The Zan bill dismantled piece by piece from a libertarian perspective: this is why it would be a dangerous law

The polarization of the debate on the Zan bill seems to have eradicated any hypothesis of serious and technical analysis on the text: it has disappeared – submerged by accusations of homophobia, on the one hand, and of family destruction, on the other, of racism and high hatred a system versus limitation of freedom of expression – the possibility of reflecting sine ira et studio on any problems that that text of law could generate if approved.

Two opposing fronts have been formed, irreducible to the discussion between them.

And if a debate is reduced to the minimum, and farcical, terms of a media kitsch of starlets who paint their palms, in a mantric consistency of post-Soviet Stakanovism turned to the causes of which nothing is known and of which nothing is known. read, and on the other hand the defense of freedom of expression, the true one, the authentic, profound, substantial one, is sub-contracted to Catholic extremism, ceases to be a debate, and becomes only a theater, a rustic skirmish with a knife to satisfy the respective claque .

The Zan bill, let's face it immediately, is a dangerous text of the law. Yes, dangerous: it has a general regressive and pan-criminal approach, culturally oriented to respond to a problem, real or potential that it really is, through generalized criminalization.

We come from decades of rhetoric on the need to escape from punishment, to de-criminalize society, to overcome the punitive sphere, and then that same "cultural" world that poses as a progressive churns out purely signatory, symbolic, sloganistic, more tense measures, one would say, to a captatio benevolentiae towards a certain electoral world rather than aiming at the real contrast of a serious phenomenon but with liminal and confused outlines, in terms of juridical definition.

It is known that the current bill originates from the intertwining and intersection of five previous texts, each of which with different underlying conceptual sensitivities and with a series of presuppositions that are not entirely homogeneous with each other, ending up integrating a mere, incoherent, summation among the various, rather than a rational synthesis. An overall but fragmentary and holographic single text of the fight against gender violence.

And on the other hand, already reading the series of definitions contained in the opening of the bill, concepts that are completely beyond the horizon of the law appear, instead innervating in the perspectives of psychology, anthropology, sexology, academic concepts on which fierce debate and defining univocity are scarce .

First serious problem, given that the Zan bill provides for penalties of a criminal nature and criminal law is governed by a series of guarantee principles, including the specificity of the case and the incriminating rule: in this perspective, the evanescence of definitions, of the underlying legal assets and protected is a large mesh that ends up radiating the sphere of punishment beyond the mere material criminal attitude, the act of violence, to involve, on the contrary, also conceptual expressions and opinions concerning non-univocal aspects.

In fact, what is gender identity if not a concept on which a heated debate is raging in academia? Is it really possible to transform into a conceptual presupposition of a criminal sanction an element on which there is no substantial agreement and univocity between experts and scholars and on which the Constitutional Court, although referred to by Zan, has not taken a structured position?

This is a very serious potential drift because the concrete specification would then be returned to the courtroom, transforming the judge into a sort of demiurge capable of inflicting a serious penalty on us on the basis of personal ideas lacking an organically and consistently juridical correspondence. .

On the other hand, by reading the letter d) of article 1 dispassionately and without prejudice, one experiences a thrill of fear in learning that a person could be called to answer for a crime in reference to "perception" and "manifestation of self "of the" victim ": discriminate not in a factual sense and on the basis of ascertainable assumptions, also in terms of evidential evidence, but on the basis of elements from the inner forum, psychic, subjective, unknowable from the side of the alleged" aggressor ".

What can discrimination on the basis of the perception that the other has of himself or herself in reference to gender mean in terms of criminal punishment and integration of the crime in question?

If a man, apparently convincingly, declares that he identifies with a woman, without any biological appearance or transition and I deny this aspect, perhaps because I manage a female-only gym and I cannot access it, I could end up under the ax of the criminal investigation because perhaps the person for other reasons of his depression ends up killing himself? Am I the instigator of that suicide?

Or, without having to get to this tragedy, if he were to complain about simple ailments dictated by my "denial" of his perceiving himself as a woman, being in my eyes a biological male and not being able to know in a real way if he really perceives himself as a woman, may I still have to answer?

Or, however paradoxical it may seem, supporting the natural foundation of the family, as in the end also establishes article 29 of the Constitution, could come to integrate, in the editorial confusion of the incriminating norm, a prerequisite for making me end up having to answer for it before the investigators ?

