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gist of my position is that Berlusconism (his philosophy on how to rule the party, the coalition and the country) is outdated and does not fully convince his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...

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.