Freedom of Expression,Laïcité and Islam in France: The Tension between Two Different (Universal) Perspectives

ABSTRACT

In France, freedom of expression is perceived as a sort of liberté matricielle, a matrix of other fundamental freedoms. As such, it is reflected in many constitutional provisions, including those referring to religion. In addition, the practical exercise of freedom of expression remains strictly linked with the principle of laïcité, which is part of the institutional, legal and intellectual history of the French Republic and has even become the basis of its founding “values.” All this, however, also implies an accentuation of individual freedom of expression, which normally takes precedence over the protection of religions, sometimes justifying caricature of divinities, rules, rites and symbols. The legal cases related to the right to satirical expression are examples of this. The article underlines the role of freedom of expression in the light of the principle of laïcité, which normally rejects the communitarian dimension of religious rights, which may explain some important aspects of, on the one hand, the evolution of legislation regarding both hate speech and blasphemy within French liberal constitutionalism and, on the other, the relationship between freedom of expression and the secular state. This approach offers a possibility of better evaluating existing French law in relation to some religious nomoi groups, specifically, Islamic organizations. These issues are particularly analysed from two perspectives: the right to criticize or challenge religions and the right to satirize. This analysis makes it possible to identify the legal limits of freedom of expression before and after the 2015 Charlie Hebdo tragedy and highlights the difficulties faced by the so-called laïcité à la française in dealing with today's multicultural societies. The need emerges for a proper balance to be struck between religious diversity and protection of human rights – not only the rights of groups to be different, but also the rights of persons within these groups, which also involves the efforts of religious denominations to articulate their claims in order to make them more compatible with constitutional rights, including those referring to freedom of expression.     

THE LANGUAGE OF RIGHTS AND CONCEPTUAL HISTORY

The historical problem about the origins of the language of rights derives its importance from the conceptual problem: of “two fundamentally different ways of thinking about justice,” which is basic? Is justice unitary or plural? This in turn opens up a problem about the moral status of human nature. A narrative of the origins of “rights” is an account of how and when a plural concept of justice comes to the fore, and will be based on the occurrence of definite speech‐forms—the occurrence of the plural noun in the sense of “legal properties.” The history of this development is currently held to begin with the twelfth‐century canonists. Later significant thresholds may be found in the fourteenth, sixteenth, and eighteenth centuries. Wolterstorff's attempt to find the implicit recognition of rights in the Scriptures depends very heavily on what he takes to be implied rather than on what is stated, and at best can establish a pre‐history of rights‐language.     

