Abstract
Over 60 years ago, British high court judge Patrick Devlin and legal philosopher H.L.A. Hart fought out a famous debate over the legal enforcement of morality, which was generated by the question of whether homosexuality should be legalized or not. Jurists agree that this debate was won by Hart, also evidenced in the fact that the state has since been retreating from its previous role of moral watchdog. I argue in this article that the two most conflicted and essentially unresolved issues in the integration of Islam, the regulation of the female body and of free speech, have reopened this debate anew, pushing the liberal state toward the legal regulation of morality, thus potentially putting at risk its liberalness. I use the Hart-Devlin debate as a template for comparing and contrasting the Muslim quest for restricting free speech with the host-society quest for restricting the Islamic veil. Accordingly, there is a double threat to liberalism, which this paper brings into view in tandem, one originating from Islam and another from a hypertrophied defense of liberalism.
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Notes
Homosexuality was legalized in Britain only in 1967, a decade after the Wolfenden Committee recommendation.
Of course, there is Critical Theory in the Marxist tradition, most imposingly Jürgen Habermas’s theory of communicative action, the radical critique of power by Michel Foucault, and too many other normative approaches to mention. But they do not add up to “normative social theory” comparable to “normative political theory,” which is more encompassing and established though, of course, divided in many approaches and traditions, “liberal,” “communitarian,” “radical,” etc.
This point was raised by a perceptive anonymous reviewer of this article.
When I presented the idea for this article in Jerusalem, Ruth Gavison (Hebrew University) denied the applicability of the Hart-Devlin debate to the Islam issue, arguing that the former was about “private” whereas the latter was about “public” morality, the need for “shared values” in society. I further address this objection in the conclusion.
In principle, there is a distinction between protecting “religion” and the “group” assembled by it. When “blasphemy” first became a common law offense in seventeenth century England (previously it had been adjudicated within the Church’s Canon Law), there was certainly no element in it to protect Christians as a “group”. This is because English (and European) society was thoroughly Christian, but more importantly because at the time “God” not “people” stood to be protected. In today’s pluralistic societies, religious belief immediately flags group membership, particularly for Islam as a minority religion in Christian majority societies. In addition, the “groupist” tilt of extant blasphemy laws is due to their human-rights-era refashioning as warding off “offense” to the “feelings” of religious believers (see below). Still, even within reconstructed blasphemy laws there is the possibility to protect the integrity of groups or of individuals. For an instructive comparison of England (protecting groups) and the United States (protecting individuals), see Post (1988, pp. 305–324).
The European Center for Law and Justice (ECLJ), based in Strasbourg, it should be said, is no neutral or ordinary human rights observer, particularly not on religious issues, as it is funded by right-wing Evangelists in the United States. I make use of only one of its reports (ECLJ 2008). Submitted to the UN High Commissioner on Human Rights, this is a rare (and critical) account of the OIC religious defamation campaign, and mostly does not seem to be tainted by the organization’s evangelist background. I crosschecked its mentioned findings or statements as much as possible with other sources.
During the second Iraq war, British Muslim organizations have attacked British military involvement with the exact same argument, that it has triggered violence on the part of some Muslims (see Joppke 2009b).
The Economist, 3 April 2010, p. 55.
A researcher at Human Rights Watch, quoted in “The limits of freedom and faith,” The Economist, 3 April 2010, p. 55.
“(O)ur proposed law does not protect the belief—it protects people,” stated Minister Fiona Mactaggart, “It will still be OK to ridicule religion,” The Guardian 14 March 2005 (www.theguardian.com/world/2005/mar/14/religion.politics) (last accessed 26 June 2014).
“Denmark’s Muslims follow a new script,” International Herald Tribune 28 February 2013, p. 4.
The diagnosis of the French headscarf controversy in terms of “racism” toward Islam and Muslims misses this essential point (Scott 2007).
This has been the case even in France, at least until the most recent “Baby-Loup” decision of the Court de Cassation (France’s highest court for civil and penal law) that surprisingly upheld the firing of a veiled teacher in a private crèche near Paris (called “Baby-Loup”). The court thus overruled its own lower chamber’s prior indictment of this firing as violation of the teacher’s religious liberty rights. The June 2014 decision is an important step for imposing laïcité also in the private sector, from which it had been previously absent. Court de Cassation, Arrêt du 24 Juin 2014 (”Baby-Loup”), no. 612, Assemblée plenière.
