Toward a Theory of Human Rights by Michael J Perry

This book does exactly what it claims: it attempts to develop a theory of human rights. Perry suggests that a theory of human rights should deal with three basic issues. First, the moral foundation of human rights. Second, the normative relationship between the morality and the law of human rights. Third, the institutional arrangements that best protect human rights.

To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.

Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.

Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.

All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.

In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.

How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.

Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.

It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.

This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.

I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.

Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.

The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.

Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.

To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.

Same Sex Unions in Italy

Italian Government has presented today its legislative proposal for same sex unions. If you read italian, you can have a look at the proposal here.

The proposal still has to be voted in parliament (both lower and higher chambers). Amendments are likely to be presented.

That said, the text is a very big effort of Prodi's majority to find a compromise between the religious and the secular wing of the coalition. Any amendments would risk to compromise the compromise (if I may say).

One important proviso, this proposal has the main goal of recognising de facto couples, including homosexual couples. It does not allow homosexual to get married.

It is still an important step toward the recognition of rights and duties of stable, non-married, couples.

A final point: the debate is likely to be intense. The vatican has already intervened many times to discourage this possibility.

Machism in Italy: Women are still an object.

Many newspapers report today last Berlusconi's gaffe. In public, he makes appreciative comments of young italian ladies; Berlusconi's wife did not like them and challenged him publicly to apologize.

Internationally, this news can only be interpreted in one way: Berlusconi is an old man with a very machist perspective on women.

Unfortunately, in Italy, many people still recognize themselves in this horrific image. It is sad and despicable, but that is the way it is. Of course, only a chunk of the population would share Mr B's attitude. Needless to say, those who support him in this, are also those who vote him. The rest of the population is likely to be shocked and appalled by the very possibility of such a behaviour.

Kofi Annan's Last words

Here, you can find Kofi Annan's last speech on the Middle East to the UN.

Berlusconi's Successor?

Berlusconi elects his successor: it will be Mr Fini a clever italian politician with a very dark past.
Fini was formed politically in the ranks of MSI (Italian Social Movement) a post-fascist party created
after the end of the Second World War.

When Fini became the President of MSI, he did his best to mutate it into a democratically acceptable party.
The output was Alleanza Nazionale. The mutation, however, has never been complete. Many representatives in that party hold on to the post-fascist credo and they are less than presentable.

Mr Fini himself managed to sell a much more palatable image. But it is less than clear whether he could lead a coalition of moderate people, when his own party has such a daunting past, and nebulous present.

Former allies are probably the most dissatisfied: to the right, the northern ligue disapproves of national alliance precisely because Fini's party is in favour of national unity, while the northern party is all for federalism.

The other, former, Chritian ally declares itself uninterested: Berlusconi's coalition is not that fashionable anymore

The ECHR has a New President

Jean Paul Costa is the new President of the European Court of Human Rights. His mandate has just begun. He replaces the former Swiss President, Luzius Wildhaber. Here's Costa's interesting speech.

Scotland & Kosovo

The Guardian argues how a possible supervised independence for Serbia’s Province of Kosovo might play the role of a precedent in other cases such as Scotland for example. The Guardian writes, “The breakaway British region of Scotland could be among the beneficiaries of this week's expected UN recommendation that Kosovo be granted provisional independence from Serbia, leading in time to full sovereign status. If the plan backed by the US, Britain and Germany is formally accepted by the UN Security Council, it will be taken as an important international legal precedent by would-be separatist movements from Georgia to Moldova to Chechnya, and possibly also the Scottish National party.” For more information read here.

New Books on Theories of Human Rights

A Couple of good titles for those of you interested in Theories of Fundamental Rights.

The first, just published, is Tim Macklem's Independence of Mind, Oxford University Press.

The second is M.J.Perry, Toward a Theory of Human Rights: Religion, Law and Courts published by CUP (forthcoming 2007)


I add Constitutional Dilemmas: Conflicts of Fundamental Legal Rights, just to make three.

Serbian 2007 Elections: Victory of the Pro-European Forces

On the Serbian parliamentary elections held yesterday 21^st of January 2007 Pro-European political block won the majority of votes. The largest number of citizens voted for the Ex-Milosevic’s ally Serbian Radical Party but this party will not be in a position to form the new government, both because no party seems willing to ally with them (because of the international pressure) as well as they themselves publicly announced would not form a coalition with any of the parties that entered the Parliament, apart from the parties of national minorities and possibly the Socialist Party of Serbia.