Persons with disabilities

In 1990, the United States Congress enacted legislation protecting the civil rights of persons with disabilities. The Americans with Disabilities Act (ADA) (1990) has been termed the most significant civil rights legislation since the 1960s (Rothstein, 1992/1994; see also Drimmer, 1993; Gostin & Beyer, 1993). The intent of the ADA is to provide “not only equal treatment [for persons with disabilities], but also equal opportunity” (Rothstein, 1992, p. 19, emphasis in original). The purpose of the ADA is not only to eliminate intentional discrimintion, but also to change “policies and practices that have a discriminatory impact” on persons with disabilities (p. 19). The ADA was implemented in the wake of decades of growing awareness of and responses to the numerous societal barriers confronted by persons with disabilities. The civil rights movement for persons with disabilities was spawned by grass roots movements (Scotch, 1984). Over time, this civil rights movement has been aided by behavioral science research as well as by legal actions (see, e.g., Scotch, 1984, 1988; see also Ainlay, Becker, & Coleman, 1986; Asch & Fine, 1988; Rothstein, 1992/1994; Shapiro, 1993). It is still too early to assess the ultimate success of the specific ADA legislation, much less the general disability-rights, advocacy movement. Nevertheless, as the articles in this special issue of Behavioral Sciences and the Law reflect, the behavioral-science-and-law community has much to contribute to the elimination of the marginalization of persons with disabilities in modern society. As shown in the articles in this issue, these efforts can include a) assessing progress in light of legislation and policy reforms, b) identifying on-going barriers, and c) offering ideas for different ways to conceptualize not only the problems, but also the solutions to problems confronting persons with disabilities. Ultimately, these and the other efforts being undertaken in the legal, social, and political arenas should help in the fight to fully integrate persons with disabilities into every part of the social fabric. The issue begins with two articles that report on empirical research. First, Professor Peter Blanck presents results from his longitudinal study of the ADA. Specifically, Professor Blanck has been examining employment integration and economic opportunity. His article summarizes the findings from his program of research: There are seven core findings, indicating both successes in employment (e.g., an increase of employment in integrated work settings) as well as continuing concerns (e.g., wage disparities as a function of gender; a leveling off of economic opportunities). The other empirical study is presented by Professor Delbert Rounds. Professor Rounds interviewed individuals with legal blindness in order to learn about their experiences of criminal victimization. One of only a handful of studies on the impact of crime on persons with disabilities, the research indicates that although individuals with legal blindness may not be victimized at rates different than sighted persons, the legally-blind appear to be vulnerable to specific kinds of victimization and their victimization experiences may differ from other crime victims' experiences. The remaining five articles assess different issues related to persons with disabilities. All draw, to some degree, on behavioral science research to argue for the elimination of barriers to persons with disabilities so that they can share the same social and legal rights and responsibilities as non-disabled persons. Professor Harlan Hahn offers a sociopolitical definition of disability. Instead of conceptualizing disability as a functional impairment, Professor Hahn advocates the use of a minority model that stresses attitudinal discrimination as the principal problem facing disabled persons. Professor Hahn suggests that the reconceptualization of disability could benefit persons with disabilities in both social scientific and legal contexts. For example, it would focus social scientific investigations on such issues as the concept of aesthetic anxiety. Research undertaken in light of the minority/attitudinal model, Professor Hahn argues, could have the same positive consequences in aiding persons with disabilities in their fight for legal and social equality as did social scientific research regarding race issues. Professor Michael Perlin presents a different twist on sociopolitical implications of disability issues. He shows how a seemingly “minor” decision by the United States Supreme Court in the mental disability case of Godinez v. Moran (establishing a unitary standard for the determinations of competence to stand trial, competence to plead guilty, and competence to waive counsel) had a substantial influence on the way in which the courts recently handled the high-visibility case of Colin Ferguson. Ferguson, a very bright but mentally disabled Black man, was the defendant charged with the murder of six people and the wounding of 19 others. Professor Perlin uses the filters of sanism and pretextuality to examine the Ferguson trial and to provide insight into how the American criminal justice system reacts to defendants with mental disabilities. Whereas Professor Perlin analyzed criminal law issues that disenabled persons with mental disabilities rather than enabled them, Professor Roger Levesque analyzes recent civil law reforms that have the same consequence. Professor Levesque's focus is on the way in which laws (statutes and case decisions) have intruded on the rights to engage in sexual, marital, and parental relationships. His analyses are very similar to Professor Perlin's in the demonstration of sanist and pretextual approaches to these issues taken by the law. Professor Levesque advocates that the law adopt the approach taken by many (but not all) social scientists — viz., the examination of behavior in context without preconceived, moralistic positions, resulting in individual assessments of competency — in order to provide a better understanding of rights and abilities for persons with mental disabilities, and, ultimately, an end to restrictive legal rules. Professor Donald Hantula and Ms. Noreen Reilly also focus on persons with mental disabilities. They contend that under the reasonable accommodation provisions of the ADA, persons with mental disabilities should and could have successful employment opportunities if only the social and managerial environments were to be modified. Professor Hantula and Ms. Reilly suggest the use of behavior analysis and performance management perspectives as bases for analyzing, developing, implementing, and evaluating reasonable accommodation for persons with mental disabilities. They also argue that the changes needed for persons with disabilities would actually benefit non-disabled employees as well. Finally, Dr. McCay Vernon, Dr. Lawrence Raifman, and Professor Sheldon Greenberg analyze the problems associated with providing Miranda Warnings to deaf suspects. They provide caselaw, empirical, and analytical evidence demonstrating that present law enforcement practices fail to inform deaf suspects of their legal rights, resulting in adverse consequences for both law enforcement and the suspects. Dr. Vernon and his colleagues identify techniques that not only promote an awareness of the problems, but also help to address the problems for criminal justice officials and for deaf suspects.     

Evolution,the End of Human Uniqueness,and the Election of the Imago Dei

Abstract

In both popular opinion and the minds of many scientists and theologians, the idea of human uniqueness and human superiority has been linked to the Christian doctrine of the imago Dei. Pursuing what is called the comparative approach to theological anthropology many have asked, in what ways is human nature different from the nature of animals and, therefore, like the nature of God? This article questions any concept of the imago Deithat equates the divine likeness with some characteristic, behavior, or trait which presumably makes humans unique—in a non-trivial way—from other animals and from the non-human hominids. Instead of grounding the image of God in human uniqueness, the author concludes that the imago Dei is—exegetically, theologically, and scientifically—best understood in light of the Hebrew theological framework of historical election.     

