Counteracting Antisemitism with Tools of Law: An Effort Doomed to Failure?

Abstract

Antisemitism is an everlasting phenomenon—and while its manifestations keep changing over the ages, this “longest hatred,” as rightly emphasized by Robert Wistrich, refuses to give up and remains resistant to various attempts to counteract it.1 Debates over the most effective ways of combating antisemitism, racism, and xenophobia have been going on for decades, and legal instruments are very often floated as one potentially useful remedy.2 This approach, however, is frequently met with opposing voices arguing that offensive attitudes bred by hatred and discrimination based on race, ethnicity, nationality, or religion, so deeply rooted in social and historical contexts, do not lend themselves to legal definitions and should not be tackled with legal norms. When these debates are waged against the backdrop of the American doctrine of freedom of speech, one point that is obviously and immediately brought to the fore is that freedoms may be restricted by law in very few cases alone.3 This is very much unlike the situation in the member states of the Council of Europe, one fundamental reason for this being the impact the Holocaust had on the historical heritage of what is today a free Europe. The values and principles underpinning the European human rights protection system, which also rests on the European Convention on Protection of Human Rights and Fundamental Freedoms, call for legal steps to be taken against manifestations of hatred.4 Council of Europe member states are therefore required to counteract phenomena such as antisemitism with legal measures. However, when those values and principles are ostensibly disrespected and not applied, this may be seen as a breach of multiple fundamental rules all democratic states based on the rule of law must observe, and also as a mockery of law which, while duly promulgated and in force,