The electoral results are the following: Serbian Radical Party won 81 seats, Democratic Party (of the Serbian President Boris Tadic) won 65, Democratic Party of Serbia (of the Serbian Prime Minister Kostunica) won 47, G 17 Plus 19, The Coalition led by the Liberal Democratic Party 15, ex-Milosevic’s Socialist Party of Serbia 16 and the parties of national minorities 7. In other words political parties that were in power during the ancien regime of Milosevic won 97 seats, while the parties that governed Serbia in the post-Milosevic period won 153 seat. In the parliamentary elections of 2003 this ratio was 104 vs. 146, while in the 2000 elections post-Milosevic parties won as much as 176 seats, leaving the parties of the ex-regime on meagre 74.

Bearing in mind the fact that Serbia is undergoing a painful (but arguably a rather successful) transition process, it is rather surprising even that the populist opposition parties did not win even more. As far as the governing coalition of the Prime Minister Kostunica is concerned they suffered a significant blow. Together (DSS, NS, G 17 and SPO) they won 66 seats (SPO 0 since they did not manage to cross the threshold of 5%), while after the 2003 elections they held 110 (They ruled in a position of a minority government thanks to the votes of ex-Milosevic’s party Socialist Party of Serbia). The biggest victor in these elections is the newly founded Liberal Democratic Party that together with its coalition partners managed to enter the Parliament and win 15 seats. This party is largely formed of the ex-members of the Democratic Party and together with the Democratic Party holds the claim over the political legacy of the late Serbian Prime Minister Zoran Djindjic. Democratic Party, the main-stream reformist, centre-left party of the Serbian President Boris Tadic is also a winner of these elections (the best result ever of this party) although their supporters, who hoped to win more in the elections, are left with a bitter (for them) perspective of having to deal with PM Kostunica’s Democrats for the formation of the new government.

There are several scenarios for the formation of the new government but two are the most likely:

1) The coalition of the DS, DSS-NS Coalition and the G 17 Plus is the most probable outcome, although it remains uncertain who will lead this coalition, the candidate of DS Bozidar Djelic, the current Serbian Prime Minister Kostunica, the leader of G 17 Plus Mladjan Dinkic or a neutral technocrat able to rally the abovementioned parties together. The Coalition grouped around the Liberal Democratic Party is unlikely to take part in the government, both because the Party of the Serbian Prime Minister is unready to cooperate with them and also because they are most likely to benefit from the coalition of DS and DSS in the long run. Some or all parties of the national minorities that managed to enter the Parliament will most probably take part in the new government.

2) All other coalitions are highly unlikely since they are likely to cause serious political damage to both DS and DSS. According to the Serbian Constitution (article 109) if the aforementioned block of parties does not manage to make an agreement on the formation of the new government in three month, Serbia will have the new elections. The entire Pro-European block will not profit from the new elections, both because of the possible negative outcome of the future Kosovo status negotiation as well as because of the dissatisfaction of the voters with their inability to reach an agreement. So the two Democratic parties must reach an agreement, the sooner the better for Serbia and its citizens.

A brief reflection on some recent travels...

For the Christmas break this year, I drove with my partner from Geneva in Switzerland to Ružomberok in Slovakia. In doing so, we crossed a number of international borders: Switzerland to Austria; Austria to Germany; Germany to Austria; Austria to Hungary (took a wrong turn after Vienna; if you're ever going that way, don't follow the signs to Bratislava on the motorway, they'll take you via Györ, it's a good bit longer); Hungary back to Austria, and Austria to Slovakia. Six borders, and we didn't show our passports once.

This, of course, is one of the most striking advances made by the European Union; and the extent to which it has been consolidated is illustrated by the extent to which those of us from the old EU-15 states at least now take such freedom of movement completely for granted. My experience on the trip to Slovakia did not really strike me as in any way remarkable until an even more recent trip to the US, where the difference could not have been more stark. After some checking to ensure that my passport was machine readable - and I was thus eligible for the visa waiver programme, I still had to have both a digital photograph and two fingerprints taken before I could enter the country.

