Several years ago, I wrote an essay on the concept of human dignity in different legal systems, including the Islamic. Most legal systems honor human dignity, but the concept has different meanings, depending on history, culture, tradition, and deep political and religious commitments. I believe the same thing is true for the concept of human rights. The universal acknowledgement of human rights obscures real differences across the globe.
A new book from Bloomsbury, Human Rights Commitments of Islamic States, by Paul McDonough (Cardiff), examines questions at the intersection of international human rights and Islamic law. Looks very interesting. Here is the publisher’s description:
This book examines the legal nature of Islamic states and the human rights they have committed to uphold. It begins with an overview of the political history of Islam, and of Islamic law, focusing primarily on key developments of the first two centuries of Islam. Building on this foundation, the book presents the first study into Islamic constitutions to map the relationship between Sharia and the state in terms of institutions of governance. It then assesses the place of Islamic law in the national legal order of all of today’s Islamic states, before proceeding to a comprehensive analysis of those states’ adherences to the UN human rights treaties, and finally, a set of international human rights declarations made jointly by Islamic states.
Throughout, the focus remains on human rights. Having examined Islamic law first in isolation, then as it reflects into state structures and national constitutional orders, the book provides the background necessary to understand how an Islamic state’s treaty commitments reflect into national law. In this endeavour, the book unites three strands of analysis: the compatibility of Sharia with the human rights enunciated in UN treaties; the patterns of adherence of Islamic states with those treaties; and the compatibility of international Islamic human rights declarations with UN standards. By exploring the international human rights commitments of all Islamic states within a single analytical framework, this book will appeal to international human rights and constitutional scholars with an interest in Islamic law and states. It will also be useful to readers with a general interest in the relationships between Sharia, Islamic states, and internationally recognised human rights.
This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Steven D. Smith (University of San Diego School of Law) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:
What is the relation between liberalism and the regulation of–or, conversely, the legal protection of–“hate speech”? And what if anything does the problem of hate speech tell us about liberalism?
Hate speech is pretty much by definition vicious and hurtful, and a legal regime without “liberal” aspirations might have no prima facie reason to respect or protect it (assuming that it could be adequately defined). Conversely, a liberal government might extend constitutional protection to hate speech–for pragmatic reasons (slippery slope concerns, for example, or worries about overbreadth) but also for more principled reasons. More specifically, liberalism implies that people should have the freedom to do and say things that are objectionable or wrongful so long as they cause no harm to others.
“Harm,” to be sure, turns out to be a complicated–and often conclusory or question-begging–notion. Suppose Puritan is profoundly disturbed by his neighbor Pru’s practice of watching prurient movies in her basement. Puritan’s emotional distress may be real enough. And emotional distress is unpleasant; in other contexts it can constitute a compensable injury. But under liberalism, Puritan’s emotional distress in this context will not count as “harm”–or at least not as the cognizable harm that can justify a restriction on Pru’s liberty. Why not? We will say that Pru’s practice cannot be restricted because it causes no harm, but what we mean is that Puritan’s very real pain cannot count as harm here because (we know in advance) Pru’s liberty should not be restricted. We will express this foreordained conclusion by saying that Puritan’s “offense” or “hurt feelings” do not amount to cognizable “harm.”
But offense and hurt feelings are exactly the kinds of harm–or rather of non-harmful “hurts”–produced by hate speech (unless, that is, such speech goes beyond mere hatefulness by, for example, inciting listeners to violence). Or so it may seem. And on this view, there is no justification for regulating people’s ability to express themselves hatefully, no matter how worthless such speech may be.