When held to the purifying flames of common sense, the interpretation of the word ‘harm’ quickly turns to ash.
The Oxford Dictionary defines the word “definition” as: a “statement of the exact meaning of a word, especially in a dictionary.”
In law, understanding the exact meaning of words is important. That is because the law is essentially the rulebook for the game of life, which we are all constantly playing. If these rules are poorly written or poorly understood (by either the players or the referees) the game descends into chaos.
Consider how carefully the crime of murder has been defined. Under South African common law, murder is “the unlawful and intentional killing of a human being”. Notice how each word has been specifically selected to convey the precise meaning of the offence in question. It is also no coincidence that the definition has been phrased in such a way that it can be easily understood by all members of society, irrespective of their cultural background or level of education. This neatly illustrates what the lawyer, Gérard Caussignac, meant when he wrote: “What is clearly thought out is clearly expressed, and the words to say it come easily.”
Sadly it seems that the authors of the “Prevention and Combating of Hate Crimes and Hate Speech Bill” do not place much stock in thinking clearly. The bill, currently in draft form and open for public commentary, is Big Brother’s latest adventure into social engineering. Not satisfied with outlawing “condescending eye contact”, or legislating that members of the public be “guided by the scientific evidence” when attending gatherings, the ministry of love has now decreed that the use of mean words must be added to the list of thought crimes in the Republic.
‘Turtles all the way down’
It should come as no surprise that a critical component to interpreting the Hate Speech Bill, is the definition of the word, “harm”. In its current format, this new law defines harm as, “any emotional, psychological, physical, social or economic harm”. At first glance, this description seems innocuous enough. But, when held to the purifying flames of common sense, this interpretation quickly turns to ash.
To illustrate its absurdity, consider the words used to describe the types of harm to which this legislation would apply: emotional, psychological, physical, social and economic. The problem is that these words encompass all of human experience. They add no value to our understanding of what the bill’s authors mean by harm.
Armed with the knowledge that these words are mere waffle (“waffle”: noun. Lengthy but vague or trivial talking or writing) we can simplify the bill’s definition by removing them. This leaves us with the following cryptic declaration: “harm” means any harm.
Apparently, as far as the Hate Speech Bill is concerned, harm is just turtles all the way down; it infinitely regresses.
Inconsistencies
These inconsistencies have not gone unnoticed by civil society. In a thoughtful critique, Sekoetlana Phamodi, the director of Accountability Lab South Africa, points to the vague and circular nature of the definition of harm in the Hate Speech Bill. To remedy this linguistic impasse, Phamodi offers his own interpretation of what harm is. In his view, harm should be defined as “any quantifiable emotional, psychological, physical, social or economic impairment or loss objectively established as being detrimental to the enjoyment of rights, including to property”.
Although Phamodi should be applauded for his efforts, his proposal serves as a poignant illustration of how the road to hell is paved with the best of intentions. Although adding much needed qualifiers such as “quantifiable” and “objectively”, the cornerstone of Phamodi’s definition still relies on the understanding that harm must be “detrimental” to a person (in some way). The problem with this formulation becomes clear after we have taken another peak at our dictionary:
“detrimental”: adjective. Tending to cause harm.
Unintentionally, Phamodi has led us back to our original problem: harm is defined as harm (albeit with a few extra steps).
Round and round we go
Reaching for my beloved Oxford Dictionary, I also tried to compose a sufficiently nuanced definition of what harm is. Imagine my surprise, when I discovered that even the “world’s leading dictionary publisher” seems to have got it ass-backwards.
According to the experts, the word harm is defined as a physical injury. Injury, in turn, is defined as damage. Finally (and I suspect many of you sense where this is heading) damage is defined as … harm.
Clearly, even the experts get it wrong every once in a while.
The road less travelled
And so it seems that we have reached Robert Frost’s fork in the road. Will we sit back and watch as our civil servants play fast and loose with our precious gift of speech, and hope beyond hope that our judicial branch will (once again) come to our rescue? Or will we take the road less travelled and instruct our philosopher kings in government to go back to the drawing board and only return after their thoughts are clear, and their words come easily.