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Eric Heinze

Queen Mary, University of London, Law, Faculty Member

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Eric Heinze is Professor of Law, QMUL (Maitrise, Paris; JD, Harvard; PhD, Leiden; Fulbright, DAAD, Chateaubriand) and Project Leader for the four nation EU consortium Memory Laws in European and Comparative Perspective. His books include Hate Speech and Democratic Citizenship (OUP, 2016), The Concept of Injustice (Routledge, 2013), The Logic of Constitutional Rights (Ashgate, 2005); The Logic of Liberal Rights (Routledge, 2003); The Logic of Equality (Ashgate, 2003); Sexual Orientation: A Human Right (Nijhoff, 1995), and Of Innocence and Autonomy: Children, Sex and Human Rights (ed. Ashgate, 2000). His articles appear in Oxford Journal of Legal Studies, Harvard Human Rights Journal, Modern Law Review, Ratio Juris, Legal Studies, Law & Literature, Law & Humanities, International Journal of Law in Context, Michigan Journal of International Law, National Black Law Journal, Journal of Social & Legal Studies, Law & Critique, Canadian Journal of Law & Jurisprudence.

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Books by Eric Heinze

The Most Human Right Why Free Speech Is Everything (Pre-publication excerpt of Chapter One, The MIT Press, 2022)

The Most Human Right Why Free Speech Is Everything , 2022

Throughout history countless systems of justice have promised to deliver human goods. So what mak... more Throughout history countless systems of justice have promised to deliver human goods. So what makes human rights different? What must human rights have that other systems have lacked? International human rights have collapsed through our ongoing failures to distinguish between goods and rights. Human goods become objects of human rights only when citizens can claim them publicly. Free speech is not just another right on the human rights checklist, but rather is the singular element that distinguishes a human rights regime from other models of justice. In failing to draw these basic distinctions, international organizations may well steward state-dominated, managerial regimes of human goods, but have foregone the possibility of creating citizen-directed regimes of human rights.

Global Libertarianism: How Much Public Morality Does International Human Rights Law Allow

Book Review: Hate Speech and Democratic Citizenship

In this essay, published in the LSE Review of Books, Andrew Reid reviews some of the basic elemen... more

Hate Speech and Democratic Citizenship

Most modern democracies punish hate speech. Less freedom for some, they claim, guarantees greater... more Most modern democracies punish hate speech. Less freedom for some, they claim, guarantees greater freedom for others. This book rejects that approach, arguing that democracies have better ways of combatting violence and discrimination against vulnerable groups without having to censor speakers. Critiquing dominant free speech theories, the book explains that free expression must be safeguarded not just as an individual right, but as an essential attribute of democratic citizenship. The book challenges contemporary state regulation of public discourse by promoting a stronger theory of what democracy is and what it demands. Examining US, European and international approaches,

The Concept of Injustice

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and A... more The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

The Logic of Liberal Rights

The Logic of Liberal Rights uses basic logic to develop a model of argument presupposed in all di... more The Logic of Liberal Rights uses basic logic to develop a model of argument presupposed in all disputes about civil rights and liberties. No prior training in logic is required, as each step is explained. This analysis does not merely apply general logic to legal arguments but is also specifically tailored to the issues of civil rights and liberties. It shows that all arguments about civil rights and liberties presuppose one fixed structure and that there can be no original argument in rights disputes, except within the confines of that structure. Concepts arising in disputes about rights, like 'liberal' or 'democratic', are not mere abstractions but have a fixed and precise character.
This book integrates themes in legal theory, political science and moral philosophy, as well as the philosophy of logic and language. For the advanced scholar, the book provides a model presupposed by leading theoretical schools (liberal and critical, positivist and naturalist). For the student it provides a systematic theory of civil rights and liberties. Examples are drawn from the European Convention in Human Rights but no special knowledge of the Convention is assumed, as the issues analysed arise throughout the world. Such issues include problems of free speech, religious freedom, privacy, torture, unlawful detention and private property.

The Logic of Equality

This work proposes a formal-logical method for examining the indeterminacy of legal discourse, us... more This work proposes a formal-logical method for examining the indeterminacy of legal discourse, using the example of the non-discrimination norm. It shows that the indeterminacy of a legal concept does not mean that it is completely chaotic - the indeterminacy of the non-discrimination norm arises out of, and presupposes, a determinate formal structure, which remains fixed and constant both within and across jurisdictions, regardless of institutional or doctrinal differences. To illustrate the argument, cases are presented from a variety of jurisdictions including the United States Supreme Court, the European Court of Human Rights, the European Court of Justice, and the German Constitutional Court. The book is aimed at theorists who are interested in the analysis of legal discourse, including comparative legal scholars and those who specialise in human rights and/or discrimination law.

The Logic of Constitutional Rights

Individual rights raise endless conflicts and spawn intricate standards and policies. Increasing ... more Individual rights raise endless conflicts and spawn intricate standards and policies. Increasing involvement by courts has added still greater complexity. It would seem that few meaningful principles can unite an area of law plagued by such uncertainty. In this book the author argues that a fixed structure underlies that complexity, determining the kinds of arguments that can be made about individual rights. Examples are drawn from the world's oldest and most intricate body of law on civil rights and liberties: the case law of the United States Supreme Court. Yet the model is designed to account for any legal system that recognizes civil rights and liberties. The author applies techniques of logical analysis (although no prior knowledge of logic is required) to identify a deeper discursive structure. He shows how simple concepts of harm and consent, which do not ordinarily appear to be relevant in all cases, provide unity within and across regimes of individual rights.

Of Innocence and Autonomy: Children, Sex and Human Rights

This anthology of essays focuses on the human rights of children in the area of sexuality. Lookin... more This anthology of essays focuses on the human rights of children in the area of sexuality. Looking at the theoretical aspects, essays examine the history and construction of concepts of childhood and child sexuality, while other essays take an interdisciplinary approach, examining anthropological, sociological, psychological and economic perspectives on law and childhood sexuality. Specific problems that arise in litigation and judicial practice are looked at in more detail, and in some cases, comparative and international approaches are taken to the examination of law reform and initiatives in selected countries and in international organizations.

Sexual Orientation: A Human Right

Sexual Orientation: A Human Right, 1995

This text examines sexual orientation from the viewpoint of international human rights law. It do... more This text examines sexual orientation from the viewpoint of international human rights law. It does not simply "create" a platform of rights and argue for their "introduction" in human rights law. Rather, it examines how extant international norms should be construed to include rights against discrimination on the basis of sexual orientation, including rights of privacy, equality, speech, expression and association. It raises questions of cultural relativism, religious faith, social science and legal theory. It should be of interest to international jurists, human rights organizations, gay rights organizations, constitutional scholars and anyone interested in expanding the role of international human rights law as a formidable adversary of persecution and discrimination throughout the world.

Articles and Chapters: Legal Theory by Eric Heinze

Critical Theory and Memory Politics: Leftist Autocritique After the Ukraine War

International Journal of Law in Context , 2023

In recent years, Western governments have invoked the values of universal human rights to justify... more In recent years, Western governments have invoked the values of universal human rights to justify various military operations. Critical theorists have often responded that these campaigns serve not to promote peace, stability, or prosperity, but to entrench Western economic and political power, often in ways that have been devastating for local populations. Yet Russia's 2022 invasion of Ukraine casts doubt on whether assumptions about Western dominance can continue to furnish adequate accounts of global armed conflict. Critical theorists base many of their views on what is sometimes called 'memory politics', meaning that they cite histories of Western militarism, colonialism, racism, and economic exploitation as backdrops to current policies. Yet in this article it is argued that critical theorists will only be able to explain a conflict like the Ukraine war credibly by incorporating into their memory politics the left's own histories of supporting autocratic regimes.

What is ‘dehumanising’ speech?

Free Speech Debate, Feb 18, 2019

Some speech can certainly serve to dehumanise others, in the sense of arbitrarily treating them a... more Some speech can certainly serve to dehumanise others, in the sense of arbitrarily treating them as subordinate or marginal members of society. Presumably such speech can be banned from the standpoint of a politics that does *not* dehumanise. But is there such a thing? And if not, does campus no-platforming simply mean that one potentially oppressive politics is censored in the name of another?

