondary victimization” on the larger community. ²¹ The reason is that the violence involved is not directed only at an individual victim but at an entire group of people to which the victim is thought to belong. ²² The psychological consequences of this form of targeting can be severe, even for those who are not directly victimized. It has been found that when a hate crime targets a member of an identifiable group other members of that community may experience trauma and distress. ²³ Even reading about an incident of hate crime has been shown to have a traumatizing effect on members of the targeted group. ²⁴ While research on the harms associated with hate crime is still new, the findings corroborate the idea that lgbtq people face a disproportionate risk of victimization and that this victimization is relatively more harmful.

Before moving on to address the mainstream criticisms of hate crime legislation it is important to highlight an element of the proponent arguments. They are focused on hate crime as a social problem and the premise that systemic violence against identifiable groups truly exists in society. At the same time, they implicitly assume that criminalization is the natural response to such a problem. That is, arguments in favor of hate crime legislation are based on the assumption that criminalization can be opposed to violence and that the criminal law is a natural response to social problems. It is important to highlight this view of criminalization before turning to the mainstream criticisms of hate crime legislation because, the substance of the criticisms aside, there are similar assumptions about criminalization at work.

IV. The Mainstream Criticisms

The mainstream criticisms of hate crime legislation are similar in Canada and the US as well, although some differences have emerged. It is possible to say that in general the criticisms are focused on the formal aspects of the laws that have been implemented. They look at the kind of legal reasoning involved in hate crime legislation and question whether or not it is valid. For example, much critical attention is focused on the concept of “motivation,” which is a defining feature of hate crime. It has been argued that as it currently stands, the notion is too ambiguous and contextually defined to be legally legitimate. ²⁵ The idea of motivation implies some type of causal relationship between hate and a criminal offense, but the question of the nature and strength of the causal relationship is not specified in legislation. For example, an individual commits a robbery to obtain money but chooses a victim based on the fact that the person is a member of an identifiable group. In this case, the hate is not the cause of the offense; it is secondary to the monetary motivation. The question becomes whether this constitutes a hate crime. In the US, critics argue that this interpretive discretion could lead to inconsistent outcomes. They also worry that by hate crime in terms of motivation in any way amounts to punishing individuals for their thoughts. ²⁶ For example, punching someone in the face because of their sexual orientation could result in a different sentence from punching someone in the face because they won at cards. For some this amounts to the same criminal act receiving different punishments based on the thoughts of the offender. ²⁷

Critics in Canada have noted the interpretive discretion inherent in the application of hate crime legislation as well, although in different ways. In Canada, there is less concern over the socially constructed nature of hate crime and the ambiguity inherent in the notion of motivation. In fact, critics are more concerned with the fact that the courts have not exercised enough interpretive discretion in applying the concept. ²⁸ They point out that the sentence enhancement provision in the Criminal Code does not specify what qualifies as motivation and argue that courts have tended to interpret it too narrowly to mean that hate must be the primary or sole cause in the mind of the offender to constitute hate crime. It is argued that it could be interpreted more broadly to include cases where hate is not the primary cause of an offense but still involved in its commission. ²⁹ It has also been suggested that hate legislation be expanded, for example, a new substantive provision could be added to the Criminal Code that would treat hate violence as a unique offense similar to mischief against religious property. Short of this, a special assault charge could be introduced specifically for violent crimes that involve hate. ³⁰

Thus, while criticism in the US reflects hesitation over the interpretive discretion inherent in the concept of hate crime, in Canada critics have more willingly embraced it. This is attributable in part to the difference in the jurisprudence on hate speech discussed above which is related to the difference in how individual rights are enshrined constitutionally. In Canada, individual rights are recognized as political rights made possible by a democratic legal order, and, therefore, as conditioned by what are perceived to be the fundamental principles that make such a legal order possible. Individual rights in Canadian law always already subject to “reasonable limits” necessary in “a free and democratic society.” This has informed precedent on the legality of hate speech, which implicitly informed the reception of the idea of motivation. The mainstream criticisms in Canada and the US do have something in common, however, which they also share with the proponent arguments addressed above. That is the assumption that criminalization is the natural way to address social problems. Therefore on all sides of the mainstream debate there is an implicit assumption that criminalization can be opposed to violence.

