The Vatican and the Preservative

The Vatican has gathered theologians and scientists to review its present position.
Would anything change or is it just a smoke screen to hide the unwillingness to change?

You can find an interesting report here.

GRAND CHAMBER HEARING: EVANS v. THE UNITED KINGDOM

Today the Grand Chamber of the ECHR is hearing Evans v UK, a very important case (I believe). More on its importance coming soon.

Here's a press release

Summary of the facts

On 12 July Ms Evans and her partner J started fertility treatment at the Bath Assisted Conception Clinic. On 10 October 2000, during an appointment at the clinic, Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered one cycle of in vitro fertilization (IVF) treatment prior to the surgical removal of her ovaries. During the consultation held that day with medical staff, Ms Evans and her partner J were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus.

Ms Evans considered whether she should explore other means of having her remaining eggs fertilised, to guard against the possibility of her relationship with J ending. J reassured her that that would not happen.

On 12 November 2001 the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage and, on 26 November 2001, Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus.

In May 2002 the relationship between the applicant and J ended and subsequently, in accordance with the 1990 Act, he withdrew his consent to the continued storage of the embryos or use of them by the applicant.

The applicant brought proceedings before the High Court seeking, among other things, an injunction to require J. to restore his consent. Her claim was refused on 1 October 2003, J having been found to have acted in good faith, as he had embarked on the treatment on the basis that his relationship with Ms Evans would continue. On 1 October 2004, the Court of Appeal upheld the High Court’s judgment. Leave to appeal was refused.

On 26 January 2005 the clinic informed the applicant that it was under a legal obligation to destroy the embryos, and intended to do so on 23 February 2005.

On 27 February 2005 the European Court of Human Rights, to whom the applicant had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed.

The applicant, for whom the embryos represent her only chance of bearing a child to which she is genetically related, has undergone successful treatment for her pre-cancerous condition and is medically fit to continue with implantation of the embryos. It was understood that the Bath clinic was willing to treat her, subject to J’s consent.

Complaints

The applicant complains that requiring the father’s consent for the continued storage and implantation of the fertilised eggs is in breach of her rights under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights and the rights of the embryos, under Article 2 (right to life) .

Procedure

The application was lodged with the Court on 11 February 2005. A Chamber hearing on the admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 27 September 2005.

In its Chamber judgment of 7 March 2006 (press release No. 125, 2006), the Court held unanimously, that there had been no violation of Article 2 concerning the applicant’s embryos; by five votes to two, that there had been no violation of Article 8 concerning the applicant; and, unanimously, that there had been no violation of Article 14 concerning the applicant.

The Court also decided to continue to indicate to the United Kingdom Government under Rule 39 that it take appropriate measures to ensure the preservation of the applicant’s embryos until the Court’s judgment became final or pending any further order.

The case was referred to the Grand Chamber at the applicant’s request.

Berlusconi retires from politics

Is this ground breaking news true?

We can only hope so! So many times before, I have said that Berlusconism (that is his own brand of political thinking) had come to an end because it was not even able
to convince its allies, not to mention its opponents.

Berlusconi, arguably an old man (70 years old), cannot possibly have the strength to run government again, knowing that he would do so against everyone.

Plus, his main purpose (ie, to eschew justice) has been more or less achieved. He can now enjoy his retirement. His Mausoleum is ready in Macherio. Good bye Silvio.

The Queen...

...is a good movie for those of you interested in british constitutional politics.
Helen Mirren is extraordinary in her imitation of the Queen. Tony is fantastically cheesy, just as in real life.

Here's a good review of the movie by Andrew O'Hagan.

Justice for Hedgehogs

I am a fox, I don't like that (See I. Berlin, the Fox and the Hedgehog).
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.

This is likely to be the basis of Dworkin's next book, so have a happy preview!

Italy at the centre of Getty's 'decadence'

Recently the Getty Foundation had several problems. An interesting piece on the NYRB
presents some of the recent controversies.

But the most important issue to solve for the Getty is its legal war with Italy that is claiming back most of the pieces coming from the peninsula. Here's a nice report of the recent legal developments.

After the American Elections: What Now?

It is official: Democrats will assume control of both chambers in the next Congress, ousting the Republicans. Naturally, pundits have begun to ponder what this change will mean. It is certain that George Bush’s final two years as President will be dramatically different than they would have been with continued Republican control of Congress. While it is impossible to predict what will happen over the next two years, here are some of the major policy questions Bush and the Democratic majority in Congress, led by Nancy Pelosi in the House and Harry Reid in the Senate, will grapple with:

Iraq. The most urgent policy question facing Bush and Congress, and arguably the issue that most influenced voters, is the mess in Iraq. Pressure for a change in strategy has been building for some time, and with the decisive defeat for Republicans on Tuesday, the resignation of controversial Secretary of Defense Donald Rumsfeld and the expected recommendations from the Iraq Study Group (a bipartisan group of wise men asked by Bush for fresh ideas), change is imminent. However, will it be a gradual withdrawal of the bulk of American troops from Iraq, as the Democrats and most Americans seem to favor, or a more hawkish policy featuring troop increases as Republican Senator John McCain favors?

Foreign policy/National Security. Democrats have promised to demand greater accountability from Bush, especially in his prosecution of the “war on terror.” There could be clashes over the President’s penchant for secrecy and his conception of executive power. Other potential flash points include China – which Pelosi and other leftist Democrats criticize for its sorry human-rights record – and the President’s preference for free trade, which some Democrats claim has led to the loss of American manufacturing jobs and lower wages.

Immigration. The President and Congress may be able to work together on immigration reform. The President favors legislation that many Democrats can probably live with. However, Bush’s room for compromise may be restricted by conservative sentiment, which advocates a much harsher approach to illegal immigration than Democrats.

Minimum wage. Another issue that may offer common ground is the Democrats’ promise to raise the minimum wage by about $2 per hour. Bush has signaled quietly that he is open to minimum wage legislation. Many business leaders are not, however, and this issue may also expose cleavages in the Republican party.

Health care. President Clinton failed miserably in his attempt to craft legislation for universal health care. Most Democrats favor some kind of expansion of health care (roughly 50 million Americans are not covered) and party leaders have made noises about addressing the issue. However, the form health care legislation would take is unclear. Republicans and business leaders will be skeptical. This could be an issue that provokes confrontation.

Senate Confirmation. The Constitution gives the Senate the right to “advice and consent” on Presidential nominations for federal judgeships, including the Supreme Court, and high-level appointments like ambassadorships. Future appointments to the bench, especially to the Supreme Court, could also lead to confrontation between Bush and the new Congress, as activists on both sides of the political spectrum care deeply about judicial appointments. Judicial appointments, more than any other issue, provide the battle ground for America’s culture wars.

Right now, there is an air of conciliation about Washington. Both parties have asserted their desire for bipartisanship in the next Congress and Bush has met with Pelosi and Reid to examine potential areas of agreement. However, Democrats are angry after their time out of power and Bush has shown little inclination for compromise in the last few years. Look for initial amity but increasing rancor as both parties remember how much they disagree about the fundamental issues.

TransAtlantic Relations After Bush

Bush's defeat comes as a breath of fresh air in TransAtlantic Relations. In the last six years, the relationships between Europe and the US had progressively worsened, almost to a breaking point.

It is obviously not in our interests and we have to stress the importance of healthy and sincere relations between the two sides of the Oceans. Europe has to do its own mea culpa as much as America.

We are both trying to come out of a number of serious economic and political issues. The forthcoming two years will be extremely important in order to move on and reform on both sides. French presidential elections are coming up soon (April 2007). Then Blair will leave (around that time, after 10 long years). Bush is on the way out and it is not going to be easy in his last two years. Germany and Italy with their broad, fragile, coalitions are open to political change at any moment.

The direction to take must be that of strong Transatlantic Relations. I do not see any other alternative.

The Only Possible Thing to say: No to Death Penalty

I hope that Europe will stick to its position at least on this one. No to the Death Penalty, not even for Saddam Hussein, Mussolini or Hitler.

We have abolished the death penalty all over Europe. It is a matter of our principles, and it clearly distinguished us from the US, even if we agree with them on many other things.

But Europe must speak up, and must do so on issues of principle such as this one. It would be absolutely incoherent to be absolutely against death penalty at home (Europe) and to accept it abroad, wherever this happens.

At least on this one, we can speak of our objective stance on an important issue.

