Religion and Human Rights (19): Between Equality and Diversity – The Rule of Law, Except When…

One of the principles of liberal democracies is equality before the law. The law shouldn’t protect or harm some citizens more than others (and to some extent this even applies to non-citizens within the jurisdiction of the democracy). The law applies equally to all.

Diversity

This principle, however, can be put to the test by another principle that is important to liberal democracies, namely tolerance of diversity. Most democracies are multicultural in the sense that they are made up of many different groups that have often radically different and incompatible beliefs, customs and norms. Liberal democracies value this diversity and have mechanisms to protect it, such as rules on tolerance, religious liberty, freedom of association etc. They value this diversity and try to protect it for at least three reasons:

  • They believe that group identity is an important source of individual identity and well-being.
  • They believe that group diversity offers a plurality of perspectives, and that this is necessary if deliberations on fundamental issues are to progress towards the truth.
  • The believe that national unity isn’t only or primarily a matter of assimilation or convergence towards a single, national and official doctrine, but rather of peaceful coexistence in diversity.

Rules and exemptions

This tolerance of diversity can be burdened by equality before the law. Many liberal democracies have been forced to accept certain exceptions to the principle of the equal application of the law, and have exempted some groups from certain generally applicable laws. Some  examples:

  • Anti-discrimination laws: groups have been allowed to discriminate, for example regarding their membership rules, or their internal operating rules, on the condition that they allow a right to exit of members who come to find this unacceptable.
  • Because of their religious obligations, Sikhs have been exempted from the obligation to wear crash helmets for motorcyclists or safety helmets for construction workers, or from the prohibition to wear knives in public.
  • Certain indigenous peoples have been exempted from prohibitions to fish or hunt or to slaughter animals in a certain way.

The rationale for such exemptions is that a “neutral” law, which is by definition equally applicable to everyone, may not have the same effect on everyone. It may unintentionally place a relatively heavy burden on a very specific minority because it unintentionally prohibits or compels a certain practice which has special significance for that minority. Such exemptions may be deemed necessary to preserve the distinctive identity and way of life of the minority, and to preserve the diversity and harmony of society as a whole.

This opt-out right, which allows minorities – usually cultural or religious minorities – to not apply or respect the general law, is similar to the right of conscientious objection. In many countries, refusal to serve in the military – otherwise a general legal rule – is a legally recognized option. (However, the opt-out right is not the same as civil disobedience, which isn’t a legally recognized option and the disobedient usually accept the consequences of breaking the law. Breaking the law and publicly accepting the consequences is precisely their purpose. They want to create a public spectacle showing the injustice of the law).

Possible objections against the opt-out right

1. Illiberal consequences

Exemptions are often granted for rules that are not really intended to protect third parties (such as crash helmet rules) or that do not create substantial harm when occasionally they are not applied (e.g. hunting exemptions). However, if we accept the general possibility of an opt-out right, can we not end up in a situation in which minorities are allowed to disrespect fundamental rules such as human rights, either internally in the group or externally? The classic example is the possible right of Muslim minorities in liberal democracies to apply Shari’a law within their communities.

Obviously, such far-reaching exemptions sound outrageous to those of us for whom human rights are very important. Yet I believe that even those exemptions can be justified in certain cases: they would only be acceptable if the following three conditions are jointly met:

  • The groups in question do not violate the human rights of people outside of the group.
  • The groups provide the right to exit in a substantial way. “Substantial” means that they do not only provide the formal right to exit but also provide members the educational, intellectual, moral, financial and other resources necessary to make a free and conscious choice about staying or leaving. However, it’s often very difficult to say whether a particular group is a truly voluntary association and whether members have a real choice to leave. Only when this is indeed and obviously the case can such far-reaching exemptions be allowed. There’s also the case of group members that are incapable of making a real choice, e.g. children. Exemptions cannot be allowed to produce violations of their rights, since they cannot exit.
  • The rights violations are an essential part of the group’s identity rather than an opportunistic policy of the group’s leadership.

2. Exemptions for what?

This third condition leads to a second possible objection to the opt-out right: which elements of a group’s identity are strong and central enough to warrant an exemption from a generally applicable law? Who decides which are these elements? Do we trust the spokespersons of the group? But how are they appointed and do they speak for the group? Or is it not likely that they have some selfish reasons for exemptions and the possible rights violations resulting from them, given that they are likely to be in a position of power inside the group? If not the spokespersons, should it be outside elements, engaging in anthropology, or cultural exegesis?

