A New Book on Human Rights and Islamic States

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.

Smith on Liberalism and Hate Speech

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?

I.

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.

Read more

Pin on Hate Speech on the Web

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 Andrea Pin (Padua) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.  On behalf of the future, I ask you of the past to leave us alone . . . You claim there are problems among us that you need to solve.  You use this claim as an excuse to invade our precincts.  Many of these problems don’t exist.  Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.  We are forming our own Social Contract . . . We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity . . . Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

This is an excerpt from A Declaration of Independence of the Cyberspace.  The visionary thinker John P. Barlow proclaimed it in 1996 in Davos, Switzerland – the Sinai of globalization.  Barlow’s pride for what the cyberworld would become in the future was largely misplaced.  As many soon acknowledged, Barlow’s prophecy, that from online anarchy would almost spontaneously rise an order based on freedom, was wrong.  The cyberworld, after all, is just as much a part of our world as we are a part of it. 

Philosopher Luciano Floridi suggested we now live an onlife existence, in flux between the physical and virtual world.  Cyberspace cannot claim an independent life any more than we can claim our independence from it.  Our reputation, social relations, and political sphere take shape in an environment where cyberspace occupies a special place.  AI technologies affect how we perceive ourselves and others.

The issue is whether there is a sufficient public philosophy – or at least an intellectual framework within which our onlife sustains itself. As a recent book noted, 

“The medieval world had its imago dei, its feudal agrarian patterns, its reverence for the crown, and its orientation toward the soaring heights of the cathedral spire.  The age of reason had its cogito ergo sumand its quest for new horizons–and, with it, new assertions of agency within both individual and societal notions of destiny.  The age of AI has yet to define its organizing principles, its moral concepts, or its sense of aspirations and limitations.”[1]

Read more

Madera on Religious Hate Speech in Europe

This past July, the Center co-hosted a conference with LUMSA University 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 Adelaide Madera (University of Messina) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

In modern multicultural societies, various groups claim visibility in the public space and an equal opportunity to manifest their views, values, and convictions, even of a religious nature. In Europe, since the release of Salman Rushdie’s Satanic Verses, further events, such as the Danish cartoons controversy and the Charlie Hebdo killings, have given rise to increasing skepticism and prejudice against religious minorities and emphasized the risk of a clash between religious freedom and freedom of expression. The crucial questions are whether and to what degree freedom of expression can be subject to restrictions to protect the religious feelings of the faithful and what are frontiers of freedom of expression. Hate speech could be entangled with freedom of religious expression, which could degenerate into a dangerous religious hate speech, aimed at offending those who do not share analogous convictions. However, the difficulty of defining hate speech has given rise to a proliferation of claims of hate speech. The risk is the rise of a culture of offence where everyone can claim a right not to be offended.

Indeed, the construction of a hierarchy between the two liberties concerned would provoke a constitutional conundrum as both concern fundamental rights. So a careful case-by-case balance is required, which takes into careful consideration all the circumstances of the case. Thus, not only should the content of the message be assessed, but also the expressive waysused. Furthermore, who speaks and who the audience is can make a relevant difference.

The search for such a balance acts as a stress test for domestic legal frameworks and emphasizes their inadequacy. At the moment, the notion of hate speech is extremely fluid in Europe, due to the lack of a uniform legislative approach. Although in many European countries there is a progressive dismantling of traditional blasphemy laws, which were based on a privileged link between the State and the predominant religion, various States are experiencing some difficulties abandoning regressive patterns aimed at highly protecting religion—preventing an offence against divinity—and moving toward models of protection of religious adherents (hate speech).

In Recommendation 1805 (2007), the European Parliamentary Assembly urged national law and practice to “permit open debate on matters relating to religion and beliefs” and not “privilege a particular religion in this respect, which would be incompatible with Articles 10 and 14 of the Convention,” and to “penalise statements that call for a person or a group of persons to be subjected to hatred, discrimination or violence on the grounds of their religion as on any other grounds.” Finally, a decriminalization of blasphemy is solicited. Despite these guidelines, states have struck disparate balances between free speech and freedom of religion, due to their various historical, political, and social background, exacerbating the political debate and giving rise to litigation.

Read more

Lugato on the International Legal Framework for Hate Speech and Its Limits

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 Monica Lugato (LUMSA), who co-organized the conference with us, submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

1. Is ‘hate speech’ legitimately to be excluded from the scope of freedom of expression?Or is it protected speech? How does its admissibility or inadmissibility relate to liberalism? My short answer is that the legal regulation of hate speech is not incompatible with liberalism’s basic assumption about the priority of individual rights and the need to shield them from State interferences; provided an agreement on what ‘hate speech’ is; and provided that limitations to freedom of expression remain the exception to the fundamental right to freedom of expression. The international legal framework on freedom of expression provides a useful point of observation on how and to what extent bans on hate speech may be compatible with liberalism. So, first, I will briefly describe its main components, and then discuss its consequences for the debate on hate speech and liberalism.