Europe, Religion and Cosmopolitanism

The seeds of cosmopolitanism are present in both the liberal and the Christian traditions. But they both fall short. The universal pretension of Catholicism, for example, stumbles against the practice of enlargement of the European Union. When faced with the prospect of integrating Turkey, the Vatican and other conservative Christians in Europe responded with the metaphor of Christian roots and the necessity to maintain an homogenous society. They want to establish a Christian club, to which we can only enter if blessed by our Christian traditions. It is in essence a race based theory of belonging. Were the EU to accept this perspective, it would prove once again extremely un-European, which is what explains its present stagnation. The EU presently lacks a vision and therefore also lacks high cosmopolitan) standards by which it should judge its politics.

Potentially, the ethics of citizenship as put forward by Rawls/Habermas would have a very cosmopolitan pedigree… the fact of pluralism is central to Rawls. This is what makes him shift from a theory of justice to political liberalism. But political liberalism, even if it is explicitly dealing with the issue of what to do under conditions of unrelenting pluralism, does not give a satisfactory answer as we saw. Bracketing comprehensive views, and relying on a consensus which proves to be much too thin, cannot secure a firm ground for the progressive development of society. A truly genuine cosmopolitan vision can only happen if we let it emerge from the fact of pluralism. We should not be afraid of that. It in fact constitutes an invaluable yardstick with which we can assess the failure of the national communities to develop at the pace of their plural population. It can only in the long term sanction the end of community rooted ethics of citizenship and give way to a truly cosmopolitan ethics, which is an ethics of citizens of the world.

Unfortunately, the way liberal democracies work at the present moment reveals a very serious deficit as far as the universalisation of certain rights standards are concerned. There seems to be a bipolar attitude toward fundamental rights. As long as they are domestic rights they need to be protected, but then as soon as they go beyond the national boundaries there is a troubling hesitation.

A good illustration is the right to free expression as applied to the Mohammed cartoon saga. Imagine that internet was not available. The mohammed cartoons would have been the object of a domestic controversy. In this case, it is easy to imagine that freedom of expression for the journalist would have been protected. Probably, many people would have wanted to protest against the poor quality of those cartoons, but the saga would have ended there. Now, in our real world those poorly conceived cartoons were easily available to nearly everyone in a short amount of time. Does this mean that freedom of expression should be curtailed? Many people thought so. I disagree. The right to satire is a fundamental aspect of freedom of expression and we cannot exclude it simply because it is likely to upset some people.

Both Liberals and Religious people ought to think outside their ideological boxes. Global issues as migration, global poverty and global warming need to be addressed from a cosmopolitan viewpoint. Anything else is bound to fall too short.

Without Roots: Europe and the Pope

The Catholic Church is trying to tackle the issue of European Roots in order to provide a more attractive model of a Christian way of living. After WW2, Europe became increasingly disengaged with the model of life offered by the Church. The truth unveiled by the Church appealed fewer and fewer people. European societies showed a decreasing strength in their beliefs, and this corresponded to an increased belief in one’s own capacity to frame a good life for oneself.

Ratzinger has embarked on a crusade against relativism. He claims that the origin of the secular philosophy goes back to the French Revolution. From that moment on, Europe engaged in a project that involved the increasing role of technology and science in public life, and relegated God in the private sphere. The separation is that between the laique and the Catholichristian society. The former had a formidable success represented by technological and scientific progress. But that success came with a heavy price. The system of values on which the European polity has was founded collapsed. Ratzinger feels that Europe as it is does not have a future nor does it constitute a model for other polities. His harsher criticism comes at this point: ‘Europe’s soul comes from the material world; morality entirely depends on circumstances and must be adapted to the ends of the society.’ This is the most dangerous aspect of European relativism and this crisis needs to be tackled somehow.

What does the Pope offer instead? Interestingly, the ‘new’ foundation proposed by Ratzinger has a very old name: dignity. This is a name for a foundation of morality that must take precedence over any other political principles. Dignity is inviolable because it comes from God and as such it cannot be discussed or endangered by human actions. Dignity translates in three notable spheres for Ratzinger: Respect for life, which corresponds to a Catholic doctrine of bioethics. Second, respect for the family and its founding institution –Marriage. Third, respect for the sacred, which constitutes also a limit to freedom of opinion.

Unfortunately Ratzinger forgets to mention the poor record of the Catholic Church as far as respect for women and respect for other minorities are concerned. I have in mind some basic examples of the evils produced by its very institutions. In particular, the Catholic Church is unable to offer a model of good life that inspires because it is so out of touch with some basic issues. Think of the AIDS pandemic made easier by the lack of use of contraceptives, as demanded by the Vatican. The same Church, moreover, did very little to reconsider the place of women within the society (and within the Church). Its sexual morality in general is unfit to give positive messages to a society where sexual morality has evolved hugely.
Finally its insistence on heterosexual couples does not acknowledge a basic fact of life: We end up in a paradoxical position where both religion and liberalism claim to go back to the same ethical foundation –dignity—without really agreeing on the very definition of that foundation. From the religious viewpoint, dignity means a static interest of every individual being granted by god and as such inalienable and inviolable. In the liberal strand of thinking, dignity means something more dynamic –autonomy (which translates as freedom of choice)—although some authors identify a more static element to it which lies at the core of the definition of human being. The dynamic element is Liberty, and the static element is Equality. There is little ground for a meaningful dialogue thus far.

Rights, Religion and the Polarization of our Societies

Rights are the central notion that contributed to the success of secular liberalism. From the 60’s Supreme Courts around the world have implemented a liberal manifesto based on the idea of individual autonomy and protected by the right to decisional privacy. From a liberal viewpoint, this development could not be more welcome. Conventional sexual morality has been swept away; in its place, supreme courts have entrenched individual liberty. In the USA this started with Griswold, which invalidated statutes prohibiting the use of contraceptives. Moving on from that we encountered the famous Roe v Wade, which set out a new legal framework for abortion. This was probably the apex of the liberal manifesto, but success was followed by deep opposition from the religious camp who gathered together against the 1973 decision of the Supreme Court.

The point that I want to stress here is the highjacking of ethics by law. In the last 40 years, representative institutions around the world denied responsibility for dealing with pressing ethical issues. Most of the time, as a result, supreme courts had to take up that responsibility in high profile cases that shaped the face of ethics in western countries. By deciding on issues such as abortion, euthanasia, stem cell research, assisted procreation and others, supreme courts begun to police the boundaries of life and death; in other words, they started intervening on the definition of the meaning of life and its quality. This was such an impressive movement that some prominent scholars gave Supreme Courts the appellative of ‘Forum of Principle.’ By this they clearly meant that Supreme Courts were the place where morality in action was taking place. In the judicial forum, more than anywhere else, important deliberations and decisions on crucial ethical issues were taking place.

There is something to be said in favour of this development. The society shook off entrenched conventional belief on how to live and how to live together. While the rights revolution was taking place, many were the people supporting it. It was by any means a popular revolution and met with great enthusiasm in the more progressive part of the society. I am certainly not the one who is going to disapprove of such a progressive development. But I have to acknowledge nonetheless that this liberation of the society came with a price which is becoming to appear only now. The legalisation of ethics entailed the polarisation of the society. The two poles are roughly the religious and the liberal poles. The liberal pole favours a progressive dismantling of conventional ethical standards. In their place they favour an increase of freedom of choice and pluralism. The religious pole favours the respect for some ethical guidelines which have characterised the society for a long time.

Law polarises ethical issues for a simple reason. It deals with every issue in a binary logic. On one side, one argument. On the other, the counterargument. They exchange their views and then a winner is declared. Most of the times, in the last, 40 years the winner in the forum of principle was the liberal progressive. The loser was the conservative religious. This could not happen without a response. Thus conservative organisedc themselves to serve the religious community, in particular those religious people that felt a huge blow from the liberal court. The political world decried the tyranny of liberal progressive values and the manifesto was always an anti Roe v Wade manifesto. Presidential elections took place on very few issues and abortion often played the role of the deciding point. Many voters, generally inclined to vote for democrats, would vote for republicans to deliver on the promise of an anti-abortion law. Politics in turn became increasingly obsessed with judicial power and one of the critical domestic issues nowadays concerns the nomination of justices at the supreme court. Bush managed to nominate two of them. Alito and Roberts, two justices that promise to carry further the conservative anti-revolution.