3. Domino effect of exemptions

Another objection: every law puts more burdens on some citizens than on others. Smoking bans put a heavier burden on smokers, shoplifting laws on kleptomaniacs etc. If we provide exemptions for laws which burden cultural, ethnic or religious groups, why not also for kleptomaniacs? And if we would do so, wouldn’t the whole construction of the rule of law tumble under the weight of exceptions? Of course it would, but that’s not the reasons why we limit exceptions or exemptions (one can argue that these are not the same, but I’ll bracket that for the moment) to those which protect group identity. As stated before, group identity – contrary to kleptomania or other possible reasons for exemptions – is deemed to be a very important value in liberal democracies, and important enough to override in some cases the other important value of equality before the law.

Citizens who do not belong to a group that has received an exemption to a general rule may complain that they are discriminated against, compared to the members of the group. These citizens may also want to opt out of the rule – for example a rule imposing military service – not for religious or cultural reasons, but for other reasons, and not necessarily for opportunistic reasons. Indeed, it may seem arbitrary to limit exemptions to cultural and religious groups. But we have to admit that such groups are more likely to suffer from  special burden imposed by general rules, and that they are particularly important to the diversity of liberal societies.

4. Calcification of groups

Exemptions or the opt-out right require strict identification of group members. It must be possible to decide which individual citizens in a society are free to not respect a certain law, otherwise law enforcement becomes impossible. This may have consequences for the exit right. The state fixes group membership. Not only should the state not do such a thing, but it shouldn’t be done at all. The exit right is important, especially when we decide to allow controversial practices. And this right can be harmed if group composition is officially sanctioned.

Moreover, this strict identification of membership implies a simplification of human identity and group identity. Groups are often complex and internally contradictory. Opt-out rights fix not only membership but also group identity: the state decides once and for all, by granting a legal exemption for a certain practice, that this practice is typical of a group. Internal dissent within the group, and directed against the practice, is then stifled. The state has then sided with the most powerful factions within a group, and that’s not something a liberal state should do.

One could object to this objection by claiming that the “losers” of the internal struggle to determine the group’s identity still have the right to leave the group. However, that also isn’t a choice that the state should determine. It should allow dissenting group members – such as feminist Muslims or gay Catholics – to continue to dissent within the group, rather than impose the limited choice of either accepting the dominant doctrine of the group – a doctrine elevated to dominance with the help of the state and the opt-out right granted by it – or leave the group.

The effort to protect groups from external pressure can inadvertently promote internal pressure. In other words: the effort to protect a group from externally imposed change can stifle internally promoted change. By recognizing a practice as typical of a group and worthy of an exemption to a general rule, the state helps to cement this practice, perhaps against the wishes of minorities within the group that work against the practice.

5. Opportunism

It’s often difficult to tell if an exemption is demanded by a true group member for identity reasons, or by a wavering member for opportunistic reasons. Or, for that matter, by an individual who decided to join the group, not for substantial reasons but to escape the law.

Conclusion

I believe exemptions are sometimes justifiable, especially if the risk of harm created by the exemption is relatively small compared to the benefits for the groups enjoying the exemption. But there are many practical problems related to the decision whether or not to grant an exemption.

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What is Democracy? (35): A Complete Waste of Time?

The odds that your vote will actually affect the outcome of an election are very small. Close elections are very rare, and even rarer are those in which one vote is pivotal. So it doesn’t make a difference whether you participate or not. In light of this, it’s a small miracle that turnouts are as high as they are, and it’s ridiculous for people to lament a turnout that’s “only” 60%.

Clearly, people know that their votes don’t affect the outcome and vote for other reasons than a mere sense of responsibility. But what reasons? Signaling is certainly part of it. People vote because they are more than individuals. They identify with others, they want to belong and they want to be part of a “movement” or party that has a certain set of beliefs. Voting makes them such a part, and hence gives them an identity and a cause. Let’s not forget that an identity is highly dependent on expression and on recognition of this expression by others. Elections, even with a secret vote, are highly effective tools for the production of identity. The seemingly meaningless anf futile vote of an individual becomes quite meaningful when aggregated with the votes of like-minded individuals.