See the detailed discussion in Joppke and Torpey (2013, ch.2).
Libération, 22 June 2009, www.liberation.fr/.
Assemblée Nationale, Compte rendu no. 75, Commission des lois constitutionnelles, de la législation et de l’administration générale de la République, 6 July 2010, p. 2.
In early July 2014, the European Court of Human Rights (ECtHR) validated the French burqa law, arguing that the “preservation of the conditions of ‘living together’” was a legitimate state concern that in this case trumped religious liberty rights (ECtHR, Case of S.A.S. v. France, 1 July 2014, at par. 157).
Although within the ambit of Devlin’s “public morality” defense are the provisions in the headscarf laws of some (catholic-conservative) German Länder that exempt from the restriction Catholic nun teachers, on the grounds that the state can be partial for “Christian-Occidental” majority culture.
See ECtHR, S.A.S. v. France, at par. 42, which summarizes the Belgian burqa law and its subsequent validation by the Belgian Constitutional Court.
Also note that Jonathan Sacks (2007, p38-41) has taken (and critiqued) the recommendations of the Wolfenden Committee, as well as Hart’s defense of them, as epitomizing a general shift toward homeless “proceduralism” in the liberal state, which presupposes that not just “private” but “public” morality has been the issue in this debate. Of course, Sacks (and this author) might still be plainly wrong. Therefore an adequate defense hinges on the impossibility of a purely private morality, as suggested in these pages.
What incensed Muslims about the Satanic Verses was not least sexual libertinism attributed to the Prophet (see Parekh 1990, pp. 697–698). And one of the Danish cartoons shows a heavenly gatekeeper (dressed like Mohammad) trying to keep back armed martyrs with the words “Stop stop we ran out of virgins!” However, in a Christian context also contemporary “blasphemy” is most often couched in sexual imagery. See the famous European Court of Human Rights 1994 decision Otto-Preminger Institut v. Austria (discussed in Joppke 2013a).
Rogers Smith (University of Pennsylvania), in a response to my talk in Jerusalem in March 2013.
An interesting alternative is to identify “morality policies” not so much by their content as by the approach taken in them, “radical” v. “mainstream.” Ted Lowi suggested this (1988). He first grouped what I call (with others) “morality policy” as part of a broader category of behavior-related “regulatory policy.” He then subdivided the latter into a “radical” approach that considers wrongdoing “sin” and seeks to eradicate it as a matter of principle, and a “mainstream” approach, for which the wrongdoing is merely “error” that stands not to be “eliminate(d)” but “reduce(d)” for its negative consequences (p. xviii). The advantage of this approach is that it can reckon with the continued existence of morality policies in the liberal state, which may be conducted in a liberal (“mainstream”) or illiberal (“radical”) way. For our purposes important is that also Lowi’s proposal acknowledges that not any policy is morality policy.
With respect to homosexuality, the last frontier today is the acknowledgment of gay marriage, which is rapidly advancing. See the global overview in The Economist (“Gay marriage: to have and to hold”), 17 November 2012, 58–59.
This objection has been raised by an anonymous reviewer of this article.
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Acknowledgments
The idea for this article was first presented at the conference “Immigration and the Future of the Nation-State,” held at the Israel Democracy Institute in Jerusalem, 17–18 March 2013. The first draft was read at the Symposium on Law, Politics, and Religion at the School of Law, Edinburgh University, 9 September 2013, and at the Juan March Institute, Madrid, on 14 October 2013. I am grateful to two anonymous reviewers of this journal, and particularly to Rogers Brubaker, in his capacity as a Theory and Society Senior Editor, who pushed me to two rounds of revision that made this article grow (also in length). Now that the final result is published, I regret that it means that I need to write another paper to “run around” with.
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Joppke, C. Islam and the legal enforcement of morality. Theor Soc 43, 589–615 (2014). https://doi.org/10.1007/s11186-014-9236-1
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DOI: https://doi.org/10.1007/s11186-014-9236-1