This is not, however, intended to add to the chorus of voices criticising the US for recent security measures; rather it is to insist that the extraordinary advances made within the EU - so accepted now as to be almost overlooked by those long used to benefitting from them - be accorded their rightful place in any evaluation of the advantages and disadvantages of the Union. It has many well-publicised shortcomings; it would be a huge error, however, to allow these to dominate discourse to the exclusion of its incredible achievements. Of course, these benefit, in global terms, only a select few; however, to arrive at this point in a continent so recently divided by two world wars and one cold one, is certainly no mean feat.

The Build Up to the American Presidential Elections

Hilary has officially started her campaign, see here Her committee will even use a blog.

It looks as if we'll have two interesting years to come in the US. I still have a doubt, maybe someone can help: Is Obama real or is he fake? On paper, he looks good, perhaps too good to be true. Any ideas?

European Constitution: A Revival?

At least if you listen to what Angela Merkel has to say, it would seem that the relaunch of the European Constitution is a top priority for the EU. See here for a report.

Merkel has just taken up the position of President of the Council of the European Union, a responsibility she holds along with the presidency of the G8. She is determined to make something out of it, as it may be easier to do something at the European/International level than to shake the torpid German political and economic stagnation (although the economy is going better as of late).

Her agenda is incredibly ambitious: 'It included progress on energy security and climate change, a global trade deal, a new partnership agreement with Russia, and greater peace efforts for the Middle East. ' Too ambitious, say the skeptic (the Economist in particular). In the last couple of years, though, the lack of initiative and action was devastating. A bold agenda can be launched now, we will see how long it takes to implement it.

Berlusconi is desperate to be America's Best Friends

At times Silvio (Berlusconi) is endearing, poor old little chap. Now He claims in his clownish fashion that he's the best friend the US have ever had. Then he adds that Prodi and the new italian government are foes of America.

I am always curious to know what is the image of Berlusconi across the Ocean. If you have any contribution please leave a comment. As far as the Atlantic Alliance is concerned, the US should not be afraid. Italy simply can't afford to be a foe of the US. That would be meaningless, if not ridiculous. But abroad many people now know that Berlusconi can indeed be ridiculous.

For a longer report, please read here

Independence of Kosovo vs. Humanitarian Interventions

In the current issue of the German Law Journal, entirely dedicated to the legal dimension of the future status of the Serbian Province of Kosovo I published an article: Srdjan Cvijic, “Self-determination as a challenge to the legitimacy of humanitarian interventions: The Case of Kosovo”, German Law Journal, Vol. 8, No. 1, January 2007

This article questions the legality of imposing independence for Kosovo without the consent of Serbia. It does so by firmly linking this question to the debate on the nature and legality of NATO’s 1999 humanitarian intervention in the FRY / Serbia. The UN-mediated process for negotiating the future status of this southern Serbian province, as well as the legal origin of the UN-mandated administration in Kosovo (UNMIK), represent a continuation of the original military and political involvement of NATO and the entire international community initiated six years ago. It is for this reason that no decision on the future status of Kosovo can be reached without bearing in mind the original basis of international involvement in FRY / Serbia. This article will analyse authoritative international jurisprudence that demonstrates how only “a thin red line” divides humanitarian interventions from being legal under international law. It further argues that instances of humanitarian intervention can, over time, acquire legality provided that stringent conditions are respected, the most important of which being that they serve no purpose other than the prevention of grave and immediate threats to human life. Consequently, humanitarian intervention should not serve as a tool for achieving political goals such as greater political autonomy, self-determination, or independence for particular groups within any given country. Infringement of this condition would amount to a revolutionary challenge to international law and threaten the return of the predominance of spheres of influence in international relations and law, taking us back to a past where war was considered the legitimate “continuation of politics by other means”. The imposition of an independence status for Kosovo on Serbia would not only amount to a revolutionary challenge to the established norms of international law, but would also jeopardize the development of the doctrine of humanitarian intervention.

Constitutional Dilemmas for 2007 (and beyond)

Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.

The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.

Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.

I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.

Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.

This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.

A Conference for 2007: the 23rd IVR Congress of Philosophy of Law

The IVR conference is organized every two year and its main focus is Philosophy of Law. This year it will take place in Cracow, Poland, from 1 to 8 August.