It’s only when you adopt an economic and reductionist view of people, in which individuals only pursue their self-interest, that you cannot make sense of apparently silly behavior such as voting in which the costs (transport, risk, time etc.) outweigh the benefits (if any).

There’s also the mysterious force of the “if-everyone-were-doing-this” rule, which we apply regularly. Throwing one piece of garbage in the park is almost absolutely harmless. Someone will clean it, and if not no one will notice. And yet most of us just don’t do it because “if everyone was doing it” – which they are not – it would be hell, and that’s how we teach our kids not to do it. And they understand. And they – or most of them – listen and don’t do it. Part of the reason why this rule works is the force of example. We don’t want to give a bad example because when people follow it, we will suffer, even though we may in the short run benefit from doing what we shouldn’t.

Similarly, when large numbers of voters believe that their vote doesn’t make much of a difference and isn’t worth the cost of participating, then they give a bad example which can be followed by large numbers of people. As a result, the usefulness of the remaining votes increases, and these votes will then determine the behavior of the rest of the population. People will be ruled by a minority with perhaps harmful views. So in order not to find themselves in this situation which is detrimental to most people, most people choose to vote.

A better way to express this idea:

The idea is not that one person’s decision to forgo voting would crash the system—how would that possibly happen?—but that it is immoral to act on a maxim that we cannot imagine everyone else acting on. So if I … will abstain from voting because the costs of voting outweigh the benefits, I will first need to see if the maxim passes a test implicit in Kant’s categorical imperative. I ought not act in accordance with the maxim if it fails the test.

So let’s see: can I universalise the non-voting maxim? Can I imagine living in a world in which every eligible voter opts for a nap or a game of Temple Run in lieu of going to the polls? No. The logic of American democracy does not support such a universalised principle. No one votes, no one is elected, a moment of constitutional failure brings an emergency convention in which unelected delegates draft a new constitution calling for an alternate system of specifying leaders that doesn’t involve the public. The franchise, and America as we know it, disappears. Since the logic of the system cannot be sustained were everyone to adopt the nap-over-voting maxim, I am morally bound not to act on it.

Now, again, the force of Kant’s argument is not empirical: you don’t need to show that a decision not to vote will actually bring a constitutional doomsday. You just need to show that if universalised it would. (source)

What is Democracy? (28): A Way of Life

He who is without a city is either a poor sort of being, or a being higher than man. The man who is isolated, who is unable to share in the benefits of political association, or has no need to share because he is already self-sufficient, is no part of the city, and must therefore be either a beast or a god. There is therefore, a natural impulse in all men towards an association of this sort. Aristotle

Citizens in a democracy which allows some kind of direct participation, are active citizens. They can decide on issues and not only on their representatives. Because they have a right to decide, they will, in many cases, become automatically interested in the topics on which they will have to decide. Discussions will take place. Arguments are exchanged. And, as a result, people will be interested in public affairs and have knowledge of these affairs. They are able to transcend their private interests and to take part in community life and group identification, which are important human values. They also have some measure of control over their lives, another universal aspiration.

This means that democratic political participation is not only a means to an end (for example, the end of having decisions that are acceptable to the people). It is also an end in itself because some important values become real only when people participate. These values are not the result of the process of participation; they are part of the process itself. People participate for the sake of the things that happen while they participate (knowledge, activity and a feeling of self-control or control over the decisions that affect them), and not only for the sake of something which results from the process of participation after it has finished (for example, certain kinds of decisions).

Democratic political life is something valuable for human life. The ancient Greeks even considered political life as the essence of human life, as something that corresponds to the nature of man. Man, in their eyes, is a creature destined for political life, a “zo-on politikon”. This is expressed in the quote from Aristotle.

So democracy is more than a form of government. It is a way of life, the life of the “homo democraticus”, the citizen who participates in politics, as directly as possible and as much as possible, in order to realize some of the things which he or she deems important in life.

