The Subjective Nature of ‘Hate’


One of the oddest things that has been accepted with little real challenge is the notion that there is such a thing as a ‘hate crime’. Throughout the western world we have seen legislative changes and judicial advice that embeds the new notion that a crime is particularly heinous if it is motivated by an entirely subjective interpretation of whether it was motivated by ‘hate’ and whether that hate was directed at particular groups. We now have ‘hate crime laws’ on the statute books, in one form or another, of every western nation.

Logically the notion of a thing called a hate crime is a peculiar one. It is one which immediately moves the matter of law from the punishment of actions to the interpretation of thoughts. That in itself subjectifies what is going on in the judicial process and makes it inherently more prone to error.

We no longer have to prove simply that a harmful action took place, we now also scale and grade those actions by mind reading the thoughts that lay behind them, and by deciding that some thoughts are more wicked than others and some groups more deserving of protection than others.

All of this is an absolute and obvious mess if you want equal protection under the law. But it is a goldmine if you want to make the legal code highly subjective in ways that prioritise groups you favour, whilst providing less justice and less respect to groups you do not.

Let us take the effect of a particular crime first. The whole point of criminalising actions is that those actions harm others and you want, as far as you are able, to discourage such harm within your society. The oldest solution to this anywhere in the world may well be the idea of direct reciprocity in punishment, the notion of lex talionis ‘an eye for an eye’, and the clearest ancient version of this is contained in the 282 laws inscribed in the Code of Hammurabi, sixth king of the first dynasty of Babylon. That code survives on a 7-foot-tall basalt stele from around 1750 BC, now residing at the Louvre Museum in Paris:

“If a man destroys the eye of another man, they shall destroy his eye. If one breaks a man’s bone, they shall break his bone.”

The idea of justice here, one of the oldest conceptions of justice we have, is that justice restores a balance. And it’s a grim but undoubtedly fair way of restoring balance and discouraging harm too. It’s a version of what is also called in philosophy the ‘golden rule’ – treat others as you would wish to be treated yourself. The golden rule is the nice, persuasive side of the coin. The code of Hammurabi is the dark, warning side. Equal action and consequence, balance.

Social harmony is created when people know that the harms they inflict on some innocent victim will exactly and precisely rebound on them.

The British sci-fi comedy show Red Dwarf featured in its fourth season a hilarious version on lex talionis in an episode titled ‘Justice’, in which the crew visited a space station with a ‘justice field’ that immediately rebounds any criminal act on the perpetrator. Rimmer, a hologram being held as a prisoner for the crime of negligently causing the death of the entire original crew except Dave Lister, illustrates this by asking Lister to set fire to his bed, whereupon Lister’s own jacket catches fire.

Comedy science fiction aside, eagle eyed observers of the principle of lex talionis will note that there is no attempt at all to interpret the motivation for the crime. The intent is solely to punish and dissuade with a reciprocity that makes the crime unappealing. The entire notion that justice is equal began not as ‘all men receive the same justice’ but as ‘the punishment fits the crime’. That is the equality that concerned the ancient world and the very first working legal codes. It was pragmatic, direct, easily understood, and a deterrent.

And in case we think that this type of balance of crime and punishment is merely barbaric, an outmoded example of the harsh ancient world, it’s exactly the same thing that very modern man assumed to be correct, and used for the exact same purpose of deterrence, with weapons that could destroy the entire planet. It’s a balance so easily understood, and so obviously conducive to making harmful acts pointless or self-destructive, that it eventually became the policy governing how both sides restrained themselves from nuclear war and even direct, lesser forms of armed conflict at the height of the Cold War (mutually assured destruction).

It’s easy to understand, and it seems to work.

Not only is this pragmatic balance of crime and punishment one that everyone can understand and that generally proves pretty effective, but it underlies less graphic and physical punishments too. We expect a fine, for example, to have some rough or sensible match with the offence. If someone is fined more for jaywalking than for something more obviously harmful, like an assault, we immediately consider that unjust.

We are actually pretty good at judging, instinctively, substitutes for physical punishment (like fines or incarceration) and knowing whether they really match up. If someone gets five years in prison for pickpocketing, while someone else gets only three years for rape, we know that the second crime is far more harmful than the first and the system which punishes the first crime more is not providing us with real justice.

We know, most of the time, what really brings balance. And at no point in any of this do we factor in the motivation of the crime or try and work out what was going on in the criminal’s head. We concentrate on the action because it is the action that defines the level of harm and it is the level of harm that defines, in a just system, the level of punishment.