The Transatlantic Assembly will feature with a Workshop on Comparative Constitutionalism, see here

Luxuria, Islam and Gay Rights

The italian transgender MP, Vladimiro Guadagno, AKA Wladimir Luxuria is preparing to travel to Turkey and other Muslim states as a representant of gay rights.

This a very original initiative and it may well provoke more dialogue between Islam and Europe than the recent visit of the Pope.

You can read a good report in english here.

GLJ Koskenniemi Symposium

The excellent German Law Journal, a free online journal focusing, in part, on issues of public international law, has a fascinating collection of articles on From Apology to Utopia, written to mark the republication (with a new, extensive epilogue) of the already-classic volume. Countributors are a mix of established academics (such as David Kennedy) and up-and-coming scholars, and include a response from Koskenniemi himself. Well worth a read.

Ban Ki Moon and the Death Penalty

Ban-Ki-Moon, the new secretary general of the UN since January 1st 2007, hasn't started his mandate very well.
Questioned on the Italian proposal to end death penalty, Ban Ki Moon first rejected the idea on the grounds of national sovereignty. Then, today, he rectified his position through his office, claiming that he is against death penalty, but he believes the success of the motion is unlikely.

In short, Ban Ki Moon does not strike us immediately as a great communicator. Pity, the UN are not doing very well in terms of image and a strong President is the first requirement to build a new an improved image internationally. Let's give him the benefit of doubt.

Italy in the Security Council: No to Death Penalty

On January 1 2007, Italy joined the Security Council of the UN as a non-permanent member.

Its first proposal is very symbolic: Death penalty should be abolished around the world. Coming few days after the execution of Saddam Hussein, the proposal has a huge political impact.

American and Europe, though close on many aspects, do not share the same values when it comes to the desirability of the capital punishment.

Italy is one of the first country in the world where death penalty has been abolished. More importantly, Cesare Beccaria, a philosopher born in Milan in the 18th century, was one of the most outspoken advocate against the death penalty. His famous contribution to that debate, On Crimes and Punishments, is still worth reading for all those who are interested in the problem

European Enlargement and Deepening

Romania and Bulgaria have now joined the European Union. Slovenia has joined the Euro. These are only few signs that the EU is not sleeping, but it keeps very quiet.
Past problems have not disappeared and it is necessary to deal with them explicitly.
That is why Angela Merkl, the new President of the Council of the EU, has stressed the importance of a new text (Treaty or Constitution?) that can bring forward the all-important institutional adaptations. 2007 will be a crucial year in terms of institutional/constitutional reforms.

Democracy and Justice American style

Saddam is dead, hanged.
Is this day symbolic? Is it the beginning of a new democratic regime in Iraq?
Or is it the just end of a fair trial, as President Bush called it?

If it is meant to be the former, that is the building block of the Iraqui Democracy,
then this is a very bad point from which to start. Democracy is better founded on positive values such as respect for life, the life of everyone including grand scale criminals. Moreover, the Iraqui Democracy is in the process of being built. So who has the power to decide that the execution was democratic?

Some would say Justice! The question then is: was this a fair trial with a just end?
Many doubted the fairness of the trial itself (see Amnesty for instance). It is at least debatable whether the court, its composition, and its procedure were up to international standards of Justice.

Finally, and we come back to a previous issue, is the death penalty a just result of this trial. In Europe, this is clear, we agree that death penalty can NEVER be a just result. In America, the belief seems to be, on democratic grounds, that the death penalty can be a just outcome.

We can only wait and see what we will get out of this inhuman act of 'justice.' What we can say for the moment is that America has exported so far only the worst features of its own brand of Democracy and Justice to Iraq.

Scala says No to 'Berlusconi in underpants'

In Milan, people have a certain taste...
That's why the Opera Theather, La Scala, cancelled one of the shows meant to depict
Berlusconi, Chirac, Putin, Blair and Bush in underpants dancing on a black sea (of oil, needless to say).

Here's an article on the issue.

For 2007 we can only wish that the happy family of the five leaders mentioned above will disappear from the international scene.

