Clarity
Sometimes the legal mind can cut through the fatuous pandering sniveling fawning dreck like a buzzsaw. Judge Jones is one memorable example, and David Pannick QC is another. (Hold the jokes. He’ll have heard them all.)
We respect the right of everyone to believe whatever they like: that Jesus Christ rose from the dead, Muhammad was God’s prophet, the Red Sea was parted for the Children of Israel or L. Ron Hubbard identified the path to total happiness. But there are two important limits to religious tolerance. First, I have no right to legal protection against your scepticism, criticism or ridicule. Religion is too powerful a force, and is too often a cause of injustice or evil, for it to be immune from discussion and debate…But in Europe it is not the role of the law, far less the Government, to prohibit or punish publications that sections of the community (whether Christians, Jews, Muslims or atheists) find offensive.
And a good thing too. It ought to need only a few seconds of thought to see why. Think ‘goose’ and ‘gander’ if you need help.
The second legitimate restriction on freedom of religion is that Parliament and the courts may prevent some manifestations of religious belief. The law prohibits harmful conduct (such as setting fire to an abortion clinic), however sincerely a person may believe that such acts are commanded by his or her god…Much more difficult questions are raised by manifestations of religious belief that do not cause such obvious harm, but that may conflict with public policy or with other interests.
That may, in other words, cause non-obvious harm. Harm doesn’t have to be obvious to be harm. Sometimes it’s all the more harmful for being non-obvious.
Last November, the European Court of Human Rights decided, by 16-1, that it was not a breach of the right to religious freedom for a female university student in Turkey to be refused admission to lectures if she insisted on wearing an Islamic headscarf. The court emphasised that, in a multicultural society, restrictions on the manifestation of religion might be necessary to protect the interests of others. The university authorities were entitled to require the removal of the headscarf in order to protect female students who did not wish to wear such an item and who would otherwise come under severe pressure from extremist groups to comply with religious requirements.
Exactly the non-obvious harm that is so obstinately overlooked by people who are horrified by the French ban on the hijab in state schools.
A secular school is entitled to refuse to allow its female pupils to wear the more conservative jilbab if there is a reasonable basis for concern that girls who would wish to follow a more liberal tradition would then be pressured to conform to an extreme religious conception of the female role that they want to avoid. Shabina Begum v Denbigh High School is not just a case about the rights of a schoolgirl to wear a jilbab. It is also a case about whether a secular school may protect other pupils from religious pressures that seek to dictate the role of women.
There. A good buzz-saw.
To OB – what a gem this article is! (I’m referring to the one by Pannick. Yours are, of course, always gems so the comment is unnecessary!) Concise, crystal clear and utterly rational.
To Juan: Your solutions are likely to penalise the victim more than the perpetrator! Putting people into protected shelters means that the victims would be imprisoned while those making the threats would be free to terrorise others.
No, it doesn’t mean that. There’s always a risk that any plan won’t work properly, but if the political will exists to implement such a plan, there’s a good chance it would exist to see that the plan was done well. Shelters for battered women in the US enable women and children to lead more normal lives away from abusive husbands or parents.
If someone were legally protected there would be penalties for violating that protection.
Juan, do we have any evidence of widespread, organised and directed campaigns to enforce husbands’ rights over battered women [in the secular context]? No, but we do have ditto for all these various religious restrictions. Protecting a woman from one man is rather different from protecting her from a whole cultural value-system — which presumably you are inciting her to openly defy?
In my lighter moments I long for a law such as that passed under the French Revolution, prohibiting all public expression of religious sentiments, right down to the wearing of clerical dress any any other signs and manifestations of faith. The result, however, would be war. I think the best we can manage in terms of material acts is the kind of ‘protected space’ that Pannick argues for so effectively, and for safeguarding, as best we can, the choice of those who can be discreetly moved in more liberal directions.
This is quite different, of course, from defending the right of those not already entrapped by religion not to have it impinge upon them. We must hold the non-religious space open at all costs, but the difficulty of doing that speaks to the infinitely greater difficulty of the kind of aggressive roll-back Juan envisages.
I note David Pannick thinks it would be surprising if the House of Lords recognised the right to wear the jilbab and cites the Turkish case.
This case was considered by the Court of Appeal in the Begum appeal.
The Court of Appeal said it found no help from that case (paragraphs 73-74) because ‘The United Kingdom is very different from Turkey. It is not a secular state,….’ and that unless withdrawn by the parent, the law requires acts of religious worship in schools.
