Thanks to Tony D'Amato

Peggy, Julian, and I want to thank Tony for his guest blogging with us for the past couple of weeks. The discussion he spurred was lively, to say the least, and we look forward to his continuing to comment on the discussions on this blog and then returning as guest blogger in the not-to-distant future.

As for the usual suspects, the three of us are largely back around and you'll be seeing more of us in the coming days. Also coming soon... other guest bloggers and the next installment of Opinio Juris Interviews.

A final blog (for now)

I’ve talked about Muslim women and international law. Where are they? Where am I? I am sitting here at my keyboard, a lump of protoplasm surrounded by skin. International law is external to me. The Islamic people are external to me. Do I have a right to interfere with these external things? Do they have a right to interfere with me?

The word “right” shows up in these questions. Does the right come from them? Or does it come from me?

If international law says that the Islamic people and I have rights, who authorized international law to say it? In his comments to my blogs, “Obtestor” keeps saying that it is the women of the world who have told international law what to say. It is they who have decided what everyone’s rights shall be. Is Obtestor articulating a powerful insight here? Or is he just trolling for a date?

If my rights are part of my belief system, where did I get my belief system? Most belief systems are formed in childhood. In the Muslim world, boys and girls are raised together in the women’s quarters. When a boy is born, there is great fuss and celebration. But the women do not seem happy when a girl is born. They convey their displeasure to all the boys and girls who are in their care.

A young boy is fussed over and spoiled by all the adult women. As a result, the boy usually becomes a brat. He hits his sisters, steals their food, and behaves like a tyrant toward them. His mother and all the adult women back him up. If he hits a girl who is younger than he is, and hits her for no reason, the women will yell at the girl and maybe hit her. They will tell the little girl that she has displeased the boy, even if she hasn’t.

Finally, when the boy is six or seven he’s sent to the men’s quarters to live with a tutor under the authority of his father.

We might say, looking at all of this, that the women are merely preparing the children for the life of extreme inequality that lies ahead of them. The male person can do whatever he wants; the female person must learn to like it, whatever it is.

Who am I to criticize these people? Hasn’t my belief system been instilled in me just as their belief system was instilled in them? When I was a child, I was told, by adults I trusted, all about God. I was told that I could pray to God and that He would listen. I prayed a lot. I tried to start conversations, but I knew that God was a little too busy to answer me.

However, I no longer believe these things. I have trouble even figuring out what the concept “God” might mean. I don’t say that God doesn’t exist, but I also don’t say that God exists. I think I was very lucky to be able to read books and be exposed to ideas, and given enough time to think in solitude, that I could mentally disengage from these childish things.

I don’t think that Muslim women have the opportunity to disengage. Their childhood brainwashing is just too thorough. What the young Muslim woman said in my previous blog are things she deeply believes. She has been sincerely brainwashed.

I don’t think I was quite as thoroughly brainwashed as a child because I’ve rejected all the things I was taught. I would not have been able to reject them if I had been as completely brainwashed as the children of Islam.

I have evolved a perspective of the world and my place in the world that I believe is not entirely the product of what any other person or group of persons have ordained for me. I think I see the world more objectively than Muslim women see it. Of course, I could be wrong about this, but just the possibility that I am wrong doesn’t make it wrong. Someone would have to prove to me that I am wrong.

So here’s how I come out. I may be a creature of my belief system, but it’s MY belief system. And an important part of it is that no human adult should ever have legal or moral superiority over any other human adult.

I look at the Qu’ran. Even though Ali in a comment says I should be taking seventh century texts with a grain of salt, he would probably be even more outraged if I instead quoted a later translation. I am also sure that the same words I am quoting are read today by millions of Islamic people. As you recall, those words of the Prophet are: “Men have authority over women because God has made the one superior to the other.”

And I say to Muslim women: Reject these words. Do not allow a seventh century Prophet to run your life.

And I say this because I cannot say the opposite without denying my own belief system. I cannot say the opposite without denying my own humanity. I believe I am right and their system is grievously wrong.

Iraq's Constitution and International Law

Some versions of the proposed text for Iraq's Constitution have been posted here. Now Prof. D'Amato has already suggested there are possible conflicts between the proposed text's commitment to Islamic law and to international law. Which naturally leads to the legal question: in a conflict between domestic Iraqi law and international law, which law will prevail in the new post-Constitution Iraq?

In the Transitional Law, that is to say the interim constitution currently in force, international law holds an honored place. The Preamble announces that,

These people, affirming today their respect for international law, especially having been amongst the founders of the United Nations, working to reclaim their legitimate place among nations, have endeavored at the same time to preserve the unity of their homeland in a spirit of fraternity and solidarity in order to draw the features of the future new Iraq...

Even more importantly, Article 23 of the Transitional Law holds that:

The enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people. They enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed and to which it has acceded, and others that are deemed binding upon it, and in the law of nations. Non-Iraqis within Iraq shall enjoy all human rights not inconsistent with their status as non-citizens.

In other words, the transitional constitution is quite internationalist, and appeared to incorporate all human rights recognized by international treaties and customary international law. I haven't seen any mention of similar language in the proposed permanent Constitution. This may or many not matter. For now, I'll let our readers draw their own conclusions if similar internationalist language does not appear in the final Iraqi Constitution.

Most important human right in our lifetime, Part 3

I suppose we can divide human rights into two types: those that people want, and those they don’t want. In the preceding parts of this thread, I’ve set out what I think is one of the hardest cases of the second type. I’ve pictured a Muslim woman (taking the term Muslim generically for present purposes—there are of course many Muslim sects with many variations of practices) who, in the exercise of her own volition, chooses to be legally inferior to men. I’ve tried to articulate her position, which is a composite of the views I have heard after many years of listening and study.