Berlusconi was the first to go.
Chirac will be the second (French elections in April/May).
Blair will be the third (in june/july he will step down in favour of Brown).
Bush will join them in two years time.
And Putin will leave in 2009, when his second mandate comes to an end

Blair's Battle for Global Values

Tony Blair has decided what to do when he quits his post as Prime Minister:
He will be Philosopher! Here's a lengthy analysis of his political thought on global war and Justice.

This is the abstract: The war on terrorism is not just about security or military tactics. It is a battle of values, and one that can only be won by the triumph of tolerance and liberty. Afghanistan and Iraq have been the necessary starting points of this battle. Success there, however, must be coupled with a bolder, more consistent, and more thorough application of global values, with Washington leading the way.

Feel free to assess Blair's consistency. Words and Deeds do not always match...

Secession of Flanders

Yesterday evening, Belgian public TV station staged a fake programme announcing the alleged unilateral proclamation of independence of its Northern Federal Unit Flanders. It is only after a certain period that the editors of the programme decided to inform the public that the entire programme is fiction. By that time it was late, 89% of the population actually believed the news is genuine. Belgian political elite unanimously condemns yesterday’s programme.

The news actually caught me in an Algerian Restaurant in a beautiful municipality of Saint Gilles in the Brussels Capital Region. My Belgian friends with whom I dinned reacted emotionally, and although doubtful as to whether the news is actually through, started appreciating the state they though belonged to the past. As far as I am concerned, it made me thing of Yugoslavia, how it could have stayed a joint democratic state.

"You are killing the democracy"

Italian journalists Enrico Deaglio and Beppe Cremagnani made a film that managed to shake the very foundations of the Italian democracy by putting under question the legality of the 2006 parliamentary elections. The film, entitled “Uccidete la democrazia” (You are killing the democracy) makes an interesting and scandalous claim: it argues that a team of Mr. Berluconi’s close associates, acting on his express orders, rigged the 2006 elections.

The Italian governing centre-left coalition played down the importance of the film and the center-right, Mr. Berlusconi's coallition denied the allegations but welcomed a possible (now certain) recount.

The film is developing its story on the basis of electoral analysis but also on the basis of the claims of an anonymous source close to the Italian Minister of the Interior. According to the film Berluconi’s team used sophisticated software (allegedly bought and already used in the 2004 US Presidential elections in Ohio, see) to correct the electronic data arriving to the central computer in the Ministry of the Interior. Allegedly, it transformed many empty ballots (people refrain from voting for any candidate normally as a form of protest against the system), into votes for Berluconi’s party Forza Italia, but not manually but electronically. Thus, there is a possibility to double check the validity of these claims by recounting the totality of empty ballots. Apart from the testimony of the source of this film there are several other indications that, according to the authors, make their claims justifiable.

First the number of empty ballots significantly decreased from the elections in 2001 to the elections under scrutiny (2006). While in 2001 1.692.048 voters decided, so to speak, not to choose by placing empty ballots in the ballot box, in 2006 their number is significantly smaller 445.497. Not only that, but while in 2001 the number of empty ballots varied significantly from one to another Italian province (e.g. 2,6% in Tuscany, 9,9 in Calabria, 5,5 in Sardegna... in 2006 as if a strange centrifuge made Italy turn around producing almost identical percentage of empty ballots in all provinces, including the islands, from 1-2%). Moreover, the film considers strange coincidence the fact that before the elections The Minister of the Interior replaced numerous Prefects all over Italy. Bearing in mind that their offices were in charge of collecting and disseminating further the elections data this fact is not necessarily insignificant. Finally, the exit-polls predicted a much more convincing victory for the centre-left coalition, one that would have made possible a stable government for a full term in office. At present the coalition of the Italian PM Romano Prodi depends on a tight electoral majority often unable to undergo radical economic and social reforms it promised in its pre-election campaign.

An interesting and deeply troubling claim. However, the first logical question to ask is: If we accept the fact that Berluconi rigged the elections, why didn’t he make his coalition win? The film has an answer to this question, allegedly Berluconi’s Minister of the Interior Beppe Pisanu, an experienced Demo Christian politician, decided to stop the entire process preventing the victory of Berluconi’s coalition. Explanation as to why has he done so (the film is making a claim that he knew of the plan and participated in it from the very beginning) is far from clear.