In Europe the rights revolution was more subtle. Deliberative institutions, much as in the USA gave up their responsibility as to the decision of pressing ethical issues (they were much too concerned with economic issues). The progressive revolution took place at times through judicial intervention and at times through alternative means. For example, in Italy, liberal-progressive reforms took place through Referendum. Italy is one of the few countries in the world to have a normative referendum, that is a popular consultation that has the power to abrogate valid statutes. Thus, abortion law, divorce law, and many other issues have been decided through Referenda and the parliament simply had to bow to the popular will and enact new laws with this new orientation. In some other countries, constitutional courts played a corrective role. In France for example, the conseil constitutionnel empowered itself in 1971 to control the constitutionality of statutes against the background of a range of different bills of rights from the past. This way, the conseil constitutionnel assisted the parliament in carrying out the necessary reforms in a progressive and liberal direction. In Germany, the BVG played a robust role in enforcing the rights revolution; so much so, that the German constitutional court also required the institution of the European Community to do the same.

But the characteristic trait of Europe is probably the intervention of another supranational institution, the ECHR which sits in Strasbourg. European states gave up part of their sovereignty as far as their ethical reforms were concerned. At their place, that is instead of national parliaments and national courts, a supranational court was to intervene on very sensitive issues. The ECHR thus had a number of landmark cases on freedom of expression, right to privacy, protection against torture and inhuman treatments, right to life and many others. Nowadays, it increasingly intervene on matters of religious liberty. In particular, it has to deal with difficult issues concerning muslim scarves in turkey, and other similar problems. European ethical standards are ultimately decided in this forum. This is convenient from various viewpoints. National states do not have to bear responsibility for these difficult issues. Individuals are pleased since they have yet another judicial appeal after having exhausted national remedies.

Europe, which is sociologically a secular society, does not face as in the USA a polarisation between the liberal and the religious society. Instead, the polarisation which becomes increasingly important is between the secular Europeans and the religious others, in particular Muslim people. There seem to be an increasing inability to engage with the religious minorities; in turn, religious minorities feel increasingly misrepresented by the neutral liberal and progressive European States and Institutions.

On top of this gap, there’s a growing dissatisfaction on the part of both national states and the ECHR. The latter continuously laments the impossible workload under which its institutional apparatus is crumbling. National states, in particular Britain, want to bring rights back home as they become dissatisfied by the supranational decisions. It is within this context that the European Court of Human Rights seem to be prepared to increase the national margin of appreciation and acknowledge the role of representative institutions when they actually intervene on certain ethical issues. A good example is the case Evans v UK, decided by the fourth section of the ECHR. This case concerned an issue of in vitro fertilisation. A woman, unable to conceive naturally, sought medical advise to start that procedure. Before implantation of the embryo, however, Mrs Evans is diagnosed ovarian cancer. Doctors advice her to undergo cancerous treatment before proceding with the ferilisation. She agrees to that, which means that the embryos formed with her eggs and her husband sperm are the last opportunity to bear a child. Mrs Evans worries about her future but her husband insists that he will always be with her. Two years go by and Mrs Evans, who has had her ovaries removed, is now ready for the embryo implant. Her husband, however, has changed his mind and does not want anymore to give his consent to that process. Law is on his side as it is clearly stated that each donor is allowed to change his mind up to the moment of implantation. Mrs Evans argues that her husband has created a legitimate expectation and as a consequence he cannot withdraw his promise. In this case, the ECHR acknowledges the existence of a dilemma and a human tragedy on the part of Mrs Evans. In a highly unusual move, however, the ECHR refuses to engage in the balancing of the competing interests at stake. Instead, the European Court sticks to the ‘bright line’ drawn by the UK parliament.

It is probably early to draw conclusion from this decision. But it does seem to point to a situation in which the European Court feels unprepared to set once more European ethical standards for everyone. On the 23rd of November 2006, the ECHR will gather in its more important formation, the Assembly, to review this decision. It is possible that the ECHR will insist on its leading role as the ethical setter. This would not be surprising. To the contrary, it would probably point to the present European ethical crisis. Given these circumstances, Europe may prefer to maintain the statu quo, but how long is this possible? What kind of event is Europe waiting before rethinking its ethical foundations?
Law, in particular rights adjudication, polarises a society if it takes too many responsibility in relation to ethical dilemmas. Instead of making dialogue possible it excludes it when stretched beyond a limit. Representative institutions must be more responsible; if they avoid deciding those issues, they must explain why and how we should deal with them more adequately.

The mythology of international judicial fragmentation

An entertaining post, well worth a read, over at Opinion Juris, where Cesare Romano sketches the parallels between the rise and fall of the International Court of Justice and the theme of usurping the father-figure in ancient Greek mythology. The plethora of fragmented judicial bodies, from the WTO dispute settlement mechanism through international criminal tribunals to regional entities such as the ECJ and ECtHR have rebelled against the ICJ's attempt to subordinate them and retain its own dominant position in the international judicial heirarchy, eventually "emasculating" the body that begat them.

One thing is missing from his analogy, however; in the Greek mythology he refers to, the sucessful usurper proceeded to construct a new heirarchy, with himself installed at its summit. Some such structure seems inherent in the notion of order, and legal order in particular; we must ask, then, if we are to condemn the ICJ as "already passé", who is to become the new dominant actor on the global level? The obvious answer is not, for many, a particularly palatable one, and yet there is only one institution of global reach with a strong (indeed, compulsory) judicial mechanism: the WTO.

With this in mind, perhaps we can retain the hope that reports of the ICJ's demise have been greatly exaggerated. Undoubtedly, it is an institution in dire need of serious reform, but the all-too-ready willingness to confine it to the textbooks of international legal history itself creates the risk, which Romano himself fears, that the dominant role of general interpreter of international law, the apex of the fragmented international judicial system, will be assumed not by the best suited, but simply by the best placed. In the current global climate, and for the foreseeable future, it is only the perceived necessities of economic logic that have the strength to get states to commit to compulsory dispute settlement measures.

The fear, of course - and one that Romano shares - is that in getting rid of a tribunal with general responsibility for, and competence in, all aspects of international law, we will allow a single conceptual framework to dominate and interpret all others. The ecomomic mindset is already extremely influential in global affairs; to allow it to come to dominate in law itself would be potentially disastrous for the diversity of viewpoint and in-depth specialisation that has driven the fragmentation process that we have witnessed over the past few decades. This specialisation has brought a new level of maturity and richness to the international legal scene; it is something that we should be looking to preserve to the greatest degree possible whilst retaining a sense of order.

There are certainly no shortage of examples, from ancient or far more recent history, of cases in which people have been too quick to welcome the demise of an old ruler without full awareness of who will rise to take his place, and of the new heirarchical structure that will be initiated, and have come to regret the speed with which the old was jettisoned to make way for the new. It may be, of course, that the ICJ is simply too far gone to rescue; if that is the case, however, this is a time for the utmost vigilance as to its successor, not for either the triumphalism or complacency with which news of its demise is often greeted.

Romano's short piece, however, is neither complacent nor triumphant, and provides us with a vivid new way of imagining both the history and the future or the international judicial system. Like I said, well worth a read.

And the results...

Voting has literally just finished on the proposal that I posted about earlier today, for a sweeping inquiry into all elements of the decision to go to war in Iraq, and the manner in which the occupation has been conducted since. The results were as follows: in favour of the Plaid Cymru/ SNP proposal to set up the inquiry - 273; against - 298; a majority for the Government of 25.

Not quite the photo-finish that some had predicted, but equally far from a resounding success for the Government, who saw significantly more than half of its majority removed. It seems clear that this will not be enough to put the issue entirely to bed, but nor is it the bloody nose for Blair that many for which many had hoped. A bit unsatisfactory for all concerned, I should have thought. Still, the issue is firmly back on the agenda and, as the handover of power in Iraq begins and troops start withdrawing, the calls for an inquiry can be expected to gain in intensity, as the "undermining our boys in the field" argument loses weight. It remains difficult to see how, in the slightly longer term, the Government will be able to avoid an inquiry.

Serbia v. the International Community

To return to a topic that we have discussed on this blog on numerous occasions (see, for example, here, here, here, here, here, here, here and here, amongst others), Serbia has sent a fairly clear signal to the international community that it is not prepared to contemplate what many are simply assuming will be the final outcome of the Kosovo status negotiations, an independent Kosovar state, by endorsing nothing less than a new Constitution which declares Kosovo to be part of Serbian territory for eternity; and this only a few short weeks before the Security Council is expected to rule on the issue.

The EU and the US have dismissed the move as "irrelevant" - an incredible suggestion when one considers that it is the territorial integrity, involving long-recognised borders, of an independent state that is concerned. Whatever the outcome, it seems clear that any enforced separation of Kosovo from Serbia will be vigorously (we can only hope peacefully) by the latter; and this turns it into a significant problem for international law, as there seems to be no chance of Serbia simply acquiescing to the Security Council's expected attempt to force the independence option. We will thus, it seems, have a precedent ("exceptional" or otherwise) where the international community will act to divide up an existing (and democratic) state, where no current threat to international peace and security currently exists. A bold move, indeed; but one that could, if handled without huge sensitivity, backfire spectacularly in this historically most volatile region of Europe.

