Legal Commentary

John Finnis has written a short, strange essay defending the charming position that Western countries should exclude and expel Muslim immigrants through a ?humane? combination of incentives and compensation (I assume for forced removal). There are at least four strange things about Finnis?s defense. The first is that Finnis does not seek to justify the position he seeks to defend, but rather to show that others are implicitly committed to the factual claim underlying it: that Islam and its adherents are inherently hostile to the human rights of others. This is because Finnis is not responding to the criticism that his position is wrong, but rather to the criticism that his position is a form of ?extreme? or ?hate speech.? Now, a position is extreme in a normative sense if it is unjustified by or is an overreaction to the situation it is meant to address, if it is an excessive or disproportionate response to a given problem. A position is extreme in a sociological sense if it falls far outside of the mainstream of public opinion, if it is not widely held by ordinary or reputable or reasonable people. Finnis makes no effort to show that his position is not extreme in the normative sense; he is only concerned with showing that it is not extreme in the sociological sense.

The second strange thing about Finnis?s paper is that he argues that his position follows, not from facts about the world, but from claims about the world to which certain courts have committed themselves in three controversial cases. Finnis references Begum v. Denbigh High School, a U.K. case upholding a school dress code that permitted the hijab but not the jilbab; Sahin v. Turkey, a E.Ct.H.R. case upholding the decision of the Turkish Constitutional Court to strike down a law permitting the hijab in universities; and Refah Partisi v. Turkey, another E.Ct.H.R. case upholding the decision of the Turkish Constitutional Court to ban the ruling Welfare Party for undermining Turkish secularism. We?re all used to legal arguments resting on court opinions, but it?s unusual to see a public policy argument defended in this way. Still more strangely, Finnis cites Begum not as persuasive authority but precisely because he finds its reasoning unpersuasive: he does not rely on Begum for what it says about the world, but rather on what would have to be true about the world for the decision to be legally correct. The Begum Court actually says that Denbigh High ?had decided that a uniform policy was in the general interests of the school and then tried to devise a uniform which satisfied as many people as possible and took into account their different religions,? and that this was a proportionate response deserving of judicial deference. Finnis says the result ?seems right? but thinks that U.K. law permits a restriction on religious freedom only where strictly necessary to protect public order or the religious freedom of others. Since, Finnis reasons, the jilbab ban could only be necessary to protect the freedom of others if the jilbab manifests a ?religious culture? that is inherently hostile to such freedoms, the U.K. Court is implicitly committed to the claim that Islam is such a religious culture. Three quick points here: (i) maybe the law requiring strict necessity is wrong and the U.K. Court was right to (explicitly) endorse the view that restrictions on religious expression in public schools should be reviewed under a more relaxed standard; (ii) that someone is implicitly committed to something doesn?t make it true, so Finnis hasn?t defended his position from the charge of normative extremism; and (iii) it?s not clear to me that Finnis has even defeated the charge of sociological extremism, because the fact that someone is implicitly committed to a proposition doesn?t mean that, once presented with that proposition, they would endorse it rather than modify their other views to preserve overall coherence among their beliefs.

The third strange feature of Finnis?s argument is that the decisions he cites don?t commit the deciding courts to any general view of Islam or Muslims. For instance, the Begum Court could have found that the dress code was a necessary (and not merely proportionate) response to ?the social conditions in that school, in that town, and at that time.? The fact that Denbigh High was a majority-Muslim school with a Muslim principal would have made it rather difficult for the Court to ascribe the same set of beliefs to both sides of the dispute or to portray the plaintiffs but not the defendants as representatives of a homogenous and invariant religious culture. Endorsing Finnis?s view of Islam also would have committed the Court to the position that U.K. schools that permit the jilbab are wrong to do so without ever having to look at any facts. Similarly, Refah Partisi did not ban 94% of the Turkish population from participating in Turkish politics because, as Muslims, they are inherently opposed to secular government; it banned one political party due to positions and behaviors that differentiated it from other Turkish political parties almost all of which are run by Muslims. Finally, Sahin found that the hijab ban was a proportionate response to the threat posed by ?certain fundamentalist religious movements? that are distinct from and opposed to ?the majority of the population [who], while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith.?

This leads me to the fourth strange feature of Finnis?s argument, which is the priority he ascribes to implicit commitments over explicit endorsements. He writes that his position ?could not rightly be described as extreme? unless the E.Ct.H.R. ?is also extreme.? He goes on to denounce the Council of Europe for labeling views like his extreme (and indeed ?bigot[ed]? and ?intoleran[t]?). In fact, Finnis concludes that condemnation of his view as extreme is itself a form of extreme speech. So Finnis tries to show that his position is not extreme by reference to the implicit commitments of one branch of a ?great pan-European authority? yet that same position is explicitly condemned as extremist by another branch of the same pan-European authority. Indeed, Finnis?s entire argument can be run in reverse, starting with the CoE statement and supported by cases validating proportionate responses to discrete problems, to show that Finnis?s position is in fact extreme in the sociological sense. But that would be to adopt Finnis?s approach to public policy, one based on statements instead of reasons, claims about the world instead of facts about the world.