Towards a Post-Liberal Theory of Free Speech

Debates about free expression commonly divide along clear lines. At one end, a longstanding civi... more Debates about free expression commonly divide along clear lines. At one end, a longstanding civil libertarian tradition applies some version of John Stuart Mill’s famous harm principle – even when its adherents don’t use that phrase and haven’t even read Mill. Government, they claim, must not censor repugnant ideas. Since the late 20th century, post-colonial, black empowerment, radical feminist, queer, and other critical movements have waged forceful challenges to that tradition. They have questioned the liberal assumption that all citizens can speak with equal voices within an open ‘marketplace’ of ideas. Those dichotomies between "liberal" and "critical", far from surpassing the classical paradigm, only ever entrench it, leading to perpetual impasses in debates about free speech. This piece seeks new terms for the debate, suggesting that a "democratic" view does not necessarily collapse either into a straightforward majoritarian or a liberal one.

The Literary Model in Comparative Law

Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledg... more Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledged assumptions about geography and history. Comparative law enters as a corrective. It tempers unwarranted notions about such basic concepts as ‘norm’, ‘practice’, ‘power’, ‘process’, or ‘procedure’. This essay does not propose any systematic method for scrutinising such concepts. It instead examines possible insights offered by a comparative literary model, which can shed some light on the methods of comparative law. Brief examples from Shakespeare, Racine, and Corneille are introduced to identify obstacles of universality and relativism—or rather, of ‘comparative continuity’ and ‘comparative discontinuity’—as they arise relative to the emergence of the nation state in late 16th and 17th century Western Europe.

Selecting the Memory, Controlling the Myth: The Propaganda of Legal Foundations in Early Modern Drama

Political mythology is always a reconstruction of historical memory. That process becomes crucial... more Political mythology is always a reconstruction of historical memory. That process becomes crucial at times of systemic political and legal re-constitution. We witness such a political moment in Western Europe in the late 16 th and 17 th centuries with the emergence of political modernity and the nation state. It is no accident that, in those years, theatre becomes a dominant art form, in which historical memory becomes ritually re-enacted to crystallise the political and social myths which will furnish European legal regimes with value systems. The Shakespearean Henry IV: Part One and The Tempest, along with Jean Racine's Andromaque, are examined as evidence for that transformation from memory into myth, and history into normativity.

Review by Adrian Howe of Eric Heinze, "The Concept of Injustice"

by Adrian Howe's review of Eric Heinze's "The Concept of Injustice", published in Legal Studies (... more

Law and Historical Memory: Theorising the Discipline

The post-Cold War world has witnessed a flurry of scholarship about states’ recourse to legal mea... more The post-Cold War world has witnessed a flurry of scholarship about states’ recourse to legal means of shaping public consciousness about the past. The field of law and historical memory has emerged largely out of controversies surrounding norms taking a conventionally punitive form, in particular, criminal bans on Holocaust denial. To move beyond that familiar model is to appreciate other, less obvious yet more powerful forms of law. Law proceeds not merely, or even primarily, through criminal sanctions – the baton-wielding cop lurking behind our every move. Rather, law largely operates through less overtly punitive yet more systemic channels, such as schools and media. a government’s attitude towards law and historical memory becomes a crucial, perhaps even the crucial, benchmark of its attitudes towards human rights and towards the legitimacy of the legal regime over which it presides.

Theorising law and historical memory: Denialism and the pre-conditions of human rights

States’ efforts to mould historical memory have long attracted scholarly attention. In recent ye... more States’ efforts to mould historical memory have long attracted scholarly attention. In recent years, however, a focus on the role of legal norms and mechanisms as tools in those efforts has steadily sharpened. Most scholarship examines that role through particularist analyses, narrowing a specific period of history down to some particular state or region. As such studies accumulate, however, more general patterns emerge. This article explores not any such particular situation, but instead pursues a project of theorising the discipline of law and historical memory as a whole. One conspicuously shared element, particularly within the framework of modern states, is that the histories examined directly involve or ultimately trace back to human rights abuses. As a general matter, then, states’ efforts to deny past or ongoing conduct certainly pose a pragmatic obstacle by obstructing investigations into abuses. Yet it is argued in this article that the relationship between denialism and human rights is (in a Kantian-Habermasian sense) transcendental: the very possibility for the existence of a human rights system presupposes a sphere for open, public scrutiny of state conduct. That condition is not ‘all or nothing’: the extent to which a human rights system becomes possible depends upon the extent of that sphere of public discourse. Unsurprisingly, states with the best human rights records also maintain the types of open public spheres which most reliably ensue against state denials of human rights violations, and thereby provide models of best practice.

Recognition, Denial, and Human Rights: Theoretical Approaches - 24 May 2018 Workshop in London

by Nanor Kebranian, Eric Heinze, Elizabeth Nolte, Ioanna Tourkochoriti, Eldad Ben-Aharon, and Ceren Ozgul

This one-day workshop considers how human rights affect and are affected by recognitions and deni... more This one-day workshop considers how human rights affect and are affected by recognitions and denials of historical atrocities. Do recognitions of past crimes ensure the protection of human rights among perpetrator states? Do denials of such crimes undermine these rights? What kinds of rights must be in place to promote recognitions of difficult pasts?

Karl Marx's theory of free speech

Controversy has arisen on the left around attempts to curb provocative expression, particularly h... more Controversy has arisen on the left around attempts to curb provocative expression, particularly hate speech directed at vulnerable social groups. Yet that coupling of leftism with censorship is historically recent. Karl Marx, stemming from a converted family, was maligned both for ‘being’ and ‘looking’ Jewish. He knew all about 'powerful interests' and all about offensive speech. Yet he makes abundantly clear his rejection of censorship. The " property right " paradigm does indeed represent the type of individual right that Marx pervasively condemns because he condemns the underlying socioeconomic interest. But Marx also tacitly adopts a second paradigm, called here a " free speech " paradigm, to represent interests that Marx by no means rejects. For those interests —including free speech, freedom of torture, and other essential goods—Marx condemns rights not because he rejects the concomitant interests but, to the contrary, because he sees the right as betraying an utterly vital interest.

The Most Human Right Why Free Speech Is Everything (Pre-publication excerpt of Chapter One, The MIT Press, 2022)

The Most Human Right Why Free Speech Is Everything , 2022

Throughout history countless systems of justice have promised to deliver human goods. So what mak... more Throughout history countless systems of justice have promised to deliver human goods. So what makes human rights different? What must human rights have that other systems have lacked? International human rights have collapsed through our ongoing failures to distinguish between goods and rights. Human goods become objects of human rights only when citizens can claim them publicly. Free speech is not just another right on the human rights checklist, but rather is the singular element that distinguishes a human rights regime from other models of justice. In failing to draw these basic distinctions, international organizations may well steward state-dominated, managerial regimes of human goods, but have foregone the possibility of creating citizen-directed regimes of human rights.

Global Libertarianism: How Much Public Morality Does International Human Rights Law Allow

Book Review: Hate Speech and Democratic Citizenship

In this essay, published in the LSE Review of Books, Andrew Reid reviews some of the basic elemen... more

Hate Speech and Democratic Citizenship

Most modern democracies punish hate speech. Less freedom for some, they claim, guarantees greater... more Most modern democracies punish hate speech. Less freedom for some, they claim, guarantees greater freedom for others. This book rejects that approach, arguing that democracies have better ways of combatting violence and discrimination against vulnerable groups without having to censor speakers. Critiquing dominant free speech theories, the book explains that free expression must be safeguarded not just as an individual right, but as an essential attribute of democratic citizenship. The book challenges contemporary state regulation of public discourse by promoting a stronger theory of what democracy is and what it demands. Examining US, European and international approaches,

The Concept of Injustice

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and A... more The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

The Logic of Liberal Rights

The Logic of Liberal Rights uses basic logic to develop a model of argument presupposed in all di... more The Logic of Liberal Rights uses basic logic to develop a model of argument presupposed in all disputes about civil rights and liberties. No prior training in logic is required, as each step is explained. This analysis does not merely apply general logic to legal arguments but is also specifically tailored to the issues of civil rights and liberties. It shows that all arguments about civil rights and liberties presuppose one fixed structure and that there can be no original argument in rights disputes, except within the confines of that structure. Concepts arising in disputes about rights, like 'liberal' or 'democratic', are not mere abstractions but have a fixed and precise character.
This book integrates themes in legal theory, political science and moral philosophy, as well as the philosophy of logic and language. For the advanced scholar, the book provides a model presupposed by leading theoretical schools (liberal and critical, positivist and naturalist). For the student it provides a systematic theory of civil rights and liberties. Examples are drawn from the European Convention in Human Rights but no special knowledge of the Convention is assumed, as the issues analysed arise throughout the world. Such issues include problems of free speech, religious freedom, privacy, torture, unlawful detention and private property.