The UK is, then, a religious state, with religious state schools by default. The ECHR then says if that is good for one religion, it is good for all.
I wish Pannick had explained why he thought the House of Lords would take a different view on this case to the Court of Appeal, instead of implying that it was something new that would make all the difference.
One trouble with that, Juan, is that there are probably a lot of girls (I would guess most of them) who at that age don’t want to make a complete break with their families (brothers play a role in this too, don’t forget). If there is nothing for them but 1) submission or 2) a complete break, that makes things terribly difficult, and makes submission a lot more attractive than it should be. School as a secular space is some middle ground.
Ideally, I would like religious subordination of women to be illegal in the same way slavery and child abuse are illegal. But I can’t imagine how that could be implemented without massive (intolerable) levels of domestic interference and surveillance. Slow change in attitude seems the only alternative. Unfortunately at the moment thngs are going in the wrong direction.
Oh please I’m not going to get started here on “glorification”!
OB
One trouble with that, Juan, is that there are probably a lot of girls (I would guess most of them) who at that age don’t want to make a complete break with their families (brothers play a role in this too, don’t forget). If there is nothing for them but 1) submission or 2) a complete break, that makes things terribly difficult, and makes submission a lot more attractive than it should be. School as a secular space is some middle ground.
I think schools should handle the religious dress problem by just saying, “no uniform privileges for religious reasons”. Not by banning some religious things and allowing others because they are religiously motivated. A simple “no special privileges for religion” should do the trick.
The idea of a shelter would go further, possibly much further. But it shouldn’t be viewed as aggressive (a rollback) just as a means of defending people who need it.
As for helping kids who don’t want to make the complete break (scary!), I agree that secular schools is the way to do it.
Juan, oh, I see, shelters as backup if needed, in combination with no special privileges – that makes sense. Mind you, in the US state schools don’t have uniforms. They used to have a dress code, but not so much any more – so there can be problems with things like gang colours. Or could be in the past – I actually know pretty much nothing about this, so should shut up.
Roger, do you seriously think the issue with “glorification” (I wish they’d chosen a different word, I must say) of terrorism is the same as the issue with prophet cartoons? You have to be kidding, right?
Let’s see, how can I put this. Incitement to mass murder is different from drawing cartoons about one human who’s been dead for 14 centuries.
Incitement to mass murder? You must be kidding. OB, that is one of those substitutions that is not salve veritate, and you know it. If this were about incitement to mass murder, the people who put together the Pentagon budget every year would be serving hard time at Guantanomo bay.
Not only do I think incitement to mass murder is definitely falls under the same kind of protection as provoking the religious sensibilities of the pious, I thought, long ago, that National Review was wrong to fire Ann Coulter, in the aftermath of 9/11, for saying the U.S. should bomb the Middle East into the stone age and Christianize the survivors.
If freedom of speech only cuts one way (we can glorify a state sponsored bombing campaign, but not a non-state sponsored bombing campaign) we have lost the right to freedom of speech. Period.
I would love to see a comparison of the deaths from state sponsored violence vs. the deaths from terrorism. I’m thinking the proportion would be maybe a 1,000 to 1, but perhaps I’m underestimating.
OB:
Juan, oh, I see, shelters as backup if needed, in combination with no special privileges – that makes sense.
Well, actually, I brought up the idea of providing legal protection to people who leave their family’s or ethnic group’s religion in the context of adults, not children.
It could be an alternative to outlawing religious dress in places where dress is normally unrestricted, e.g. state offices (public buildings where everybody has to go) and university campuses (of all places!).
Specifically, the justification for banning hijabs in such places was to protect those who didn’t want to wear the things. Although that doing that should help some in the desired way, it would also be quite a severe limitation on the rights of people who wanted to wear it.
Roger- By “state sponsored violence” I assume you mean “war”?
I’m not sure the moral equivalence you are trying to promote really works.
Within a free society we have laws and social norms which are policed by a democratic state which is (at least in theory) accountable to the population of that society. Breaking those norms and laws by, for example, inciting terrorism is seen as morally reprehensible because it undermines society (and endangers members of that society).
Between societies we have no such structures. We have cobbled together some rules which many societies try to abide by but, in the final analysis, relations between states are maintained by force wielded by states. Morally, this is not an ideal situation but, until we get a world government, this is the best we can do.