Nationalists call for sweeping Iraq inquiry

A little interest today, perhaps, from the House of Commons, where there will be a vote on a proposal by the Scottish and Welsh nationalist parties (the SNP and Plaid Cymru) which calls for a review panel of seven senior MPs to conduct an inquiry into "the way in which the responsibilities of Government were discharged in relation to Iraq and all matters relevant thereto, in the period leading up to military action in that country in March 2003 and in its aftermath". What makes this minority party action particularly interesting today, however, is that not only do they have the Liberal Democrats on side, but the Tories have just announced that, if the Government will not provide guarantees that such an inquiry will be held upon withdrawal from Iraq, they will support the motion for one to begin immediately.

Blair, of course, is resisting the call, basically on the grounds that it would be "unpatriotic", and would undermine the position of the troops on the ground; basically, the normal rhetorical ploys to supress the legitimate (indeed, necessary) debates on what he must now fear will be the defining issue of his ten years in office, now formulated in terms strikingly similar to those of his US counterpart: "We have troops who are operating in the field of combat. We have an enemy who is looking for any sign of weakness at all, any sign of a loss of resolution or determination. The important thing is that we do not give any signal that we are anything less than fully determined to see the job through". It is possible that this line of argument will also find some favour among some Conservatives, whatever the party leadership decides, and Labour does have a significant overall majority in any event; however, with a significant number of Labour backbenchers still extremely angry about Blair's actions in terms of the war in general, it is just possible, if unlikely, that there will be an upset here. To give you an idea, Blair's working majority is 67, and the Nationalists claim the support of at least 30 Labour rebels. It might be close...

The debate is due to start at around 16.00 GMT, and is scheduled to continue for 3 hours, after which will come the vote. Watch this space...

Democracy: the Gap between secular and religious views?

Habermas and Ratzinger put up a good show few years ago. They both turned their cheek to the slapping adversary and concluded cheerfully: we need to embark in an on-going conversation between liberal-secularist and religious representatives. This sounds very promising, and many have concurred with the basic conclusion. But the truth is that the dialogue has not yet begun, and it will not begin until few basic points are tackled directly.

Democracy is the first obvious obstacle to a genuine dialogue. Why? The reason is that many liberal-secularist, who agree with Rawls or Habermas, think that democracy is a market place in which we can enter only if we do a number of things. The suq of democracy requires you to accept that within the parameters of democracy various liberties are protected, but in order to get in, you have to accept that democracy itself cannot be put into question.

So, for instance, you cannot put into question the ethical foundations of democracy, as democracy is internally justified, and its legitimacy comes from the legalisation of the processes that make up democracy. In turn, those legal processes will be legitimised by the existence of a democratic framework. Thus, Law (human rights in particular) and Democracy are mutually supportive and fully sufficient to their own mutual justification.

In other words, there is no possible external justification to democracy. It is completely useless to engage in a conversation on this issue, as this issu is by definition off limits. This basic point on the justification of democracy creates an a-symmetrical relationship between different representatives willing to enter the debate. So, the liberal-secularist can boast a certain confidence and graciously grant the right to discuss to the excluded religious person. In exchange, the religious person will accept the invitation au voyage with a grin. Obviously, this is not the best position to be in, but at the end of the day religion can only improve its status within the European society where the slippery slope led them to a near to complete disappearance.

However, if you scratch the surface just a little you’ll find out, for example, that the Catholic Church understands democracy in the following way: ‘Whilst the autonomy proper to the life of a political community must be respected, it should also be borne in mind that a political community cannot be seen as independent of ethical principles.’ This is what John Paul II said few years ago, when he was still battling for a Catholic European soul. His message is clear: democracy should give to itself few substantive guidelines that must be acknowledged as objective, absolute, and inviolable. Better if these principles are of Christian inspiration. This is the gist of Ratzinger’s thought too. In fact, Ratzinger was the brain behind this assertive position, and he continues to carry on this agenda tirelessly. There is continuity between John Paul II and Benedict XVI.

Now, the problem is that either the Church accepts the democratic rules and gives up its pretension to introduce its own version of objectively entrenched Christian principles, or it sticks to that but then forgets any type of genuine dialogue. For, if the dialogue is meant to be about the scope of democracy, but one understands democracy as excluding ethical principles and the other understands democracy as including ethical principles, then the dialogue is not likely to go very far. We can fool ourselves and pretend that we can agree to disagree on that point and yet we should carry on conversation. Under these conditions, conversation can continue forever without producing the slightest result.

This issue is a real dilemma. Rawls, who is as usual extremely honest intellectually put it in the best possible way: ‘How is it possible –or is it – for those of faith, as well as the nonreligious (secular), to endorse a constitutional regime even when their comprehensive doctrines may not prosper under it, and indeed may decline?’ American experience shows that religious people are not willing to endorse a constitutional regime when their comprehensive doctrines have declined. This is the story of the American society in the last 30 years, more precisely since Roe v Wade. That famous decision of the Supreme Court of the US declared abortion to be permissible in the first two trimesters. This was perceived as a huge victory for the liberal non-religious side of the society. It was the greatest blow ever for the religious part. Since then, a portion of the religious society attempted to invert the course of this story by engaging in politics to the support of the conservative side which declares itself prepared to stir the state in a different direction from which the supreme court of Roe wanted to take it.

Today, some of the greatest supporters of Rawls believes that his strategy was flawed. So Ronald Dworkin, possibly the head priest of Rawlsian philosophy as applied to law, holds: ‘the schism over religion in America shows the limitations of Rawls’s project of political liberalism, his strategy of insulating political convictions from deeper moral, ethical, and religious conviction.’ The strategy of liberal secularist in the US must therefore be modified, they claim. Deepest convictions should not be excluded from the debate anymore; to the contrary, a genuine debate about those convictions should take place within society. Everything must be up for grab.

Here’s a lesson we can learn from America. Rawlsian political liberalism, even though couched in deeply reasonable terms, has not managed to make the American political system stable. Some hard core Christians felt deeply threatened by the enactment of a secularist-liberal agenda (notably on the part of the US Supreme Court), and responded by organizing themselves politically around a conservative right eager to please religious people in the country.

In Europe, the situation is symmetrically opposite. Liberal secularists are in a position of clear superiority and confidence, as religious is breathing its last breath. Europe is a deeply secular state, so it is religion that is claiming to be heard. Its strategy is the same as liberals in the US. Democracy, they say, must be supplemented by ethical and religious values or it becomes an empty shell for the tyranny of the majority.

Secular-liberals in Europe are not impressed with this argument. Habermas, to repeat, insists that Democracy does not need an external justification such as religion or other ethical convictions. In a discursive constitutional regime, democracy’s legitimacy is fed by legality and law’s legitimacy is in turn fed by democracy. In other words, law and democracy are mutually supportive within our constitutional regime and need no external source to be justified. Having solved the basic issue this way, Habermas goes on arguing that we should give up an imperialist understanding of secularism and engage in an on-going and open conversation with religion. Perhaps, however, the very imprerialist character of secularism is due to the unwillingness to engage in a genuine dialogue on the basics, that is on the (ethical) foundations of our democratic institutions.

In Europe, it is the Catholic Church that claims incessantly an unfavourable treatment. They desperately want to play the role of XXI century martyr. Already, some right wing parties are trying to enrol the Vatican on their side, as they see that the Church is being listened. On October 20, Cardinal Camillo Ruini, president of the Italian bishops, bemoaned that catholic politicians are not united around Christian values. He surely would love to see the rebirth of a Christian Democratic party. The situation, however, is more complicated than in the US. Europe is de facto a tolerant secular state. The Church plays a minority game in this context. Where polarisation is more evident in Europe is between liberal-secularist and Islam. This is a much more heated contest that Europe does not master that well.

For the same reason, Europeans are not able to deal with Islam and with the daily worries it raises. The shar’ia is in open contradiction with democratic values. Those who want to uphold it can only engage in a game where the enjeu is constantly raised. Today is the veil, tomorrow it will be something else. But those are not symbolic issues as we would like to think. Those are just instrumental issues to keep the pressure on democratic institutions and eventually claim that the choice is not between veil or no veil within a democratic framework. The choice is between democracy a la occidentale and other institutional framework that entrench some basic values.

The response to that cannot be: “shut up, you. We are providing a good framework where you can be happy and free.” The only solution is to show that the substantive values that make up our own democratic institutions are good and sound. With reason.

