Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech

Gould, Rebecca Ruth

Abstract

The challenge posed by legal indeterminacy to legal legitimacy has generally been considered from points of view internal to the law and its application. But what becomes of legal legitimacy when the legal status of a given norm is itself a matter of contestation? This article, the first extended scholarly treatment of the International Holocaust Remembrance Alliance (IHRA)’s new definition of antisemitism, pursues this question by examining recent applications of the IHRA definition within the UK following its adoption by the British government in 2016. Instead of focusing on this definition’s substantive content, I show how the document reaches beyond its self-described status as a “non-legally binding working definition” and comes to function as what I call a quasi-law, in which capacity it exercises the de facto authority of the law, without having acquired legal legitimacy. Broadly, this work elucidates the role of speech codes in restricting freedom of expression within liberal states.

Citation

Gould, R. R. (2022). Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech. Law, Culture and the Humanities, 18(1), 153-186. https://doi.org/10.1177/1743872118780660

• Journal Article Type: Article
• Acceptance Date: Dec 31, 2018
• Online Publication Date: Aug 18, 2018
• Publication Date: Feb 1, 2022
• Deposit Date: Oct 10, 2023
• Publicly Available Date: Oct 10, 2023
• Journal: Law, Culture and the Humanities
• Print ISSN: 1743-8721
• Electronic ISSN: 1743-9752
• Publisher: SAGE Publications
• Peer Reviewed: Peer Reviewed
• Volume: 18
• Issue: 1
• Pages: 153-186
• DOI: https://doi.org/10.1177/1743872118780660
• Keywords: free speech, academic freedom, censorship, speech codes, hate speech, legal indeterminacy, Critical Legal Studies, Critical Race Studies, political theory, universities, Israel/Palestine