Reframing capabilities between welfarism and resourcism in the collaboration for the right to health

Since the Constitution of the World Health Organization (1946) and the Universal Declaration of Human Rights (1948) were drafted, two broad approaches to the human right to health have been prominent: the health-in-itself approach (WHO)—a kind of welfarism—and the standard-of-living approach (UDHR)—a kind of resourcism. More recently, the capabilities approach to human development has provided a viable third alternative. This article reframes the idea of human capabilities to health as a mediating baseline between welfarism and resourcism so that, first, the main strengths of both of these parent approaches are retained. Second, the emerging dialogical capabilities approach (DCA) opens up smoothly towards collaboration among faith-based approaches within human rights thought and law. While DCA allows a broad diversity of foundational understandings of the human right to health, it supports the need for a high-level practical consensus in terms of human rights. But if the capabilities approach is understood as sharply contrasted to either welfarism or resourcism, or if it is grounded in an exclusively secular manner, it risks becoming a peculiarly narrow agenda that could hardly serve as a conceptual baseline for the collaborative promotion of the human right to health.     

WHY RIGHTS? WHY ME?

That Jews are concerned about human rights is distinct from why Jews should be concerned about rights in the first place. This project analyzes the reasons Jews in the twentieth century put forward to convince co‐religionists to take rights seriously. Focusing on the content of these arguments facilitates dividing the proffered rationales into three broad categories—the temporal, the innate, and the philosophical. Analysis of each category reveals subdivisions, reflecting the many ways Jews try to persuade each other to care about human rights. This taxonomy, unlike others, highlights the different ways in which Jews conceptualize the burning ethical questions of our day: of how and why to be Jewish and modern. These rationales therefore are understood to function as moral reasons and, as such, can be assessed by their relative claims.     

The Myths of Heaven-Sent Creativity: Toward a Perhaps Less Democratic But More Down-to-Earth Understanding

Creativity is surrounded by a cluster of long-held beliefs—referred to here as myths—which regard it as confined to aesthetic/spiritual domains and as a divine gift to a tiny few, and thus render it ineluctable, ineffable and inscrutable. As a result, treating it as part of normal psychological functioning and emphasizing its usefulness seems almost blasphemous, and is regarded by some as devaluing creative talent or even rendering the idea of creativity meaningless. Indeed, there really does seem to be a danger of commodifying creativity and reducing it to fast food creativity—attractively packaged but lacking genuine nutritional value. However, a phase model of the process of creativity makes it possible to distinguish between sublime creativity, mundane creativity, and commodified creativity without attributing the former to forces beyond mere human existence. This conceptualization has practical consequences for, for instance, education.     

The Genesis of Hannah Arendt’s Conception of Human Rights

This paper traces the development of Hannah Arendt’s thought on human rights between 1949 and 1958. Pace readers of Arendt who stress the unity of her thought as well as Arendt’s own proclamation to have not edited her works significantly, the paper shows that Arendt introduced a significant number of changes (of both major and minor character) into her writings on human rights. The most important of these changes is that the idea that a comity of nations may guarantee the right to have rights is, with time, abandoned. The paper further shows that many changes that Arendt makes can be explained by the different audiences Arendt addresses and that a significant number of the changes are due to the fact that Arendt worked in different languages. Accordingly, the German versions of her writings can be used to illuminate unclarities in the English versions of her texts and vice versa.     

The mismeasure of Terry stops: Assessing the psychological and emotional harms of stop and frisk to individuals and communities

In Terry v. Ohio, the US Supreme Court relied on a balancing test to uphold the reasonableness of the practice known as “stop and frisk,” balancing the contribution of the practice to effective crime prevention and detection against the nature and quality of the intrusion to individual rights. In recent years, statistics have been powerfully deployed by legal scholars, jurists, and policymakers to challenge the assumption that stop and frisk leads to frequent discovery of contraband or other criminal behavior, and to address stark racial and ethnic disparities in the deployment of stop and frisk. However, the other side of the Terry equation—the nature and quality of the intrusion—has received far less attention from the legal community. With few exceptions, Terry jurisprudence portrays the Terry frisk simply as a brief pat‐down of the outer clothing and treats each Terry stop as an isolated encounter for purposes of measuring the harm involved. Yet there is a robust social science literature on the effects of stop and frisk on individuals, including data on its effects on individuals from marginalized or vulnerable groups, on individuals over time, and on communities as a whole. Moreover, stop and frisk in the current era has evolved from a tool in the arsenal of individual officers to a systematic, widely deployed strategy. This article argues that the failure to grapple with the application of modern knowledge to modern policing practices leads to a mismeasurement on both sides of the Terry equation. Not only does stop and frisk cause a wide range of emotional and psychological harms; these harms may also interfere with the ability of law enforcement to prevent and investigate crime. Even apart from any legal doctrinal implications for stop and frisk jurisprudence, recognizing the flawed assumptions described in this article should encourage all the relevant stakeholders to re‐evaluate the consequences of the Terry regime.     