The Report that accompanies the bill and which should, a really obligatory conditional, explain the matrix and the semantic and conceptual choices adopted in the lexical formulation of the text not only does not help to unravel the hermeneutical mists but even increases and complicates them: to reading in fact seems to be in the presence of one of those post-structuralist essays from a Californian university in which critical legal theories and constructs are pastured that would not be displeased by Deleuze and Derrida, and I wonder how it could translate into legal and sanctioning practice, respectful of the constitutional framework and of freedom, a concept like "multiple or intersectional dimension of discrimination" .

Basically, article 4 of the bill, under the apparent and persuasive protection of the pluralism of opinions, shoots at zero point against unwelcome opinions, through a clause introduced by the "provided" in the mind of which the expression of sentences is punished, concepts, writings that could instigate or empirically lead to discriminatory acts.

We are in the indefinite, shady, evanescent field of instigating, conceptual cases: and as we know, it is a very slippery terrain given that the procedural and criminal keeping of the distinction that separates free expression of thought, constitutionally protected, from actual instigation or discrimination is more that labile.

Hate itself is an emotion, a feeling, its juridification an abomination. We can punish the material manifestation of hatred when it manifests itself in concrete, empirical, measurable and evaluable violence, not if it remains a controversial conceptual and philosophical expression. Karl Kraus said that hatred must make us productive, otherwise it is better to love: perhaps today he too would risk indictment.

In this sense, it seems to echo a sad past in which novels, poems, songs were brought to trial as they were considered to inspire criminal acts.

The gray and worrying years of Tipper Gore, of the PMRC, of ​​the ' explicit lyrics' stickers pinned on the covers of the music albums, the trial against the AC / DC considered, with their song Night Prowler , instigators of the terrible crimes of the serial killer The Night Stalker , born Richard Ramirez. A pernicious state puritanism ready to make any complexity, however angular, succumb under its mallet.

Most of those who today garrulous, happy and joyful paint themselves 'ddl Zan' on their hand, may have some songs or writings in their cellar and repertoire that could act as an instigating detonator of acts of violence or discrimination. The criminal case is not retroactive, of course, but those songs will continue to offer them in concerts, and in any case, it happened in the United States, even the mere album, the mere novel, even if referring to the past, could be considered instigators and propulsive of the criminal act in the contingent.

Imagine a violent assault and that the arrested person declares in a repeated manner that he was inspired by a certain song, it is possible that the artist would see himself entering the heart of the process for further information on the actual existence of the instigating conduct.

Whole hip hop , hardcore and metal discographies would go to waste, you can imagine. But also novels and essays. Many written by homosexuals.

Certain scenes from "Querelle de Brest" , Fassbinder, or "Tenderness of the Wolves" , by Lommel, could be considered inspiring crimes or ferocious discrimination, not to mention certain passages from the works of a Jean Genet or William Burroughs, the latter even 'guilty' of having written a novel "Queer" which represents, with the glasses of today's politically correct psychotic, a sort of discriminatory summa for the chosen language, being instead clearly and obviously the exact opposite than would be considered today.

Fortunately for them, Fassbinder, Genet, Lommel and Burroughs died before witnessing this surreal massacre, but let's imagine a living author who could be called to criminally answer for some of his particularly controversial and indigestible pages for the vestals of the politically correct, following the commission of a violent 'homophobic' fact inspired by words from those very pages.

The sweetish and simplifying patina of the world imagined by this bill would end up problematizing and putting people like Cèline, Bukowski, Bunker, Friedkin from "Cruising" under the metaphorical carpet, eradicating the cruel beauty of art, which to be really art must hurt and make people think, not be accommodating.

Whether you like to admit it or not, there is art erupted from the torn belly of history thanks to hatred, ferocity, wanting to lack any compromising perspective.

On the contrary, the gray spirit of normalization would lead many to self-censor themselves in order not to run into legal problems, because you never know, 'that verse' could have inspired the homophobic aggression committed by a man we have never seen nor met.

It is true that the Zan bill reproduces all the fallacious and highly problematic schemes that inspired other sloganistic norms, such as the bad Gambaro bill on countering fake news : at the end of the fair, with that bill a authentic truth of the State, as was not lacking very critically in the doctrine, punishing any form of expression dissonant with respect to an institutional narrative approved, as happens in dictatorships, by public power.

He taught Marc Bloch, the famous French historian shot by the Nazis and who dedicated a beautiful book to war propaganda and false news, "The War and false news" , as the true resistance to false, even cruel, is knowledge, the true and informed debate. Because if we allow the State the convenient justification of protecting us, it will then be very plausible to believe that the State itself will begin to impose a sort of racket of ideas, tolerating some for mere convenience (perhaps electoral or consolidating one's status ) and banning others. .