V. The New Resistance

The new resistance to hate crime legislation has recently gained visibility in the context of lgbtq politics in the US. As mentioned above, it comes from groups that advocate for lgbtq communities who are poor, of color, and/or trans. This is interesting for two reasons. On the one hand, these communities are the most likely to be victimized by hate crime, and on the other hand, they also have the most interactions with the criminal legal system. The catalysts for the new resistance are laws proposed or passed in the US. For example, in 2011, New York State tried to pass the Gender Employment Non-discrimination Act (GENDA). GENDA was an anti-discrimination bill that would have extended hate crime and employment protection laws in the state of New York to include gender identity and gender expression. ³¹ The Act was opposed by several New York-based lgbtq groups, including the Audre Lorde Project (ALP), ³² which is a community organizing center that fights for social and economic justice for lgbtq people of color; as well as the Sylvia Rivera Law Project (SRLP), which is a legal collective that provides free legal services to trans people who are poor and/or of color. ³³ Both groups argued that GENDA constituted an expansion of the criminal legal system that would “expose our communities to more danger from prejudiced institutions” that are “far more powerful and pervasive than individual bigots.” ³⁴

The SRLP and the ALP also opposed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which was the federal legislation passed in 2009 mentioned above. In a letter that was co-signed by several other groups, such as Queers for Economic Justice, ³⁵ FIERCE, ³⁶ the Peter Cicchino Youth Project, ³⁷ and Against Equality, ³⁸ the groups explained how the Matthew Shepard Act expanded the jurisdiction of the Department of Justice by allowing the Department of Justice to prosecute all hate crimes, not only those that are also federal crimes. It also increased funding for the Department of Justice and local police to prosecute hate crimes and included provisions for new hate crime police units, training initiatives, and community liaison committees. ³⁹ The SRLP and the ALP rejected formal inclusion in hate crime legislation because they oppose the expansion of the “prison industrial complex.” ⁴⁰ In Canada, there has been a similar connection between hate crime legislation and expanding police power. Since the introduction of the enhanced sentencing provision, specialized hate crime police units and lgbtq community liaison programs have been created in many cities. ⁴¹

The question of why groups like the SRLP and the ALP would oppose criminalizing hate violence is best answered by locating the opposition in two related social contexts. One is that there is actually a connection between this violence and the criminal legal system itself. ⁴² Research has found that when lgbtq people are the victims of crime and try to seek help from the police, they are more often met with nonresponse or inadequate response. ⁴³ For example, in cases of violence where the victim is lgbtq, police officers have been found to be less likely to file an incident report. One study found police refused to file a report in 31% of cases, while another found that police failed to file a report in 27% of cases. ⁴⁴ Research also shows that the criminal legal system itself is often a source of active discrimination and violence. For instance, when lgbtq individuals are the victims of crime and/or witness to crime it is not uncommon for police arriving at the scene to arrest them. ⁴⁵ Overall, it is estimated that police and officials of the criminal legal system are responsible for 40% of incidents of discriminatory violence against lgbtq people every year in the US. ⁴⁶ The National Coalition of Anti-Violence Programs describes police officers and other officials of the criminal legal system as “one of the prime categories of offenders” of anti-lgbtq violence. ⁴⁷

The second context is that the risk of victimization by violence is not evenly distributed in the lgbtq community. Those individuals who are also poor, trans, and/or of color have a much higher risk of being victimized by the criminal legal system. Research finds that they receive the most negative police attention, including the most unwanted sexual attention, ticketing, arrest, and physical assault. ⁴⁸ This is such a problem that in some lgbtq communities it is common practice not to call the police at all. ⁴⁹ One study in San Francisco found that 50% of incidents of hate violence reported by trans people were committed by police and officials of the criminal legal system, and one in four trans people reported being harassed or assaulted by the police. ⁵⁰ This connection between violence and the criminal legal system is essential for understanding the new resistance to hate crime legislation. Groups like the ALP and the SRLP work with those lgbtq communities that experience the brunt of this violence. ⁵¹ Thus, they oppose hate crime legislation not because they do not see hate crime as a problem but rather because they see the criminal legal system itself being as a significant source of that problem.