The Logic of Equality

This work proposes a formal-logical method for examining the indeterminacy of legal discourse, us... more This work proposes a formal-logical method for examining the indeterminacy of legal discourse, using the example of the non-discrimination norm. It shows that the indeterminacy of a legal concept does not mean that it is completely chaotic - the indeterminacy of the non-discrimination norm arises out of, and presupposes, a determinate formal structure, which remains fixed and constant both within and across jurisdictions, regardless of institutional or doctrinal differences. To illustrate the argument, cases are presented from a variety of jurisdictions including the United States Supreme Court, the European Court of Human Rights, the European Court of Justice, and the German Constitutional Court. The book is aimed at theorists who are interested in the analysis of legal discourse, including comparative legal scholars and those who specialise in human rights and/or discrimination law.

The Logic of Constitutional Rights

Individual rights raise endless conflicts and spawn intricate standards and policies. Increasing ... more Individual rights raise endless conflicts and spawn intricate standards and policies. Increasing involvement by courts has added still greater complexity. It would seem that few meaningful principles can unite an area of law plagued by such uncertainty. In this book the author argues that a fixed structure underlies that complexity, determining the kinds of arguments that can be made about individual rights. Examples are drawn from the world's oldest and most intricate body of law on civil rights and liberties: the case law of the United States Supreme Court. Yet the model is designed to account for any legal system that recognizes civil rights and liberties. The author applies techniques of logical analysis (although no prior knowledge of logic is required) to identify a deeper discursive structure. He shows how simple concepts of harm and consent, which do not ordinarily appear to be relevant in all cases, provide unity within and across regimes of individual rights.

Of Innocence and Autonomy: Children, Sex and Human Rights

This anthology of essays focuses on the human rights of children in the area of sexuality. Lookin... more This anthology of essays focuses on the human rights of children in the area of sexuality. Looking at the theoretical aspects, essays examine the history and construction of concepts of childhood and child sexuality, while other essays take an interdisciplinary approach, examining anthropological, sociological, psychological and economic perspectives on law and childhood sexuality. Specific problems that arise in litigation and judicial practice are looked at in more detail, and in some cases, comparative and international approaches are taken to the examination of law reform and initiatives in selected countries and in international organizations.

Sexual Orientation: A Human Right

Sexual Orientation: A Human Right, 1995

This text examines sexual orientation from the viewpoint of international human rights law. It do... more This text examines sexual orientation from the viewpoint of international human rights law. It does not simply "create" a platform of rights and argue for their "introduction" in human rights law. Rather, it examines how extant international norms should be construed to include rights against discrimination on the basis of sexual orientation, including rights of privacy, equality, speech, expression and association. It raises questions of cultural relativism, religious faith, social science and legal theory. It should be of interest to international jurists, human rights organizations, gay rights organizations, constitutional scholars and anyone interested in expanding the role of international human rights law as a formidable adversary of persecution and discrimination throughout the world.

Critical Theory and Memory Politics: Leftist Autocritique After the Ukraine War

International Journal of Law in Context , 2023

In recent years, Western governments have invoked the values of universal human rights to justify... more In recent years, Western governments have invoked the values of universal human rights to justify various military operations. Critical theorists have often responded that these campaigns serve not to promote peace, stability, or prosperity, but to entrench Western economic and political power, often in ways that have been devastating for local populations. Yet Russia's 2022 invasion of Ukraine casts doubt on whether assumptions about Western dominance can continue to furnish adequate accounts of global armed conflict. Critical theorists base many of their views on what is sometimes called 'memory politics', meaning that they cite histories of Western militarism, colonialism, racism, and economic exploitation as backdrops to current policies. Yet in this article it is argued that critical theorists will only be able to explain a conflict like the Ukraine war credibly by incorporating into their memory politics the left's own histories of supporting autocratic regimes.

What is ‘dehumanising’ speech?

Free Speech Debate, Feb 18, 2019

Some speech can certainly serve to dehumanise others, in the sense of arbitrarily treating them a... more Some speech can certainly serve to dehumanise others, in the sense of arbitrarily treating them as subordinate or marginal members of society. Presumably such speech can be banned from the standpoint of a politics that does *not* dehumanise. But is there such a thing? And if not, does campus no-platforming simply mean that one potentially oppressive politics is censored in the name of another?

Towards a Post-Liberal Theory of Free Speech

Debates about free expression commonly divide along clear lines. At one end, a longstanding civi... more Debates about free expression commonly divide along clear lines. At one end, a longstanding civil libertarian tradition applies some version of John Stuart Mill’s famous harm principle – even when its adherents don’t use that phrase and haven’t even read Mill. Government, they claim, must not censor repugnant ideas. Since the late 20th century, post-colonial, black empowerment, radical feminist, queer, and other critical movements have waged forceful challenges to that tradition. They have questioned the liberal assumption that all citizens can speak with equal voices within an open ‘marketplace’ of ideas. Those dichotomies between "liberal" and "critical", far from surpassing the classical paradigm, only ever entrench it, leading to perpetual impasses in debates about free speech. This piece seeks new terms for the debate, suggesting that a "democratic" view does not necessarily collapse either into a straightforward majoritarian or a liberal one.

The Literary Model in Comparative Law

Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledg... more Legal theory, if it is to attain any level of generality, makes difficult, sometimes unacknowledged assumptions about geography and history. Comparative law enters as a corrective. It tempers unwarranted notions about such basic concepts as ‘norm’, ‘practice’, ‘power’, ‘process’, or ‘procedure’. This essay does not propose any systematic method for scrutinising such concepts. It instead examines possible insights offered by a comparative literary model, which can shed some light on the methods of comparative law. Brief examples from Shakespeare, Racine, and Corneille are introduced to identify obstacles of universality and relativism—or rather, of ‘comparative continuity’ and ‘comparative discontinuity’—as they arise relative to the emergence of the nation state in late 16th and 17th century Western Europe.

Selecting the Memory, Controlling the Myth: The Propaganda of Legal Foundations in Early Modern Drama

Political mythology is always a reconstruction of historical memory. That process becomes crucial... more Political mythology is always a reconstruction of historical memory. That process becomes crucial at times of systemic political and legal re-constitution. We witness such a political moment in Western Europe in the late 16 th and 17 th centuries with the emergence of political modernity and the nation state. It is no accident that, in those years, theatre becomes a dominant art form, in which historical memory becomes ritually re-enacted to crystallise the political and social myths which will furnish European legal regimes with value systems. The Shakespearean Henry IV: Part One and The Tempest, along with Jean Racine's Andromaque, are examined as evidence for that transformation from memory into myth, and history into normativity.

