Chair of Sociology at the University of Bern, Switzerland, Christian Joppke discussed the legal accommodation of Islam in liberal societies at a Jan. 21. lecture at CEU. Using the Hart-Devlin debate as a template, Joppke argued that the unresolved issues of integration, namely the regulation of the female body and of free speech are pushing the liberal state toward the legal regulation of morality, thus potentially putting its liberalness at risk.
Over sixty years ago, the well-known legal debate on the legalization of homosexuality in UK between Patrick Devlin and H.L.A. Hart raised the question whether it was the business of the state to regulate morality by law. Devlin argued that morality is one the crucial elements that hold society together. Immorality, similarly to treason is an attack on the very existence of society, therefore, just as treason, immorality should be punishable by law. Devlin defined morality as the views of the “reasonable man," also known as the “man on the Clapham omnibus." Hart, on the other hand, reformulated John Stuart Mill’s harm principle, claiming the only justified use of state power in a liberal society is to protect the individual from harm. He criticized Devlin’s idea of a united society based on shared morality only, for it undercut liberalism that builds the continuity of society not on a single common morality but on the mutual tolerance of different moralities. Hart also warned against the state’s accepting ordinary men’s opinions, the majority morality, as a basis for the liberal state playing the role of moral watchdog.
“Reality moves in Hart’s direction," Joppke argues. The two most conflicted and essentially unresolved issues of the integration of Islam, the regulation of the female body (veiling, etc.) and of free speech are pushing the liberal state towards the legal regulation of morality, thus, in this context, putting at risk the liberalness of the liberal state.
“Interestingly, the quest for moral regulation originates from opposite quarters," Joppke says. While the prohibition of Islamic veiling originates from host societies and institutions, the restriction of free speech originates from Islamic organizations. “Both these attempted restrictions are based on confused ideas on what a society is and what the proper functions of the law are in a liberal state.”
The regulation of free speech and of the female body are periodical issues, they recur from time to time. While the legal integration of Islam has been a mostly peaceful process in most liberal societies, these two issues seem to be the exceptions to the rule. The quest for the restriction of free speech originates not in the majority society but Muslim groups, to protect the integrity of religion. Although Western countries used to sanction blasphemy, this practice has mostly been abandoned. It was problematic from a liberal viewpoint for it raised the question why religious feelings should enjoy special protection, and many believed the legally ordered respect of religious beliefs would destroy the essence of free speech protection. On the international level, the Organization of Islamic Conference called for the classification of the defamation of religion, which is strongly opposed by Western states as it would grant rights protection not to human beings but to religious doctrine.
The regulation of the female body is a demand expressed by Western societies. It is a problematic issue as even Islamic feminism speaks of complementarianism rather than gender equality. The Islamic concept of equality in the eyes of God does not mean that men and women are equal. Women are daughters, sisters, wives, and mothers. This distinction is made visible by the headscarf issue. The headscarf reflects piety, and, eventually, the submission to male authority. Equal citizenship for women can’t go along with inequality in the family. As wives are not equal to their husbands in the family, Joppke argues that “the liberal critique of the inequality between men and women is overshooting. The State should have no reach to the private sphere of the individuals. If equality is ordered by law, as in the case of the notorious headscarf laws, it goes along with the illegal enforcement of morality.” Not all headscarf restrictions fall under this category though.
In his conclusion, Joppke notes that the question whether it’s the majority or a minority that makes claims regarding the restriction of free speech and the regulation of the female body needs finer calibration. He also warns against the unconditional application of the Hart-Devlin debate to the issue of Islam integration. While the debate was broadly about private morality, the Islam issue is about public morality. However, Joppke raises the question if this distinction is at all relevant when morality basically is the rules of living together. Finally, he concludes that all law is about enforcing morality. “The question is which morality to enforce?”
Joppke holds the chair in general sociology at the University of Bern, Switzerland. He is also an honorary professor in the Department of Political Science and Government, University of Aarhus, Denmark. He received a PhD in sociology from the University of California, Berkeley in 1989. He previously taught at the University of Southern California; European University Institute; University of British Columbia, Vancouver; International University Bremen, and The American University of Paris.
The event was sponsored by CEU's Nationalism Studies Program.