Terrorism and Human Rights (25): A Theory of No Resort

In just war theory, the concept of “last resort” means that force, violence and other violations of human rights are allowed only after all peaceful and viable alternatives have been seriously tried and exhausted or are clearly not practical, and when force etc. is clearly the only option. In the current “war on terror”, the use or torture is often justified as a last resort, as the only option available, in certain circumstances such as the “ticking bomb”, to avoid an outcome that is worse than the use of the last resort.

There are many possible and convincing arguments against the use of torture, but one which isn’t mentioned a lot is the fact that justifications for torture emanate from a philosophy that sees risk as something to be completely overcome. Torture is justified as an extreme measure to overcome a last remaining and very small risk. That is evident from the ticking bomb case: the case itself is by definition rare, so the risk that it occurs is very small. Even smaller is the risk that we have to resort to the use of torture as a means to avoid the risk of the bomb going off (if, exceptionally, we find ourselves in a ticking bomb situation, other means short of torture may well allow us to avoid the risk).

This philosophy of using extreme measures to avoid or eliminate as much risk as possible is, I think, mistaken. If I’m right, the justification of torture as one of such extreme measures is void. And don’t say I’m fighting windmills here: this philosophy is omnipresent. Look at the swine flu hysteria for example, or the recent and silly airport and air travel security measures after the “Christmas Day Attack” (e.g. forcing passengers to sit down during the last hour of flight). Maybe we need a theory of no resort rather than a theory of last resort. Maybe we should learn to live with the fact that bad things happen and that often we can’t do a thing about them.

Limiting Free Speech (9): Religious Monuments and Symbols in Public Spaces, and “Killing Christmas”

The U.S. is obviously a very Christian country, but also one which values religious liberty and pluralism. Government authorities in the U.S., and especially local governments, sometimes allow displays of the Ten Commandments, nativity scenes or other mainly Christian religious monuments or symbols to be placed in public parks or buildings.

However, when doing so, they often invite demands to allow a different religion’s display as well. And many of them refuse, either because the people who decide are themselves Christians, or believe that Christianity is inextricably linked to the national identity of the U.S.

The problem is that such a refusal violates the First Amendment, and does so in two ways:

  • It harms the freedom of speech of other religions.
  • And it violates the rule of the separation of state and church and the Establishment Clause.

Religious monuments and symbols presented by a government authority in government buildings or spaces don’t imply that the government in question establishes a religion, prohibits the free exercise of religion and coerces people in religious matters. Onlookers can avert their eyes, and the government doesn’t force people to look, let alone accept what is written on the monument.

However, government sponsored religious displays do establish religious preference and religious discrimination by advancing one religion and inhibiting another. There can be soft pressure if governments link themselves to one religion in a way which is at first sight relatively harmless, as is the case in this context. Other religions, which do not benefit from government affiliation, are, at least in the long term, at a disadvantage. As a result of their “non-official character”, the choice of religion is no longer a free choice but one which is influenced by the fact that the government and, by analogy, the rest of society, favors one religion. Religious liberty is threatened in such circumstances.

Another problem is that people of other religions or non-believers can be forced by such monuments to feel like outsiders, as people who are out of the mainstream, who believe things that are wrong and sinful and who need to be converted for their own good, by the government no less. This “cultural violence” (dixit Galtung) can result in (self-)exclusion and low self-esteem, and in general polarizes and divides a society.

Hence, displays of religious symbols or monuments in public spaces should follow the “all-or-nothing” rule. Public property must be open to all religions on an equal basis – or open to none at all. Since the first option – open to all – would quickly lead to an absurd clutter in spaces which are, by definition, limited, the second is the only realistic option.

Others would say that this second option – prohibitions of all religious displays in public spaces – violates the right to free speech of the government agency and the adherents of the religion which would find a government agency willing to display its symbols and monuments. However, a ban on religious displays can only cover public spaces. There are plenty of places on private land where the Ten Commandments and other symbols can be displayed without the need to include the symbols of other faiths. Freedom of speech in general is a universal value, but that doesn’t mean that everyone can speak everywhere. Everyone can speak and say what they want, but not everywhere. For instance, we can’t all claim equal airtime on national television, or demand a right to speak in parliament.

A ban on religious displays should be enforced only for the purposes of religious freedom and religious equality. Dismantling Christmas trees because they might offend non-Christians is stupid political correctness. Not giving offense is not a sufficient reason for banning religious displays. The only possible reason is religious freedom. (And regarding Christmas, one can easily make the case that this is much more than a religious festival, and hence there are good reasons not to ban displays of it in public spaces).

Another point: atheists shouldn’t see bans as a vindication of their beliefs (I’m not pronouncing myself on the merits or demerits of atheism here). A ban doesn’t amount to the installation of official atheism. It’s just neutrality. Atheist expressions fall under the same ban, since atheism is also a religious belief (there’s no way to prove that God doesn’t exist, as there is no way to prove that He does). The government doesn’t pronounce itself. Not on a religion, but neither on atheism. If you have to give it a name, you could say that a government that tries to respect the First Amendment in this way, is an agnostic government. You couldn’t call it an atheist government.

What is discussed here should also be distinguished from other controversies such as bans on head scarfs, overly prominent minarets etc. Head scarfs and mosques are normally in the private, non-government sphere and are not religious symbols used by government authorities on their land and space. In such cases, we don’t have a government linking itself to a particular religion by way of symbols or monuments, but governments banning religious expressions. This is also a problem of religious freedom, but a different one. Rather than a government associating itself with a dominant religion, there is active persecution of minority religions, fed by fears of religious colonization by migrants, a willingness to protect cultural homogeneity etc.