Tuesday, November 30, 2010

Burning Koran Gets British Teen Arrested

Friedman's Religion Clause Blog has a post about the recent arrest of a British teenager for "inciting religious hatred" after she burned a copy of the Koran and then posted a video of the act on Facebook.

"Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy"

Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (Montreal & Kingston: McGill-Queen's University Press, 2004)

Recognizing Religion in a Secular Society is a 2004 collection of nine essays about a wide variety of topics within the general category of the relationship between religion and government. The essays are more in the vein of philosophy and ethics than legal scholarship, and with an exception or two tend to have a pro-religion bent. Four of the essays are very Canadian-focussed, but the others are general enough that the collection is useful to non-Canadians interested in religion and secularism.

"Religion in the Public Realm" by H.R.H. Prince El Hassan Bin Talal is a short essay written from a Muslim perspective. The author argues that, contrary to to its reputation, Islam is compatible with democracy and pluralism and is undergoing "a gradual but nonetheless thoroughgoing process of evolution that is changing our religion as comprehensively as any revolution[.]" (p. 8). It's hard to make a persuasive case for such a controversial claim in just 8 pages, and therefore the essay is heavy on assertion and light on evidence or analysis.

"Freedom of Religion and the Rule of Law: A Canadian Perspective" is an important essay as it was written by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin. She addresses what she believes is the dilemma facing all liberal democracies: how to reconcile an individual's deep-seated commitment to religious principle with society's obligation to enforce the rule of law. (p. 16) McLachlin maintains that it is the responsibility of courts to find "in the comprehensive claims of the rule of law, a space in which individual and community adherence to religious authority can flourish." (p. 20) A discussion of the courts' treatment of religious freedom in Canada follows, and McLachlin makes no apologies for that responsibility being in the hands of the legal system. The essay doesn't tread a lot of new ground or offer new insight on how religious freedom issues should be resolved--it all comes down to "balancing" in McLachlin's mind. (p. 22) What is interesting, however, is her strong defense of courts as the institution to do that balancing.

In "A Response to Chief Justice McLachlin", Jean Bethke Elshtain challenges the view that courts are the proper forum for the resolution of religious freedom issues. Elshtain maintains that such issues should be resolved by "citizens, variously located, through a culture of democratic argument: citizens engaging one another and sorting things out, as often they will, in a rather untidy, rough and ready way." (p. 39) In this view, courts should serve only as a last resort with the democratic process fails.

William Galston's "Religion and the Limits of Liberal Democracy" is a short but interesting essay that argues against "civic totalism": the idea some liberals have of "public institutions as plenipotentiary and civil society as a political construction possessing only those liberties that the policy chooses to grant and modify or revoke at will." (p. 42) Unfortunately, there's little discussion of how things would change if "civic totalism" were abandoned.

"Human Dignity and the Social Contract" is an essay by David Novak that argues "only religious people in a democratic society have sufficient reasons for ensuring the limitation of the normative reach of that society." (p. 63) Without traditional communities founded on religion, Novak argues that the state would become totalistic because only religious people have sufficient faith and belief in the rightness of their principles to resist the ever-expanding reach of government. According to Novak, neither "civil religion" nor the "social contract" are adequate to sustain democratic principles in the absence of traditional faith communities. Novak, however, fails to explain why so many countries throughout history with traditional faith communities have displayed little respect for democratic freedom, nor how his argument can be reconciled with democratic Western Europe, where traditional faith communities have shown some dramatic losses in influence in recent decades.

Jean Bethke Elshtain returns with another essay titled "Persons, Politics, and a Catholic Understanding of Human Rights". Elshtain argues that human rights claims are fundamentally ineffective against a totalizing state unless such rights are conceived of as being anchored in religious principle. (p. 80) According to Elshtain, "Human dignity is lodged in the fact that human beings are creatures of a certain sort, creatures in fact who derive their dignity directly from God, whose personhood is a capacity for communion with God." (p. 80) The argument is interesting, but it crucially depends on the facts: has the Catholic Church been an inspiration or an obstacle to modern human rights movements? In my view, the Church's record is decidedly mixed.

Iain T. Benson's "Considering Secularism" is an analysis and critique of how the Supreme Court of Canada has deployed the term "secularism" in its judgments. According to Benson, the Court implies that "secularism" is a doctrine of neutrality towards religion, when in fact history shows that the term has its origins in the "anti-religious aspects" of G.J. Holyoake's philosophy. Benson advocates the "religion-inclusive" word "secular" over "secularism", (p. 98) but a major thrust of his essay seems to be dismay over the Court's openness to GLBT rights when such rights apparently clash with the values of traditional religious communities.

"Birth, Death, and Technoscience: Searching for Values at the Margins of Life" is an interesting essay by Margaret Somerville on the difficulties of resolving moral questions in a diverse society lacking uniformly held values. Somerville discusses several dilemmas that occur at the "margins of life": genetic screening, cloning, stem cell research, and euthanasia. Somerville adopts a fairly conservative tone in the essay and is far more concerned with the risks posed by new technologies than the potential benefits. She argues that religion can and should be an important player in the debate.

