Page 344 [344]
OCR
ANDRÁS SAJÓ 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 impacted 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 vagueness results in an arbitrariness that is comparable to that of subjective understanding harm. + 342 +