2. International law protects freedom of expression, while also prohibiting what is currently called ‘hate speech’. Under art. 20, par. 2, of the ICCPR, Contracting States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under art. 4 of ICERD, Contracting States are required to “declare an offence punishable by law all dissemination of ideas based upon racial superiority or hatred,” incitement to racial discrimination and to acts of violence motivated by race, ethnic origin, and color. According to the same provision, they have to do so with due regard to freedom of expression. So, structurally, speech, or more broadly expression, as characterized in each of the two instruments, is not protected by freedom of expression. However, its legal prohibition has to respect the conditions established by international law for the limitation of freedom of expression: legality, necessity in the interests of enunciated public interests, and proportionality (art. 19 ICCPR).

The European Convention on human rights does not contain a specific provision on ‘hate speech’: its art. 10 protects freedom of expression (par. 1), and sets the conditions under which it can legitimately be restricted by the Contracting States (par. 2). The ECtHR has endorsed the ‘hate speech’ terminology in dealing with manifestations of freedom of speech, that, verbal or non verbal, allegedly stir up and justify violence, hatred, or intolerance. It has ruled that Contracting States can restrict such expression, under the criteria established by art. 10, par. 2: again, legality, necessity in the interests of enunciated public interests, and proportionality. In a few cases, it has held that certain allegedly extreme manifestations of freedom of speech are altogether excluded from the scope of the Convention (under its art. 17, prohibition of abuse of rights), as incompatible ratione materiae with it.

3. The monitoring bodies established by the three treaties have clearly recognized that freedom of expression is among the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. They therefore also affirm that prohibited speech is to be construed as an exception to the rule on freedom of speech. For this reason, any limitations to freedom of expression under art. 10 ECHR, or measures adopted by States to implement art. 20, par. 2, ICCPR and/or art. 4 ICERD, have to remain within strictly defined parameters, have to be convincingly established, are subject to restrictive interpretation, and must not “put in jeopardy the core of right itself.” When the restriction does not satisfy those criteria, therefore, the expression, verbal or otherwise, is protected speech under the general rule. However, the practice of the monitoring bodies is hardly consistent with those standards. One may reasonably ask why.

Read more

The Terror of “the Rights of Man”

A new book, Robespierre: The Man Who Divides Us the Most (Princeton UP), by the French historian, Marcel Gauchet, looks very interesting in connecting the light side of the revolutionary leader (the ardent and uncompromising crusader for human rights) with the dark features of his zealous commitment in the coming of the Terror. They were two sides of the same coin, in this telling, it seems. Interestingly, the blurb below suggests that it is part of the author’s thesis that the transition occurred at the point where governing, rather than revolutionizing, became necessary.

Maximilien Robespierre (1758–1794) is arguably the most controversial and contradictory figure of the French Revolution, inspiring passionate debate like no other protagonist of those dramatic and violent events. The fervor of those who defend Robespierre the “Incorruptible,” who championed the rights of the people, is met with revulsion by those who condemn him as the bloodthirsty tyrant who sent people to the guillotine. Marcel Gauchet argues that he was both, embodying the glorious achievement of liberty as well as the excesses that culminated in the Terror.

In much the same way that 1789 and 1793 symbolize the two opposing faces of the French Revolution, Robespierre’s contradictions were the contradictions of the revolution itself. Robespierre was its purest incarnation, neither the defender of liberty who fell victim to the corrupting influence of power nor the tyrant who betrayed the principles of the revolution. Gauchet shows how Robespierre’s personal transition from opposition to governance was itself an expression of the tragedy inherent in a revolution whose own prophetic ideals were impossible to implement.

This panoramic book tells the story of how the man most associated with the founding of modern French democracy was also the first tyrant of that democracy, and it offers vital lessons for all democracies about the perpetual danger of tyranny.

Rinella on Sharia in the State System

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 Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.

This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.

Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.

My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.

Read more

Martinez-Torron on Religious Exemptions

This past July, the Center co-hosted a conference with LUMSA University 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 Javier Martínez-Torrón (Complutense) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

The following ideas are not an attempt to cover the entirety and complexity of the issues raised by the claims for the so-called religious exemptions. They just try to emphasize some aspects that are often, in my opinion, not sufficiently considered in legal debates.

1. Taking the right approach

The very title of this session—Religious Exemptions—may be misleading. It obviously refers to situations where there is a conflict between conscience and law, that is, between moral obligations (not necessarily rooted in a religious conscience) and legal obligations. For the purpose of these brief reflections, I will refer to exemptions on moral grounds rather than to religious exemptions, considering that objections on religious and objections on other ethical grounds must be treated equally. In Europe, this type of conflict is often addressed under the term “conscientious objections.”