Europeans are not able to deal with Islam because they are unable to fully articulate why and how we are secularist. They are unable to give good reasons in favour of that and they retrench themselves behind the statu quo, namely the fact that all institutions in Europe have a secular faith, which is at the moment very solid.

This is further reason why the dialogue should happen and should be as open as possible. Liberal-secular must confront any type of arguments and come up with good convincing reasons why they stand on the right side. This exercise can only prove to be refreshing and there is little to lose when we finally acknowledge that we have arrived here after bloody experiences and through a work of hard refinement of our institutions. We don’t want to go back to a Res Publica Christiana, and we do not want to move to a Shar’ia led Islamic republic. Between these two, there is something. There are our own democratic institutions which are worth years of experience and fight. It is not about maintaining a statu quo. It is about bringing these institutions and our own history and philosophy to a next level. To do so, we have to start from Democracy as we know it and open up to a genuine dialogue on what are the most important feature of this institution as well as what we want to modify.

The European Soul: A Rose between two thorns?

Europe is a constellation of liberal democracies characterised by the conviction that the public sphere should be strictly secular, and where religious arguments should be ruled out from the realm of public reason. We may call this attitude ‘secular confidence'. In the last years, secular confidence has been put under considerable strain by a number of cases such as the scarf, the cross in the classroom, the Mohammad cartoon saga or, very recently, the Pope’s speech in Regensburg. It quickly appeared that secular confidence could not provide convincing arguments to decide those issues. The principal explanation for the lack of a convincing secular position is reflected in the dogmatic character of the secular confidence which assumes, instead of articulating a sound justification, that religion, religious symbols and religious opinions are best kept away from our sight. This artificial situation creates more tensions than it solves and it is time to review this fundamental weakness in the secular strand of thought.

The main question at stake is the following: what place should European liberal democratic states make for religion in the public sphere? The short answer of many Europeans as things stand is: none. The long answer, however, is more complicated since the impression is that our secularist doctrines are not anymore able to justify why religion should be wholly privatized. Moreover, in Western countries, secularism is a phenomenon proper to Europe, but not to America. From this perspective we can clearly distinguish two broad ideal-models: on the one hand we have a tolerant religious state (USA) and on the other we have a tolerant secular state (Europe). At this point one could argue that Europe is not a state and, more importantly, it does not have a homogeneous position in relation to the place of religion in the public sphere. Recent sociological studies, however, have clearly demonstrated that Europe as a whole shows a powerful trend toward secularisation.

The relation between politics/law and religion in Europe is hard to grasp. A broad liberal attitude in European States tends to exclude any type of exchange. The classical example of this attitude is France. But religion keeps fighting back for a place in the public sphere, be it in the name of Christian or Muslim values. More specifically, religion claims that our liberal democracies are unable to deliver a sound model of good life. Atomized individuals, religious leaders claim, are lost in our consumerist societies and are unable to work out for themselves a set of ideals that would make their lives meaningful. The response of the leaders of our liberal democracies is that religion is unable to offer a model of life together where religious and non-religious people can be treated equally by the neutral institutions of the state.

This icy relationship could have continued rather blandly were it not for the tragic events that shook the western world in the last five years. Since 2001, Bush, Blair, Barroso and Berlusconi raised their voices in the name of objectively good western values that they want to spread all over the globe. Thus, before invading Afghanistan or Iraq they sought the benediction of the Pope. The Vatican suffered a major blow as well. John Paul II, possibly his most charismatic leader in centuries, expired in 2005 after a long illness. His successor, Joseph Ratzinger, is an intellectual with strong views on the role of Christian roots in Europe, but a very poor record as a leader and communicator. Both Religion and secularism are doing very poorly; as a result, in the last few years a copious literature on the relationship between faith and reason, State and Church, Christianism and Europe attempted to show that the two are mutually supportive and they should not be regarded as mutually exclusive.

The first real battleground to test the place of Christian values in the European polity was the draft proposal of the European Constitution, which now sits still awaiting happier days. John Paul II had repeatedly asked for the inclusion of Christian values in the preamble of the Constitution. Joseph Weiler, probably the most influential European lawyer and academic, wrote a short essay in Italian –Un’Europa Cristiana-- hammering the same point. A Catholic alliance of European States including Italy, Poland, Spain and part of Germany (Bavaria) were created to support the reference of Christian values in the text. The alliance failed to achieve this task. But not very long after the whole Constitution failed to pass the democratic test of referendum in France and Holland, two of the founding states that take themselves to be very secularist and liberal.

The real problem is that if the public sphere is not defined in terms of few selected public values, but instead is considered as a mere stage for pluralism and tolerance, then the distinction between public sphere and private sphere collapses. In Britain, for example, the debate concerning the veil is raging stronger than ever. British Muslim women have recently argued that wearing the veil is an entirely private choice; as a result public institution should not intervene in this issue. They also argued that the liberation of Muslim women start from their ability to choose how they want to lead their life starting with the issue of the veil. Feminism, so they say, should support this kind of position. This kind of arguments are puzzling. The reason why they are so is that they use the notions of public and private sphere interchangeably, just in relation to the strategic effect they want to produce. Is wearing the scarf in public a mere private choice? I really wonder. Unfortunately, there is no clear framework to decide these issues, which transform every argument into an issue of perspective including the question of the public/private divide.

Why are we now there? My point is that liberal democracies by insisting on the importance of the private sphere and individual rights have voided the public sphere of any meaningful content. More precisely, and in philosophical terms, the transition from comprehensive views to more moderate forms of liberalism emptied the public sphere of its content of values. We have no yardstick to decide what is permissible and what is not in the public sphere. We simply know what the public institutions should refrain from doing in the private sphere. This has been a welcome improvement, but the price to pay in terms of the impoverishment of the public sphere is worrying.

Religion is trying to reconquest the public sphere by intervening on issues of public domain such as bioethics, same-sex unions, and many other issues at the edges of life. But what kind of argument can we accept as far as religion is concerned?-- after all its claim to truth has been swiped away long ago. What kind of function can religion play if it cannot ground its position on an alleged objectivity of values. Even if we are somehow 'terrorised' at the moment, this is not a good reason to engage in endless dialogue with no content. Let's pause for a second and think more deeply about what kind of a dialogue is possible and what are the objectives to be achieved. Only then, we could start listening one another. Perhaps with some results.

How Not To Argue About Abortion

The issue of abortion, while never anything like as vociferously contested in Europe as it is on the other side of the Atlantic, nonethless does raise its head from time to time. Zoe Williams has an extremely provocative opinion piece in today's Guardian, written to mark the 39th anniversary of abortion being legalised in Britain, and against what the author sees as an increasingly deceitful and hypocritical tenor to the debate in the UK, both in Parliament and in the public at large.

The polemics of the piece are striking. The abstract begins by bemoaning the fact that, even for the left, abortion is now viewed as a "necessary evil", allowing pro-lifers to "dominate the debate" and putting "women's hard-won rights under threat". Williams recalls her own experience, first with abortion and then with writing about it, in the mid-90s. Then, as now, she railed against the fact that it was, although legal, nonetheless viewed as something taboo: why, for example, are there nop jokes about it? We have jokes about everything else, from cancer to physical and mental handicap; but, she insists, "in comedy, even in very mainstream comedy, there are almost no taboos" however, "you could make a joke about September 11 before you could make a joke about abortion". And this at a time when a quarter of all women have had abortions, then it is something thqat must affect all of our lives: "Seriously, unless you are very cloistered or you are incredibly judgmental and uptight and nobody ever tells you anything, you will have been aware of an abortion at very close quarters, even if it was not your own".

I pause at this point to flag one or two concerns about the facts of her polemic. Firstly, something anecdotal; I view myself (perhaps, of course, mistakenly) as neither cloistered nor uptight and judgmental, and yet abortion has not yet affected me at close quarters. Of course, I may well be simply an unlikely exception; however, Williams' rhetorical use of the blunt 25% statistic in this manner seems a little at odds with her insistence, towards the end of the article, on the social/ class elements of abortion availability and uptake. Further, I am simply not convinced that it is true that mainstream comedy has an abortion taboo to a degree greater than, for example, September 11th: I have seen abortion jokes, for example, in recent episodes of both South Park and Family Guy; and both are American series, although admittedly known for pushing back the boundaries.

These are not important points, but they do provide us with a hint that things are not quite as straightforward, not quite as black and white, as the author presents them; and it is this that, to my mind, constitutes the most serious failing of the piece: it's insistence on framing the abortion debate within a series of strict dichotomies (open/taboo; honest/hypocritical; banal/murderous), and its outright rejection of any possibility for complex and nuanced positions that simply reject that the ethics of the issue can be reduced to a set of "either/or" extremes. Consider, for example, the following passages:

Why are there never any abortion jokes? Why is it unthinkable to discuss it without prefacing everything with "of course, it's terribly traumatic, no woman enters into this lightly"? I found it no more traumatic than any other operation I have ever had, no more psychologically scarring, way less painful than anything involving my teeth and considerably less annoying than anything I have had done on the NHS...

Even writing that, I am furious - it is considered a given, an unarguable tenet of modern society, that you would feel ashamed of having a termination, that you would, in some cutesy, feminine, inarticulate way, feel "bad" about it. You are not allowed to talk about this operation unless it is to say how dirty it made you feel. We are all expected to have these moral objections and yet suffer the business anyway, in the name of pragmatism. Ethically, this is a far dodgier and more repugnant position than mine, which is that I am entirely pro-abortion because I do not consider it murder; if you do not consider this foetus human, then it becomes no more of an issue than getting a tumour removed.

These passages illustrate perfectly, to my mind, the deeply reductive and impoverished manner in which Williams thinks and writes about the issue of abortion. There can be no middle ground which is not hypocritical: either abortion is murder, in which case we must surely ban it all; or it is not, in which case it should be viewed in much the same way as having any unwanted body removed by medical procedure. There is quite simply no room here for the position that I, and I suspect many others, hold: that it is an absolute violation, indeed a form of bondage, to force women to do with their own bodies that which they do not want; but that, at one and the same time, a foetus is an entity that can command both respect and sympthy; not, perhaps, as a human in its own right, but out of understanding of and hope for the life that it has the potential to become. Williams would have us believe that one cannot feel sorrow for the loss of a foetus, for the loss of that potential life, without either being anti-abortion or thoroughly disingenious. The latter allegation is one, however, that I would level at her: her attempts to polarise through reductive polemic are not an accurate representation of the debate, and are undertaken in order to browbeat her target audience (the rights-conscious "left") into agreeing with her basic position: that having an abortion is no different from removing a tumor.

It would be remiss of me not to acknowledge a very major influence on my own thought in this regard. The American legal theorist and literary critic James Boyd White has looked at the issue of abortion from the perspective of his own understanding of the role of rhetoric in social life, and has bemoaned the reductive and dichotomous terms in which American public debate is held. Perhaps there are some (like Williams) who do experience the decision to abort in terms of one of the extremes that she thinks exhaust the field of honest debate: either it is without question murder, and unacceptable, or it is no different from a woman's decision to drink, smoke or wear makeup, and to be left entirely to her own preference; however, it is doubtful in the extreme whether this is how the majority of women who have an abortion experience it. White presents the distortions in the debate between right and left in the US on this issue in the following manner:

The "pro-life" position is often associated with those who favour capital punishment, for example, the "pro-choice" with those who on moral grounds oppose the infliction of the death penalty - and the ironies on both sides are instantly apparent. The "pro-life" position rests upon sympathetic identification with the unborn child but is often - with some honorable and compelling exceptions - associated as well with political positions that resist "welfare programmes" of the kind that might make these children's lives more endurable after they are born. The "pro-choice" side speaks of freedom to choose as though abortion were entirely unproblematic, like choosing some other consumer good, rather than the tragic decision it surely is for almost every woman who faces it. On both sides there is thus significant denial; if each side could admit just this much of what is problematic in its position one could imagine a conversation - unsatisfactory, no doubt - beginning to occur. (James Boyd White, Acts of Hope: Creating Authority in literature, Law and Politics (1994) p. 166-167.

Williams article is a perfect example of how not to argue about abortion. There is absolutely no room for nuance or complexity of any kind in her position; still less for any acknowledgement of what might make it problematic to others. This brings us to a striking paradox in her piece: the only rapprochement, the only understanding that she can reach is with those who are diametrically opposed to her; those in for whom abortion is murder, who campaign for a blanket ban. Only these groups are speaking her language; only they escape her charge of disingenuity and hypocrisy, and thus only they win her respect. It is only this blind commitment to the abstract extreme that leads her to invert White's point, and claim that abortion is only a tragic choice because of a creeping and covert criminalisation in political and public rhetoric, and not because the loss of a foetus, and the potential it embodies, can be mourned on terms other than those of the loss of human life. To take White again (whose work I really cannot recommend highly enough), "[i]n such terms as these no thought worthy of the name can proceed, and the vice is not merely intellectual but ethical and political as well, for neither formulation establishes a community in which difference is respected" (White, "What Can a Lawyer Learn from Literature?" 102 Harvard Law Review (1988-1989) 2014-2047, at p. 2046).

Williams article can thus provide us with absolutely no intellectual resources for understanding and explaining precisely why abortion is a hard choice for most of those faced with it; instead, her polemic is geared towards forcing acceptance of the proposition that it is not in fact a hard, or tragic, choice at all, but is only made to appear such by a dishonest political and public rhetoric designed by crypto-right wingers to make women feel ashamed to exercise their inalienable rights. Hers is not a contribution to a debate; it is a call to arms in an outdated battle that will, like most extremist wars, end up causing far more harm than it avoids for those it ostensibly seeks to champion.

New UN Arms Treaty in pipeline

The United Nations Disarmament Committee has recommended, by an extremely impressive majority, to begin work on a new treaty to control the lucrative trade in weapons (background here). The Resolution, entitled "Towards an arms trade treaty: establishing common internattional standards for the import, export and transfer of conventional arms" (UN Doc. A/C.1/61/L.55) has the support of most of the major players in the market, both manufacturers and exporters and importers. The draft was approved by 139 votes for, 1 against, and 24 abstentions. Among the abstainers were China, Cuba, Iran, India, Pakistan and Russia; the single vote against came from the United States.

A Better Democratic Campaign Strategy

The release of a new television advertisement by the Republican National Committee highlights the Republican Party’s choice to campaign for the mid-term elections next month in the same manner that they campaigned for elections in 2002 and 2004: scare voters into voting for Republicans. This strategy is perhaps best represented by the ad Republicans ran in the last weeks of the 2004 campaign, a chilling image of a circling page of wolves and a scary voice-over warning about weak-on-defense Democrats. Pundits generally agree that, although the ad was cynical, it was very effective. This tactic worked because voters have traditionally seen Republicans as being stronger on national security issues, and terrorism continues to be a central concern for Americans. It may not work this time, however, because despite the Bush administration’s continued attempt to conflate the two issues, voters have begun to differentiate between the war in Iraq – which a majority of Americans now believe to be a mess – and terrorism, and voters seem to be more worried about the mess in Iraq than Osama bin Laden. Democrats have been content to sit back and allow the Republicans to lose the 2006 election in the face of their incompetent handing of Iraq and a plethora of domestic scandals. They should be doing more. Polling indicates that the Republicans are increasingly likely to lose control of the House of Representatives and may even lose control of the Senate. However, most analysts agree that the only thing giving Republicans a glimmer of hope is the Democrats’ failure to offer a coherent alternative to the Republican platform (tough on security and low taxes). What, even generally, would Democrats do if they controlled one or both houses of Congress? The vast majority of voters don’t know, because Democrats are not saying, at least with any sort of clarity or consistency. Tony Blair once observed, quite accurately, that if you want to motivate voters, you should talk about two things: their hopes and fears. Republicans have cornered the “fear” side of the market. But they have left the “hope” message wide open. The Democratic Party should spend the next two weeks advertising a message of hope. They could even fudge a bit on the specifics of their policy proposals, especially since they probably couldn’t agree on such specifics anyway. But a positive message – something along the lines of a smarter foreign policy and help for middle class families - would contrast very favorably to the scary Republican advertisements and their gloomy warning that Democrats want to “cut and run” in Iraq and to raise taxes. A hopeful message, properly advertised, could well turn the current Democratic advantage into a rout.

Domestic courts consider Iraq

George Monbiot had an interesting piece in the Guardian a couple of days ago, in which he looked at a few cases, from the UK, Ireland and Germany, where the legality of the Iraq war, or of certain aspects thereof, came under consideration in domestic courts. (Thanks to Opinio Juris for flagging this, where Kevin John Heller has an interesting and illuminating discussion of the issues raised in the piece). In the two UK cases, involving criminal damage of military equipment to be used in the war, the jury failed to reach a verdict. In Ireland and Germany, the results were even more dramatic: in the former, protesters who had taken axes and hammers to a US Navy plane were held by a jury to have acted lawfully, while in Germany, a court threw out a charge of insubordination against an officer who had refused to carry out an order he felt would implicate him in the war in Iraq, on the basis that the war was indeed illegal.

