Ofrit Liviatan (Harvard U.) has posted From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates. The abstract follows.
The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.
The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.
Rights and Judgment
This story reports that the Obama Administration has issued a statement questioning the “judgment” of the magazine Charlie Hebdo in publishing insulting pictures of the Prophet Mohammed (discussed by Mark immediately below). The Administration — through its “porte-parole” Jay Carney – was careful to distinguish the issue of the magazine’s constitutional “right” to publish the pictures and its judgment in doing so because the Administration “know[s] that these images will be very shocking for many people,” and “might provoke violent reactions.”
The reaction of the Administration reminds me very much of the controversy over the construction of the so-called September 11 mosque in New York City. I recall distinctly that the position of some at the time was that though there was and surely should be no legal barrier to the use of particular property vaguely proximate to the site of the September 11 attack on the World Trade Center, it would be unwise, or evince a lack of good judgment, for the rights-holders to exercise their rights. I recall the cute statement, made somewhere by someone, that it is “not a question of rights, but a question of what is right.” I also remember that the President came out at first quite strongly in support of the mosque and cultural center (as did Mayor Michael Bloomberg), but then backed off a bit when the issue was put not in terms of rights, but of judgment: ““I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there,” the President said. “I was commenting very specifically on the right people have that dates back to our founding. That’s what our country is about.”
How about it readers? Are the situations formally identical (with the exception that the President has commented negatively on the wisdom of publishing the cartoons, while he declined to do so with respect to the Ground Zero mosque)? If so, are there nevertheless other salient differences between them? Are there categorical differences, for example, between the wisdom of exercising a speech right and the wisdom of exercising the freedom of religion?
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Posted in Commentary, Marc O. DeGirolami
Tagged Civil Rights, Free Speech, Ground Zero Mosque, Islam, Islam in Europe, Religious Liberty