What are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era
Oxford Journal of Legal Studies, Vol. 30, No. 4, pp. 695-723, 2010
29 Pages Posted: 3 Jul 2011
Date Written: September 23, 2010
In recent multicultural conflicts, such as the Danish Muhammad cartoons affair and the religious controversy about having a gay pride parade in the holy city of Jerusalem, religious minority members have argued that certain acts should be prohibited because they offend their religious and cultural feelings. According to the orthodox view in current liberal thought, however, there should be no legal protection from mere insult to feelings and sensibilities, as related to sacred religious and cultural values as they may be. In this paper I challenge this view. I argue that certain offensive acts ought to be legally regulated and propose a normative principle for their regulation, which is consistent with neutral liberalism.
I argue that some claims of offence to feelings boil down to a struggle for equality in the public sphere between competing cultural identities. I conceptualize such claims as claims that purport to protect people’s right in the integrity of their cultural identity. I suggest the vulnerable cultural identity principle, according to which the more vulnerable the social and civic status of one’s cultural identity is, the stronger her claim is from integrity of cultural identity. I argue that this principle avoids the problems of legal moralism and the subjectivity in evaluating painful feelings.
Keywords: offence to feelings, multiculturalism, Muhammad cartoons, cultural identity, toleration
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