It is simply wrong to declare all wars as “State sponsored violence” and make it morally equivalent to individual violence. IN the former case it is sometimes the least worst option in an imperfect world. IN the latter case it should not happen in a free society
I’m glad bluejewel reminded us of the Court of Appeal’s pathetic judgement on the hiljab case.
It re-inforces the need, now being proseltysed by Rushdie and others, for a repeal of the blasphemy laws. It is appalling that at this late stage the UK is, effectively, a theocracy.
Chris – Yes, repeal also of the parts of the education acts that require religious worship by schoolchildren. And, of course, dissestablishment of the church of england.
Unfortunately, neither of those is going to happen before the Lords hear the Begum case, which is the reason I wonder why Pannick mentions the Turkish case in which the secular nature of the state was central, and was the very reason the CofA said it was of no help in the context of a religious state.
I agree that the Lords would be bonkers to find in favour of Begum, but they start their days business with prayers, so as far as I am concerned, they are already certifiable as lunatics.
I think Pannick is over optimistic if he thinks they will use the Turkish case as the basis for a ruling against, for that would mean they would be using secular principles in this religious state.
Still, you never know: they are lunatics after all.
mkj, I’m not making a statement about moral equivalence — I’m saying, unequivocally, that state sponsored violence is much worse, on any dimension, than terrorism. No terrorist has ever opened a concentration camp or contracted Lockhead to build 8 billion dollars worth of bombers. I mean, I wasn’t even going into the obscene amounts spent on military ware by, say, the U.S. Terrorism is a small spin off of state violence, and far from undermining society, has often been used by the great powers. As we all know — why rehearse the story of the 10 years support of the jihadis in Afghanistan here?
The smaller point is that the law against “glorifying” terrorism is either covered by laws that already cover conspiracy to murder, or is — as its proponents say — symbolic. It is a foul law, and it rather takes away the legitimacy of the argument that we want to strongly preserve the right to criticize religion — including the right to blaspheme.
The glorifying terrorism law is nothing more than McCarthyism, reminiscent of the U.S.’s attempt to ban the communist party in the 50s. And, of course, it will have the opposite effect it is intended to have — making real conspiracies less transparent, and loading honest political opinion with the title of thought crime.
“it rather takes away the legitimacy of the argument that we want to strongly preserve the right to criticize religion — including the right to blaspheme.”
Now how does it do that? Surely that’s only true if you redefine blasphemy to mean ‘disagreeing with or flouting basic moral views such as that murder of random innocents is wrong’. But that is not what blasphemy means. Eliminating important distinctions is sheer rhetoric. Same thing with saying this is “nothing more than” that, when the two in fact are different in significant ways.
None of this is to argue that the law against g of t is a good thing; it is to argue that your argument is full of holes, or of rhetoric, which comes to the same thing.
No, it is to argue that freedom of expression is a uniform and continuous thing, and that a subset of that freedom is the freedom to criticize religion. If you set up a special category — I can criticize religion — it does not mean that you are protecting freedom of expression, and it casts suspicion on the motives for criticizing religion. In Mao’s China, you could not only criticize religion, you were encouraged to, sometimes at the point of a gun. This did not mean that Mao was encouraging either real freedom of expression or the real criticism of religion. It meant he was crushing opposition in his country.
Now, I have no problem with rhetoric — it isn’t a pejorative term. But your notion seems to be that there is no semantic content to legitimacy. I’d say that’s simply wrong; and that the statement points to the motives of the participants in the discussion about freedom to criticize religion; and that it addresses their selectivity in conjoining that freedom with freedom of expression.
“freedom of expression is a uniform and continuous thing”
What does that mean? It sounds like part of an anthem.
I don’t make any claims to be protecting “freedom of expression” with zero qualifications – I’ve said that many times. I’m interested in particulars as well as generalities. I think there are no good reasons and plenty of bad ones to give religion special protection; I think valorization of terrorism is a different issue; I don’t agree that I’m under any obligation to see the two as part of some continuously-flowing river, or indivisible “thing”.
But again, OB, and I’ll have to agree with roger here, this restriction of freedom of speech about “valorizing terrorism” is specious. There is no clear cut definition of “terrorism,” and this ever growing, floating term (and the enforcing laws) can be simply used to silence political dissent or attack unpopular minorities.