Review by Adrian Howe of Eric Heinze, "The Concept of Injustice"

by Adrian Howe's review of Eric Heinze's "The Concept of Injustice", published in Legal Studies (... more

Law and Historical Memory: Theorising the Discipline

The post-Cold War world has witnessed a flurry of scholarship about states’ recourse to legal mea... more The post-Cold War world has witnessed a flurry of scholarship about states’ recourse to legal means of shaping public consciousness about the past. The field of law and historical memory has emerged largely out of controversies surrounding norms taking a conventionally punitive form, in particular, criminal bans on Holocaust denial. To move beyond that familiar model is to appreciate other, less obvious yet more powerful forms of law. Law proceeds not merely, or even primarily, through criminal sanctions – the baton-wielding cop lurking behind our every move. Rather, law largely operates through less overtly punitive yet more systemic channels, such as schools and media. a government’s attitude towards law and historical memory becomes a crucial, perhaps even the crucial, benchmark of its attitudes towards human rights and towards the legitimacy of the legal regime over which it presides.

Theorising law and historical memory: Denialism and the pre-conditions of human rights

States’ efforts to mould historical memory have long attracted scholarly attention. In recent ye... more States’ efforts to mould historical memory have long attracted scholarly attention. In recent years, however, a focus on the role of legal norms and mechanisms as tools in those efforts has steadily sharpened. Most scholarship examines that role through particularist analyses, narrowing a specific period of history down to some particular state or region. As such studies accumulate, however, more general patterns emerge. This article explores not any such particular situation, but instead pursues a project of theorising the discipline of law and historical memory as a whole. One conspicuously shared element, particularly within the framework of modern states, is that the histories examined directly involve or ultimately trace back to human rights abuses. As a general matter, then, states’ efforts to deny past or ongoing conduct certainly pose a pragmatic obstacle by obstructing investigations into abuses. Yet it is argued in this article that the relationship between denialism and human rights is (in a Kantian-Habermasian sense) transcendental: the very possibility for the existence of a human rights system presupposes a sphere for open, public scrutiny of state conduct. That condition is not ‘all or nothing’: the extent to which a human rights system becomes possible depends upon the extent of that sphere of public discourse. Unsurprisingly, states with the best human rights records also maintain the types of open public spheres which most reliably ensue against state denials of human rights violations, and thereby provide models of best practice.

Recognition, Denial, and Human Rights: Theoretical Approaches - 24 May 2018 Workshop in London

by Nanor Kebranian, Eric Heinze, Elizabeth Nolte, Ioanna Tourkochoriti, Eldad Ben-Aharon, and Ceren Ozgul

This one-day workshop considers how human rights affect and are affected by recognitions and deni... more This one-day workshop considers how human rights affect and are affected by recognitions and denials of historical atrocities. Do recognitions of past crimes ensure the protection of human rights among perpetrator states? Do denials of such crimes undermine these rights? What kinds of rights must be in place to promote recognitions of difficult pasts?

Karl Marx's theory of free speech

Controversy has arisen on the left around attempts to curb provocative expression, particularly h... more Controversy has arisen on the left around attempts to curb provocative expression, particularly hate speech directed at vulnerable social groups. Yet that coupling of leftism with censorship is historically recent. Karl Marx, stemming from a converted family, was maligned both for ‘being’ and ‘looking’ Jewish. He knew all about 'powerful interests' and all about offensive speech. Yet he makes abundantly clear his rejection of censorship. The " property right " paradigm does indeed represent the type of individual right that Marx pervasively condemns because he condemns the underlying socioeconomic interest. But Marx also tacitly adopts a second paradigm, called here a " free speech " paradigm, to represent interests that Marx by no means rejects. For those interests —including free speech, freedom of torture, and other essential goods—Marx condemns rights not because he rejects the concomitant interests but, to the contrary, because he sees the right as betraying an utterly vital interest.

Beyond 'memory laws': Towards a general theory of law and historical discourse

There are countless ways in which law shapes public awareness of history. The concept of 'memory ... more There are countless ways in which law shapes public awareness of history. The concept of 'memory laws' denotes only a small subset, and even that concept breaks down into several types. We must distinguish, for example, between non-regulatory and regulatory norms; and, as to the latter, between the punitive and the non-punitive. More importantly, we must identify law's effect on historical memory even where no such consecrated law is in question. Despite differences of approach and cultural context, a shared, arguably defining feature of law as a tool of historical memory is that it adds expressive weight to a preferred version of history while rarely if ever adding substantive weight. Public discourse about history may ideally be unlimited as to time and viewpoints aired, but ends up in practice inevitably limited by sheer temporal and material constraints, rendering law's weighting role within public discourse often appreciable and sometimes decisive.

What is the opposite of injustice?

Ratio Juris., 2017

Scholars have long assailed binary notions of justice by challenging dichotomies between, for exa... more Scholars have long assailed binary notions of justice by challenging dichotomies between, for example, superior and inferior classes, ethnicities, or sexualities. What has remained intact is the seemingly obvious assumption of mutual exclusion between the concepts of justice and injustice. That logical distinction is expressly articulated with the very birth of programmatic Western social theory in ancient Greece and it persists still. Within any classical programmatic model, injustice emerges as a sheer imperfection in the achievement of that model's conception or conceptions of justice. We come to view that concept of injustice as logically obvious. But the programmatic tradition exemplifies that logic of mutual exclusion even within existing, positive legal systems. Contrary to that tradition, it is argued here that injustice must be construed not merely as the inadequate realisation of one or more given conceptions of justice, but more importantly as the product of those same conceptions.

Foundations of Sovereign Authority: The Example of Shakespearean Political Drama

Shakespeare and Authority (K Halsey & A Vine, eds) (Palgrave Macmillan)

As post-Renaissance Europe creates modern concepts of statehood and sovereignty, figures like Bod... more As post-Renaissance Europe creates modern concepts of statehood and sovereignty, figures like Bodin, Grotius, and Hobbes undertake 'constructive', system-building theories of sovereign authority. Dramatists, in the meantime, are de-constructing sovereignty by unsettling the divergent bases of authority and legitimacy claimed for it. Concepts like 'rule of law', 'popular consent', or 'natural law' often serve to characterise rival legitimacy claims, but such concepts' scope and interrelationships can be vague. This essay proposes a vocabulary and topology of legal and political authority within early modern drama. Two core categories—'right' and 'duty'—are introduced to analyse legitimacy claims more precisely. Those, in turn, attach to twin normative claims, identified as legal 'transcendence' and legal 'positivity'. Hence four basic types of legitimacy claims, each constantly defining itself in contrast to the others: 'transcendent right', 'transcendent duty', 'positive right', and 'positive duty'. As those exercising or seeking power manoeuvre through their various legitimacy claims, they enact the scope and limits of the claims themselves, pointing us towards 'deconstructive' theories of sovereign authority.

Towards a Legal Concept of Hatred: Democracy, Ontology, and the Limits of Deconstruction

Discrimination law focuses on material conduct. A legal concept of hatred, by contrast, focuses o... more Discrimination law focuses on material conduct. A legal concept of hatred, by contrast, focuses on attitudes, as manifest most notably through hate speech bans. Democracies by definition assign higher-law status to expression within public discourse. Such expression can, in principle, be legally curtailed only through a showing that it would likely cause some legally cognisable 'harm'. Defenders of bans have overtly or tacitly appealed to 'anti-Cartesian' phenomenological and socio-linguistic theories to challenge dominant norms which largely limit such harm to demonstrable material causation. Such notions of harm cannot, however, be reconciled with higher-law norms barring viewpoint-selective penalties on expression. Still, a democracy retains alternative means of combating hateful attitudes, including formal and public educational policy, and codes of professional practice in the public and private sectors.

The Logic of Liberal Rights: Introduction to the Chinese Translation

The Logic of Liberal Rights was first published in 2003. In the Introduction to the Chinese edit... more The Logic of Liberal Rights was first published in 2003. In the Introduction to the Chinese edition, I review basic elements of the formal analysis of rights-based arguments. (Published 2018 in the series Western Classics of Legal Logic, University of China Political Science & Law Press, translated by Yu Shiyang)

Equality and Dialectic in Law

This brief essay—although originally written for the Chinese translation of The Logic of Equality... more This brief essay—although originally written for the Chinese translation of The Logic of Equality—offers a general statement of the role of formal analysis for legal theory, particularly for theorists unfamiliar with formal methods. Using the example of equality (and with the help of familiar distinctions between a 'concept' and a 'conception') it is argued that the well-known problem of indeterminacy in legal norms, particularly of the broader types of norms associated with human rights, must always be understood as a relationship between the norm's necessarily indeterminate conceptions and its necessarily determinate concept. Human rights in general, and equality norms in particular, are most frequently analysed with respect to broader policy contexts, including the weighing and balancing of competing social or political interests. The role of formal analysis is not to deny the decisive importance of those cultural contexts, but solely to pinpoint the extent to which a specific legal norm must or can bend to policy concerns. The equality norm illustrates the dialectics of social dynamics working their way through a norm's formal expression. The formally determinate concept of equality ends up supplying the very possibility for particular, purely conventional conceptions of equality and inequality—in blackletter law as well as actual legal practice—to come under ever renewed scrutiny and to remain open for revision. (Publication 2017 as part of the series Western Classics of Legal Logic, University of China Political Science & Law Press, translated by Xu Mengxing)

The Logic of Constitutional Rights: Introduction to the Chinese edition

The Logic of Constitutional Rights was first published in 2005. In the Introduction to the Chine... more The Logic of Constitutional Rights was first published in 2005. In the Introduction to the Chinese edition I briefly discuss the interest of applying formal analysis to the rights jurisprudence of the US Constitution. (Publication 2019 in the series Western Classics of Legal Logic, University of China Political Science & Law Press, translated by Wang Jianfang)

Legal Hybridity in Shakespeare: Revisiting the Post-Colonial in The Tempest and Cymbeline

If post-colonialism figures among the decisive political and intellectual movements of the 20th c... more If post-colonialism figures among the decisive political and intellectual movements of the 20th century, then ‘hybridity’ is rapidly distinguishing the 21st. Where post-colonial theory had focussed on destruction and appropriation, hybridity focuses on exchange, examining the processes of mutual discovery and influence between imperial and vassal cultures. Never has a literary classic—already several hundred years old—so powerfully spurred an historical movement as did Shakespeare’s Tempest for mid-20th century post-colonialism. (A leading figure like the Martiniquais poet and statesman Aimé Césaire would altogether re-write the play to mirror that simultaneously political and intellectual revolution.) This essay witnesses the progression of post-colonial theory into the new century. If The Tempest long stood as ‘the’ post-colonial drama in the Shakespearean corpus, it can now re-join the lesser known Cymbeline, which was written around the same time and serves largely as a companion piece. Together the two plays elicit the distinctly hybrid nature of cultural exchange within imperial power structures.

Book Review of Leone Niglia: "The Struggle for European Private Law: A Critique of Codification"

by Andreas Marcou and Eric Heinze

Controversies around the European Commission’s attempt to codify European Union private law now u... more Controversies around the European Commission’s attempt to codify European Union private law now usher the codification saga into the twenty-first century. Much EU scholarship has focused on the adoption of the Draft Common Frame of Reference or its shortened version, the Optional Sales Law Code. In "The Struggle for European Private Law", Leone Niglia launches a searching critique that revisits the very notion of codification’s distinctly legislative paradigm. That model is, on his view, fundamentally flawed. The true function of a code goes missing. In order to grasp the full effects of codification, and to comprehend the purpose and function of some final text, we must, Niglia argues, shift our attention away from that legislative paradigm, towards what he identifies as a jurisprudential model. Codification becomes comprehensible, he suggests, only through an analysis – neglected in the existing literature – of jurisprudential actors within the process, such as judges and scholars.

REVIEW ESSAY, Schulte-Tenckhoff.., La question des peuples autochtones

Netherlands International Law Review, 1999

... Dr Eric Heinze a1 26. a1 Faculty of Laws, Queen Mary and Westfield College, University of Lon... more

No-platforming and safe spaces: Should universities censor more (or less) speech than the law requires

How should higher education respond to legally mandated limits on hateful, discriminatory, or pro... more How should higher education respond to legally mandated limits on hateful, discriminatory, or provocative speech? Should public universities fortify government rules in the name of equal dignity for vulnerable groups, by imposing even further restrictions of their own? Or should they oppose such restrictions in the name of free speech? Or should they do neither, seeking neither amplification nor repeal, instead simply joining in whatever the government status quo happens to be, as they would do with most other background legal rules? This article advocates the second position: through a brief examination of 'no-platforming' and 'safe space' polices, it is argued that, within fully-fledged democracies, viewpoint-selective censorship is always indefensible for higher education. Examples are drawn from high-profile controversies involving far-right speakers as well as pro-and anti-Israel speech. Viewpoint-based censorship generates one of two scenarios, neither of which coheres with the mission of higher education. One the one hand, no-platformers' declared principles could never be applied with ethical coherence without becoming so broad as to require massive censorship. On the other hand, if those principles are to apply only rarely, then they lose internal consistency and become outright ad hoc impositions of campus decision-makers' own political preferences.

An anti-liberal defence of free speech

Western democracies determine the extent and limits of free expression largely within rights-base... more Western democracies determine the extent and limits of free expression largely within rights-based frameworks. As captured by Mill's classically liberal 'harm principle', expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Yet we can identify distinctly democratic principles very different from the standard liberal principles. Revisiting democratic theory, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato's Crito presents the West's first systematic enquiry into the question of legal legitimacy – that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.

Book Review of "Eric Barendt, ANONYMOUS SPEECH: LITERATURE, LAW AND POLITICS"

by Eric Heinze and Tom Hannant

With the rapid spread and enormous power of electronic communications, questions arise as to whet... more With the rapid spread and enormous power of electronic communications, questions arise as to whether the law can ever legitimately require authors to disclose their identities. In his new book, the leading free speech authority Eric Barendt admirably discusses the interests at stake. For reasons we explain, however, we would accord greater deference to anonymity than Barendt recommends.

Book Review: Alex Brown, "Hate Speech Law: A Philosophical Examination"

Alex Brown rightly observes the complex and competing interests at stake in current controversies... more Alex Brown rightly observes the complex and competing interests at stake in current controversies about regulating hateful expression. He examines various arguments, but the present review focuses on his concept of "compromise". Brown justifiably notes the problems inherent in traditional notions of balancing incommensurable social values. One may wonder, however, whether Brown's notion of "principled compromise" offers something fundamentally different; or, even if it does, whether citizens' prerogatives to participate within public discourse can so readily become objects of "compromise" in the way Brown suggests.

Is democracy necessary for human rights?

Whether or in what way human rights can promise better conditions in the world remains far from c... more Whether or in what way human rights can promise better conditions in the world remains far from clear. Given their widespread approval, however, let’s assume they can play some helpful role. A further question is: what kind of politics do they presuppose? Free speech is generally viewed as ‘just another’ right appearing on the long ‘checklists’ of human rights. But that is misleading. We must begin to understand basic human rights as something more than and different from basic human goods. Human rights are socially and therefore linguistically mediated. They presuppose a foundation in free speech which, contrary to standard doctrine can provide. Food and water, privacy and free trials are equally important (perhaps more important) as goods, but not as rights. Countless writers have argued that democracy ‘promotes’ or ‘benefits’ human rights. The link between the two is not only empirical, however, but conceptual. Through an open sphere of public discourse, democracy supplies a necessary condition for the very possibility of human rights.

Discourses of Sex: Classical, Modernist, Post-Modernist

67 (1998) Nordic Journal of International Law 37-76

Even-handedness and the Politics of Human Rights

21 Harvard Human Rights Journal (2008), pp. 7 – 46.

A requirement of even-handedness is necessarily presupposed by any plausible concept of human rig... more A requirement of even-handedness is necessarily presupposed by any plausible concept of human rights law. There are instances in which ‘selectivity’—a lack of even-handedness in condemning human rights violations—suggests that the accuser is using allegations of human rights violations for political ends. There are other instances, however, where selectivity in condemning violations is seen as helpful for the efficient application of human rights law. Since human rights are always in some sense ‘political’, questions arise as to whether distinctions can be drawn between politically biased and politically unbiased appeals to human rights. This paper proposes a theory of even-handedness in an effort to distinguish between legitimate and illegitimate, between politically biased and unbiased, forms of selectivity.

'The Reality and Hyperreality of Human Rights: Public Consciousness and the Mass Media’

in Examining Critical Perspectives on Human Rights: The End of an Era?, R. Dickenson et al., eds.

Most human rights scholarship remains highly formalist, with a focus on norms and institutions. ... more Most human rights scholarship remains highly formalist, with a focus on norms and institutions. However, at least as powerful as, if not more powerful than, those norms and institutions, are the mass media. Consonant with David Kennedy’s concern that rights discourse can privilege some interests at the expense of others, the media must be seen as the force that overwhelmingly decides which norms and abuses count, and which are neglected. Public consciousness of human rights emerges not out of political reality, but out of a media-generated ‘hyper-reality’, impermeable to some of the world’s most heinous abuses. The media remain immune from the values of even-handedness that are conceptually presupposed by human rights law. In principle, human rights shun any zero-sum game, whereby the rights of one person or group may be traded off against those of another. The media not only plays that game, but must play it, as a matter of sheer time and resources. A ‘Hollywoodisation’ of rights still further contributes to forging a hyper-reality that remains at odds with the realities of global human rights.

‘Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Extreme Speech

Extreme Speech and Democracy, chapter 10, James Weinstein and Ivan Hare, eds., pp. 182 – 203., 2009

All European states prohibit some form of hate speech. US law fundamentally precludes such bans.... more All European states prohibit some form of hate speech. US law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.

Cumulative jurisprudence and human rights: the example of sexual minorities and hate speech

12 International Journal of Human Rights (2009), pp. 193 – 209; reprinted in Extreme Speech and Democracy, Weinstein & Hare, eds., Oxford University Press, pp. 264 – 84 (2009), and in Protection of Sexual Minorities since Stonewall, Routledge, (2010), pp. 62 – 78., 2009

Viewpoint Absolutism and Hate Speech

69 Modern Law Review (2006), pp. 543 – 82., 2006

Hate speech and the normative foundations of regulation

9(4) International Journal of Law in Context (2013), pp 590-617

Review of Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2012) and M Herz & P... more

Sexual Orientation and International Law: A Study in the Manufacture of Cross-Cultural “Sensitivity"

22 Michigan Journal of International Law (2001), pp. 283 – 309; reprinted in Discrimination and Toleration, Kirstin Hastrup, ed. (2002), pp. 205 – 27., 2001

This article evaluates the failure of sexual minorities to gain recognition within the human righ... more This article evaluates the failure of sexual minorities to gain recognition within the human rights bodies of intergovernmental organizations. There is a widespread view that sexual orientation presents cross-culturally controversial issues, and must therefore be approached with greater caution than other human rights issues. In this article, that view is rejected. It is argued that sexual orientation does indeed pose problems, but no more than those caused by issues of race, ethnicity, religion or gender, which have nevertheless received considerable attention. Part I surveys some of the gains already made by sexual minorities. It is argued that the European Court of Human Rights has recognized some rights, but only to a limited degree, and only after reforms in many Member States have already been completed. The UN Human Rights Committee, too, has begun to recognize sexual orientation as a human rights issue. However, its mandate is limited to the interpretation of one treaty, and has had no real effect on other UN human rights bodies. Part II examines the issue of sexual orientation in a broader context. The exclusion of sexual minorities is examined with reference to the common justification of “ancient traditions.” It is argued that those “traditions” derive more from discourses of post-colonial nationalism than from any record of historical fact.

Towards the Abolition of Hate Speech Bans

Religious Pluralism and Human Rights, Titia Loenen & Jenny Goldschmidt, eds., Intersentia (2007), pp. 295 – 309., 2007

Public awareness of human rights: distortions in the mass media

14 International Journal of Human Rights 2010, pp. 491 – 523 (co-authored with R Freedman), 2010

The Universal Child?

Of Innocence and Autonomy: Children, Sex and Human Rights, Eric Heinze, ed., Ashgate (2000), pp. 3-24, 2000

Looking at the theoretical aspects, this essay examines the construction of concepts of childhood... more

Review of: Schulte-TenckhoffI, La question des peuples autochtones

46 Netherlands Journal of International Law, 269 – 76 (1999), 1999

Problems of delivering legal services to gay persons in poverty

Du kan ikke bare sensurere folk som Steve Bannon og håpe at de blir borte

Aftenposten, 2019

In 2018 enormous controversy was sparked when the far-right former Trump advisor Steve Bannon was... more In 2018 enormous controversy was sparked when the far-right former Trump advisor Steve Bannon was invited to speak at a major media conference in Norway. In an interview with the major daily Aftenposten I argue that calls to dis-invite ('no-platform') Bannon fail to achieve their aims, nor do we need to fear 'losing' open, public showdowns with extremists.

Burkas at university: A proposal for balance

Students might wish to cover their faces for any number of reasons, or for no reason at all. Rec... more Students might wish to cover their faces for any number of reasons, or for no reason at all. Recently, the focus has been on burkas. In this piece I distinguish between situations in which the face veil might well be admissible and those in which the university instructor might legitimately ask that faces be shown.

Bans on Holocaust denial don't help Jews

There are weighty historical reasons for banning Holocaust denial. But there are also important ... more There are weighty historical reasons for banning Holocaust denial. But there are also important reasons for challenging bans. Such challenges can be articulated conscientiously, even in states like Germany or Austria. The the topic ought not to become taboo, as the desire to silence even good-faith objections by no means honours the victims or the survivors of the Holocaust.

Free speech debates are more than 'radicals' vs 'liberals'

It has become customary to pit "liberals" who defend free speech against "radicals" who attack it... more It has become customary to pit "liberals" who defend free speech against "radicals" who attack it. But that distinction is misleading. In this opinion piece published on the philosophy site Aeon, I argue that liberalism has largely accepted the types of regulations on speech. Meanwhile, there is a tradition within radicalism of opposing them.

UC Berkeley, Donald Trump, and the muddled ethics of no platforming

The no-platforming controversies continue apace. No-platforming is supposed to challenge power i... more The no-platforming controversies continue apace. No-platforming is supposed to challenge power imbalances. But it constantly has the opposite effect. Recent campaigns to ban Milo Yiannapolous, Germaine Greer, and many others, often end up generating massive publicity. The speakers then end up with exponentially larger platforms than anything a mere campus event might have offered. Far from shunning speakers who benefit from power hierarchies, those are the precisely the people students ought to be inviting, because campus speech should be all about challenging existing power relationships.

Russia is the leader in global antisemitism

For all-too obvious reasons, we generally place Nazi Germany at the forefront of perpetrators of ... more For all-too obvious reasons, we generally place Nazi Germany at the forefront of perpetrators of antisemitism. German antisemitism achieved unparalleled depth in a shockingly short time. Yet Russian antisemitism has achieved unparalleled geographical breadth over a longer time. Nazi antisemitism was ontological – necessary to cleanse an ‘Aryan’ nation. Russian antisemitism, by contrast, takes less nationalist, more imperial, and therefore more pragmatic forms.
Yes, Russia has certainly known ‘pureblood’, nationalist types of antisemitism; and Nazi expansionism obviously entails an imperial project. Predominantly, however, Russian antisemitism has not been of the smoke-out-each-and-every-Jew variety. Indeed it has altogether coexisted with Russian Jews holding positions of prominence.

Protest against Hungarian government crackdown on academic freedom

The international Free Speech Discussion Forum, including scholars of democracy and free speech a... more The international Free Speech Discussion Forum, including scholars of democracy and free speech around the world, is scheduled to meet in Budapest on 6 - 7 June 2017. This open, public letter pleads with all Forum members to ensure that the event does not lend legitimacy to the ongoing government repression. It appeals to all members to protest current government legislation to close the Central European University.

