Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred

The Danish cartoons controversy has generated a torrent of commentary seeking to define and defend competing conceptions of the normative implications of the affair. This Article addresses the question of how liberal democratic states ought to respond to visible manifestations of hatred, especially speech that constitutes incitement to religious hatred. Taking the publication of the Danish cartoons as its point of departure, the Article interrogates the complex historical and normative relationship between free speech and freedom of religion in the liberal democratic order and discusses the two critical questions of whether the cartoons give rise to a genuine conflict of rights and how we should understand the notion of harm. An argument is advanced which intervenes in the extant literature by suggesting two dialectical moves, each premised on the distinction between internal and external reasons in philosophical argument, which have the capacity to unsettle the static secular-religious binary and purportedly incommensurable divide between liberal and Islamic values. The Article concludes by asking what a more robust, reflexive account of toleration might look like premised on notions of mutual justification and peaceful coexistence between rival ways of life and on recognition of the need to pay close attention to how legal restrictions seem from the internal point of view of a religious tradition

Islam in the Secular \u3cem\u3e Nomos \u3c/em\u3e of the European Court of Human Rights

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the conceptual relationship between religion and the public sphere internal to not only European nation-states but the supranational nomos of the Strasbourg Court itself. The Article argues that a complex historical and normative relationship between Christianity and secularism continues to define the modern contours and shape of the public sphere and the right to religious liberty alike and that assertions of claims of right by Muslims have thus made visible both the historical contingency and cultural particularity of these norms and forms of legal ordering. An argument is advanced which views the Court’s reasoning under Article 9 as entangled with not one but two rival liberal traditions: one dialogic which defines the right to religious liberty in value pluralist terms and views the public sphere in terms of social peace; the second rationalist which defines the right more narrowly in terms of autonomy and views the public sphere in terms of a particular substantive theory of justice. The Article concludes by suggesting that a better understanding of how religious freedom emerged in early modern moral and political thought will show that the dialogic pluralist strand is deeply encoded in the logic and structure of Article 9 and how this may open new pathways by which to re-imagine the current limits of the Court’s jurisprudence

Exceptional and Universal? Religious Freedom in American International Law

This essay explores the paradoxical claims to exceptionalism and universalism that lie at the heart of the American tradition of religious liberty. In considering how and with what consequences religious freedom has become embedded in the international legal order with the rise of American power, the essay considers three themes linking together this history: first, the ambiguity of religious liberty conceived as internal to and outside of history; second, American efforts forcibly to transform the constitutional orders of foreign states over the last century to include religious freedom; and third, attempts to promote religious freedom through international conventions and extraterritorial domestic legislation

The Tangled Law and Politics of Religious Freedom

This symposium Essay comments on four interrelated themes regarding the right to religious liberty in international law that emerge from Seval Yildirim\u27s article Global Tangles: Laws, Headcoverings and Religious Identity, 10 SANTA CLARA J. INT’L L. 52 (2012). The first is the paradoxical language of freedom in struggles over attempts to proscribe the wearing of the hijab, especially regarding the principles of gender equality and women’s rights. The second is the apparent comfort that governance feminism exhibits with the state imposition of new (presumably woman liberationist) norms and how institutions such as courts may act not only as independent protectors of rights but also as instruments of a particular managerial culture of rights as têchne. The third theme follows directly from the second: the normative power of liberal rights discourse, especially in relation to the claims of religious minorities in Western European nation-states and the danger of rights managerialism in instrumentalizing certain substantive conceptions of both the scope of religious freedom and the nature of the public sphere through state or, in the case of the ECHR itself, supranational power. And finally, the need critically to interrogate not just the claims of Muslim communities and individuals to religious freedom but also the normative structure and underlying assumptions of international human rights norms themselves. The Essay concludes by suggesting that it is only by gaining a better appreciation of the plural normativity of the right and the contingent history of its emergence that space may conceivably be found to re-imagine the current limits and contours of contemporary international discourse on religious freedom

Islam in the Secular Nomos of the European Court of Human Rights

If, with the benefit of hindsight, Mr. Choudhury\u27s case was a harbinger of the emergence of various problems associated with Islam and the rights of Muslim minorities in European nation-states, then the events of September 11, 2001 have propelled these issues to the forefront of law and politics in a way unimaginable even a decade earlier. In Denmark, cartoons depicting the Islamic prophet Muhammad as a suicide bomber have been published leading to protests and violence across Europe and the Islamic world; a law prohibiting students in public schools from wearing symbols or attire through which they conspicuously exhibit a religious affiliation has been enacted in France; the French Parliament has proceeded to enact a law which now bans the wearing of the burqa and other Islamic face coverings in all public places; and a popular referendum has passed in Switzerland prohibiting the construction of minarets during which a political party used posters depicting minarets as missiles standing on top of the Swiss flag behind a woman wearing a burqa. This Article argues that what is most interesting about these controversies involving Islam and the place of Islamic norms in European nation-states (and the international legal sphere more broadly) is how such encounters are unsettling existing normative legal categories and catalyzing reconsideration of both the historical and theoretical premises of modern liberal political orders. These controversies raise two critical questions for ECHR jurisprudence: First, what is the nature and scope of the right to freedom of religion and belief? Does it include, for example, a right to be free from injury or offense to religious sensibilities? If so, why has the Court held that it is not discriminatory for a state to recognize and protect this right in the case of one religion (Christianity) but not another (Islam)? Second, what is the relationship between religion and morality in the secular public sphere? This question applies, not only. to the public realms of different European nation-states, but also to the supranational nomos of the European Court of Human Rights itself. How does the Court imagine and construct notions of secularism and neutrality in each sphere? What role, politically and normatively, does the margin of appreciation doctrine play in this aspect of the Court\u27s Article 9 jurisprudence