There are two important conclusions to take away from the discussion of the distribution of hate crime and its link to the legal system. The first is that the new resistance does not look at hate crime in the same way as does mainstream debate. In the mainstream legal debate, responsibility is framed in individualized terms; hate crimes defined in terms of offender motivation and conceptualized as harm caused by individuals who are psychologically motivated by hate. This legal lens is not adequate to address the uneven risk of being victimized according to differences of class, gender, and race, nor can it address the link between this violence and the criminal legal system itself. In contrast, the new resistance foregrounds the law’s violence and in so doing, highlights how hate crime legislation involve an expansion of the criminal legal system. This is connected to the second important conclusion. There is a profound difference in the underlying concepts of law at work in the mainstream debate and the new resistance. In the mainstream legal debate, it is assumed that criminalization can be opposed to violence, which implies that law and violence are separate, or at least can be separated in some meaningful sense. The new resistance implies a radically different concept of law. The next section draws on legal theory to elaborate an alternative concept of law that is both compatible with the new resistance and able to bring it into relation with the mainstream debate.

VI. An Alternative Concept of Law

The work that is helpful in this regard is that of Walter Benjamin. Specifically, Benjamin’s 1921 essay “Critique of Violence,” which was written against the backdrop of parliamentary breakdown and political violence in Germany after the First World War during the lead up to the Third Reich. ⁵² Benjamin’s approach to theorizing law in this text is remarkable in that it begins with a critique of legal violence. The word used by Benjamin is Gewalt, which has no true equivalent in English. Gewalt can be understood as violence that is also legitimate public force. ⁵³ However, gewalt is not synonymous with the state. It is also at times exemplified in the strike power, revolutionary violence, and what Benjamin calls “the great criminal,” who breaks the law yet inspires awe or veneration from the masses. Benjamin’s task in the essay is to define the conditions of possibility for such violence, not in this or that particular case, but in any case whatsoever.

A useful point of entry into Benjamin’s text is his discussion of two strands in legal theory. The first is known as “natural law” and the second as “positive law.” Natural law approaches are the older of the two and are premised on the idea that law has an inherent relation to justice or moral purpose. ⁵⁴ Benjamin points out that because natural law perspectives define law as a moral phenomenon sui generis, when it comes to legal violence, the criteria for evaluation is the morality of the ends. Benjamin’s objection to a natural law approach is precisely the form of evaluation. The law’s use of violence is evaluated indirectly as a means to an end. Such an approach can evaluate legal violence in particular cases but it cannot address the phenomenon of legal violence “in principle.” ⁵⁵ The violence itself is simply regarded as a “raw material” like any other that the law might use to achieve a purpose. ⁵⁶ In other words, a naturalist approach cannot evaluate legal violence independent of the purpose to which it is put. A naturalist approach is reflected in the mainstream hate crime debate in proponent arguments that focus on the harm caused by hate crime. They do not justify the use of criminalization on its own terms. Rather, the arguments focus on framing hate crime as a social problem and assume that the use of the police and incarceration is the natural means of addressing it. For Benjamin, this effectively represents a limit to analysis. His goal is to develop criteria that are “more exact” and capable of discriminating within the sphere of means directly “without regard for the ends they serve.” ⁵⁷