The material background of the cases involved can be found in the House of Lords judgment in R v. Jones (March 2006). This was the case in which it was decided that the defendants could not rely on the fact that state agression is a crime under international law in constructing their defences before the UK courts. This, of course, deals with the issue of whether or not customary international law forms part of the common law of England and Wales, which was raised, for example, by Lord Millett in his separate judgment in the Pinochet case. In Jones, I think, we have a fairly definitive statement of the current UK law on this position: that although customary international law may be viewed as having been assimilated into domestic law even in the absence of specific legislative action, this process cannot be viewed as happening either necessarily or automatically (and, interestingly, the court here explicitly distances itself from Lord Millett's view, expressed in Pinochet, that international torture became a crime under domestic UK law as soon as it became a part of customary international law - see para. 19).

Indeed, the Court's judgment seems to make it very unlikely that any non-legislated incorporation of new customary international law into English domestic law will be recognised ever again, in terms of criminal law at the very least. The relevant passage from Lord Bingham's judgment reads as follows (para. 28):

The lack of any statutory incorporation is not, however, a neutral factor, for two main reasons. The first is that there now exists no power in the courts to create new criminal offences... While old common law offences survive until abolished or superseded by statute, new ones are not created. Statute is now the sole source of new criminal offences. The second reason is that when it is sought to give domestic effect to crimes established in customary international law, the practice is to legislate. Examples may be found in the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995, dealing with breaches of the Geneva Conventions of 1949 and the Additional Protocols of 1977; the Genocide Act 1969, giving effect to the Genocide Convention of 1948; the Criminal Justice Act 1988, s 134, giving effect to the Torture Convention of 1984; the War Crimes Act 1991, giving jurisdiction to try war crimes committed abroad by foreign nationals; the Merchant Shipping and Maritime Security Act 1997, s 26, giving effect to provisions of the United Nations Convention on the Law of the Sea 1982 relating to piracy; and sections 51 and 52 of the International Criminal Court Act 2001, giving effect to the Rome Statute by providing for the trial here of persons accused of genocide, crimes against humanity and war crimes, but not, significantly, the crime of aggression.

Lord Hoffmann concurred, noting simply "the democratic principle that it is nowadays for Parliament and for Parliament alone to decide whether conduct not previously regarded as criminal should be made an offence" (para. 60). He goes even further, in a interesting passage of dicta on "the limits of self-help" (paras. 70-88), holding that allowing citizens to use force against military installations on the basis purely of their own views - however honestly held - of the legality of state action would turn the Statute of Treason into a dead letter; instead, legal and democratic means must be used to force a change in government policy. Hence, he concludes that the defendants should be convicted "even if aggression had been a crime in domestic law" (para. 87). It seems, however, that not enough members of the jury in the most recent case were in agreement...

The Place of Religion in the European Public Sphere

This is the topic of a forthcoming conference I am organizing at the University of Aberdeen, Scotland, UK. For more information, please see here.

This is a short description of the project:

Europe is a constellation of liberal democracies characterised by the conviction that the public sphere should be strictly secular and should rule out religious arguments from the realm of public reason. We may call this attitude 'the liberal confidence.' In the last years, the liberal confidence has been put under considerable strain by a number of cases such as the scarf, the cross in the classroom or the Mohammad cartoon saga. It quickly appeared that the liberal confidence could not provide convincing arguments to decide those issues. The principal explanation for the lack of a convincing liberal position is reflected in the dogmatic character of the liberal confidence which assumes, instead of articulating a sound justification, that religion, religious symbols and religious opinions are best kept away from our sight. This artificial situation creates more tensions than it solves and it is time to review this fundamental weakness in the liberal strand of thought. This problem raises various legal, religious and philosophical issues. First, it points to a serious epistemological problem, namely what is the status of religious beliefs in the formulation of public policies? Second, it raises a political issue regarding the relationship between political and religious institutions in European polities. Third, it brings back to the public forum the fundamental ethical question - How should we live?- by asking how can we possibly share the same polity without engaging in these issues in comprehensive terms (that is, in a way that takes seriously everyone's religious and other beliefs alongside with other types of beliefs).

The No-Risk Society

Our national attitude to risk is becoming defensive and disproportionate; the way we try to manage risk is leading to regulatory overkill. There is an over-reliance on Government to manage all risks, yet it is neither possible nor desirable to control every risk in life. Personal responsibility and trust must be encouraged. Britain must safeguard its sense of adventure, enterprise and competitive edge.

These are the words of the newly-established Better Regulation Commission, a group of UK Government advisors who have just released their first major report, entitled "Risk, Responsibility and Regulation - Whose risk is it anyway?". In it, they assert that "we have all... been complicit in a drive to purge risk from our lives and we have drifted towards a disproportionate attitude to the risks we should expect to take". However, "enough is enough - it is time to turn the tide".

This, to my mind, is to be welcomed. The anecdotal evidence from the UK regarding the increasing refusal to take any risks is overwhelming: from the difficulty in getting schoolteachers to engage in extra-curricular activities, particularly sports, to the intrusion of Health and Safety officials into almost all aspects of social life. A relative of mine, who works in the food industry, was astonished - and delighted - recently when confronted by the Italian tradition of aperitivo for the first time, in which many pubs and restaurants put on a pre-dinner finger buffet for those drinking there; "Health and Safety", he claimed, "would never allow that in the UK". Our loss, certainly. The report contains a number of other, less anecdotal, examples.

Of course, the increasing litigiousness of the general public is both driving and driven by this process. As the report notes (p. 17), "Fear or litigation, terrifying and lurid headlines, single-issue campaigns, lack of trust, lack of information, confused accountability and a 'something must be done' mentality - all swirl around the policy-making process and put impossible pressure on the system - and ministers - for rapid and decisive action". All contribute to the fact that in the UK, much as in the US before it, the word "accidental" is slowly being expelled from the English language, and replaced by the accusation "negligent".

It seems to me, however, that we can go one step further than the report does, and apply its insights to one of the most pressing and important issues of our time: human rights and national security. If our increasingly risk-averse nature has led us to prefer regulation at all and any cost in the relatively petty spheres of everyday life, then how much more this is true of our reaction to the steady erosion of human rights and civil liberties in the face of the threat of terrorism. Indeed, it is this risk-aversion, this demand for security at all costs, that forms the single most important justificatory strategy in governmental rhetoric on, for example, the draconian detention powers now available to police; this was perhaps clearest in Home Secretary John Reid's almost pathetically transparent speech in which he declared (the day before UK police foiled the "biggest anti-UK terrorist plot ever") that the critics of the Government's anti-terrorism policy (including, for example, the ECtHR judges in the Chahal case) simply "didn't get it" - didn't appreciate the seriousness of the threat facing the UK.

Perhaps, however, they did "get it"; perhaps they simply refused the Government's risk assessment - that terrorist attacks must be stamped out, regardless of the very high costs to fundamental principles of our ethics such as the right to liberty. The argument that I want to make here is not the (very plausible) one that such limits are in the end counter-productive, and contribute to making sustained terrorist campaigns more, and not less, likely; rather, it is that, in a spirit of human rights adventurism - for, if you will, the thrill of the ethical - terrorism is a risk that we have to be prepared to run. Such risks are an inevitable attendant of our ethical self-image; and, as recent events have shown, we cannot supress one without seriously eroding the other. Of course, it is, as always, a question of balance, of how much of our ethics we are prepared to trade for our security. My claim would be that, in the UK and perhaps even more spectacularly in the US, we have got this balance seriously wrong.

More nuance to US Iraq policy debate

A significant change in US policy towards Iraq now seems likely, after a number of senior Republicans have called for a rethink of strategy. Perhaps most significantly, the report of a bipartisan review panel on the issue, set up with the blessing of Bush himself and chaired by Republican and Bush-ally James Baker, which isn't scheduled for release until after the elections on the 7th November, has been leaked to the press.

Perhaps most significant is the claim, which Baker has repeated in TV interveiws, that political rhetoric on the subject has been impoverished by the imposition of a crudely dichotomous framework (which has been exploited on many occasions by Bush himself in order to shore up support for the venture). Baker himself has stated that 'Our commission believes that there are alternatives between the stated alternatives, the ones that are out there in the political debate of 'stay the course' or 'cut and run'".

This can only be welcomed. In the context of a situation as complex and challenging as Iraq, no debate worthy of the name can take place within such a discursive framework; however, opening up discourse in the manner suggested will make it harder, if not impossible, for the occupation to be presented and understood in the simple terms that American politicking often seems to demand: that of victory and loss. This may, however, be a risk that Bush is prepared to run now, as it seems increasingly likely that, if such a stark appraisal is to be made, then most will view the Iraq war as the latter.

