« Exercise in a Pill | Main | Thoughts on the Scrabulous Lawsuit, Part IV: A Theory of Copyright and Games »

Wednesday, August 06, 2008

Finnis on Endorsing Religious Discrimination

John Finnis has written a short, strange essay defending the charming position that Western countries should exclude and expel Muslim immigrants through a “humane” combination of incentives and compensation (I assume for forced removal). There are at least four strange things about Finnis’s defense. The first is that Finnis does not seek to justify the position he seeks to defend, but rather to show that others are implicitly committed to the factual claim underlying it: that Islam and its adherents are inherently hostile to the human rights of others. This is because Finnis is not responding to the criticism that his position is wrong, but rather to the criticism that his position is a form of “extreme” or “hate speech.” Now, a position is extreme in a normative sense if it is unjustified by or is an overreaction to the situation it is meant to address, if it is an excessive or disproportionate response to a given problem. A position is extreme in a sociological sense if it falls far outside of the mainstream of public opinion, if it is not widely held by ordinary or reputable or reasonable people. Finnis makes no effort to show that his position is not extreme in the normative sense; he is only concerned with showing that it is not extreme in the sociological sense.

The second strange thing about Finnis’s paper is that he argues that his position follows, not from facts about the world, but from claims about the world to which certain courts have committed themselves in three controversial cases. Finnis references Begum v. Denbigh High School, a U.K. case upholding a school dress code that permitted the hijab but not the jilbab; Sahin v. Turkey, a E.Ct.H.R. case upholding the decision of the Turkish Constitutional Court to strike down a law permitting the hijab in universities; and Refah Partisi v. Turkey, another E.Ct.H.R. case upholding the decision of the Turkish Constitutional Court to ban the ruling Welfare Party for undermining Turkish secularism. We’re all used to legal arguments resting on court opinions, but it’s unusual to see a public policy argument defended in this way. Still more strangely, Finnis cites Begum not as persuasive authority but precisely because he finds its reasoning unpersuasive: he does not rely on Begum for what it says about the world, but rather on what would have to be true about the world for the decision to be legally correct. The Begum Court actually says that Denbigh High “had decided that a uniform policy was in the general interests of the school and then tried to devise a uniform which satisfied as many people as possible and took into account their different religions,” and that this was a proportionate response deserving of judicial deference. Finnis says the result “seems right” but thinks that U.K. law permits a restriction on religious freedom only where strictly necessary to protect public order or the religious freedom of others. Since, Finnis reasons, the jilbab ban could only be necessary to protect the freedom of others if the jilbab manifests a “religious culture” that is inherently hostile to such freedoms, the U.K. Court is implicitly committed to the claim that Islam is such a religious culture. Three quick points here: (i) maybe the law requiring strict necessity is wrong and the U.K. Court was right to (explicitly) endorse the view that restrictions on religious expression in public schools should be reviewed under a more relaxed standard; (ii) that someone is implicitly committed to something doesn’t make it true, so Finnis hasn’t defended his position from the charge of normative extremism; and (iii) it’s not clear to me that Finnis has even defeated the charge of sociological extremism, because the fact that someone is implicitly committed to a proposition doesn’t mean that, once presented with that proposition, they would endorse it rather than modify their other views to preserve overall coherence among their beliefs.

The third strange feature of Finnis’s argument is that the decisions he cites don’t commit the deciding courts to any general view of Islam or Muslims. For instance, the Begum Court could have found that the dress code was a necessary (and not merely proportionate) response to “the social conditions in that school, in that town, and at that time.” The fact that Denbigh High was a majority-Muslim school with a Muslim principal would have made it rather difficult for the Court to ascribe the same set of beliefs to both sides of the dispute or to portray the plaintiffs but not the defendants as representatives of a homogenous and invariant religious culture. Endorsing Finnis’s view of Islam also would have committed the Court to the position that U.K. schools that permit the jilbab are wrong to do so without ever having to look at any facts. Similarly, Refah Partisi did not ban 94% of the Turkish population from participating in Turkish politics because, as Muslims, they are inherently opposed to secular government; it banned one political party due to positions and behaviors that differentiated it from other Turkish political parties almost all of which are run by Muslims. Finally, Sahin found that the hijab ban was a proportionate response to the threat posed by “certain fundamentalist religious movements” that are distinct from and opposed to “the majority of the population [who], while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith.”

This leads me to the fourth strange feature of Finnis’s argument, which is the priority he ascribes to implicit commitments over explicit endorsements. He writes that his position “could not rightly be described as extreme” unless the E.Ct.H.R. “is also extreme.” He goes on to denounce the Council of Europe for labeling views like his extreme (and indeed “bigot[ed]” and “intoleran[t]”). In fact, Finnis concludes that condemnation of his view as extreme is itself a form of extreme speech. So Finnis tries to show that his position is not extreme by reference to the implicit commitments of one branch of a “great pan-European authority” yet that same position is explicitly condemned as extremist by another branch of the same pan-European authority. Indeed, Finnis’s entire argument can be run in reverse, starting with the CoE statement and supported by cases validating proportionate responses to discrete problems, to show that Finnis’s position is in fact extreme in the sociological sense. But that would be to adopt Finnis’s approach to public policy, one based on statements instead of reasons, claims about the world instead of facts about the world.

