Eric Heinze is Professor of Law and Humanities at the School of Law Queen Mary, University of London. He has made contributions in the areas of legal philosophy, justice theory, jurisprudence, and human rights. He has also contributed to the law and literature movement.
Social and legal theory
In Coming Clean: The Rise of Critical Theory and the Future of the Left, Eric Heinze argues that political progressives have insisted on critical understandings of western history but have failed to apply the same critical methods to the histories of the left itself. In an interview on National Public Radio, Heinze argued that his aim was not to ‘define’ the left but to identify ‘dominant strands’ that have driven leftist politics and activism. In The New York Post he wrote that the left needs to change what is often referred to as its ‘memory politics’. An Irish Times columnist asked whether Heinze could be accused of Whataboutery, by emphasizing left-wing atrocities to divert attention from those on the right. According to a review in the Danish newspaper Berlingske, Heinze is not arguing that "progressives should stop doing critical theory, or abolish diversity policies, queer theory or feminism’, but that they need ‘a new way to do it’".
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 articleAdrian Howe, A 'Right to Passions'? Compassion's Sexed Asymmetry and a Minor Comedy of Errors, Law & Critique (2012), vol 23, pp 83-102. 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."Adrian Howe, A 'Right to Passions'? Compassion's Sexed Asymmetry and a Minor Comedy of Errors, Law & Critique (2012), vol 23, p.98 Howe adds that, on Heinze's reading, "it is the viewpoint of the privileged male that is challenged in the play."Adrian Howe, A 'Right to Passions'? Compassion's Sexed Asymmetry and a Minor Comedy of Errors, Law & Critique (2012), vol 23, p.99 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'.
Free speech
In the area of human rights, Heinze has frequently challenged Western European restrictions on freedom of speech, as embodied in so-called "hate speech" bans. Heinze argues that a modern democracy has more effective and more legitimate ways of combating social intolerance, without having to restrict speech within the public sphere.Kay Goodall, Human Rights Pitted Against Man (II) - A Response, International Journal of Human Rights, 14(7), 2010, 1165-1184 According to the free speech expert Eric Barendt, Heinze identifies further problems of coherence within hate speech bans. Barendt writes that the bans, according to Heinze's critique, "are often justified as necessary to prevent discrimination against the targeted racial or other groups. But in fact they themselves discriminate between the groups protected by hate speech laws (racial, ethnic, religious groups and gays) and those left unprotected (other cultural groups, the physically and mentally disabled, transsexuals)."Eric Barendt, Religious Hatred Laws: Protecting Groups or Belief?, Res Publica (2011), vol 17, pp 41-53.
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) 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.
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.‘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.’
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.
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.’ 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.”
Sexuality
Heinze has also written on problems of sexuality and human rights. James M. Donovan summarisesJames M Donovan, Baby Steps or One Fell Swoop?, California Western Law Review, vol 38 (2001), pp 1-62. 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.James M Donovan, Baby Steps or One Fell Swoop?, California Western Law Review, vol 38 (2001), p31. For Jennifer Wilson,Jennifer Wilson, Horizontal Versus Vertical Compromise in Securing LGBT Civil Rights, Texas Journal of Women and the Law, vol 18, pp 125-44. Heinze's view in particular explains "the exclusion of transgender people from anti-discrimination laws."Jennifer Wilson, Horizontal Versus Vertical Compromise in Securing LGBT Civil Rights, Texas Journal of Women and the Law, vol 18, p 137. 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."Dag Øistein Endsjø, Lesbian, gay, bisexual and transgender rights and the religious relativism of human rights, Human Rights Review, vol 6:2, (2005), pp. 102-10. Simon Obendorf arguesSimon Obendorf, Homosexual Rights and the Non-Western World, Third World Legal Studies, 1998-99, pp 179-204. that "homosexual rights are indeed worthy of protection at international law",Simon Obendorf, Homosexual Rights and the Non-Western World, Third World Legal Studies, 1998-99, pp 180-181. 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."Simon Obendorf, Homosexual Rights and the Non-Western World, Third World Legal Studies, 1998-99, p180. Obendorf challengesSimon Obendorf, Homosexual Rights and the Non-Western World, Third World Legal Studies, 1998-99, pp 199. 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."Eric Heinze, Sexual Orientation: A Human Right, Dordrecht: Nijhoff (1995), p 295. Susan Sterett draws greater attention toSusan Sterett, Husbands & Wives, Dangerousness & Dependence, Denver University Law Review, vol 75 (1998), pp 1181-1213. Heinze's view of fluid and contingent sexual identities and orientations.Citing Eric Heinze, 'Discourses of Sexuality: Classical, Modernist and Post-Modernist', 67 Nordic Journal of International Law (1998), pp. 37 – 76. Heinze, according to Sterett, "maps the discourse of sexual orientation onto postmodernist forms of knowledge, which emphasize the fragmentation of the legal subject."Susan Sterett, Husbands & Wives, Dangerousness & Dependence, Denver University Law Review, vol 75 (1998), pp 1189 Conway Blake and Philip Dayle further exploreConway Blake and Philip Dayle, Beyond cross-cultural sensitivities: international human rights advocacy and sexuality in Jamaica, in Corinne Lennox & Matthew Waites (eds.) (2013) Human Rights, Sexual Orientation and Gender Identity in The Commonwealth (London: School of Advanced Study, University of London), pp 455-76. Heinze's view "that sexual minorities have become pawns in what [Heinze] calls the international 'sensitivity game'.Conway Blake and Philip Dayle, Beyond cross-cultural sensitivities: international human rights advocacy and sexuality in Jamaica, in Corinne Lennox & Matthew Waites (eds.) (2013) Human Rights, Sexual Orientation and Gender Identity in The Commonwealth (London: School of Advanced Study, University of London), p 465. Blake and Dayle continue: