Lex aeterna

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Lex aeterna; the illusion divine and universal law.

By Diana Van Vugt

This short essay aims to provide a glance into the inherent plurality and antagonism of moral claims in legal argumentation. Envisioned as divine, natural, rational or universal, moral claims aim to provide the legal argument with an authority and righteousness - indeed justice - that transgresses the administrative formalism and politics of law. Moral claims inherently suggest that there is one right answer to legal disputes, whereas in practice all parties involved tend to launch equally valid morally backed normative claims. Instead of the security of transcendent truths moral arguments promise, they open up Pandora's box; an array of competitive opinions, perspectives, interests, truths and justices. First, the relativity of moral claims will be shown for legal arguments based on a religious concept of justice and, subsequently, for legal arguments that draw on a claim of universal normativity, notably human rights. Along the same line, it will be argued that the morally backed legitimacy of legal systems shows the same structure of inherent antagonism.

Whereas unthinkable under the principle of separation of state and religion, in antique and medieval legal and moral philosophy, law and theology were tightly and seemingly naturally connected. The connecting factor is justice, generally interpreted as reflective of a divine or ideal order; a transcendent model for human conscience and society. Also in ancient Greece divinity was assumed a vital and integral part of justice in terms of law, legal practice, governance and conscience. For example in Sophocles classic play Antigone the visionary Theresias plays an essential role in delivering justice according to the will of the Gods. As is characteristic for moral claims in a legal disputation, all parties involved claim to have justice, the divine law or will, at their hands. Although Sophocles equals his own favor of the Athenian democracy with divine justice, he nevertheless masterly shows the diverse and complex competing argumentations that connect law and justice from several perspectives. Here only the justice claims of the main antagonists, Antigone and Creon, will be analyzed.

Antigone argues for justice by calling upon the Gods' alleged will for every deceased person to enter afterlife through the prescribed burial ceremony. With this argument she aims to defend the honor of the family and the wellbeing of her beloved deceased brother, Polyneices. Although Antigone acknowledges the threat Polyneices posed to the political stability of Thebes by his attempted coup, it obviously revolts against her personal sense of justice to bereft him from a peaceful afterlife for eternity. At the same time, Creon claims to be justified by the Godly will that criminals, traitors and enemies of state should be punished and not be worthy the honor of burial rites. Obviously, Creon's argument refers to the general political interest of social stability, security and safety of Thebes, notably the justification and continuity of his own shortly established government.

Although predominantly portrayed by Sophocles as the righteous tragic heroin in contrast with the blunt tyrant Creon, characters like Antigone could as well be considered a threat to social peace and political stability. Through an self imposed divine justification she actually puts her individual sense of justice against the application of the law of the state by an empowered state representative and, moreover, is determined to act accordingly. In other words, Antigone represents the rebel, the revolutionary force that always threats the order of state and society from within (Benjamin 1978). At the same time, the revolutionary potential represents the dynamic and renewing forces from within society which counterbalance tendencies towards repressive, static rule and straining moral dogmatism.

Sophocles' play magnificently shows the dialectic tension between the forces of conservatism and change that underlie each society. This dualism is reflected in the structure of legal arguments as well, especially in their appeal to moral legitimacy. Most obviously the dialectics between conservatism and dynamism are visible in regular legal forms, such as the collision of equal legal norms, for instance basic rights. Moral or absolute value arguments come in exactly where an interpretative choice between legal arguments has to be made and justified. Indeed, there were the legal system does not and cannot provide answers. One has to assume that just answers to legal controversies lie beyond mere political choice and administrative application of law, in order to believe that the law transcends biased party interests and thus represent the inherently objective, neutral or good. Irrespective of the kind of moral philosophy, religious or secular, moral claims are assumed to represent the faculty of the inherently good, ultimately true and just, or at least provide the key terminology for morally justified reasoning.

A contemporary example of a strongly morally imbued legal discourse is the universal human rights discourse. Although mostly assumed secular or natural, human rights arguments show a similar structure as claims based on alleged religious justice. The assumption of human rights' inherently just and therefore prioritized validity is represented by the terms universal and human. Both connote general and prioritized applicability, via the circular reasoning that human rights refer to universal standards of human dignity and needs, which are inherent to being human and therefore generally known and recognized.

The hallmark of enforceable justice under a primarily secular concept of politics and society is the form of a positive human right: a normatively prioritized and legally enforceable claim. The problems occur when thus formulated justice claims have to be applied in concrete cases. Human rights claims appear to conflict exactly along the same line as the personal and political interests disputed. Since there exists no formal hierarchy between fundamental rights, it is impossible to make clear cut choices. In other words, the answer to the question who has justice on his side depends largely on the facts of the case and the interpretative weighting of the fundamental rights involved.

To stay in line with the theme of the structural similarity of religious and secular moral arguments, the case discussed below concerns a collision between the freedom of religion and the principle of Laïcité. Strikingly, the case also involves a 'rebellious heroin' who challenges the applicable law and authoritative decision of the domestic constitutional court, stating that both constitute a fundamental injustice to her. Leyla Sahin was a fifth year student of medicine at the University of Istanbul, where she was refused to do written examinations and participate in courses because she wore a headscarf. As a practicing Muslim, Ms. Sahin had chosen to wear the veil by way of 'religious duty'. The decision to deny her access to exams and classes was based on a circular issued by the Vice-Chancellor in 1998 forbidding the wearing of headscarves and beards in the public space of the university.