The importance of political life shows how foolish it is to reduce democracy to a system in which people can give or take away the consent to be ruled. A form of government that only allows the people to express or withhold consent can never be called a democracy. A dictatorship can also rule with the consent of the people, can realize the will of the people and can collapse once this consent disappears. A democracy is more than just an elegant and peaceful way to change the rulers. It is also a society, which can determine the rules for and the conditions of its own life. It gives people control over their own fate and at the same time guarantees some other fundamental values.

Where democracy is end as well as means, its politics take on the sense of a journey in which the going is as important as the getting there and in which the relations among travelers are as vital as the destinations they may think they are seeking. Benjamin Barber

People do not engage in political life for the sole reason of regulating their non-political life. They participate in politics because something important happens when they participate. Political life realizes certain values, but these values are not a result or a product that political life leaves behind when it is finished. They are real only as long as political life takes place. Political activity is not purely instrumental; it is valuable in itself.

An individual actively engaged in political life is not only able to belong and to have an identity. He or she can also lead an informed and educated life (because participation and control require knowledge and education) and can be attentive to politics and to things, which he or she has in common with all the other citizens, and which transcend his or her own private needs.

Democracy needs communities and therefore, corresponds to the widely shared need to belong, to associate, to cooperate and to interact. Community life and common action are as important for democracy as for human wellbeing. We are dealing here with important human values, shared by most people across all cultures. These values are important as such, but are also important because they assist the development of an individual identity, another important and universal value. Membership of groups is an important source of identity.

Religion and Human Rights (10): Apostasy

Apostasy (from the Greek word for defection) is the explicit and formal abandonment or renunciation of one’s religion. The word has a pejorative connotation and is mostly used by the adherents or dignitaries of the former religion of the apostate. It is used as a condemnation. Most if not all religions consider defection a sin, which is a normal position for any religion to take. Religions, like any other group for that matter, are communities that quite naturally regret the loss of a member and consider such a loss the concern of all remaining members. They try to minimize such losses and to recover the “lost sheep” and bring them back into the “umma”. The word “apostasy” as such may not be frequently used by all religions, but all religions and all groups know the concept.

However, most religions believe that persuasion is the only legitimate tool to keep members in the group and that the sin of apostasy will be punished by God in the afterlife. Only some, and a certain form of Islam is an example, believe that it is up to man on earth to punish apostates. They make apostasy a punishable offense and these punishments are human rights violations in two different ways. First of all, the punishments themselves often inflict harm on the victims thereby violating their rights to bodily integrity or even life. And secondly, they violate the right to freedom of religion.

Article 18 of the Universal Declaration of Human Rights guarantees the right to change one’s religion:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (my emphasis)

Islam is often targeted for its treatment of apostates. However, within Islam there are those like Egypt’s grand mufti Ali Gooma, who take a more liberal stance and use the Koran to back up their position. There are three verses in the Koran that are important:

“There is no compulsion in religion”. “Unto you your religion, and unto me my religion”. “Whosoever will, let him believe. Whosoever will, let him disbelieve”.

The punishments for apostasy are often not purely religious. Politics is implicated. When a state identifies with a religion and receives its authority and legitimacy from this identification, it naturally wants this religion to be the majority.

Belonging

Belonging to a group is an important human aspiration. People want to belong to something larger than themselves. Belonging gives them an identity. However, groups not only promote but sometimes also hinder the creation of an individual identity. They can, for example, impose ideological or dogmatic rules, practices or beliefs. While some people may desire enforced conformism, others will see it as contrary to their freedom. For the latter, belonging and identity should be a free and voluntary choice. It is important therefore that membership is free and that people are allowed to leave. Groups exist for the benefit of the members, not vice versa.

The fact that membership of a group is a free and non-final choice is not an expression of individualism. Communities are a very important part of an individual’s life, but not all kinds of communities. Individuals as members of a particular group must be able to decide when this group is no longer important or has become harmful. It is not up to the groups to decide that they are an important part of their members’ lives. Individuals decide which groups are important, which groups they wish to join or to leave.

If individuals, who wish to leave a group because this group violates their rights or forces them to conform, are forced to stay, then one uses the individuals as means for the survival of the group. The survival of a group is dependent on the presence of members. Using people as means dehumanizes them.

Self-defeating

If a religion forces someone to remain a member, it defeats its purpose. Someone who stays within a religion in order to avoid punishment is not guided by an understanding of the genuine value of the religion.

We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. [Such a] policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka