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considered to be affected rights and therefore, even if there was state inflicted
harm (even through neglect) or harm caused by a third, private party to these
interests, it did not figure in the context of application. For those concerned by
a specific social injustice, the state failed to intervene to prevent/counter/punish
harms which affected large segments of society, since these were held by the liberal
government to be non-existent harms. Note that these social justice concerns
were based mostly on social class, while today, social justice is a matter of identity,
moreover: grievance-based identity. For a social justice concern animated by
identity claims, the assumption of neutral speech regulation and the anathema of
content-based discrimination are simply illusions or cultural blinders, dictated
by some kind of elite interest of domination.
According to the social justice-seeking criticism, the Millean understanding of
harm enabled and sanctioned a socially biased and prejudiced, narrow concept of
harm, to the detriment of certain groups whose typical harm was disregarded (or
the group itself was disregarded, as in the case of slavery). The harm of rape, for
example, was recognized, but not that of marital rape, or the traditional concept
of marriage rejected the idea that the denial of the right to marry caused harm to
homosexuals, etc. Disadvantaged groups insisted on an extended understanding
of harm, to include, in particular, harm to their social standing. The concept
of direct harm is therefore considered to be insensitive to (group) vulnerability.
Victimhood became the trump card in a world where guilt was cultivated in a
system of inherited bad consciousness.
In this process, all discontent and grievance is presented as a matter of harmed
right, with a considerable extension of the idea of harm. Harm became extended
and subjective, and as such, determined by those who claimed to suffer it and not
by any objective standard that the alleged victim and the person causing the alleged
harm can share. Harm is what people perceive as harmful or injurious to them or
their group. Indeed, what is considered as harmful to the group is now presented
as harm to the member of the group. Injury is their privilege, in the sense that
they are the only ones who can determine its existence, with the perpetrator being
unable to even notice this harm from his dominant social position.’
A spectacular example for the prevalence of this subjective understanding
of harm was the Assange extradition case for violation of the US Espionage Act,
where the Westminster Magistrate court denied the US request, finding that the
© In an alternative extension of the concept of harm, harm occurs when dignity is impact¬
ed challenging the equal worth of the person. Meir Dan-Cohen, Defending Dignity, Meir
Dan-Cohen, Harmful Thoughts: Essays on Law, Self and Morality, Princeton, NJ, Princeton
University Press, 2002, 150-171. Dignity is allegedly a common, shared concept but its vague¬
ness results in an arbitrariness that is comparable to that of subjective understanding harm.
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