However, the International Covenant on Civil and Political Rights provides for equality before the law for all persons and prohibits discrimination on the ground of sex (Article 26). It also provides for the equal right of men and women to all civil and political rights (Article 3). Thus there is a clash between this norm of international law and the preferences of Muslim women.

Exacerbating this clash is the fact that Muslim men are united with Muslim women on this score: both sexes believe that men are superior to women—legally, socially, physically, and according to the tenets of Islam. Moreover, their nations stand behind them. Today, as I write these words, the newspapers are reporting the final text of the proposed Iraqi constitution. It provides in Article Two (1)(a) that “No law may contradict Islamic standards.” Let’s look at the relevant Islamic standard provided in the Qu’ran:

Men have authority over women because God has made the
one superior to the other. Good women are obedient. As for
those from whom you fear disobedience, admonish them,
forsake them in beds apart and beat them.

Quibbling aside, it seems to me that no fair-minded person can compare the texts of the ICCPR and the Qu’ran and conclude that they are substantively compatible with each other.

In approaching the problem of a clash between the law and deeply held religious/cultural practices, let us briefly consider two easier cases. The first case is that of Christian Scientist parents refusing to let their six-month-old child be operated upon to remove an intestinal blockage. Here the law intrudes: it prohibits the parents’ interference and requires that the operation proceed. The second case is that of female circumcision. Even though this practice is widespread in Muslim communities throughout northern Africa, the law on the books in those countries forbids it.

These cases are easier because our case of the inequality of Muslim women is generally accepted by all persons living within the nation that authorizes the inequality. Thus not only do we have a clash between international law and religious/cultural practices, but we also have a clash between international law and a state’s domestic jurisdiction. On all counts, this clash is so enormous as to lead us to revaluate our commitment to the rule of law.

I think revaluation is always healthy. The “law” should not blindly dominate our lives. I’ve argued elsewhere that even the word “should” should not apply to legal commands. A rule of law, as Kelsen pointed out, is simply a calculation: “if you choose to do X, the state will do Y to you.” There is no “should” or “ought” about it at all.

If Kelsen’s essentialist view is accepted, then we have to go outside the law to see whether the law “should” be obeyed. Morality (at least as Kelsen sees it) is external to the law. Thus it is morality that provides the “should” factor. But morality, by its very nature, cannot apply to every law that is enacted without ending up contradicting itself. Thus morality must pick and choose among the legal rules. Some “ought” to be obeyed; others (like the law requiring apartheid decades ago in South Africa) “ought not” to be obeyed.

Hence, in comparing the ICCPR with the Qu’ran, “the law” will only take us a small part of the way. What we really have here looks like a clash of morality. How do we deal with that?

One way to deal with it is through moral relativism. We might say that although women and men ought to be equal before the law, this equality applies only in parts of the world. In other parts, where both men and women agree that women ought to be inferior to men under the law, then THEIR morality dictates a result opposite to the one we would reach.

I think moral relativism is incoherent. I believe there is a clear moral answer to the clash between equality and inferiority for women. I believe in moral absolutism, which I acknowledge up front is an arrogant doctrine. I’ll try to defend my position in my final blog, coming soon to a theatre near you, either Wednesday or Thursday of this week.

ICJ Campaign Season (cont'd): The Candidates Step Forward

The UN has released more information on the eight candidates for the 5 opening slots on the ICJ here.

Amor, Abdelfattah (Tunisia)
Bennouna, Mohamed (Morocco)
Buergenthal, Thomas (United States of America)
González Campos, Julio D. (Spain)
Keith, Kenneth (New Zealand)
Mazou, Seidou Adamou (Niger)
Sepúlveda Amor, Bernardo (Mexico)
Skotnikov, Leonid (Russian Federation)

Here is a useful horse-race analysis from a knowledgeable source who works for a government agency:

There are eight nominees for the five seats. By tradition, two of these five seats will go to the United States and Russia. That leaves six nominees for three seats, all of them "open," as none of the incumbents of these seats is seeking another term. But these seats are, again by tradition, allocated by region -- one to Latin America and the Caribbean, one to Africa, and a third to the WEOG. There is only one candidate (from Mexico) for the Latin American seat, so presumably that person will be elected. There are three candidates for the African seat, but of these three, one is the clear favorite (the Moroccan) and presumably he will be elected. And there are two candidates for the WEOG seat -- Sir Kenneth Keith of New Zealand and Julio Gonzalez Campos of Spain. The WEOG seat is clearly the only truly contested seat at this election, and it is, therefore, no wonder that New Zealand is expending such effort on behalf of its candidate.

There are a couple of other interesting aspects to the document. One is that Russia has decided to replace Judge Vereshchetin with Leonid Skotnikov, the current Russian Permrep to the UN Office in Geneva and former Russian Foreign Ministry legal adviser. Another is that Judge Buergenthal received a significant number of nominations from national groups, which must be seen as a personal endorsement for him.

One side note (from Ku again): It looks like Judge Buergenthal will be the U.S. nominee again. He was not my choice (my old prof Prof. Michael Reisman should have been the U.S. judge), but I have nothing against him, and it looks like he is popular outside the U.S. as well (no doubt it helps that he is happy to vote against the U.S. in cases like Avena). But I actually think the U.S. position should be rotated more often, to get some fresh blood on the Court. Maybe someone from outside the cozy international law world? Eric Posner for ICJ, anyone?