Are you sitting comfortably? How safe spaces became dangerous

University "safe spaces" began life humbly enough, as nothing more than discrete meeting spaces s... more University "safe spaces" began life humbly enough, as nothing more than discrete meeting spaces set aside for students dealing with past traumas or facing social exclusion. Such facilities have admittedly become controversial when they are set up in response to controversial campus speaking events. However, even if we doubt the educational or emotional benefits of such safe spaces, the students who use them are merely exercising their own freedoms of association and expression. They have every right to do so. Suddenly, however, the "safe space" has taken on a wholly new meaning -- namely, that all campus speaking venues must be rendered "safe" in terms of the ideas expressed. That use of the "safe space" concept amounts to full-blown censorship, merely enforcing the censor's own political preferences.

The left's version of hate speech: guilt by association?

In earlier times restrictions on speech were associated with reactionary forces of state and chur... more In earlier times restrictions on speech were associated with reactionary forces of state and church, while progressives advocated free speech. Today that situation has reversed, as the Left seeks restrictions, notably on hate speech -- on the view that the targeting of vulnerable groups is inherently of the (far) right. But do is there such a thing as Leftist hate speech? If so, what are the consequences for legal regulation?

Should I go to that conference in Hungary?

There's a bitter irony about scholars organising an international conference on free speech in a ... more There's a bitter irony about scholars organising an international conference on free speech in a state actively and systematically repressing political dissent. The problem sharpens when the conference hosts themselves are involved, even informally, in that repression. Still, a boycott rarely resolves anything. Far more important is that conference participants retain full freedom to challenge the conference's political context, and that they acknowledge their duty to do so.

Israel, no-platforming – and why there’s no such thing as "narrow exceptions" to campus free speech

No-platforming policies remain mired in contradiction. Recently Israel's UK ambassador, the form... more No-platforming policies remain mired in contradiction. Recently Israel's UK ambassador, the former government spokesman Mark Regev visited London's School of Oriental and African Studies (SOAS), a campus stridently hostile towards Israel. Large numbers of staff and students, both in SOAS and elsewhere, insisted that the event be cancelled. As with other no-platforming campaigns, the protesters constantly draw upon overblown, even conspiratorial rhetoric -- particularly displaced in view of longstanding antisemitic stereotypes.

Controversy - Israel's Ambassador Speaking at UK University

London's School of Asian and Oriental Studies (SOAS) compares with Berkeley in the US as a flagsh... more London's School of Asian and Oriental Studies (SOAS) compares with Berkeley in the US as a flagship of political activism, including a highly active movement to boycott Israel. Controversy has erupted after SOAS's Jewish Society invited Israel's UK Ambassador Regev to speak. Rumours have circulated (recalling antisemitic stereotypes) suggesting the embassy had rigged the event to ensure that its view prevails. To the contrary, I accepted a request to host the event on the expressly stated condition that the entire SOAS community be invited and that the lion's share of the evening be reserved for open questions, comments, and criticisms, with any opening statement by Regev reduced to only a few minutes. The embassy was delighted to accept that agreement, which reflects its customary practice on all UK campuses -- I recently hosted a similar campus event in which at least 70 percent of the evening was reserved for an audience openly invited from the entire university community, with no restrictions on access. As noted in the present article, I have also always publicly defended the right of critics of Israel to stage open protests at such events.

Controversy: Israeli Ambassador speaking at UK university

London's School of Asian and Oriental Studies (SOAS) compares with Berkeley in the US as a flagsh... more London's School of Asian and Oriental Studies (SOAS) compares with Berkeley in the US as a flagship of political activism, including a highly active movement to boycott Israel. Controversy has erupted after SOAS's Jewish Society invited Israel's UK Ambassador Regev to speak. Rumours have circulated (recalling antisemitic stereotypes) suggesting the embassy had rigged the event to ensure that its view prevails. To the contrary, I accepted a request to host the event on the expressly stated condition that the entire SOAS community be invited and that the lion's share of the evening be reserved for open questions, comments, and criticisms, with any opening statement by Regev reduced to only a few minutes. The embassy was delighted to accept that agreement, which reflects its customary practice on all UK campuses -- I recently hosted a similar campus event in which at least 70 percent of the evening was reserved for an audience openly invited from the entire university community, with no restrictions on access. As noted in the present article, I have also always publicly and unequivocally defended the right of Israel's critics to openly protest such events.

Are all forms of prejudice really equal?

Those who explain anti-Semitism as “just another” form of bigotry are failing, sometimes willingl... more

In Defense of the Burqa: A Gay Perspective

Public dialogue is supposed to negotiate our differences. It is self-contradictory for that activ... more

Law can enshrine a country's history, but it is a citizen's right to question it

All states use law to promote preferred views of history. There is no way they can do otherwise.... more All states use law to promote preferred views of history. There is no way they can do otherwise. But not all states create and implement "memory laws" in the same way. The use of law to shape pubic understandings of the past need not be coercive, and ought to promote critical engagement rather than fixed doctrine. In that sense, a state's attitude towards history reveals much about its broader ethics.

‘Internalised homophobia’: The exception or the paradigm?

Attacks on gays are commonly construed as "internalised homophobia" -- unsurprisingly, since perp... more Attacks on gays are commonly construed as "internalised homophobia" -- unsurprisingly, since perpetrators do sometimes turn out to have a gay past. It is misleading, however, to assume that this type of "reflexive" violence applies distinctly to gender and sexual identity, and not to other types of mass violence. Originally published in Critical Legal Thinking: http://criticallegalthinking.com/2016/06/15/internalised-homophobia-exception-paradigm/

Ten arguments for -- and against -- No-Platforming

In a 2015 petition on Change.org. more than 3000 signatories demanded that universities “not inv... more In a 2015 petition on Change.org. more than 3000 signatories demanded that universities “not invite speakers who seek to further marginalise” under-represented groups." In this article I argue that there are strong and plausible reasons for "No Platforming", but that the case against such a policy is stronger.

How a BBC talkback host took on a hateful troll

Within Western democracies, the media and government should stop censoring hate speech and should... more Within Western democracies, the media and government should stop censoring hate speech and should instead lead the way in tackling it head-on. This article examines how a BBC phone-in host declined to cut off an antisemitic conspiracy theorist, and instead allowed the speaker to parade the reality of antisemitism in full public view.

What is Holocaust commemoration for? - Remembering Kristallnacht

We must avoid using Holocaust commemorations solely to consign Judeophobia to an eternal yesterda... more

Law and Memory in Established Democracies Conference - 24 March 2017, University of Bologna

by Nanor Kebranian, Eric Heinze, and Piergiuseppe Parisi

This conference on Law and Memory in Established Democracies aims to untangle the multifaceted an... more This conference on Law and Memory in Established Democracies aims to untangle the multifaceted and contradictory relationships between law and historical memory. In recent years, collective historical memory has increasingly occupied a crucial role in contemporary societies, with procedural and substantive law becoming key factors in regulating memory. Historical memory has thus influenced legislation by redefining its traditional functions. Meanwhile, legislators and judges are gaining greater authority to arbitrate official narratives of traumatic historical events. And law is being summoned to determine the guilt of past crimes in decisive measures aimed at preventing and even punishing denialism. This inaugural conference organized by the four-country research consortium, Memory Laws in European and Comparative Perspective (MELA) (http://www.law.qmul.ac.uk/research/funded/MELA/) examines these topical issues through comparative and multi-disciplinary approaches, while it also provides a new context for engaging innovative perspectives and original debates.

January 17, 2018 - Oxford University Book Symposium for Law and Memory: Toward Legal Governance

by Nanor Kebranian, Eric Heinze, and Ioanna Tourkochoriti

In this book colloquium, a panel of speakers will discuss the recent book Law and Memory: Towards... more In this book colloquium, a panel of speakers will discuss the recent book Law and Memory: Towards Legal Governance of History (edited by U. Belavusau and A. Gliszczyńska-Grabias) and explore both the nature and role of legal engagement in historical memory. They will address a number of key questions, such as:

When do memory laws conflict with values of democratic citizenship, political pluralism, or fundamental human rights?
Are the punitive laws inevitably abusive?
Are the non-punitive ones mostly benign?
Are there optimal ways for states to propagate historical memory?