What is “terrorism”? What is “valorizing” such? Doesn’t modern popular culture that celebrates gang violence and machisimo then fall under that category? The residents of gang-troubled neighborhoods might think so. In that case, why not arrest Suge Knight or 50 Cent? They are “glorifying” a kind of terrorism-one that probably impacts American cities more than Al Qaeda.
Your distinction is artificial, imo. Who are the real “terrorists” are in the world today? “Terrorism” comes from “terror.” If an activity slaughters innocent people, destroys cities and cultures and civillizations, and wastes hundreds of billions of dollars, it is a far wrose form of terrorism than a few chanting religious nuts in London. And, the fact that there are no officially adopted “laws” governing relations between states doesn;t excuse the “terror” modern states engage in.
Before the anti-American, anti-Western, anti-Israeli crowd figured out that most of the terrorism in the world was directed against “western interests”, terrorism had a clear-cut definition – targeting innocent civilians with violence for the purpose of political intimidation.
Those who wanted to support terrorists because they opposed the interestes the terrorists were attacking have introduced over time various other definitions which were vague enough to draw attention away from the fact that their side was targeting innocent civilians with violence for the purpose of political intimidation.
Such apologists for terrorism will say that forces which attack terrorists who have taken shelter among civilians are responsible for any injury to civilians that occurs when in fact it is the terrorists taking shelter among the civilians who are the cause of it.
Refusal to acknowledge the agency of the original terrorists in endangering the lives of innocent civilians is the most common way that apologists for terrorism use to confuse the issue by making reckless charges of terrorism against innocent soldiers.
Strictly speaking, your definition of terrorism is inaccurate. ‘Political intimidation’ is something meted out to civilian populations far more often by state forces than by non-state violent actors.
Why is, for example, firing a rocket into a building to kill a ‘terrorist’ leader and also happening to kill some children not terrorism? Is the object just to kill the ‘terrorist’ and the deaths of the children an accident? Or is the surrounding civilian population also supposed to learn to shun the potential targets of such action, and thus be ‘politically intimidated’?
‘Terrorist’ violence can have many goals: acts of assassination against political figures, attempts to raise awareness amongst otherwise-uninterested third parties, attacks on security forces in a bid to create ‘ungovernability’ [otherwise we must classify much of the IRA’s activities since the 1970s as ‘not terrorism’ by your definition].
Terrorism is the label that states choose to give to actions by non-state actors that breach the Weberian ‘monopoly on legitimate violence’ claimed by such states. It is a label that describes many very very Bad Things, but they are not Bad Things done by a clearly-identifiable pre-defined group of Bad People who are always and everywhere ‘Terrorists’ — that is just another label.
Not that I don’t think terrorists are bad people, just that there are lots of bad people who do similar things we don’t label terrorists…
I will admit that the brand of civilian-slaughtering ‘spectacular’ that is the terrorist fashion of the 21st century is particularly egregious, but to assimilate all things that might be called ‘terrorism’ to that image is dangerously imprecise.
It is commonly observed that the wars of the 21st century seem to be resulting in 90% civilian casualties and only 10% military. One might well argue, though this is a different point, that ‘war’ is well on the way to becoming indistinguishable from ‘terrorism’…
Brian, as I said, I wasn’t addressing Roger’s overall argument about terrorism; that’s a different subject; I was addressing his specific point that ‘glorification’ of terrorism is the same issue as the cartoons and that ‘freedom of expression is a uniform and continuous thing’. I dislike arguments that rely on erasure of salient distinctions, and that is what I was disputing.
The problem with that rationale, Dave, is that you have to create a story around the counter-terrorist action if you wish to say it is killing civilians for the purpose of political intimidation. In the case of the terrorist attack, the terrorists proclaim themselves as terrorists. They talk about targeting civilians and often describe the civilians in inhuman terms to justify it. The terrorists then go and hide where, of course, the defenders of the dead civilians go looking for them.
Up to this point, things are clear cut: A group of people killed some civilians on purpose in order to intimidate the society the civilians were part of. The defenders of the civilians have to go looking for the killers to stop further attacks. The terrorists have hidden among other civilians, some of whom get killed as the terrorists are brought to justice. How do you blame the defenders of the terrorists’ victims when they were doing something that was necessary?