The only time we might rationally and objectively say that the same crime against a different category of person is more heinous is if the same action is likely to cause more harm-as in punching a baby or raping a child. To acknowledge that the very young and the very elderly are more defenceless still refers to objective, physical facts as well as to traditional, sensible morals. Nobody is inherently more vulnerable, more defenceless or more harmed by the same action because of their skin colour or religion.

We have known all this for thousands of years. It is only hate crime legislation in recent years which has suddenly decided that justice is more equal for some than others, or that mind reading is a sensible part of the legal process that delivers fair and equal outcomes.

It’s a logical and pragmatic focus on the action of the crime rather than mind reading the motivation that allows the judgements made to be objective rather than partial, partisan and subjective. After all, if two victims receive the same form of harm, would justice really say that one is harmed more than the other? Say two people are struck on the head with a hammer. Does one hammer hurt more because the criminal assaulting them hated the victim, or hurt less because the criminal just wanted their money? Does the victim being robbed by someone indifferent to their survival really deserve less protection or is really hurt less from the same blow with the same weapon?

Judging hate is also far more subjective than judging the harm of an action. How do we know what the criminal was thinking? How do we know how much of his actions were motivated by hate, greed, lust, jealousy, envy – any of the myriad emotions that could fully or partly motivate those actions?

Since hate crimes are primarily linked with racial categories, are we to suppose that rape by someone of another race, or for racist reasons, harms more than rape of the same race, for reasons purely of sexual gratification? Isn’t any harm of that kind a hateful act, isn’t it absurd to wonder whether a cold calculating lust is worse or better to be the victim of than a burning and angry hate?

What degree of a rape is about power, or about lust, or about hate? None of this lessens or increases the harm of the act of rape, and to pretend that any of it matters more than the act of rape and that being punished is itself morally obscene. How dare we tell some rape victims, in the legal code, that their rape matters less because we somehow been idiotic enough to have subjectively decided there wasn’t hate involved or because our ideology tells us that some victims are more deserving of more protection than other victims. How dare any legal code do that-it is itself an injustice, it is itself an imbalance that revolts any real moral sense and subverts the possibility and the promise of equal justice before the law.

Modern hate crimes legislation is therefore dependent on an absurd mind reading that will automatically get things wrong and provide no real framework of consistent judgement. It creates a hierarchy of victims and a prioritisation of some victims that is inherently ideological, hypocritically racist, and stunningly unjust.

One could argue that this is what the crafters of such legislation want. They want unequal justice and they want subjective justice.

The subjectivity allows them to punish and protect far more selectively, and through this means they can favour certain groups and dehumanise and devalue others. They can impose a modern apartheid form of ‘justice’ that racially discriminates and values some human life more than other human life – the very thing ‘hate crime legislation’ says it is responding to.

The subjectivity also allows legislators to designate whatever they like as hate. Having a different politics is ‘hate’. Expressing a different opinion is ‘hate’. Opposing a certain policy is ‘hate’. Hate simply becomes a word of no inherent meaning, but vast political expediency. Simply classify opposition to your policies and prejudices as ‘hate’, and you criminalise any opposition to your policies and prejudices (which of course may themselves be hateful, just not designated as such). This is the actual purpose of hate crime legislation. Anything can be a hate crime.

It is to move the law from actual crimes to thought crimes, to bake in ideological judgment in your now poisonous cake of a justice system. And get others to swallow it. Purely subjective judgement trumps the objective judgement that refers solely to what actually happened and then applies equal punishments for similar offences regardless of ‘protected characteristics’.

What the ‘hate crime’ concept prepares for, what it puts in your criminal justice system ready and waiting for use, is a legal response allowing you to punish people more arbitrarily and for things that were never before considered criminal. Add the category of ‘hate crimes’ and any inconvenient or rebellious thought becomes a potential crime. The thought doesn’t even need to exist, by the way. It can be assigned to you by mind reading your intentions.

No doubt in such cases your tyrannical system will try to still pretend to be a real justice system responding to actions (real crimes). But really it will simply be creating lists of forbidden thoughts and verboten ideas, maybe trying to find a recorded instance of those, and making these all crimes.

These movements of the law from the objective to the subjective and from the physical act to the interpreted thought are in reality best viewed as a preparation of the legal code for the daily operations of an unpopular regime.

The kind of rulers who insist on these changes to how the criminal justice system works know how deeply unpopular with the general public their positions are, and how difficult it is for them to keep pretending that their policies are the ones any majority of the public voted for. So ultimately they know that these policies have to be forced and coerced.

They know that they are hated, so they define hate as a crime.

Daniel Jupp is the author of A Gift for Treason: The Cultural Marxist Assault on Western Civilisation, which was published in 2019. He has had previous articles published by Spiked, The Spectator and Politicalite, and is a married father of two from Essex.