Free Speech

[jeremyp]

It would depend entirely on the context and nature of the insult, but would have to be very severe and threatening for you to end up in jail.

So it would have to involve incitement to commit violence?

That doesn't mean that more minor insults can be made with impunity - there are potential actions and sanctions for lesser 'offenses', including disciplinary action in the work place. So you might not get thrown in jail if you opined that black people are all lazy, but you might lose your job.

Where do we draw the line? Who gets to draw the line? Me? You? Little Roses? Vlad?

[ProfessorDavey]

So it would have to involve incitement to commit violence?

Not all threats are threats of violence.

Where do we draw the line? Who gets to draw the line? Me? You? Little Roses? Vlad?

No - the judicial system gets to decide. Clearly this is the case where there is an allegation of a criminal or civil offence. But even if this is in a professional context, for example being dismissed from your job following a disciplinary hearing (which would itself need to adhere to legal principles) then you can take your case to the tribunal system, which is past of the legal courts system.

[Roses]

So it would have to involve incitement to commit violence?
Where do we draw the line? Who gets to draw the line? Me? You? Little Roses? Vlad?

Me of course. 


The line should be drawn where hate speech against other humans, who have done no harm, has caused emotional or physical harm.

[jeremyp]

Not all threats are threats of violence.
No - the judicial system gets to decide.

The judicial system does not create the law. The judicial system only determines who has broken the law or not. If the government decides that calling the reputation of Mohammed into question is hate speech, and somebody claims Mohammed was a pedophile because he had sex with a nine year old, the court wouldn't be able to say that's not hate speech.

[ProfessorDavey]

The judicial system does not create the law. The judicial system only determines who has broken the law or not.

The courts interpret the law in a case by case basis and in doing so often also create law - so called common law or case law, which is distinct from statutory law, which is defined by government.

If the government decides that calling the reputation of Mohammed into question is hate speech, and somebody claims Mohammed was a pedophile because he had sex with a nine year old, the court wouldn't be able to say that's not hate speech.

But the Government is very, very unlikely to do this - statutes tend to be broad in their drafting, so the government could determine that attacking a religion is hate speech, however it is very unlikely there would be a specific section referring to the example you cite within that Bill or Act - it simply isn't how statutory law works.

Hence the role of the courts. Within a framework of the broadly written statute the courts might interpret the statutory law as being that the example you cited was unlawful. If that judgement fulfilled to criteria for common or case law, then via the courts the law would be altered as you suggest, until or unless another case created a new and different precedence or government changed to overarching statute.

[Nearly Sane]

The courts interpret the law in a case by case basis and in doing so often also create law - so called common law or case law, which is distinct from statutory law, which is defined by government.
But the Government is very, very unlikely to do this - statutes tend to be broad in their drafting, so the government could determine that attacking a religion is hate speech, however it is very unlikely there would be a specific section referring to the example you cite within that Bill or Act - it simply isn't how statutory law works.

Hence the role of the courts. Within a framework of the broadly written statute the courts might interpret the statutory law as being that the example you cited was unlawful. If that judgement fulfilled to criteria for common or case law, then via the courts the law would be altered as you suggest, until or unless another case created a new and different precedence or government changed to overarching statute.

I think you have to be careful about conflating the term common law within a statutory framework with its wider and more common sense covering law derived from cases. English law derived generally as a common law process as opposed to codified law but the way it evolves now isn't that different from a codified approach. We can have the discussion about strict interpretation but that itself is an acceptance that what we referred to as common law no longer except in specific rare cases applies

[ProfessorDavey]

I think you have to be careful about conflating the term common law within a statutory framework with its wider and more common sense covering law derived from cases. English law derived generally as a common law process as opposed to codified law but the way it evolves now isn't that different from a codified approach. We can have the discussion about strict interpretation but that itself is an acceptance that what we referred to as common law no longer except in specific rare cases applies

That's true - but the point remains that the courts, whether via specific case law provision outside of specific statute, or through interpretation of statute creates law.

There are many examples where a case law interpretation is key in determining how statutory law operates in practice. And this is one of the reasons why people (and often campaigning organisations) bring so-called test cases. The point being an attempt to shape the law via the test case in a favourable manner to their position. There are some significant examples over the recent years linked to equalities legislation.

[Nearly Sane]

That's true - but the point remains that the courts, whether via specific case law provision outside of specific statute, or through interpretation of statute creates law.

There are many examples where a case law interpretation is key in determining how statutory law operates in practice. And this is one of the reasons why people (and often campaigning organisations) bring so-called test cases. The point being an attempt to shape the law via the test case in a favourable manner to their position. There are some significant examples over the recent years linked to equalities legislation.

Which is effectively irrelevant to your use of common law here. It's true of all forms of codified law, that case law has an effect. Even a strict interpretation viewpoint is one that actually interprets statements.

Now, I would agree completely, that the idea that jeremyp is touting that judicial decisions don't create law in that sense is absolutely wrong, since that argues that codification in any sense is absolute, and even in the most codified legal approaches, that's just wrong.

[ProfessorDavey]

Which is effectively irrelevant to your use of common law here. It's true of all forms of codified law, that case law has an effect. Even a strict interpretation viewpoint is one that actually interprets statements.

I don't think we are arguing against each other - there is more than one way in which the courts evolve or create law via their judgements. I think we both agree on that.

Now, I would agree completely, that the idea that jeremyp is touting that judicial decisions don't create law in that sense is absolutely wrong, since that argues that codification in any sense is absolute, and even in the most codified legal approaches, that's just wrong.

Which was my main point - he seemed to be implying that the law was created purely by parliament - that isn't true, even for statutory law - the interpretation of which by the courts is often as least as important in creating the law as the original statute.

[Nearly Sane]

I don't think we are arguing against each other - there is more than one way in which the courts evolve or create law via their judgements. I think we both agree on that.
Which was my main point - he seemed to be implying that the law was created purely by parliament - that isn't true, even for statutory law - the interpretation of which by the courts is often as least as important in creating the law as the original statute.

Pretty much. My issue is that common law is a very specific term. Case law is different. There was a time English law was common law based, It to almost any standard isn't now.

[jeremyp]

The courts interpret the law in a case by case basis and in doing so often also create law - so called common law or case law, which is distinct from statutory law, which is defined by government.

Indeed, but since we are not talking about either of those, I'm not sure why you would bring them up. 

But the Government is very, very unlikely to do this - statutes tend to be broad in their drafting, so the government could determine that attacking a religion is hate speech, however it is very unlikely there would be a specific section referring to the example you cite within that Bill or Act - it simply isn't how statutory law works.

Do you think you are making it better? You are claiming (wrongly I think) that the government would frame the law to allow the judiciary the attitude to decide what it means. At least the government is elected, if the judiciary makes the law, you are trusting to the whims of individual judges. That means my question "who draws the line?" still stands. In fact, you've made it worse.

A law that is drafted in such a way that you can't tell whether you have broken it or not until you are in front of the judge really really sucks.

[ProfessorDavey]

A law that is drafted in such a way that you can't tell whether you have broken it or not until you are in front of the judge really really sucks.

Happens all the time - hence the notion of layers of appeal and that only the highest courts can establish case law.

The drafting of statute cannot take account of all individual situations that arise in specific cases - hence the need for the courts to interpret the law on a case by case basis, and sometimes to clarify the law for future cases under case law.