Table of contents
1.2 Aim of research
1.3 Research questions
1.5 Method and material
2.1 Historical Background into Religious hatred and Cartoons Controversy
3.1 Freedom of speech; an absolute right or not?
3.2 The Clash of rights: Freedom of Speech and Freedom of Religion
3.3 Derogation in case of Maintenance of International Peace and Security
3.4 Freedom of Speech and Religious Discrimination
3.5 Freedom of Speech and Propaganda for Religious Hatred
3.6 The Right and Reputation of Others and Freedom of Speech
3.7 Freedom of Speech and Universal Morals
3.8 Universal Human Rights and Cartoons
4.1 Freedom of speech under human values and norms
4.2 Mill’s harm principle
4.3 Feinburg’s offence principle
4.4 Democratic values
The problem emerges as a result of cartoons of Prophet Mohammad (P.B.U.H.) in 2005 by the Danish Newspaper “Jayllands Posten”. It created a situation that exposed the differences of different worlds based on religions and beliefs. Freedom of expression and opinion in international instruments based on acknowledged human rights became controversial in relation to rights and duties. In regards to Danish cartoons, principles of harm and offence as explained by Mill and Feinberg and their legal validity are applied to judge the situation. Laws are based on norms and values philosophically exerted out of customs and practices. I would present that human behaviors are meant to be treated based on realities but not on cynic philosophical argumentations or debates.
Freedom of expression and speech is a right of each and every person to deliver his thoughts through whatever medium he likes, which includes receiving and seeking information and ideas. Everyday progress of life has proved globalization a reality and all its emerging challenges need to be solved and resolved in peace and through mutual understanding of each other. Differences between peoples, nations, communities, religions, and cultures are associated to our beliefs; whether they are conflicts or contrasts between above mentioned groups. Moral norms and values are the deciding platforms to resolve conflicts peacefully. Laws are made and created on norms and values and human progress is in progressive evolution to create new laws each and every day through better understanding of these norms and values. Freedom of speech and expression is one of the rights needs to be understood at every level of human contact and a rational decision is required to resolve the conflict between both opponents. It is a recognised fact that laws are not certain or absolute at any level of human knowledge and their ability depends upon progressive understanding of norms and values regarding human rights as prescribed by human rights scholars and professors. Rona K.M Smith understands this phenomenon and delineates;
“The breath of articles inevitably is conducive to teleological interpretation in keeping with the progressive evolution of the rights. As society advances, more rights are realized and moral and global standards change. Human rights are not static: they are inherently flexible; the precise meaning of rights may change over the years.”1
Life is dynamic, and so as the man and society. Social values emerged out of plural and mixed societies, are based on difference and dispute. Difference or the right to differ is the root to knowledge and progress. We should try our level best to safeguard the right to differ in a way that our differences in every field of life that includes religion, philosophy, science, social, economic, political or whatever, should be beneficial and not destructive. When these differences become destructive they are to be regulated and resolved through peaceful process and that is only possible if we all submit voluntarily, and if needed reluctantly to the law.
Danish cartoons violence was initiated in response to a complaint by a Danish author of children’s book about the life of Muhammad (P.B.U.H.), “Kare Bluitgen” that he could not find any author brave enough to illustrate his book.2 In 2005, a Danish newspaper, Jayllands Posten published cartoons containing satirical depiction of Prophet Muhammad (P.B.U.H.). Islamic world protested with anger and distress on grounds that Muslim belief doesn’t accept any kind of pictorial representation of the Prophet Muhammad (P.B.U.H.). Cartoons associated Prophet and Muslims with terrorism3. After the publication of the book which caused some reaction “but its publication was over shadowed the next phase of the affair”.4 Editor of Jayllands Posten invited cartoonists to draw cartoons of Prophet Muhammad (P.B.U.H.)5, and initial reaction was only peaceful reaction involving 3500 protestors in Copenhagen.6 On 19th October 2005, a group of Muslim Ambassadors requested a meeting with Danish minister to discuss the cartoons, which was refused.7 Six people were killed in attack on Danish Embassy in Pakistan in June 2008,.8 Staff from embassies in Afghanistan and Algeria were evacuated in April 2008 following to terror threat linked to reprinting of cartoons.9 According to an estimate this issue has taken 139 lives.10 This was taken as a lawful act within the framework of the right of freedom of expression throughout the West.
1.2 Aims of Research
My purpose of research on the cartoons violence issue is to explain the moral grounds of universal human rights standards required to solve the dilemma peacefully. I have presented past, present and future of the controversy. All the conflict is misrepresented if they are presented out of context in relation to discussing the history of the conflict. For instance all the conflicts which are a threat to world peace have long history. And almost all the conflicts are based on religious grounds, for instance Palestine, Kashmir and the recent phenomenon terrorism is not out of this circle at all. My aim was to understand and give a brief but broad view of the cartoon controversy by describing its past as well. Describing religious conflict as the historical background does not mean we are still following the past but my aim was to show the current situation of our world which has become a global village in which personal bias of a single person can escalate a world conflict if few people decide to manipulate the situation. I certainly disprove any “clash of civilizations” but wanted to explain how we can build bridges among different cultural and social differences.
1.3 Research Questions
1- How can we understand the cartoon controversy in historical perspective? 2- What does legal international law posses to limit freedom of speech? 3-Can we limit fee speech on philosophical and moral grounds?
I used a combination of legal and philosophical theories to explain, what are the legal responsibilities to preserve one’s right against other and what are philosophically defined terms and norm exist to safeguard rights against violator if proved as violations. I used Mill and Feinburg for their harm and offence principle theories in relation to limiting freedom of speech and applied them on the case of my thesis to identify whether philosophy provides moral grounds to limit free speech in certain situations or not.
1.5 Method and Material
I used the combination of legal method with the argumentation analysis for my research is more based on all forms of legal documents including domestic, regional and international legal systems analysis. Laws are exerted through norms and values in to legal form and their relation is fundamentally joined together as both equally complement each other. My first part is related to legal analysis and the other part is the norm and value analysis of freedom of speech. Legal method of research is the best suited research method for my paper as my research is about
laws based on norms and how laws can be limited by other conflicting laws and how norms shape existing laws. How norms can even generate new laws Shelton describes legal method; “ choice of law between conflicting norms of equivalent status, although one obvious means of resolving a conflict is to designate one norm or subject matter as hierarchically superior to others.”11
I am using argumentation analysis because there are very specific occurrences of arguments and counter arguments about how laws can be limited by replacing them with other superior laws or what norms are more reliable and what should be compromised for other norms. I have presented how reasons causes different controversies which is a relater to arguments to show the complete ifs and buts as in the case of argumentation analysis Weston delineates, “Here we come to arguments about cause and their effects—about what causes what. Such arguments are often vital.”12
We found that it would be far more interesting to state the exact violations of rights if we found any. For this to be possible, we are going to be looking at several human rights documents such as the International Convention on Civil and Political Rights, the Universal Declaration of the Human Rights, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities and regional documents of equal status. To deal with the part related to norms and values, mainly I used Mill’s harm principle, and Feinburge’s offence principle, for these two are highly regarded philosophers in relation to free speech. Furthermore, Stanley Fish and David Mill were explained to compliment harm and offence principles.
In chapter2, I have given a historical perspective of my topic freedom of speech in relation to cartoons controversy. This chapter is about the religious conflicts that existed since long, and how in present still can be escalated even by a biased individual can turn these in to violent clash. Chapter3 is about legal issues through which freedom of speech can be limited if it is required. Chapter4 is related to norms and values which can become an instrument to limit the extended free speech.