Posted by Adil Haque on August 6, 2008 at 09:06 AM in Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Finnis on Endorsing Religious Discrimination :


Muslim Youths

Muslim youths are angry, frustrated and extremist because they have been mis-educated and de-educated by the British schooling. Muslim children are confused because they are being educated in a wrong place at a wrong time in state schools with non-Muslim monolingual teachers. They face lots of problems of growing up in two distinctive cultural traditions and value systems, which may come into conflict over issues such as the role of women in the society, and adherence to religious and cultural traditions. The conflicting demands made by home and schools on behaviour, loyalties and obligations can be a source of psychological conflict and tension in Muslim youngsters. There are also the issues of racial prejudice and discrimination to deal with, in education and employment. They have been victim of racism and bullying in all walks of life. According to DCSF, 56% of Pakistanis and 54% of Bangladeshi children has been victims of bullies. The first wave of Muslim migrants were happy to send their children to state schools, thinking their children would get a much better education. Than little by little, the overt and covert discrimination in the system turned them off. There are fifteen areas where Muslim parents find themselves offended by state schools.

The right to education in one’s own comfort zone is a fundamental and inalienable human right that should be available to all people irrespective of their ethnicity or religious background. Schools do not belong to state, they belong to parents. It is the parents’ choice to have faith schools for their children. Bilingual Muslim children need state funded Muslim schools with bilingual Muslim teachers as role models during their developmental periods. There is no place for a non-Muslim teacher or a child in a Muslim school. There are hundreds of state schools where Muslim children are in majority. In my opinion, all such schools may be designated as Muslim community schools. An ICM Poll of British Muslims showed that nearly half wanted their children to attend Muslim schools. There are only 143 Muslim schools. A state funded Muslim school in Birmingham has 220 pupils and more than 1000 applicants chasing just 60.

Majority of anti-Muslim stories are not about terrorism but about Muslim culture--the hijab, Muslim schools, family life and religiosity. Muslims in the west ought to be recognised as a western community, not as an alien culture.
Iftikhar Ahmad

Posted by: Iftikhar | Aug 7, 2008 7:29:04 AM

Rick, of course it's right to say that "some Islamic cultures, communities, and regimes are not doing very well at protecting or respecting religious freedoms specifically, or human rights generally" but it's impossible for me to see how that could, in any imaginable way, support a general restriction against Muslim immigrants, which is what he seems to be arguing for (assuming the characterization in the post is correct.) The less strong claim you present is true of all sorts of religions (including many sects of Christianity) and regimes, but we don't see a call for banning them. And it would be strange in the extreme, and to my mind pretty clear evidence of bigotry, to move from the fact that some members of some group have a bad characteristic to the claim that we can therefore bar any member of the group for being a member of the group, but that seems to be the claim of the paper. If he merely made the banal claim you state that would be fine, but his conclusion wouldn't even plausibly follow from that claim. If you think otherwise I'd be very interested to here why since it seems to me to be both completely implausible and not in accord with any plausible theory of justice. So, it seems to me that Finnis needs his stronger claim to get his conclusion, but that stronger claim is clearly false.

Posted by: Matt | Aug 6, 2008 11:31:04 PM

Matt, I cannot, of course, speak for him, but I imagine that John Finnis -- who is neither "strange" nor "ignorant" -- would happily concede the fact that, as a historical matter, some Islamic cultures and regimes practiced religious toleration, and to a greater extent than did some Christian cultures and regimes. (I am also confident that he is well aware of the fact that "many Muslims . . . accept human rights".) I expect he would then say, though, that today, some Islamic cultures, communities, and regimes are not doing very well at protecting or respecting religious freedom specifically, or human rights generally. Putting aside, for now, the criticisms that Adil raises to Finnis's essay, would he be wrong in saying this?

Posted by: Rick Garnett | Aug 6, 2008 11:12:54 PM

Finnis is a strange man with many strange beliefs but if he really thinks (as your post seems to imply- I've not read the article yet) that Islam is "inherently hostile to the human rights of others" than he's also a very poorly informed or willfully ignorant one. For one thing, Islam and Islamic countries practiced forms of religious toleration to a much higher degree for much longer than has Christianity. It wasn't _liberal_ toleration, but it came much closer to meeting the minimal standards of human rights than did any Christian country for many, many years. Additionally, many Muslims, both individually and societally in certain countries, accept human rights in any sense that can be expected in a diverse society. If Finnis is actually claiming otherwise this is a shocking and deeply ignorant view.

Posted by: matt | Aug 6, 2008 10:49:31 AM

I don't follow your distinction between normative and sociological extremism, or why you expect Finnis to explain them. In these cases, normative judgments are often indistinguishable from sociological ones. Our opinions about what is "right" and "wrong" is almost entirely shaped by mainstream expectations and beliefs about those designations.

Posted by: Curious Reader | Aug 6, 2008 10:08:46 AM

The comments to this entry are closed.