The second approach in legal theory is known as positive law. Positive law is essentially the opposite of natural law. In fact, it emerged historically in opposition to the idea that law is fundamentally a moral phenomenon. Instead it maintained that morality and law should be separated for the purposes of legal analysis. Positive law was inspired by the Enlightenment and took the view that law could be studied empirically as a rationally purposive activity posited by humans. Hence, the quip by early positivist John Austin that “the existence of law is one thing, its merit or demerit another.” ⁵⁸ Morality and law are separate even if the perception of morality might be important for the internal coherence of a legal system. ⁵⁹ When it comes to evaluating legal violence the focus of a positivist approach would not be on the ends to which it is put but on its relationship to standards of legality. In other words, a positivist approach would evaluate legal violence in terms of its conformity to the rule of law. In the context of criminalization, the focus is on whether the use of the criminal law accords with legality in a legal order; for example, whether it is constitutionally valid or contradicts enshrined common law precedent. ⁶⁰ A positivist approach is reflected in the hate crime debate in the mainstream criticisms of hate crime legislation. The criticisms of the concept of “motivation” focus on the legalistic formulation of the existing laws. In the US they are deemed too ambiguous while in Canada it is argued they should be interpreted more broadly.

Benjamin considers the positive law approach to be an advance over natural law. Evaluating legal violence relative to its legality is able to make a “fundamental distinction between kinds of violence independently of cases of their application.” ⁶¹ In other words, it is able to evaluate legal violence without regards for the ends it serves. However, there is still a form of means/ends logic at work in this approach. The rule of law is not naturally given, but a socially constituted and historically situated political formation. “Legality,” Benjamin argues, is an end in itself from the point of view of law. Colonial states such as Canada exemplify this starkly. Thus, while a positivist approach considers legal violence apart from the ends to which it is put, it does so only up to a point. The very form of the evaluation depends on a legal division between legitimate and illegitimate violence, which cannot address the meaning of the division itself, which, of course, is exactly what interested Benjamin.

Despite its tautological premises, the positivist approach is useful because it opens up the relationship between law and the form of the division of sanctioned and unsanctioned violence. Benjamin notes that there is a historical tendency for legal orders to deny individuals the right to use violence for their own ends. The law tends to establish “in all areas where individual ends could be usefully pursued by violence, legal ends that can be realised only by legal power.” ⁶² This “monopoly on violence” develops regardless of whether individual ends are morally justified or overlap with the ends of law. ⁶³ For example, an individual may be imprisoned for theft or ordered to pay restitution to a victim, but it would not be legitimate if a victim of theft were to seek restitution privately outside of the legal system. Benjamin argues that the prohibition is not based on “the ends it might pursue,” but on the “mere existence” of the use of violence outside the law. ⁶⁴ As if the existence of such violence regardless of its purpose presents “a danger undermining the legal system.” ⁶⁵ This suggests that a law’s monopoly on violence “vis-à-vis individuals” is about something other than justice or securing legal ends. ⁶⁶ It has something to do with the foundation of the law itself.

To explore this further Benjamin considers some “contradictions in the legal situation,” situations where the law seems to allow for violence outside the law. ⁶⁷ The most interesting is the right to strike. He concedes that it might be objected that the strike power cannot be considered violence because it is a withdrawal of activity, a non-action. However, Benjamin argues that an omission of action can be considered violence and points out that it is regarded as such by the law in the context of “extortion.” ⁶⁸ Extortion does not involve direct violence but the use of “threats, accusations, or menaces” to compel an individual, organization, business, or other entity to give up something of value they otherwise would not. ⁶⁹ Benjamin is suggesting that the strike is a form of extortion in the sense that workers use it to get concessions from owners in the form of wages and other benefits. With the right to strike, therefore, the law allows for violence that is normally unsanctioned. It allows violence whose ends, “as natural and non-legal,” it “regards with indifference.” ⁷⁰

This only appears to be a contradiction until one considers that the right to strike emerged in the early industrial period in the eighteenth and nineteenth centuries, a time characterized by significant labor unrest. ⁷¹ It only allows for partial striking while a general strike is always prohibited. ⁷² The difference between the two types of strike is straightforward yet profound. A partial strike is done “in the context of a conscious readiness to resume the suspended action under circumstances that have nothing to do with this action or only superficially modify it.” ⁷³ The withdrawal of work is a means of achieving the “circumstances.” It is extortion. In contrast, a general strike is not undertaken with the conscious readiness to resume work if certain conditions are met and it has no determinant goals. Benjamin defines the two types of strike as two forms of violence: “alloyed” and “unalloyed.” ⁷⁴ A conventional strike is “alloyed” because it has an end that is something other than itself. In contrast, a general strike is “unalloyed”. ⁷⁵ It has no goal outside of itself.