作为一项权利的人的尊严

The concept of human dignity and the relationship between dignity and human rights have been important subjects in contemporary international academia. This article first analyzes the different understandings of the concept of dignity, which has left great influences in history (including the “theory of attribution-dignity”, the “theory of autonomy-dignity” or the “theory of moral completeness/achievement-dignity”, and the “theory of end-in-itself-dignity”); it then exposes the obvious defects of these modes of understanding; finally, it tries to define dignity as a moral right to be free from insult. Meanwhile, the relationship between human dignity and human rights is clarified as a result of this research: Rather than being the foundation of human rights, human dignity is one of human rights. The idea of dignity nevertheless has a particular status in ethics in that it embodies a kind of core moral concern, representing a basic demand rooted in the human self or individuality, and hence representing an important aspect of human rights. We may anticipate that sooner or later, the idea of human dignity will become, together with other human rights, the only intangible cultural heritage of human society. __________ Translated by Zhang Lin from Zhexue yanjiu 哲学研究 (Philosophical Researches), 2008, (6): 85–92     

Feminism and Religion

Religion—capital R—effectively eliminated the feminine experience in its process of institutionalization as church; religion—small r—the whole human view, cannot be adequately reflected through such a myopic institution. All humans will not be equally respected, given unequal status. Thus, the church becomes a powerful contributor to inherently unjust social, legal, and economic systems. Feminism, negated as a philosophical and religious world view by Western religions, challenges the status quo insofar as it calls for endorsement of full human equality.     

Fiat's cultural revolution: TQM as functional integration

The opening decade of this millennium witnessed genome scientists, policy makers, critical race theorists and world leaders standing together to pronounce the anti-racist democratic potential of human genomics. Understanding and assessing this rise of ‘anti-racist, democratic genomics’ requires distinguishing between two problems of power and science: the first characterized by what Michel Foucault labeled states of domination; the second by what he described as relations of power. When states of domination exist, as in the case of Nazi science, liberal efforts to extend new powers of participation and autonomy to research subjects may play important roles in redressing power imbalances between researchers and their subjects. However, when distinctions between scientist and research subject blur, as in the case of much human genomics, efforts to extend liberal rights to subjects of genomic studies—or genomic liberalism—may produce novel problems, including: (1) human genome scientists' loss of capacity to describe their objects of study; (2) disruption of research subjects' abilities to define themselves; and (3) lack of accountability for the unintended effects of efforts to democratize genomics. In these ways genomic liberalism may foster, at the same that it impedes, the co-constitution of knowledge and democratic subjects. It may create new forms of racism at the very moment that it explicitly seeks anti-racist ends. Addressing the problems created by this paradoxical position will require more sustained attention to and critique of the anti-racist and democratic imaginaries that increasingly animate technoscience.     

Religious or Minority? Examining the Realisation of International Standards in Relation to Religious Minorities in the Middle East

Abstract

The Middle East region has had a long, and periodically impressive, record of religious diversity, yet there is much concern regarding the contemporary standing of its religious minorities. Rather than assessing the chequered historical record of religious minorities in the Middle East, the purpose of this article is to provide an assessment of how international human rights standards may best be utilised to advance their rights. The contention of this article is that the human rights of religious minorities in the Middle East have primarily been considered under the lens of freedom of religion or belief. Relevant though this framework is to their concerns, it will be suggested that promoting the rights of the Middle East's religious minorities through the framework of minority rights may provide a more promising avenue for their protection. The purpose of the article is therefore to provide a reassessment of how best to negotiate the rights of religious minorities in the Middle East. The focus will be on formal legal and political obstacles to the enjoyment of their rights entitlements. Though a broader contextual analysis also assessing economic, cultural and sociological factors would be highly informative, it lies beyond the scope of this article. Despite the fact that minority rights provisions apply to members of minorities alongside all other human rights – among them freedom of religion or belief – the two lenses of minority rights and freedom of religion or belief highlight somewhat different provisions and protections. The two are certainly not mutually exclusive or in contradiction with one another, but a state that prioritises one set of legal and policy options over the other will arrive in different places.     