In this sense, the negative connection that the Zan bill operates with the Mancino law, the law containing the legislation against incitement to racial hatred and already subjected to strong critical scrutiny at the time for reasons similar to those expressed up to now: the conceptual scheme is very similar, all the unacceptable and indefensible elements, such as homophobia, neo-Nazism, racial hatred, are summed up and merged with each other, to suggest that those rules would not affect freedom but only who threatens freedom.

Criticize the Mancino law and you will find yourselves pointed out as nostalgic for the Third Reich, to the same extent, this is the game, critically and punctually analyze the Zan bill and you will be described as ferocious homophobes.

On the other hand, we do not already hear the repetition "opinions are not punished but only homophobia", or worse still "only homophobes must be afraid", a tired mantra, however, devoid of substance and truth for all the reasons we have seen above. ?

But is it possible, I say, that no one has come to mind that the problem is not one of criminal politics, but one of cultural politics? Backward attitudes and ignorance cannot have jail as a physiological outcome. Let's burn every school, every academy, then, because every problem can be faced (I don't think solved) by handcuffs, by a trial and for some years spent re-educating behind bars.

You have really raised metaphorical barricades to expel the obscene crime of plagiarism from our legal system, under which the philosopher Aldo Braibanti was condemned on the basis of Lombrosian assertions that affected precisely the thought, the behavior, the choices and not the facts, and then reproduce the entire scheme, only reversed in the sign?

Lack of respect and tolerance, ideas that are rightly or wrongly considered 'obscene', are not fought with the police and the judiciary, but with debate, civilizing the same politics that on the one hand preaches expressive continence, respect, tolerance and then on the other it scuffles in verbal mud-fighting guerrilla warfare: lead by example, instead of plunging us into a hell of repression.

And give him supporters of the Zan bill a good example, unable to accept that someone can think differently from you, without having to be portrayed as a disgusting intolerant, and covered with insults, threats, insults in every social profile network .

Whoever uses violence today, true, real, cruel violence, you too know very well, is already punished by our legal system. What you are asking for is a battle of culture, education and respect which, however, cannot be carried on with the stick of the law and the cold of a prison.

Since you like talking about 'toxic models' so much, let's take drug addiction: did prison really improve the situation?

I do not think. Prohibition, repression, on the contrary, have considerably aggravated the situation, and it is paradoxical that the same political forces that in words have proposed to overcome the criminalization of social anomie and bring it back into the bed of an inclusive society, now want to replicate that repressive model , deeply, intimately wrong, against those who are hastily classified as "homophobic".

And this, of course, also applies, on the contrary , to those who today defend absolute freedom of speech and then perhaps invoke jail for the drug addict or for those who hold ridiculous amounts of cannabis. Show consistency if you can. All.

It will be said: exaggerations. If one expresses a mere opinion, he will not meet anything and the Zan bill aims to punish only true, real violence. No, it is a wrong position, superficial or worse, purely instrumental. Because once approved, become law, modified the penal code, a complaint will initiate a criminal proceeding concerning your opinion, your sentence, your essay or novel, and the direct link that could have triggered an actual violent act homophobic perhaps committed by another subject, this yes really violent.

And anyone who is at all familiar with criminal investigations knows very well that they are themselves a punishment, a sentence even before being indicted.

Subjected to media pillory, emotional stress, economic expenses, you may also end up archived but in the meantime you will have spent months in the meat grinder: and then, a judge for the preliminary investigations could believe that the generic nature of those concepts expressed in the law deserves a thorough trial where perhaps there can be a comparison between technicians, experts, academics to understand if gender identity, once defined in a procedural key, has really been violated by your opinion, and in what way.

It is the triumph of the stabilization of the emergency: it is legislated on the pressing thrust of emotionality, without really reasoning in criminal and legal-philosophical terms, without concretely evaluating the impact that a given rule will eventually produce in the heart of our society.

Every single law approved in this country in the name of a real or presumed emergency has generated fatal libertidic phenomena, asymmetries and distortions of various orders and degrees that have led us, step by step, to renounce ever more substantial fragments of our freedom. An unacceptable drift that no one should passively suffer, because as Baudelaire wrote “only those who know how to conquer it are worthy of freedom” .

The post The Zan bill dismantled piece by piece from a libertarian perspective: this is why it would be a dangerous law appeared first on Atlantico Quotidiano .

This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL on Tue, 04 May 2021 04:00:00 +0000.