I am personally not sure of this theory of conspiracy, it is indeed deeply illogical. The most illogical thing is the following: Why would Berluconi (and he did, see http://news.bbc.co.uk/1/hi/world/europe/4904294.stm ) publicly contest the results of the elections, he himself allegedly tried to manipulate? Wouldn’t such behaviour be too risky?

All this leads me to another conclusion, urging me to question the reliability of the film’s source. It is more in Mr. Berluconi’s favour (who lost the elections) than in Mr. Prodi’s favour (who won them) to contest the electoral results, regardless of the tight electoral victory of the centre-left coalition. This is simply because it is difficult to imagine that a full recount of 40 million ballots would ever be conducted. In this way, the story of alleged electoral fraud, paradoxically, even if conducted by Berlusconi, casts a shade on the legitimacy of the current government.

Moreover, it can be argued that the actual recount might possibly directly favour Berlusconi’s coalition (if we were to imagine that the total recount would actually occur – Berlusconi is calling for this). Namely, in the lower house of the Italian parliament the centre-left coalition won by a margin of merely 25.000 votes. This, small lead, due to the majority premium, awarded them a comfortable majority in the lower house of the Italian parliament (The ruling coalition has a tight majority in the upper house – the Senate). Bearing in mind that on 40 million voters, the margin of error (the votes are in general counted manually), could easily be 25.000 it is entirely possible that a possible recount comes to the conclusion that it is in fact Berluconi’s coalition, not Prodi’s who won the elections in the lower house. In this case it is Berlusconi that would win the premium of majority in the lower house, which would certainly cause the current government’s demise before the expiration of the 4 years term. Having said this it is highly unlikely that the team of 30 parliamentarians in charge of reviewing the ballots would manage to conduct a recount in 4 years. As an Italian MEP Marco Rizzo said on a recent presentation of Deaglio’s film is Brussels, the time needed to conduct the counting of 40 million ballots, would be “biblical”.

Having this in mind, we could construct another theory of conspiracy (provided that the film is indeed such a theory)…this time with no proof whatsoever so I beg the reader to take it as an intellectual exercise, by no means a claim to what has actually happened. Having in mind the fact that Mr. Berlusconi unsuccessfully urged the government to recount the votes perpetually after the 2006 elections. What if Mr. Berlusconi thought of another strategy to get the government to fulfil his demands? What if, the source of the film was actually instructed by someone close to Mr. Berluconi to contact the journalists and make them question the legitimacy of the 2006 elections? This is not entirely illogical. The governing coalition pressured by the public opinion (out of which an important part its own voters) is now forced to organize a recount. Now the centre-right coalition got what they wanted, the Court ordered the legislature to recount the empty ballots in some Italian provinces, and there is a possibility that the legislators will have to, at the end, recount every single vote made at the 2006 elections.

More on Scottish Independence

Things have been a little quiet on here of late, Lorenzo's efforts notwithstanding. To get the ball rolling again, I thought I'd share this interesting and insightful comment on, and expansion of, my post below that I received via email from my father Angus MacDonald, a lifelong resident in and observer of the Scottish political scene...

It is interesting to note that recent polls on Scottish independence show considerable support for this idea on both sides of the Scotland - England border. The polls seem also to show that the support for this in England is based substantially on the view that the Scots are 'subsidy junkies', reliant on an unequal distribution of government financial support through a funding mechanism known as the Barnett formula. Joel Barnett was Chief Secretary to the Treasury during the years 1974 to 1979. The first North Sea oil was piped in to Teesside in 1975. In 1974 Professor Gavin McCrone, who was Economic Adviser to the Secretary of State for Scotland, wrote his report entitled 'The Economics of Nationalism Re-examined'. This report concluded that an independent Scotland “could now expect to have massive surpluses on its budget and on its balance of payments and with the proper husbanding of resources this situation could last for a very long time into the future”. It also concluded that “for the first time since the Act of Union was passed, it can now be credibly argued that Scotland's economic advantage lies in its repeal”. This report was suppressed and only recently released under freedom of information regulations.

