March 24, 2006

What do we think of political pressure on independent courts and the applicability of international norms...

... in the context of a case like this?

17 comments:

Mark Daniels said...

That's an interesting question. But the Afghan constitution itself provides for freedom of religion (while still upholding the law of shariyah). Furthermore, all UN members are committed to freedom of conscience when it comes to religious matters. At least that's what UN members agree to when they join.

But you raise an important point, one that must not be dismissed either flippantly or arrogantly.

Mark Daniels

CB said...

This is a very interesting situation, and it would be tempting to use it to play gotcha with those (like myself) who support foreign pressure on the Afghan court, but would reject foreign pressure on American courts. I think it is sufficient to say that a two year old democracy is different than a two hundred year old democracy, and it is not hypocritical to say different rules should apply.

Balfegor said...

I think it is sufficient to say that a two year old democracy is different than a two hundred year old democracy, and it is not hypocritical to say different rules should apply.

Yes, but what about a mewling 200-yr old democracy vs. a 1300 year old system of sharia law? Or a 2800 year old system of Roman law?

I don't think "democracy" is a relevant criterion for assessing the weight we should give a given body of law -- our own legal system, after all, grows out of a system of common law that is far older than our democracy, which is, after all, a mere 200 years old. And far, far older than our democracy with the modern legitimating franchise (i.e. with suffrage for women and Blacks), which is only 80 years old, at the oldest.

J said...

There's nothing wrong with political pressure on independent courts. We certainly see it here on death penalty cases, for example, and the critics, right or wrong, have every right to criticize, just as we have every right to ignore them. But converting to another religion isn't the same thing as killing somebody during an armed robbery, and we need to lean on these guys hard. Overthrowing a government doesn't instantly repair the culture that produced it.

Your remark about "international norms" is interesting too. Given the portion of world population located in places that restrict religious practice, including fundamentalist Islamic countries, it's entirely possible that execution for improper religious belief IS the international norm.

Abraham said...

Well, I propose that a key difference is that we had a major hand in propping up the current centers of power in Afganistan, whereas most of the countries that seek to shape our laws are ones that we fought a bloody revolution to escape the grasp of. So, given the genesis of their current government, I think they owe us an audience, at least.

Balfegor said...

So, given the genesis of their current government, I think they owe us an audience, at least.

This suggests to me a parallel with the case of Japan, after the war, where we didn't even pretend to let them write their new Constitution -- we sat down and wrote it for them, stripping out the old religion that had grown up in the past few generations (Imperial Shinto), and forcing the Emperor to renounce his godhead.

I wonder whether we would have done the same in those days if the Japanese empire had been a caliphate under Islam. That is, I wonder whether our willingness to interfere directly with religious activities in Japan stemmed from our seeing Emperor-worship as a tradition of the Other much more than we see Islam as such. Islam is a "Religion of the Book," just like the Christianity that dominates American religion, and it looks more like what a religion ought to look like (in American eyes), then Emperor-worship does.

Here in the US, I think we've been willing to grant Emperor-worshippers some measure of freedom (e.g. the Rastafarians, who worship the fallen Emperor Haile Selassie I as Christ come again, or somesuch), but I think we're less comfortable granting Rastafarians that religious-freedom protection than we are granting, say, Catholics and Jews that protection.

On the flip side, though, it may just be that modern America is that much more leery of our state's interfering with religion. Islam has had at least as much to do with our troubles in the Middle East as Emperor-worship had in Japan (and Imperial Shinto was, in its way, also responsible for the Japanese surrender), but we don't want our state to supress something we see as religion, even if it's thousands of miles away, and only to impose a separation of church and state. On the other hand, it may also just be that from a propaganda perspective, we don't want to be seen as dictating terms to a beaten and humiliated people (though that's how it gets played anyway -- so I'm not sure how we benefit).

But I do wonder, anyhow.

Balfegor said...

Incidentally, does anyone have the pardon power in Afghanistan at the moment? If we pressure that person (Karzai?), then it's not really pressure on the courts. It's just a petition for clemency.

SippicanCottage said...

