Hate crimes, Hate speech and Criminal law: towards the construction of crimes due to structural danger?

Abstract

This paper tries to respond to the multiple problems that the apparently unstoppable and certainly questionable expansion and proliferation of the hate crimes and the hate speech crimes poses to the penal systems of any democratic State and, especially, to those that do not have a model of militant democracy, such as Spain. With this goal, we walk the path from the origins of both groups of crimes to their most recent and questioned developments. This will lead us to draw on Galtung’s studies about violence as a complex social phenomenon; studies that will provide us conceptual instruments (such as those on structural and cultural violence), extremely useful in order to delimite which behaviors can be legitimately prohibited and punished by both classes of crimes according to our constitution. As result, a proposal will be made to delimit hate crimes and hate speech crimes, that will allow to made a restricted and cautious use of both sort of crimes, but does not avoid that they can fullfit the protective functions of certain social groups, that determined and legitimized of their initial creation.