Leyla Sahin finds, amongst others, her right to freedom of religion (Article 9 of the European Convention of Human Rights) infringed and eventually complains to the European Court of Human Rights. According to Article 9 of the Convention, the freedom of religion also means the freedom to manifest ones religion in public. At this point the freedom of religion conjoins with the freedom of expression, as stated in Article 10 of the Convention. Both the Chamber and Grand Chamber agree that the circular of the Vice Chancellor concerning Islamic dress intervenes with the applicant's right to manifest her religion. The question is whether such an interference could be considered to fall under the provisions given in the second section of Article 9 (and 10) of the Convention and could thus be legitimated.

The first question to address is whether the inference could be considered 'prescribed by law'. Besides fitting in the statutory framework of the university and its tradition on the regulation of religious dress, the Court notes that the Turkish Constitutional Court has been delivering various judgments concerning the topic of Islamic dress in the public sphere. According to the ECHR, the Constitutional Court has determined that the freedom of dress in institutions of higher education is 'not absolute'. Moreover, it had ruled that authorizing students to wear a veil for religious purposes had to be considered in conflict with the Constitution's principle secularity and thus unconstitutional. The ECHR considers that there is sufficient legal basis for the Vice Chancellor's circular in Turkish law to assume that the applicant should have been aware of them at the time she pursued her studies in Istanbul, after a period of study in Vienna.

As for the legitimacy of the aim, the Court considers that the Vice Chancellor's circular aims to protect the rights and freedoms of others and the public order. This consideration must be seen against the Court's seeming conviction that the allowance of obvious public manifestation of the Islam, as a majority religion with extremist tendencies, threatens the very principle of (secular) democracy itself and thus the rights and freedoms of others (especially the freedoms of conscience, thought and expression). It is no surprise then that this preconception also rules the Court's argumentation on the necessity of the measures taken against Ms. Sahin.

Indeed, in the footsteps of the domestic Constitutional Court, the ECHR perceives interference with the right to manifest one's religion by forbidding the Islamic veil necessary in a democratic society, since the principle of secularism should be seen as the very guarantee of democracy, in fact, the meeting point of liberty and equality. The ECHR supports its argument by stressing that the Islam had been tending to politicize and radicalize in Turkey during recent years and thus possibly poses a serious threat to the state secularism and democracy, especially since the majority of the Turkish population adheres to the Islamic faith. Furthermore, the ECHR, again referring to the Constitutional Court, addresses the issue of gender equality, which is to her eye threatened by the mere suggestion that the wearing of the veil would be a sign of female oppression and/or submission.

For all those reasons together, the ECHR concludes that the university's Vice Chancellor's ban on beards and veils, called upon against Ms. Sahin, could not be considered disproportional in the light of the social need protected. Hence, according the ECHR there is no violation of Leyla Sahin's right to manifest her religion. In a dissenting opinion Judge Tulkens rises important critique against the Court's assumptions that the Islam in general would tend towards (militant) fundamentalism, of which the wearing of the veil by women in public would be a strong (political) statement. Moreover, Tulkens reminds the Court and the reader that the freedom to manifest one's religion, analogue to the freedom of expression, should not be interfered for the mere reason that views, ideas or practices concerned, are not shared by everyone and might even shock, offend or disturb some people. To the contrary, the freedom to express oneself, including the freedom to manifest one's religion, are merely coined to such situations. After all, rights only become meaningful when there is a social conflict.

This interesting controversy illustrates how rights claims are related to the time and place of action, notably the value judgments of actors, which are influenced by their interests. Instead of divine and/or universal truths, moral arguments refer to what Foucault defines as the will to truth (Foucault 1972). The will to truth represents the human urge to construct a definitive, legitimate and ordered social and political unity. Justice takes a crucial place in this picture. It refers to the suggestion of ultimate righteousness that is, in terms of Jacques Derrida, 'always yet to come' (ávenir). The concept of justice thus envelopes an eternal though changeable promise or prophecy of righteousness, which could be deduced to political power configurations that are relative according to time and place (Derrida 1990). As such justice resides in the very dialectics of conservatism and change; order and revolution; continuity and discontinuity. Every argument for justice implicitly or explicitly tries to balance these two basic socio-historical principles. But since they are mutually exclusive, no valid argument could be made without eventually choosing sides according to one's own best interest.

The transcendent aspect of the moral argument could thus be considered deconstructed, but what then? Doesn't such a conclusion destroy the distinct character of law as a mediator between morals and politics, a check and balance that keeps political decision making and power struggle within the limits of justice, whatever that might be? However, deconstruction does not denounce the use of the debunked concepts themselves. On the contrary, it allows them to be read and employed, but in their relative and historically specific forms (Hall 1996). So although a human rights claim or another justice argument may loose its transcendent universality, it might even stand stronger in legal discussions as an assertion of acknowledged, but inherently disputable moral convictions. Justice, then, becomes finally recognized as what it factually is; a value statement, essentially dependent on deliberation.

Literature:
Benjamin, Walter, Critique of violence. In: Reflections: Essays, Aphorisms, Autobiographical Writings. (1978).
Derrida, Jacques, Force of law. The mystical foundation of authority. (1990).
Foucault, Michel, The archeology of knowledge. (1972).
Hall, Stuart, Who needs cultural identity? In: Stuart Hall & Paul du Gay (eds), Questions of cultural identity. (1996) Chapter 1.
Koskenniemi, Martti, From apology to utopia. The structure of the international legal argument. (2006).
Sophocles, Antigone. E-text: http://www.mala.bc.ca/~johnstoi/sophocles/antigone.htm (last visited 14-2 2008).

European Court of Human Rights, Leyla Sahin vs. Turkey, judgment of 29 June 2004, no. 44774/98.
European Court of Human Rights, Leyla Sahin vs. Turkey, judgment of 10 November 2005 (Grand Chamber), no 44774/98.

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