A Right to Understand Injustice: Epistemology and the “Right to the Truth” in International Human Rights Discourse

People's “right to truth” or their “right to know” about their government's human rights abuses is a growing consensus in human rights discourses and a fertile area of work in international and humanitarian law. In most discussions of this right to know the truth, it is commonly seen as requiring the state or international institutions to provide access to evidence of the violations. In this paper, I argue that such a right naturally has many epistemic aspects, and the tools of social epistemology can be helpful in elucidating what such a right entails. As a beginning for this project, I draw on those resources to argue that the right to know the truth is only meaningful if it includes a right to understand the abuses, and that such understanding can only come through the development of community epistemic capacities. Given this, I further argue that the state has a duty to support the development of these capacities, and that a critical place for beginning this process is in public schools.     

Space Conquest and Ritual Practices: Lighting Candles for Ariane

Abstract

Endeavoring to conquer space—a domain once reserved to gods and spirits—is not always a denial of the existence of divinities and the human practices devoted to them. On the contrary, many examples of religious attitudes can be seen in the space venture of the past 50 years or so, such as lighting candles before launching a rocket or blessing a team of cosmonauts. To say that such behavior is an expression of the sacred dimension means recognizing that the space venture goes beyond the usual borders of human existence but, at the same time, does not reveal everything about mankind. There must always be a place for terrae incognitae—for unknown and uncharted lands.     

Conceptual Analysis and Philosophical Naturalism

Entitlement is conceived as a kind of positive epistemic status, attaching to certain propositions, that involves no cognitive or intellectual accomplishment on the part of the beneficiary—a status that is in place by default. In this paper I will argue that the notion of entitlement—or something very like it—falls out of an idea that may at first blush seem rather disparate: that the evidential support relation can be understood as a kind of variably strict conditional (in the sense of Lewis 1973). Lewis provided a general recipe for deriving what he termed inner modalities from any variably strict conditional governed by a logic meeting certain constraints. On my proposal, entitlement need be nothing more exotic than the inner necessity associated with evidential support. Understanding entitlement in this way helps to answer some common concerns—in particular, the concern that entitlement could only be a pragmatic, and not genuinely epistemic, status.     

The juncture of law and morality in prohibitions against torture

Conclusion The right to be secure from torture, a right that encompasses moral as well as legal strictures against the practice, is supported by increasingly stringent human rights instruments. In this essay, I have discussed the principal instruments and their place in the anti-torture field considered broadly. The phenomenon of these international instruments foreshadows an ever-widening range of legal initiatives against torture, and is emblematic of the increasing importance attached to respect for human life and human dignity. The diversity of international treaties providing against torture such as, for example, The Convention on the Prevention and Punishment of the Crime of Genocide (1948), The Supplementary Convention on the Abolition of Slavery (1956), The International Convention on the Elimination of All Forms of Racial Discrimination (1965), and The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), indicates the interconnectedness of a wide range of human rights issues.The boundaries that have been drawn around the violation constituted by torture are clearer at present than are those bounding many other rights. Rights commonly categorized as of an economic nature - the right to food and to development, for example - are undergoing processes of definition and implementation. One challenge of this paper is to generate procedures presently attached to such specific human rights violations as torture to rights with less clear parameters. In this way, the growing effectiveness of procedures against torture can serve in the long term to strengthen the bases of international human rights law while in the short term helping to expand the armory of procedures for the protection of less clearly-defined, rights. International human rights law offers a practical tool towards eliminating torture from states' instruments for governing and provides a model for the development of procedures in other categories of rights, while bringing universally declared moral aspirations and legal authority into closer alignment.     

AN ARGUMENT AGAINST ABORTION ON DEMAND

The paper presents a simple but novel argument against the idea of abortion on demand – i.e. the situation where a woman does not need to justify an abortion. Rather than arguing from a theory of the Right to Life of the foetus, which many would regard as controversial, the paper argues from the point of view that the foetus has a certain (intrinsic) value– simply because it is human. Since the destruction of something of value must be justified, it follows that the destruction of a foetus must be justified. This rules out abortion on demand. I believe that shifting emphasis from rights to values could make a major difference to the abortion debate and will make many people rethink their position on the subject.     

A defense of peace as a human right

Abstract

Recent years have seen increased debate about the contributions that human rights make to the creation of conditions of peace. However, less attention has been paid to the claim that peace itself is a genuine human right. Whereas some critics argue that a focus on rights results in an overly formal juridical account of peace at the expense of a more robust notion of positive peace, others contend that a legal framework of rights is all that is needed to eliminate violent conflict. In this paper I strike a position between these two arguments and articulate a normative defense of the human right to peace embedded within a broader discourse of social justice. I do so by demonstrating that a right to peace is a genuine human right because it satisfies appropriate justificatory tests, including those concerning its scope, the duties it generates, and its economic feasibility.