From my perspective, it is a mistake to analyze these conflicts from the perspective of legal exemptions, emphasizing that some people seek to be exempted from complying with the law on moral grounds (often deriving from religious beliefs). The term “exemption” suggests the existence of a privilege or an anomaly. And I profoundly disagree with the view that conscientious objectors are a “human anomaly” or seek privileged treatment. Such conflicts usually involve people with moral positions different from the majority. To consider that people in a religious/ethical minority are “anomalous” implies a prejudice incompatible with the contemporary notion of fundamental rights. And, certainly, we would not depart from that premise if we were dealing with other characteristics that define people’s identity and way of living, such as sexual orientation, ethnic origin, or physical deficiencies. Just the opposite, we assume that it is important to organize society, and the legal system, in a way that takes such characteristics into account so that those persons are not excluded or treated as second-class—“anomalous”—citizens.

In this regard, it is important to bear in mind two things. First, freedom of religion or belief is part of the applicable law in most countries. It is recognized and protected by international instruments as well as by most national constitutions, with one or other terminology. Such freedom entails not only the right to choose one’s beliefs but also the right to behave in accordance with them; that is, freedom of conscience, the right to act following the supreme rules dictated by one’s moral conscience.

Read more

A New Book on Locke

Few, if any, philosophers have had the impact on American constitutional law that John Locke has had. This is especially true with respect to the Religion Clauses. Lockean ideas about the proper separation of church and state, filtered through the early Virginia experience and the writings of Madison and Jefferson, are so familiar to us today that it takes real effort to examine them objectively. A new book from the University of Chicago Press, America’s Philosopher: John Locke, by historian Claire Rydell Arcenas (University of Montana) suggests that throughout history Americans have appropriated Locke for their own ends. Looks very interesting. The publisher’s description follows:

America’s Philosopher examines how John Locke has been interpreted, reinterpreted, and misinterpreted over three centuries of American history.

The influence of polymath philosopher John Locke (1632–1704) can still be found in a dizzying range of fields, as his writings touch on issues of identity, republicanism, and the nature of knowledge itself. Claire Rydell Arcenas’s new book tells the story of Americans’ longstanding yet ever-mutable obsession with this English thinker’s ideas, a saga whose most recent manifestations have found the so-called Father of Liberalism held up as a right-wing icon.

The first book to detail Locke’s trans-Atlantic influence from the eighteenth century until today, America’s Philosopher shows how and why interpretations of his ideas have captivated Americans in ways few other philosophers—from any nation—ever have. As Arcenas makes clear, each generation has essentially remade Locke in its own image, taking inspiration and transmuting his ideas to suit the needs of the particular historical moment. Drawing from a host of vernacular sources to illuminate Locke’s often contradictory impact on American daily and intellectual life from before the Revolutionary War to the present, Arcenas delivers a pathbreaking work in the history of ideas.

Davidyan on Liberalism and Religion

This past July, the Center co-hosted a conference with LUMSA University 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 Gayane Davidyan (Lomonosov) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Slightly expanding the problem of our discussion, I will go beyond the borders of the United States and Western Europe, and pose a general question: arising on a certain soil under favorable historical conditions, is liberalism a national phenomenon, inherent only in a particular type of society or state? People with liberal views and values ​​live at all times and across the globe. Even in dark times, in conditions of slavery and serfdom, thinkers wrote about the values ​​of freedom and law; historical figures like Spartak, Emelyan Pugachev fought for this freedom.

As you know, the foundations of modern European liberalism begin to take shape in the 16th-17th centuries. John Locke, in “Two Treatises on Government,” formulates the most important principles that formed the basis of the future political and social liberalism: economic freedom as the possession and use of property, and intellectual freedom, including freedom of conscience. The second principle, in his opinion, is the right to life, personal freedom, and private property. People fought for a long time to obtain and assert these rights and values and are still fighting every day. The most advanced ideas of liberalism had a great influence on Russian reality at the end of the 18th century. Empress Catherine the Great, studying the ideas of Montesquieu, Cesare Beccaria, and Voltaire, wrote an order to the deputies of a special legislative commission in order to change the concept of royal power in Russia. Liberal ideas developed further and led to fairly liberal reforms in the second half of the 19th century. However, the reception of Western European liberal ideas in Russia did not take place. And against the background of a strong absolute monarch, all these reforms seem to be “quasi-reforms.” Does this mean that liberalism as a system of organizing social and state life can form the basis only for some states that have a special specific path of development, a special culture, and other features? I would not agree with this, since the desire for freedom, dignity, and the preservation of life are the basic needs of a person with any worldview, and one can hardly speak here about the advantage of one civilization over another.

But liberalism is not only ideas; it is also necessary that a sufficient social environment exist for their perception. In Russia, it was clearly insufficient. And here, the problem was rooted. The limited social environment made it impossible to realize the liberal concept. This was the reason why ideas remained ideas.

Read more