Eric Heinze
free speech
and democratic conversation
×
![]()
×
![]()
Eric Heinze is Professor of Law and Humanities at the School of Law
In The Concept of Injustice, Heinze examines what he calls the 'classical' style of justice theory, running from Plato to Rawls. Classical justice theorists, Heinze argues, depart from notions of 'injustice' on the seemingly obvious assumption that 'justice' and 'injustice' are logical opposites. For Heinze, 'injustice', in ancient and modern Western languages, is a sheer etymological happenstance. 'Justice' and 'injustice' do appear as opposites within conventional, already pre-defined contexts, in which certain norms are uncritically assumed. Outside of such assumptions, however, the relationship between the two terms becomes far more complex.
In order to overcome that recurring error, Heinze proposes a notion of 'post-classical' justice theory, using literary texts as examples. That project continues Heinze's earlier publications in Law & Literature. In an article[1] in the journal Law & Critique, the feminist scholar Adrian Howe examines how Heinze has innovated within critical theory to offer alternative readings of William Shakespeare. Citing the example of The Comedy of Errors, Howe explains how, well into the 20th century, scholars often thought that Shakespeare would not have sought to convey a serious socio-legal critique in a seemingly frivolous play. Heinze, according to Howe, uncovers a "range of socio-legal dualisms; master–servant, husband–wife, native–alien, parent–child, monarch–parliament, buyer–seller. The Comedy, [Heinze] argues, deploys concepts of 'comedy' and 'error' to reflect problematic socio-legal relationships that are based on traditional but changing models of socio-legal domination and subordination."[2] Howe adds that, on Heinze's reading, "it is the viewpoint of the privileged male that is challenged in the play."[3] In The Concept of Injustice, Heinze amplifies those themes. He reviews classical theories of justice, from Plato to Rawls, challenging their assumptions of a seemingly logical opposition between the concepts of 'justice' and 'injustice'.
In the area of human rights, Heinze has frequently challenged Western European restrictions on
In his book Hate Speech and Democratic Citizenship Heinze reviews ongoing debates about the legality of dangerous, provocative or offensive speech. He concedes that some democracies may be unstable enough to require bans, but one that has crossed a discernible threshold to become what Heinze calls a ‘longstanding, stable and prosperous democracy’ (LSPD)[6] can only legitimately curtail expression within public discourse on ‘viewpoint-selective’ grounds under independently reviewable criteria of a ‘state of exception’ constituting a national security emergency.[7]
Heinze acknowledges that hate speech has led to violence in Rwanda, the German Weimar Republic, the immediate post-Cold War Yugoslavia, and other weaker democracies. None of these, Heinze notes, were LSPDs. Full-fledged democracies, by contrast, have more legitimate and effective ways of combatting violence and discrimination without having to punish persons who hold provocative views.[8]‘Central to the LSPD model’, according to Lesley Abdela, ‘it can be shown that western democratic states have taken moral and symbolic stands—not always perfectly or without contradiction— but certainly in more than peripheral, lip-service ways. Measures including non-discrimination laws, pluralist primary education (and bans on individually targeted stalking, harassment, or ‘fighting words’) convey the state’s moral and symbolic messages against intolerance or violence.’[8]
In The Most Human Right: Why Free Speech Is Everything, Heinze argues that internationally recognized human rights have collapsed in part because of institutional failures to distinguish between human rights and human goods. Heinze argues that many traditions throughout history have recognised essential human goods, so if human rights are to play any distinct role, they must do something more than just restate human goods. Scrutinising the concept of a right, Heinze argues that it is only through free speech that human goods can become the objects of human rights, which entails the further conclusion that outside democracy the concept of human rights makes no sense – and simply collapses, at best, into a concept of human goods.[9]