2.1 Historical Background into Religious Hatred and Cartoons Controversy
It is very important to realistically present some historical facts which are the core of the conflict unresolved, and are a natural phenomenon of not being able to understand and resolve the real problem. There is a long history of defaming religion and its purposes and persons. Whether it is Judaism, Christianity, Islam or any religion, it had always been under criticism by the nonbelievers or opponents of each other. Laws were put into actions based on purely so called religious jurisprudence as state laws, like blasphemy laws. Although under these laws people were brutally killed in past, and we have the worst examples ever existed of human disorder and anarchy. The playground of religious brutality continued for centuries. In the name of blasphemy, whenever one got dominance and their opponent became minority, like Jews persecuted Christians being blasphemous towards their beliefs in the very first centuries of Christianity. When Christians were in majority against Jews they did the same to their opponents, the Jews. These brutalities sometimes turned into a religion as contradictions in beliefs within one religion become inevitable as in the case of Catholics and Protestants, and in Islam, Shea and Sunni brutal conflicts can be experienced to this day even.
Sometimes these conflicts turned between religion and modern non religious believes such as science. Copernicus theory is one example of such conflicts between religion and science. Such clashes resulted in burning of scientists. Galileo had to deny a natural fact which was seen as blasphemy to the religion if his theory, earth not being flat and moving around the sun, is to be considered. As a result of such stupid practises, Christian world had to get rid of such unrealistic ideas of religion and that resistance against religion turned into a reaction and the religions were left altogether not having any contribution in state affairs. Blasphemy laws to safeguard religions were not seen as important and useful because of their historical reputation. West did not have a problem of religious minorities being marginalized or persecuted by other religious majorities for religions do not have any power over secular governments. Now the conflicts between religions or sects of a religion turned into conflict between nonreligious secular governments and religions. Blasphemy laws were not important anymore and if the religion was criticised, it was not taken seriously by the people because of the long association and bloody history of these conflicts. Masses did not react strongly what they could have done centuries back.
In the recent century, globalization made the world changed in its every aspect including society and state affairs because of the migrant societies, cultures, traditions, and religions. Islam is the second largest religion of Europe, and a reality. The culture and traditions Islam had, travelled with Muslims and the conflict between religion and secularism emerged in a new form for now Europe was not related to only one religion anymore and the religious evolution through the course of history was not similar in Europe. Although the criticism against religion in the media was not new but in the case of Islam, it was against a religion which was not related to Europe as a part of its history and it created the controversies between religion and secular ideals. Islam as the youngest religion among monotheistic religions is going through the dilapidated evolutionary process which Christianity had experienced centuries back in which religious forces are fundamentally rigid and uncompromising against all opponents. All the Islamic sects are turned violent among each other and against the non Muslim beliefs. This is a situation in which opportunists can very easily manipulate religious association of masses into violent beliefs and it can cause serious threats to peace and stability in the world. These differences are needed to be taken seriously by both religious and non religious counterparts. Islam became a controversial topic and historians explained it out of context and history, hence made it controversial and complicated to understand the history of relation of Islam and Christianity into the relation between Islam and West. Many opportunists took it for granted to propagate their nationalist political agenda as in the case of Danish Cartoons, Danish Political party tried to mix things up and made it difficult to control the situation for the government as a spokesperson of the Danish Peoples Party, Soren Kararup, said that; “Muslims Immigration is a way for Muslims to conquer us, just as the way they have done 1400 years past.”13
This phenomenon has to be judged and looked into very precisely and with complete awareness of later mistakes which were done by the people with hidden agendas to keep differences and hatred alive between nations and communities in the name of religion and fundamentally nationalist theories to gain their popularity in masses so that they could get majority or somewhat representation at the highest levels of authority over humanity. It is very easy way to get popularity in masses to manipulate their association with their beliefs through playing game of hatred. Such examples used to exist in past to divide humanity and in the name of religion and belief which are still lurking in air to use them as an old weapon. New era has gained such an enlightened and rational awareness of understanding and importance of reason that we know if there exist anything superior and better to improve our relations and situations then it must be adopted against an inferior ideology or belief. With broader visions and understanding of past through research we are able to understand and make people understand the situation which scholars revealed as mysteries what used to become purpose of differences and conflicts. In past, defaming your opponent was a basic rule to have strong shekels over majorities in the name of religion and nationalism.