In his characterization of the general strike Benjamin refers to the work of George Sorel, an anarchist-Marxist writing in the early twentieth century. By drawing on Sorel, Benjamin is suggesting that pure violence is a threat to the law in its claim to be the only gewalt, the only power-positing violence. Sorel believed in the possibility of political redemption but he argued that political violence on the part of the working class was necessary to achieve it. He advocated a general strike, not for tactical or strategic reasons but because he saw it as a “myth in which socialism is wholly comprised.” ⁷⁶ Unlike the violence of a partial strike that extorts higher wages, the general strike is “an organization of images capable of evoking instinctively all the sentiments which correspond to the diverse manifestations of war against modern society.” ⁷⁷ The image that the general strike gives us is “an intuition of Socialism which language cannot give us … as a whole, perceived instantaneously.” It undercuts “the temporal framework that uncritically supports state power, its legitimating effect, and its coercive instrumentalities.” ⁷⁸ Therefore, the legal right to strike positions the general strike as illegitimate violence. In this sense, the right to strike divides and normalizes the strike power. Allowing partial striking is a means of excluding the possibility of a general strike.

Benjamin argues that this reflects a fundamental “duality in the function of violence.” ⁷⁹ On the one hand, it has a “lawmaking character” that is at the foundation of every legal order. ⁸⁰ Violence has the potential to modify legal conditions and even create law. This is exemplified by military violence, the most “natural means” for asserting sovereignty, and by revolutionary violence, which sometimes ushers in a new law. ⁸¹ However, the law’s relation to violence also involves something Benjamin terms “law preserving violence,” which does not aim to modify legal conditions but to preserve them. ⁸² It is exemplified in the criminal law power of the state but also in any legal contract that is backed by the fact that if a party violates the terms the other(s) may bring a lawsuit and obtain a monetary judgment that could result in a seizure of assets, resistance to which will typically constitute a crime.

The two forms of violence can be conceptualized separately. Normally, lawmaking violence is “required to prove its worth in victory” and law-preserving violence is “subject to the restriction that it may not set itself new ends.” ⁸³ However, they are not distinct. Lawmaking violence remains operative as the source of legitimacy of law-preserving violence, just as law-preserving violence is always a defensive moment of founding violence itself. ⁸⁴ This marks a point of crucial difference between the mainstream hate crime debate and Benjamin’s concept of law. In the mainstream debate there is an assumption that criminalization is opposed to violence. That is, that legal violence is different in kind from violence outside the law or violence committed by rogue individuals. However, Benjamin’s concept of law implies that the true distinction is between violence amenable to the means/ends logic of law and violence that is pure and unalloyed to a future promise. This is the metaphysical foundation of law. From this perspective, criminalization is a form of violence that is essential to law, not for moral reasons, but because the law itself is alloyed violence.

VII. Implications of Benjamin’s Concept of Law

There are several elements of Benjamin’s theory that are useful for the new resistance to hate crime legislation and the mainstream debate. One is the way that it reveals the limits of the concept of law assumed in the mainstream debate. There is a naturalist approach to legal violence in the arguments in favor of hate crime legislation that cite the fact that lgbtq individuals are disproportionately victimized by hate violence and that this violence causes greater harm than ordinary crime. These arguments are limited from a Benjaminian perspective because they take legal violence as a natural means for addressing social problems. They are concerned with stopping hate crime and condemning violence; criminalization is simply taken as a natural means for doing so.