I see this just the opposite of what is intended by the remarks, I think. This is the international sewer that justices like Ginsberg want to troll, hoping to find the nugget amongst the offal that gives them cover to legislate from the bench.

I've got no use for such as Justice Ginsberg decidin' what I need, instead of what the laws say. I have less than no use for "the international outlook" on such matters.

The idea that we'll always live in Candyland and our robed overlords will always choose the lovey-dovey version of international non-Constitutional verdicts to ape doesn't seem likely.

Someone wake up Ginsberg and tell her to knock it off, before we're toppling walls on people too- legally.

jinnmabe said...

Like j said, supposing that the Afghani judges did try to look to international norms to decide this, what assurance do we have that they'd pick American views of "death for Christians" instead of some other, harsher country's views? None, and that's one of the main criticisms that folks have when American judges look to "international norms." What assurance do we have that they are not just choosing items that reinforce their personal beliefs?

John in Nashville said...

Let's see, now. Using "independent" courts to enforce conformity with the religious preferences of the largest and most vocal faction of the governing party?

Can you say Schiavo? Can you say "life begins at conception"? Can you say "God didn't create Adam and Steve"?

The difference between adherents of Islamic radicalism and the Falwell/Robertson faction of the Republican Party is one of degree and not one of kind.

Balfegor said...

The difference between adherents of Islamic radicalism and the Falwell/Robertson faction of the Republican Party is one of degree and not one of kind.

I dunno. I kind of tend to think the fact he's up for execution is a pretty telling difference. To give a parallel here, there are libertarians who say that the difference between Soviet Russia and the modern American regulatory state is a difference of degree, not of kind. And until you look closely, and realise that under Communism, millions upon millions of people were killed -- by state violence and famine -- the parallel has a certain specious appeal.

I think the parallel you propose here has only the same superficial resemblance. It would have been somewhat stronger if we were still allowed to toss people in jail for buggery. But we can't.

John in Nashville said...

Let's see, now. Using ostensibly "independent" courts to enforce adherence to religious ideas espoused by the largest faction of the governing party. That's a bad thing, right?

Doctor Frist, can you say Schiavo? Senator (Man-on-dog) Santorum, can you say "there is no constitutional right to privacy"? Reverend Falwell, can you say "God didn't create Adam and Steve"?

The difference between the successors to the Taliban and the Pat Robertson faction of the Republican Party is one of degree and not one of kind.

Abraham said...

The difference between John in Nashville and a broken record is one of degree and not one of kind.

Thorley Winston said...

The difference between John in Nashville and a broken record is one of degree and not one of kind.

I disagree, the record at one point was actually good for something.

Thorley Winston said...

To give a parallel here, there are libertarians who say that the difference between Soviet Russia and the modern American regulatory state is a difference of degree, not of kind. And until you look closely, and realise that under Communism, millions upon millions of people were killed -- by state violence and famine -- the parallel has a certain specious appeal.

Another example would be critics of capital punishment who try to suggest that there is a moral symmetry between the United States and the PRC and Iran because they also have capital punishment. But when you realize that the people being executed in the United States have been convicted of murdering another human being as opposed to being executed for their religious or political beliefs, the comparison is equally specious.

That’s not to say of course that there aren’t legitimate criticisms of capital punishment or the modern regulatory state, but a specious comparison of the United States to a totalitarian regime isn’t one of them.

francofou said...

I guess it depends on whether or not one is in favor of diversity.

XWL said...

But you raise an important point, one that must not be dismissed either flippantly or arrogantly.

This comment isn't about what Mr. Daniels puts so well, but rather the internationalist mindset that infects many folks in this country (and possibly even some sitting U.S. Supreme Court Justices).

Which is to say that I'm going to be intentionally flippant and arrogant.

When people say they favor 'international' law, they really mean EU Law, and when they say 'European' they really mean to say 'Far superior to the legal interpretations we must suffer in the U.S.'.

That's my somewhat (and I emphasize only somewhat) unfair depiction of the intent behind the statements of many U.S. legal minds when they compare our system to some poorly specified 'international standard'.