At that time, when the oil had just begun to flow, the slogan ' It's Scotland's Oil' had much appeal, but there was also, understandably, some doubt about the true value of the oil, how long it would last, and what would happen to a separate Scotland once it was finished. But there was also some unease about the situation that could develop in the best case scenario - that the oil truly was a massive and long-term windfall; these islands are probably too small, comfortably to contain massive differences in wealth between neighbouring states. That the balance of advantage would lie very clearly with the very much smaller state could only heighten the potential for tension. Perhaps this thought partly underpinned Professor McCrone's qualified comment - repeal of the Union could arguably be in Scotland's economic ( as opposed to political?) interest. The suppression of this paper meant that the debate was uninformed by the authoritative assessment of the potential of oil for Scotland that Professor McCrone had made, but in my view it is by no means certain that Scotland would have opted for independence then, even if the views expressed in this report had been widely known. Whether from fear of going it alone, from a sense of solidarity with and affection for England and the other parts of the UK, from an unwillingness to create major inequalities of wealth and the tensions that this could cause, or from a mixture of all these things, Scotland may well not have opted for independence at that time.

This background makes the view that independence would be good for Scotland, because Scots would then realise that, as Simon Jenkins wrote recently in the Guardian in an otherwise reasonable and balanced piece, 'that public money does not grow on English trees', deeply ironic. Deprived of the conclusions of an authoritative analysis, perhaps even motivated to some extent by a degree of altruism, Scotland continued with the Union, a situation sweetened a little by the Barnett Formula. The high political visibility of this formula, coupled with anunquestioned assumption that the wealth provided by North Sea oil could not possibly have been bestowed anywhere other than on Westminster, have been major factors in producing the view in England of Scotland as a land supported by subsidy; this in turn has fuelled the growth of the view in England as well as Scotland that independence for Scotland would be good for both - the very thing that the suppression of the McCrone report was designed to avoid. Had a fully informed debate been allowed to happen at the time, the Union would not now be threatened by the combination of smug condescension on the one hand, and resentment on the other.

The end of Paparazzi in Italy

The very name, Paparazzo, comes from an italian movie of the 60's (La Dolce Vita). Paparazzo is an obsessive photographer who runs after cinema stars. The rest is history.

Until now though. The italian justice is investigating on a scandal involving various paparazzi who blackmailed their victims. They asked money in exchange with the prohibited pictures.

The scandal is looming large, many seem to be involved in the scandal. Paparazzi seem destined to have a tougher life!

Read a report here

Back on the agenda: Scottish Independence

After a few years of turmoil and worse-than-expected electoral performances from the Nationalists, the issue of Scottish independence seems to be firmly back on the agenda, with a recent Scotsman/ICM poll putting support for separation from the UK at some 51% - its highest level since before devolution. Doubtless this is in large part the Scottish manifestation of the UK-wide disillusionment with Labour in general and Blair in particular, with the increasing support for the Tories that is evident in other areas of the United Kingdom not really a serious option in its northernmost nation. This has been further bolstered by the release of previously secret government documents from the 1970s, in which the then Labour Government was advised by a leading economist that oil revenue would give an independent Scotland one of the strongest currencies in Europe and an "embarassingly" large tax surplus. The report was supressed by the Government of the day, fearing the almost inevitable surge in support for the Scottish Nationalist Party, and was only made public a few months ago under freedom of information legislation. Many are likely to feel, not without significant justification, that the decision to do so was as cynical as it was fundamentally undemocratic, particularly as the first devolution referendum, held at the end of the decade, failed to achieve the qualified majority required by legislation.

Leaving aside the democratic significance of the fact that the recent poll suggests that 51% of Scots now favour independence, it is worth having a brief look at the contours of the current debate, with potentially crucial Scottish Parliament elections approaching next year. As Simon jenkins has noted in the Guardian, some fairly big guns from the UK Labour Party, including Blair, Brown and Reid, have been in Scotland recently to make the case against independence. I'm far from convinced, however, that Blair's chosen line of attack will be effective:

What I think it's about is the attempt by the SNP and others to say you're only truly Scottish if you're making the case for independence, but that's rubbish... You can be Scottish and British.

We share a currency, we share armed forces, we share social security systems - you rip Scotland out of the UK and you lose those benefits, and you will end up with an uncertain economic future with less power for people in Scotland to effect the big changes in the world.

the trouble with these is that, while the first just doesn't ring true, the second is likely to be counter-productive in the prevailing Scottish climate. The claim that "real" Scots support independence and reject "Britishness" altogether is an attempt to win support by making the position of the enemy extreme and unpalatable to most; it is not, to my knowledge, one that finds much support in the official rhetoric of the Nationalists, or, indeed, of the other pro-independence parties represented in the Parliament, namely the Socialists and the Greens. As argumentative strategies go, it is fairly transparent, and unlikely to be successful as such.

