Equality, Assurance and Criminalization

21 Pages Posted: 2 Mar 2014

See all articles by Vincent Chiao

Vincent Chiao

University of Toronto - Faculty of Law

Date Written: February 28, 2014

Abstract

The criminal law has at least two goals: to provide a degree of protection to a variety of individual and collective interests, and to communicate to those to whom it applies that those interests are protected. The question I consider is whether the criminal law should be used to advance the second goal independently of its use in advancing the first. Drawing on what I refer to as non-comparative egalitarianism, I argue that it should not. After developing a general argument for this claim, I turn to considering its implications for the criminalization of hate speech, focusing specifically on a line of argument found both in the Supreme Court of Canada’s s.2 jurisprudence as well as Jeremy Waldron’s recent book, The Harm in Hate Speech. I also briefly consider a structurally similar, but broader argument – recently defended by Alon Harel – which suggests that there is a constitutional duty to criminalize conduct that would, if engaged in, interfere with a person’s dominion over how her life goes, regardless of whether criminalization would or would not drive down the actual incidence of the targeted conduct. I claim that egalitarians should not recognize any such duty.

Keywords: criminal law, hate speech, equality, Waldron

Suggested Citation

Chiao, Vincent, Equality, Assurance and Criminalization (February 28, 2014). Canadian Journal of Law and Jurisprudence, Vol. 27, No. 1, 2014, Available at SSRN: https://ssrn.com/abstract=2403074

Vincent Chiao (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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