At the same time, there is a limit similar to what Benjamin identifies in positivist discourses found in the mainstream criticisms of hate crime legislation. These criticisms are focused on the formulation of the laws; for example, the argument that the concept of “motivation” allows individuals to be punished for their thoughts. This is a positivist approach to the extent that the means of addressing hate-motivated violence – criminalization – is not evaluated in itself but in terms of its conformity with the rule of law. It is positivist approach because it separates law and morality and evaluates criminalization not as a means to an end but in terms of its legal status. The issue is not whether hate violence is a social problem but whether the legislation that has been enacted accords with standards of legality, which is to say whether it is consistent with the rule of law. Benjamin shows that referring to standards of legality to evaluate legal violence implicitly affirms the legitimacy of those standards. Thus Benjamin’s essay shows not which side of the mainstream hate crime debate is correct but how there are limits to how both sides have analyzed criminalization. Neither side of the debate directly evaluates criminalization as a form of legal violence and there is a common assumption that legal violence in the form of criminalization is legitimate.

It makes sense that a mainstream legal debate in Canada and the US would make these types of assumption concerning criminalization and legal violence considering that criminal punishment is the primary means of social control in both jurisdictions. This is why Benjamin’s theory is especially helpful. It identifies and denaturalizes these theoretical assumptions, which in the mainstream hate crime debate as elsewhere function as limits to analysis. This is a particularly significant contribution in the context of hate crime because of the way that the individualized legal framework fails to address the uneven distribution of hate crime and the connection between it and the criminal legal system itself. The law defines hate crime in terms of psychological motivation. This individualized lens obscures the structural patterns in how legal violence affects lgbtq communities based on factors such as race, class, and gender expression. The new resistance to hate crime legislation responds to a contradiction in the application of the laws, which is that the police and the legal system are a significant source of the violence that hate crime legislation is ostensibly trying to address. In this regard, Benjamin’s critique agrees with the new resistance that law cannot be opposed to violence but it adds to the picture the idea that it is not simply continuous with violence. The law maintains a relation of violence by dividing violence into “sanctioned” and “unsanctioned” forms and not for moral reasons but because the form of law itself is alloyed to violence.

Another relevant implication of Benjamin’s theory is that it can help speak to how the divisions of violence that law enacts are also points of normalization. In defining hate crime in terms of the psychology of an individual, hate crime legislation does not only conceal structural patterns in that violence but divides violence committed by private individuals from violence enacted by the criminal legal system. This is then defined as a division between the “criminal” and the “law-bidding citizen.” ⁸⁵ In the context of hate crime, however, legal violence also divides the category of victim into legitimate victim and deserving victim. This can be seen in judges’ decisions in hate crime sentencing in Canada. In cases where the victim’s sexuality is narrated as private and not solicitous or provocative they are more likely to be seen as innocent victims by the court. In contrast, if the victim was seen to be “cocky” or responding with “bravado,” judges are more likely to see them as deserving victims who provoked the attack or are responsible in some way for the violence. ⁸⁶ On one side are lives recognized as worth valuing, lives that are worth safeguarding, protecting, and worth public grieving, and on the other side are those lives that are not valued and not worth social recognition. ⁸⁷ A similar normalization is reflected in police-run hate crime programs that focus on teaching potential victims to self-manage risk and to make complaints to the police once violence has occurred. They do not focus on preventing violence but on changing the behavior of victims. ⁸⁸

VIII. Conclusion

A recurring theme in this article is the limits to thinking about law in the context of the hate crime debate. It was argued that the new resistance to hate crime legislation highlights factors left out of the mainstream debate. Benjamin’s theory was used to show how both sides of that debate evaluate legal violence as a means to an end and in so doing implicitly accept criminalization as a form of legitimate violence. In contrast, Benjamin’s concept of law is defined by violence and explains the role of legal violence in creating divisions that make normalization of violence is possible. The new resistance helps link this normalization with the law’s relation to violence more broadly. However, Benjamin’s theory adds the possibility of critique of this violence in a non-moral sense. The new resistance questions criminalization in the name of social justice but Benjamin’s theoretical perspective does not depend on any normative commitment. It identifies legal violence as constituting law but not as a moral criticism; it is a theoretical claim about law. This is why the law’s relation to violence takes the form of divisions and exceptions, not simple exclusions. It cannot oppose violence completely because violence is part of the form of law itself. This suggests that law without violence is impossible, which is a challenge for legal advocacy in the contemporary moment because if violence is a part of the form of law itself, then opposing violence in a straightforward way is not possible.