The Concept of Injustice

This book presents a challenge to traditional Western justice theory. Thinkers from Plato and Ari... more This book presents a challenge to traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause. The core elements of traditional justice theories are unity and measurement. No justice theory is conceivable without one or both of them. Measurement, in particular, has dominated Western modernity. However, it is those two elements which constantly produce injustice — not as the opposite of justice, but as its necessary result. The relationship between injustice and injustice is more complex than one of mutual exclusion. In this book, literary classics offer evidence of that complex relationship, from Sophocles to Milton, including discussions of Shakespeare’s The Merchant of Venice and Timon of Athens, and Corneille’s Le Cid.

Review of Eric Barendt, Anonymous Speech: Literature, Law and Politics

Social Science Research Network, 2018

Review of Leone Niglia, "the Struggle for European Private Law: A Critique of Codification

Social Science Research Network, 2015

Law and Historical Memory: Theorising the Discipline

Legal Hybridity in Shakespeare: Revisiting the Post-Colonial in the Tempest and Cymbeline

If post-colonialism figures among the decisive political and intellectual movements of the 20th c... more If post-colonialism figures among the decisive political and intellectual movements of the 20th century, then ‘hybridity’ is rapidly distinguishing the 21st. Where post-colonial theory had focussed on destruction and appropriation, hybridity focuses on exchange, examining the processes of mutual discovery and influence between imperial and vassal cultures. Never has a literary classic — already several hundred years old — so powerfully spurred an historical movement as did Shakespeare’s Tempest for mid-20th century post-colonialism. (A leading figure like the Martiniquais poet and statesman Aime Cesaire would altogether re-write the play to mirror that simultaneously political and intellectual revolution.) This essay witnesses the progression of post-colonial theory into the new century. If The Tempest long stood as ‘the’ post-colonial drama in the Shakespearean corpus, it can now re-join the lesser known Cymbeline, which was written around the same time and serves largely as a comp...

Senate CIA torture report release: Expert reaction

Sexual Orientation and International Law: A Study in the Manufacture of Cross-Cultural ‘Sensitivity’

Discrimination and Toleration, 2002

Global Libertarianism: How Much Public Morality Does International Human Rights Law Allow?

SSRN Electronic Journal, 2021

No-platforming and Safe Spaces: Should Universities Censor more (or less) Speech than the Law Requires?

Politička misao, 2018

Taking Legitimacy Seriously: A Return to Deontology

SSRN Electronic Journal, 2017

Hate Speech and Democratic Citizenship

‘Where be his quiddities now’? Law and Language in Hamlet

Law and Language, 2013

Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech

Extreme Speech and Democracy, 2009

All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans... more All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.

Public awareness of human rights: distortions in the mass media

The International Journal of Human Rights, 2010

Hate speech and the normative foundations of regulation

International Journal of Law in Context, 2013

Racist incidents on American university campuses in the 1980s triggered a storm of publications b... more Racist incidents on American university campuses in the 1980s triggered a storm of publications by scholars who coined the phrase ‘hate speech’ for the legal lexicon. Some of the offences had already been subject to legal or institutional penalties for harassment or vandalism. Several universities nevertheless adopted broad codes of conduct to penalise hateful expression. For two decades, however, the US Supreme Court had been marching in the opposite direction. It was interpreting the Constitution's First Amendment to prevent federal or state government from punishing speakers solely on grounds of the viewpoints they express.

Inside the Outsider: Critical Race Theory against Human Rights?

bepress Legal Series, 2006

This article examines disturbing contradictions within critical race theory. Critical race theori... more

The Use and Abuse of Human Rights Discourse: A Legitimacy Test for NGOs, IGOs and Governments

bepress Legal Series, 2006

Since the end of the Second World War, human rights have emerged as a standard for evaluating sta... more

Anonymous Speech : Literature, Law and Politics

Special Symposium on Memory Laws in European and Comparative Perspectives, The Journal of Comparative Law XIII (1) (Co-editors, Nanor Kebranian and Piergiuseppe Parisi)

by Nanor Kebranian, Eric Heinze, Piergiuseppe Parisi, Paolo Caroli, Suryapratim Roy, and Ioanna Tourkochoriti

The Journal of Comparative Law, 2018

The articles in this issue are the product of the first international conference held on 24 March... more The articles in this issue are the product of the first international conference held on 24 March 2017 in Bologna and organized under the auspices of the major EU-funded consortium, “Memory Laws in European and Comparative Perspectives” (MELA). This four-country collaboration brings together researchers from Queen Mary University of London, the University of Bologna, the T. M. C. Asser Instituut, the University of Amsterdam, and the Institute of Legal Studies of the Polish Academy of Sciences. The project conducts descriptive and prescriptive studies of memory laws with the aim of generating best practices for their drafting and subsequent implementation. To that end, the consortium researchers analyze international, regional, and domestic legislation, case law, and soft law in an inter- and multi-disciplinary manner, by drawing on history, sociology, political science, and linguistics. While the project focuses mainly on Europe, it also includes studies from further afield, integrating countries such as Australia, Canada, Israel, Turkey, and many others.

Global Libertarianism: How Much Public Morality Does International Human Rights Law Allow

International Theory, 2021

International human rights specialists and libertarian philosophers have rarely pursued meaningfu... more International human rights specialists and libertarian philosophers have rarely pursued meaningful exchanges, but this article probes some of their common ground. In recent years, leading international monitoring bodies have developed a principle described here as the "Libertarian Principle of Human Rights" (LPHR). It runs as follows: Governments cannot legitimately recite public morals as a sufficient justification to limit individual human rights. That principle might seem obvious in many societies today, but throughout history, including the history of liberalism, any notion that certain individual interests must trump religious or customary beliefs has stood as the rare exception. The seemingly Western and secular suggestion of a libertarian principle inherent within human rights may seem at odds with the view that human rights ought to reflect diverse cultural traditions; however, LPHR underscores an anti-authoritarianism, which, it is argued, must form part of any serious conception of human rights. LPHR can be substantiated even for highly controversial rights, such as LGBTQ+ rights, suggesting that it applies a fortiori to more settled rights.

Peeing on Pétain: Desecration as Disobedience?

Free Speech Debate, 2019

The former Nazi collaborator and head of the French Vichy Regime, Philippe Pétain, lies buried in... more The former Nazi collaborator and head of the French Vichy Regime, Philippe Pétain, lies buried in an unremarkable grave that is easily accessible and therefore frequently vandalised. In most countries desecration of burial sites counts as a criminal offense. It is argued here, however, that such conduct can legitimately be viewed as civil disobedience, particularly when the damage is temporary and easily removed.

The myth of flexible universality: Human rights and the limits of comparative naturalism

Oxford Journal of Legal Studies, 2019

Many writers reject the notion of universal human rights, insisting on their historically recent,... more Many writers reject the notion of universal human rights, insisting on their historically recent, Western-secular character. Other theorists emphasise mutual exchange between human rights and systems such as Confucianism, Buddhism, or Islam. They celebrate a common ground that would appear, moreover, to enhance the case for universality. This article acknowledges that common ground but rejects the view that it can strengthen the case for universality. Any such 'exchange', far from mutual, turns out to be dictated entirely by human rights. Familiar rhetoric about the supposed flexibility of human rights law, which would suggest genuinely interactive relationships between it and other belief systems, flatly contradicts its higher-law claims. Genuinely flexible human rights could only ever arise either (a) in the trivial sense that any broadly formulated legal rule ends up applied to a range of situations, or (b) in the untenable sense that human rights law would accommodate serious violations.

Should governments butt out of history?

Free Speech Debate, 2019

It is often argued that governments should "butt out" of history: "Leave history to the historian... more It is often argued that governments should "butt out" of history: "Leave history to the historians." Such claims are particularly heard in response to bans on genocide denial or to other attempts by states to punish or to limit public scrutiny of history. In this article it is argued that there is no such thing as simply butting-in or butting-out. The law always operates at some level, and our aim should be to optimize constructive discussion at various levels. This article reflects views adopted by the four-nation consortium Memory Laws in European and Comparative Perspective, funded by HERA (Humanities in the European Research Area).