Karen Armstrong is one of the scholars who have deep knowledge of religions and have written books about history of religious evolution. She has a deep knowledge of religious texts and the course of their conflicts and strategies they used to keep hold of certain majorities by defaming other religions as she reveals the pattern of western religious scholars how they kept hatred alive for Islam and hence created an air of distance between east and west in the name of religion. She writes; “..Islam as being one major religion which ‘seems to be outside this circle of goodwill and, in West at least, to have retained its negative image...even though it is the third religion of Abraham and more in tune with our own Judaeo-Christian tradition. But the old hatred of Islam continues to flourish on both sides of Atlantic and people have few scruples about attacking this religion even if they know little about it.”14
Continuing to explain the role of scholars and to keep a certain mind set of hatred for Islam she further says; “Western scholars denounced Islam as a blasphemous faith and it’s Prophet as the great pretender, who had founded a violent religion of the sword in order to conquer the world. Mahomet became a bogy to the people of Europe, used by mothers to frighten disobedient children This inaccurate image of Islam became one of the received ideas of Europe and it continues to affect our perceptions of the Muslim World.”15
Understanding each other is what can create a united peaceful world on grounds which do not support hatred but respect and love for all as human beings for we as human beings have experienced horrific consequences of letting hatred flourish among religions, nations and societies. Looking back in the course of history, we should understand the fact that we are living in a global village and our actions related to others are needed to be put up in accordance to the highest standards of human rights and dignity as proposed in human rights documents and recognised by the majority member states of international institutions. Regarding the matter of freedom of speech, a recognised human right in Article 19 of the UDHR and in human rights law under ICCPR is proposed. ICCPR declares it as a fundamental right and states; “everyone shall have the right to hold the opinions without interference”, further it explains freedom of speech in more specific manner and says; “everyone shall have the right to freedom of expression”, but the same article speaks about certain duties and responsibilities to practice freedom of speech and expression. Speaking about restrictions, Article 19 says that these are to be under law and are necessary in these two conditions; (a) for respect of the rights or reputations of others. (b) For the protection of national security or of public order, or of public health and morals. These are the highest possible morals which are learnt by the past historical mistakes of letting hatred flourish among human beings. Besides that the examples as Salman Rushdie’s ‘Satanic Verses’, ‘Burning of Quran’, ‘Innocence of Muslims’, and ‘Caricatures of The Prophet of Islam’, show that we as rational human beings are ignoring past mistakes and the achieved moral standards to keep piece and harmonious global society.
1 Smith, Rona ed.4 Textbook on International Human Rights. 2010. Oxford University Press, USA
2, 10 Post, Robert(2007), Religion and freedom of speech: Portraits of Muhammad, Constellation Volume 14, No1,72-90
3 Sturges, Paul (2006), Limits to freedom of expression? Considerations arising from the Danish cartoon affair.IFLA Journal 32(3) 181-188
4 -9 Keane, David (2008), Cartoon Violence and freedom of Expression. Human Rights Quarterly 30 845-875
11 Shelton, Dinah. (2006) Normative Hierarchy in International Law Author(s) The American Journal of International Law, Vol. 100, No. 2 pp. 29
12 Weston, Anthony. A Rulebook for Arguments. 2009. Hackett Publishing Company Inc. USA
13 Keane, David (2008), Cartoon Violence and freedom of Expression. Human Rights Quarterly 30 845-875
14 Armstrong, Karen. Muhammad, A western Attempt to Understand Islam. 1991. London
15 Armstrong, Karen. Muhammad, A western Attempt to Understand Islam. 1991. London