H. Tristram Engelhardt, Jr.'s "Taking Moral Difference Seriously: Morality After the Death of God" begins with a persuasive account of how "first-order consensus" on moral principles is impossible in modern liberal democracies. Engelhardt says that instead of trying (and inevitably failing) to reach such a consensus, we should acknowledge the problem and then work on how "to collaborate in the face of moral difference." (p. 117) Thus, "[i]nstead of directing ourselves to the goal of a consensus universally imposed through the force of law, we should envisage policy approaches that can encompass a plurality of peaceable moral visions, allowing uncoerced collaboration in the face of real moral diversity." (p. 121) It's not exactly clear to me what this would look like in practice, though it seems to imply a more "hands-off" libertarian approach to moral issues.

Douglas Farrow's "Of Secularity and Civil Religion" is an odd essay that includes a long and discursive discussion of Rousseau before moving on to (in my view) a legally naive discussion of how the inclusion of the phrase "Whereupon Canada is founded upon principles that recognize the supremacy of God and the rule of law" in the Charter's Preamble somehow protects the nation and its government from becoming truly "secular".

On the whole, I have to politely disagree with Witte's blurb on the back cover that "[n]o one can read this book without being shaken, and edified." I may have been mildly "edified" about fairly standard moderate-conservative views about the role of religion in society, but I can attest, under oath, I was never "shaken." Recognizing Religion in a Secular Society is a solid and useful collection of essays on a topic that has received a lot of attention in recent years.

Wednesday, November 17, 2010

"The Curious Persistence of Blasphemy"

A draft of my new article The Curious Persistence of Blasphemy is available for free download on SSRN here.


Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the "defamation of religion" movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting "religious vilification" laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred--religiously or culturally--blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

Tuesday, November 16, 2010

Blogger in Palestine in Arrested for Blasphemy

The New York Times has a long article about a Palestinian blogger in the West Bank who has been arrested and detained for several weeks on suspicion of blasphemy. The blogger, Waleed Hasayin, is suspected of promoting atheism and spoofing the Koran. According to the article, a trial could be conducted under a 1960 Jordanian statute that prohibits the defamation of religion.

Monday, November 15, 2010

TV Psychic Avoids Death in Saudi Arabia

Howard Friedman's Religion Clause Blog reports that the Saudi Arabian Supreme Court has lifted a death sentence against a Lebanese television psychic who was arrested while on a pilgrimage in Saudi Arabia and charged with practicing "sorcery". The case has been remanded for retrial.

"Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law"

Rex Tauati Ahdar, Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law, 26 U. Queensland L.J. 293 (2007)

Ahdar's article is focussed on religious vilification in Australia. The article briefly canvasses a purported justification for such laws, the need to prevent discrimination and abuse that hateful statements may cause in society. Ahdar argues that the argument is unconvincing because "the linkage here is indirect, conjectural, and rather diffuse. Some sorts of disparaging or inflammatory speech may provoke improper conduct in some hearers in some circumstances." (p. 297) Next, Ahdar discusses several arguments against religious vilification laws, including the chilling effect the laws have on freedom of speech, the divisiveness they tend to cause between religious groups who use the laws as a blunt instrument to attack each other, the false analogy between religious hate speech and racist hate speech, and more. A good portion of the article is devoted to discussing the 2006 case Catch the Fire Ministries v. Islamic Council of Victoria, which was the first real test of Victoria's religious vilification law. According to Ahdar, the case revealed several problems with religious vilification laws that remain unsolved despite a long and complex court opinion. In the end, he concludes that such laws fall into the category of "things that clearly do not work" to "promote religious harmony and tolerance in society." (p. 316)

Saturday, November 13, 2010

Death Sentence for Blasphemy in Pakistan

Howard Friedman's Religion Clause Blog reports that a Christian woman in the Punjab province of Pakistan has been sentenced to death for blasphemy. The woman was charged with blasphemy after getting into a heated discussion with fellow farm workers who had tried to convert her to Islam.

Thursday, November 4, 2010

Letter from Ernest Bertrand Re: Amending Blasphemous Libel

"Ernest Bertrand, K.C. --Montreal--Crim. Code--To Amend sec. 198 RE: Blasphemous Publications", RG-13, Series A-2, Vol. 328, File 1929-669" (Library and Archives Canada)

This file contains a letter written on April 9, 1929 by a lawyer named Ernest Bertrand to the Federal Minister of Justice, M. Ernest Lapoint. The letter states that Bertrand has been contacted by the curé of a parish named St. Hilaire about three brochures that have been circulating in the community that are, in Bertrand's views, blasphemous. Bertrand states that he would like to bring charges against the persons responsible for circulating and selling the brochures, but that on his reading of Criminal Code s. 198, only the publisher is liable. Bertrand thus requests that amendments be made to section 198 to extend its scope.

The file includes a draft response from the Ministry indicating that "it is clearly too late this year to present any new legislation" but that Bertrand's views would be submitted to staff for consideration.