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Vol 21 No 9 Sept/Oct 2016

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Free Speech and the Politics of Identity

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ISBN13: 9780198298861
ISBN: 0198298862
Published: June 1999
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £45.00
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Free Speech and the Politics of Identity challenges the scholarly view as well as the dominant legal view outside the United States that the right of free speech may reasonably be traded off in pursuit of justice to stigmatized minorities. These views appeal to an alleged reasonable balance between two basic human rights: the right of free speech and the right against unjust discrimination. Compelling arguments of normative political theory and interpretative history show, however, that these rights are structurally linked: the abridgement of one compromises the other. To make this case, David Richards offers an original political theory of toleration and of structural injustice that addresses the nature and scope of the right of free speech and the right against unjust discrimination; its analytic focus is on the role played by members of subordinated groups in the protest of the terms of structural injustice (the politics of identity), advancing constitutional justice under law. While the argument is developed on the basis of American constitutional experience from the antebellum period forward, its normative force is brought to bear both in defending and criticizing some aspects of American law and in challenging the continuing legitimacy of laws against group libel, obscenity, and blasphemy under national legal systems (including Germany, France, Britain, Canada, Israel, India, South Africa, and others), regional systems (the jurisprudence of the European Court of Human Rights), and public international law. The book's innovative normative and interpretative methodology calls for a new departure in comparative public law, in which all states responsibly address their common problems not only of inadequate protection of free speech but correlative failure to take seriously the continuing political power of such evils as anti-Semitism, racism, sexism, and homophobia.

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Human Rights and Civil Liberties
1. Introduction and Methodology
2. Free Speech and the Argument for Toleration
3. The Argument for Toleration and the Theory of Structural Injustice
4. Free Speech as a Remedy for Structural Injustice: Racism
5. Free Speech as a Remedy for Structural Justice: Sexism and Homophobia
6. The Scope and Limits of Free Speech and the Promise of Comparative Public law