Writing in his regular Irish Times ‘Unthinkable’ Series, columnist Joe Humphreys summarises Heinze’s argument as follows: ‘If a sufficiently democratic environment does not exist, then the thing you are seeking as a “right” is merely a “good”, something desirable which a government may or may not provide.’[10] As of Spring 2022 The Most Human Right has been nominated for ‘The Next Big Idea’, Season 18 (non-fiction published from February - July 2022).[11] Reviewing the book for the Swedish Dixicon site the international human rights expert Hans Ingvar Roth adds: “it is no coincidence either that many authoritarian leaders throughout history have always first focused on that very right before they started to threaten the others too.”[12]
Heinze has also written on problems of sexuality and human rights. James M. Donovan summarises[13] some of Heinze's criticisms of international organisations. Donovan notes that, in Heinze's view, "the failure to include sexual orientation within the United Nations human rights agenda, by the late 20th century, had resulted not merely in the exclusion of sexual orientation, but in a further mystification of it, which in turn was used to justify its continued exclusion.[14] For Jennifer Wilson,[15] Heinze's view in particular explains "the exclusion of transgender people from anti-discrimination laws."[16] The Norwegian historian of religion Dag Øistein Endsjø contends that, according to Heinze, the absence of any specific reference to sexual orientation or identity in earlier international human rights instruments "does not mean that [sexual minorities'] fundamental rights are excluded from protection by these conventions."[17] Simon Obendorf argues[18] that "homosexual rights are indeed worthy of protection at international law",[19] but questions "Eric Heinze's calls for a treaty-based instrument to codify and enforce principles of non-discrimination on the basis of sexual orientation in international law."[20] Obendorf challenges[21] the concept of "sexual minorities" which Heinze, in his book Sexual Orientation: A Human Right, defines as "people whose sexual orientation derogates from a dominant heterosexual norm."[22] Susan Sterett draws greater attention to[23] Heinze's view of fluid and contingent sexual identities and orientations.[24] Heinze, according to Sterett, "maps the discourse of sexual orientation onto postmodernist forms of knowledge, which emphasize the fragmentation of the legal subject."[25] Conway Blake and Philip Dayle further explore[26] Heinze's view "that sexual minorities have become pawns in what [Heinze] calls the international 'sensitivity game'.[27] Blake and Dayle continue:
Heinze's criticisms of international law and institutions have also reached beyond the specific issues of free speech and sexuality. In other writing, he examines how inter-governmental and non-governmental organisations become politicised, therefore failing to adhere to their own professed mandates. According to Rosa Freedman, Heinze explains how state members of the United Nations Human Rights Council, as well as its predecessor, the UN Human Rights Commission, have used bloc voting to ensure an entrenched and systemic "sidelining" of attention away from the gravest human rights situations.[28]
Contrary to writers who advocate political compromise and piecemeal approaches, Heinze argues that the criterion of universally even-handed application of norms and standards necessarily inheres within any concept of human rights.[29] He further warns that, insofar as human rights are designed to apply universally to all states, irrespective of political system, they by definition never fully satisfy the requirements of a democratic state.[30]
In The Most Human Right Heinze argues that the concept of human rights has become so diluted within international law and organizations as to carry little if any meaning. Heinze argues that governments and international organizations have failed to distinguish adequately between the concept of human rights and the concept of human goods. Many things are good, such as not being tortured, or having access to enough food, but these goods only manifest as objects of human rights when citizens are sufficiently able to agitate openly and candidly for them, including extensive opportunities to criticize their governments. Otherwise we are left, at best, with nothing but state-monopolized, managerial regimes of human goods, which, Heinze argues, are the arch-opposite of citizen-directed regimes of human rights.
After receiving his
Heinze's other awards include grants from the Nuffield Foundation; an Obermann Fellowship[32][failed verification] (Center for Advanced Studies, University of Iowa); a Chateaubriand fellowship[33] (French Ministry of Education); a Sheldon fellowship (Harvard Law School); an Andres Public Interest grant (Harvard Law School); and a C. Clyde Ferguson Human Rights Fellowship (Harvard Law School).[31]
Before his appointment at the
Heinze is the author of several books on legal theory and philosophy, including:
| International | |
|---|---|
| National | |