In terms of the second part of his argument, Blair would do well to remember that Scotland overwhelmingly voted "old" Labour throughout the Thatcher years - it always was, and remains, a considerably more left-wing nation than its southern neighbour, and the directions taken by New Labour in pursuit of the middle-English vote have not always been welcomed in the North, with the Scottish Labour Party being tainted by association if not by actual complicity. Nowhere is this clearer than, for example, the controversy over the war in Iraq; unpopular enough in England, but even more so in Scotland. Long used to the risk of having their voices lost in Westminster, many the Scottish electorate may well decide that having less power internationally is infinitely preferrable to having "big changes" effected in the world, of the type seen most dramatically in Iraq but readily evident elsewhere, in their name but without their consent.

Blair is correct that it is "up to them to make the argument" about the positive benefits of the UK; however, the current strategy seems to be a decidedly risky one. Of course, no decision about whether to remain within or dissolve the Union is without risks, both economic and political; but, as the impressive weight of expert opinion on both sides of the question suggests, these can only really be assessed in hindsight. In any event, it seems unlikely in the extreme that the simple act of secession would itself determine the future prosperity of either Scotland or England, in the manner that some on both sides of the debate seem to suggest; rather, such would depend in very large degree on the choices made subsequently. In terms of the current debate, in the light of forthcoming elections, we can but hope that, this time around, the Scottish people will be entrusted with all of the facts available in order to make a properly informed choice on this issue of central importance.

Benedict XVI does not think like Ratzinger!

I am glad to see that the Pope has expressed positive views on the entry of Turkey in the European Union. Ratzinger, the Cardinal, was extremely negative up until last year.

This is positive. Let's see how far Turkey can go now. The European Union itself seems to have some old prejudices, which will not be swept away easily.

The Legal Research Society ...

... is a nice Blog you may want to have a look at.
Have a look here

The Pope in Turkey

Benedict XVI is visiting Turkey in these very hours. He says: 'this is not a political trip.' What is it then?

John Paul II and Benedict XVI have vehemently insisted that Turkey should not join the European Union. They believe that Europe should be a christian club. This is not
an implicit deduction, this is the point Ratzinger makes quite explicitly in his book 'Whitout Roots.'

Now, the question I would raise to the Pope is: would you have anything against the enlargement of Europe to Turkey?

I stongly believe that the only possible way forwards is by letting Turkey in. It would send a very important sign to all the Muslim Europeans who are now struggling in Europe.

It would show as well that Europe is not, and cannot only reduce itself to, a Christian club. Europe is deeply plural; its christian roots are real, but only a side of a much more complicated picture

Berlusconi Faints during a Public Meeting

Few days ago Berlusconi said he would not run anymore for a post of Prime Minister or President.

Today, while speaking to a crowd of young supporters, he fainted and had to be carried away.

As said many times in this blog, Berlusconi is an old man, despite his youthful look (mainly due to cosmetic surgeries). He has worked very hard and he has been under an incredible amount of pressure in the last 40 years.

It is time to leave and take it easier. And he probably knows. It would not be easy in any event to convince his allies to follow him blindly as they did in previous occasions. It is not a total coincidence that he fainted just after mentioning his efforts to bring all the parties of his coalition under the same umbrella of a big 'party of liberty.'

Many times before in this blog I stressed the idea that the greatest pressure for Berlusconi comes from his 'allies', his 'friends' and not from the folkloristic opposition led by Mr Prodi.

The gist of my position is that Berlusconism (his philosophy on how to rule the party, the coalition and the country) is outdated and does not fully convince his
closest allies (it has never convinced the opposition and the remaining half of the country). Given this basic lack of internal legitimacy, Berlusconi is faced with a huge power struggle that has consumed him in the last five years of government.

It would be wiser to give up this frantic competition. Italy needs a renewal once again. A serious one. Despite what Berlusconi thinks and would like italians to believe, he is a representative of the old guard. He'd better believe it.

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...