The proposals of Baker's Commission have not yet been released in full, but they look likely to include greater dialogue with, and a greater role for, Iran and Syria (as neither country has an interest in an unstable Iraq). Perhaps more interestingly, from an international law point of view, is that the stated aim of democratisation - for Iraq and for the Middle East in general - may be downgraded to securing simply "representative government"; government that reflects the will of its constitutents, without necessarily being democratic.

If such a move was to become a major element of US foreign policy in the region, it would be a significant blow to those, such as, most notably, Thomas Franck, who have claimed for over ten years that a human right to democratic governance has been "emerging" in international law, based, in large degree, on state practice, both multi- and uni-lateral in this field, and in particular on the practice of election monitoring and the soft law development of rules on what constitutes a "free and fair election". If a state as important as the US begins to pursue representative, rather than democratic, government, then this would provide significant ammunition to those skeptics, such as Brad Roth, who have argued that, although international law is no longer blind to the nature of domestic government, a right to democratic governance is based on a "wishful reading" of the available empirical and textual evidence:

[a]lthough international law regards "the will of the people" as sovereign, that will is not reduced by international law to the outcome of a particular participatory process... And this is quite as it should be. After all, even where electoral process, however "free and fair", occur, they are not necessarily the last word in popular will. (Roth, Governmental Illegitimacy in International Law (1999) p. 343).

I will conclude by briefly noting some ofthe other sources on this debate, for those who are interested. Most of the important articles have been collected in the volume edited by Fox and Roth, Democratic Governance and International Law (2000). Apart from Roth's monograph on Governmental Illegitimacy, one other major - and excellent - book-length contribution is Susan Marks' Riddle of All Constitutions (2000). The profoundly related area of the "democratic peace thesis", which appears in most of not all of the proponents of the proposed human right ot democracy, is dealt with in some detail in the volume edited by Brown, Lynn-Jones and Miller, Debating the Democratic Peace (1996). Lastly, for a more detailed account of my own view on these issues and works, and for further sources, see here.

Le Parlement légifère sur l'histoire...

While many in Europe profess themselves uneasy with the limitations on freedom of speech respresented by laws criminalising holocaust denial (as evinced by the decidedly lukewarm reaction to the news that David Irving had been arrested on such charges in Austria recently), the French Parliament has decided to move in exactly the opposite direction. Holocaust denial is already illegal in France, outlawed by the 1990 Loi Gayssot; however, they have decided to go one step further, as the Parliament has provisionally passed a bill proposed by the opposition Socialist Party last week, which will penalise anyone denying that the Turks carried out a campaign of genocide against the Armenians from 1915-1917, thus "completing" a law of 21 January 2001, which officially recognised that the relevant events constituted genocide. The penalty envisaged is one year in prison and a 45,000 Euro fine.

The Turks, who refuse to acknowledge that their actions at that time were genocidal, are more than a little upset by this, particularly as it comes at a time when the EU is pressuring them to remove their own restrictions on freedom of expression; and they and others have not been slow to point out France's considerably more ambiguous relation to its own past, be it in terms of Algeria or, more recently, of the Vichy collaboration during the Second World War. It has further been suggested that the new law was specifically designed to complicate Turkey's admission to the EU. This is certainly a major issue in French politics, although I am unsure as to the official line of the Partie Socialiste in this regard. In any event, the potential to hinder Turkey's accession will undoubtedly have been a significant factor in garnering cross-party support for the initiative. Chirac, it seems, is against the proposal.

There are, to my mind, many reasons for feeling less than comfortable with the very idea of Parliament legislating on history, not the least of which are the implications for freedom of speech through criminalising the uttering of certain words. This is not to say, of course, that freedom of speech can or should be absolutely unfettered by the law: few would argue, for example, with some limits set by defamation or libel laws; and many, myself included, feel that there is a role to be played by laws against the incitement of racial hatred. As always, then, the urgent task is not to seek escape into abstract absolutes, but rather to enter into the context of controversies, and to make and take responsibility for a choice informed by the circumstances of the case.

What, then, could be the reason for this latest step? The PS seems, officially at least, to be stressing the logical need to "complete" the law of 2001; but this, of course, only shifts the focus of debate back a few years. It is possible to argue that denial of the Armenian genocide now contributes to a climate which can lead to continuing suffering of those involved: however, it is pertinent to ask whether this problem (of anti-Armenian sentiment) is of sufficient seriousness in contemporary France to warrant the extreme measures taken. Further, in respect of all such arguments where history is being determined by the legislature, we may well inquire into the current harm that such denial causes that cannot, in large degree, be covered under existing incitement laws.

There is, of course, the good of securing acknowledgement of respect for the wrongs of the past; surely, however, the best way to achieve this is through diligent scholarship rather than by parliamentary fiat. If such scholarship is inconclusive, then this is simply a greater reason to distrust legislative efforts in the field; I can see no good reason for looking to law-makers where historians have "failed". Perhaps here we have the crux of the matter, however: that law and history are in some senses incommensurable. The law simplifies, reduces: it speaks (or at least aims to speak) with one voice, that of unshakeable authority; history, on the other hand, is pluroivocal; contested; ambiguous - all of the things that law seeks not to be.

Allowing law to speak for history, then, is a usurpation by the former and a tragedy for the latter; a very powerful set of reasons indeed must be in place for any defence thereof to be persuasive. It must be borne in mind always that this conclusion in no way bears upon the historical debates involved, of which I am almost entirely ignorant; to my mind, however, the necessary justifications are singularly lacking in France's recent move to legislate the history of another region.

Europe and the Scarf

Prodi, the italian Prime Minister, thinks that the Muslim veil is a question of reasonableness. Women can wear it, but they should remain visible. If only certain issues were so easily solvable...

The veil saga is taking incredible proportions in Europe. Last week, in Britain, Jack Straw declared that the veil created an unbridgeable barrier. Muslim women responded that the veil made them free.

The point is that the veil would be a simple pragmatic issue of reasonableness if we were not facing a much deeper politico-religious issue of identity. European Muslim do not feel very European. They have a point as many Europeans of birth do not really want to consider Muslims as European as well.

In this kind of political climate, the veil issue becomes a political act of identitity definition. First, Europe has to try to show that its values are worth being embraced for what they are. Then, it can quibble about the veil being a pragmatic issue or an issue of reasonableness.

But the real issue is deeper and should never be overlooked. We want and we must create an image of Europe which is distinctive and positive. At the same time, such Europe should be able to assimilate all the 'others' in a way that becoming a European Muslim or a European Jew or a European Buddhist or a European Christian or a European secularist would be a matter of pride, not a question of rejection.

LRB "Israel Lobby" debate online

For those that have been following the furore kicked up over Mearsheimer and Walt's provocative piece in the London Review of Books in March this year, entitled "The Israel Lobby", this link is certainly worth checking out. Mearsheimer and Walt's basic claim was that there exists a loose yet powerful and effective grouping of pro-Israeli individuals and institutions in the US that exercise their influence over the political process - both by positive lobbying and the negative silencing of critics - to "distort" US foreign policy with regard to Israel.

Reaction was predictably vociferous, and basically two-pronged: the first raised the issue of anti-semitism, while the second focused on the quality of the scholarship involved. Both are discussed at length during the linked debate, which took place last month, and involved Mearsheimer himself, Tony Judt, and some of those mentioned by name in the article, Martin Indyk and Dennis Ross. The debate was chaired by Anne-Marie Slaughter. Few punches were pulled.

Certainly worth a look. Other interesting pieces, some directly linked, some less so, can be found here, here and here.

The Island that isn't there

Where is Ithaka, Ulysses hometown? The place Ulysses took twenty years of...Odyssey.. to go back to.

Some exciting new research shows that Cephalonia may be that place and not the actual island that bears the name Ithaka.

For all those interested in the greek heroe's adventures, have a look here.

Balkans is Europe-Says Nicolas Sarkozy

In an editorial opinion for the Wall Street Journal-Europe on Monday 2 October 2006, Nicolas Sarkozy, French Interior Minister and one of the most serious candidates for becoming a French president in the next elections raised the issue of European Borders arguing, "[n]ow is the time, too, to face up honestly to the issue of Europe's borders, and accept that the French and Dutch referendum results were partly provoked by a Europe "sans frontiers"."

Determining which countries belong to Europe he states that Norway, Switzerland and the Balkans are in principle eligible to become members of the EU, whereas he suggests that there are some countries that "are clearly non-European" and that instead of a full membership EU should look into building a "preferential relationship" with Turkey for example.