The only way you can throw the blame on them is to create a story about how the defenders of the terrorists’ victims actually wanted to kill civilians. However, you don’t have the evidence to back up such a charge. So you introduce the _assumption_ that the counter-terrorist forces wanted to kill civilians. You get all tangled up in the fabrication of a story that will blame the counter-terrorist forces as much as the terrorists. But if you stand back and look at the cold facts, there is a clear cut situation in which the terrorists have committed a terrorist act, which they often even brag about having committed, while the counter-terrorist forces talk about minimising civilian deaths. Occasionally, you see a counter-terrorist soldier ignore the danger to civilians, maybe even behave recklessly. Occasionally, you see a counter-terrorist soldier injured or even killed trying to save a civilian’s live or while refraining from shooting in order not to endanger civilians.
But the real terrorists — those who target innocent civilians with violence for the purpose of political intimidation — continue to do exactly that. And they continue to brag about it, because some people excuse them for it.
OB, I wasn’t going to respond to you — I figured that we had each said our piece — but I’m moved, since you have brought it up again in response to Brian, to say that your response to me doesn’t make much sense. While you might find uniformity and continuity to be anthem like (which gives me an image of church choruses singing Newton’s Principia, from which that kind of language is borrowed, as it was borrowed by the classical liberals) the harm principle would make no sense if it didn’t apply to expression per se, meaning that all expression is considered as one class of thing. If, from the point of view of the harm principle, there are genres of expression that possibly entail harms different from any that fall within the range of the harm principle, I’d like to know what they are. Less obliquely: legislation about expressing opinions should not consider the genre of opinion so legislated. Thus, a church that advertised holy water as a sure cure for cancer would be held to the same laws on fraud as a company that advertised a pill as a sure cure for cancer.
Of course, the real falls short of the ideal — Lourdes isn’t treated the same way a conman’s pills of flour are treated — but the legislative ideal is the same.
Your reply — that you like to consider particular cases — seems question begging to me. You seem to think that there should be special exceptions made for secularists — the same kind of special exception that the mullahs want for religious speech. I don’t see any difference, and in fact the disturbingly authoritarian idea of forbidding religious expression that animated this thread makes me think that freedom of expression is, again, all about freedom of my expression, and the forbidding of that I disagree with.
Yes, Juan, sometimes you can look and say, ‘here is the original moment of peace, here is the situation the terrorist launched his dastardly attack into, and before that there was no violence’, and sometimes you can’t.
Without getting too far into the history of the Middle East, let us just say that, within the lifetimes of the majority of people currently alive in that region, there has never been such a moment…
And in the news today, Iraqi Interior Ministry discovered running ‘death squads’ out of its police service… State terrorism anyone?
“You seem to think that there should be special exceptions made for secularists”
Nonsense, I think no such thing, and – to use an annoying phrase you used the other day, “and you know it.”
I’m not in the mood for tricksy rhetoric today.
OB, you are right. That was an uncalled for exaggeration of what you wrote. Sorry.
Quite all right, roger.
(How I love an apology. If only a particular editor had had the decency to apologize – I would have had a much better week. It’s quite extraordinary what a difference an apology [or its absence] can make. I think I’ll write a book about the subject.)
Dave, the question of death squads being run out of the Iraqi Ministry of Interior is a different discussion and an interesting one. In brief, the question of whether it is terrorism depends on what they are doing. The question of whether they are legal depends on whether they are following the law. All combinations are possible depending on the law and the activities.
But let’s stick to the discussion we started,
Finding “an original moment of peace” wouldn’t solve anything. An act of terrorism is a terrorist act whether it is preceded or followed by other violence, even other terrorism, or not. When civilians are killed to intimidate the society they belong to, terrorism has been committed. If we look at the actual facts of who is attacked and with what goal, we can maintain our focus and say a given act is an act of terrorism and another is not.
OB, re your book. You know, you are quite well known on the net, more than most academics. Why don’t you use that a bit? Get a few bloggers to post SEND OPHELIA BENSON HER BOOK, DAMMIT posts. I’ll gladly put up one on my blog (which is small), and I’m sure the Crooked Timber people will, and the Valve, and Norman Geras, (which are larger), etc., etc. I notice that Continuum has an academic marketing person, an Aleksandra Kaminska. We can all address her.
I deal with publishers all the time as a reviewer, and often you really have to press them to get them to do things like send you galleys in a timely manner and the like.
Thanks, Roger. Bloggers have their own fish to fry though. Hey how about a demo in Trafalgar Square instead? Maybe I could get an MP to say “we demand” about something. “We demand unconditional respect for OB.” That would be good.
No doubt a battered copy of the book will turn up some day. Perhaps in March, or late April, or maybe August.