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2079129P“ Honourable Fellow Citizens of the Muslim World” – Islam, Freedom of

Expression, and the Jyllands-Posten Controversy Presented in partial fulfilment of the requirements for the degree of MSc

Human Rights and International PoliticsUniversity of Glasgow

August, 2014

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Table of Contents

1. Introduction………… …………………………………………pg. 32. Philosophical Groundings of Human

Rights……………………………………..…………………….pg. 73. Bases of Freedom of Expression………………………...

………………………….....pg. 144. Freedom of Expression in an Islamic

Context…………………………………………………………pg. 215. The Jyllands-Posten Controversy: A Case

Study…………………………………………………………..pg. 306. Reconciling

Differences…………………………………………………….pg. 447. Conclusion.……………………………………………………pg. 488. Appendix A………………………..….………………………pg. 509. Works Cited…….…………………………………………….pg. 51

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1. Introduction

In late 2005 and early 2006, protests resounded across the Muslim

world, sparked by the publication and spread of twelve editorial cartoons in

the Danish newspaper Jyllands-Posten.1 These cartoons depicted the prophet

Muhammad in various ways, some simply by having a picture of a blackboard

with the words “Jyllands-Posten’s journalists are a bunch of reactionary

provocateurs” written on it, some by commenting on suicide bombings, and

one by depicting Muhammad wearing a bomb as a turban.2 Though protests

against the cartoons and the newspaper more generally were initially peaceful,

in early 2006, protests erupted across the Muslim world, leading to the deaths

of at least two hundred people.3 These protests, in turn, created counter-

protests such as Everybody Draw Muhammad Day, which further fanned the

flames.4

More importantly, however, the cartoons and the reactions to them

raised the question of the relationship between Islam and the right to freedom

of expression. One of the major justifications given by both the artists and the

editors who chose to print the Jyllands-Posten cartoons was one of a test of

freedom of expression. The demands of a religion that the cartoonists did not

follow, they argued, should not be enough to dictate their actions and what

they could and could not draw. Indeed, political cartoons were meant to be

provocative and, at times, offensive so as to spark discussion. The protests

1 See Appendix A for all cartoons2 Aina.org, 20053 Spiegel Online, 20064 Associated Press, 2010

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against the Muhammad cartoons, according to this reasoning, were protests

against freedom of expression itself.5

These protests and events such as this one are not isolated incidents.

There have been many such incidents, both in Europe and in Islamic nations.

Perhaps most famous among these reactions involves the fatwa issued against

Salman Rushdie for his work, The Satanic Verses, though the death of Theo

van Gogh after the creation of his film Submission is another well-known

example. Islam and some Islamic countries do have laws against blasphemy

and apostasy, which have been used in the past with regards to publications

that have been considered blasphemous or critical of Islam.6 The punishments

associated with these laws are generally considered to be unduly harsh in the

West, drawing criticism. Due to events such as these, it is possible to see why

there could be a perception of Islam as somehow opposed to the freedom of

expression or freedom of speech more generally.

However, there are justifications and a great deal of philosophy and

theology behind these laws, much as there is a great deal of philosophy and

theology behind the western conception of freedom of expression. This

justification is not different from the western justification, though it is more

blatant in its valuing of the community over the individual. However, western

rights, too, have a communal approach, albeit one that is more hidden and

must be prised out by examining rights’ developments and their current

incarnations.

The question raised by the Jyllands-Posten controversy is one not only

of Islam’s relation to a freedom of expression and to human rights, but also

5 Associated Press, 20106 Saeed and Saeed, 2004, pg. 127

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one of what the freedom of expression actually is. From a western stance, it is

clear that the freedom of expression entails being able to say and communicate

whatever thought an individual wishes, but it is equally clear that the Islamic

stance does not always guarantee this individual ability.

This then begs the question: is the Islamic stance necessarily wrong

about freedom of expression because it disagrees about what is codified in

documents such as the Universal Declaration of Human Rights? Does the

Jyllands-Posten controversy and the controversies surrounding freedom of

expression and Islam more generally represent an unwillingness to accept

human rights or a difference in understanding and thus expressing human

rights? Is there indeed a difference in how Islam and the West understand the

freedom of expression?

This paper seeks to explore these questions. It seeks to take the ideas of

a “clash of civilizations7” and evaluate whether the source of these conflicts

over freedom of expression are indeed a clash of civilisations, or rather, if it’s

the case that different cultures approach rights differently. Ultimately, this

paper will investigate whether human rights are indeed universal, or if they

can be better understood as being culturally based and biased, and thus

perhaps not being universal. This will lead into a discussion of whether or not

values enshrined in philosophies in Sharia law can be considered as a basis of

human rights and indeed what the bases of human rights actually are.

More broadly, though, this paper will seek to understand what fuels

conflicts between the West and Islam, taking human rights as a foundation. It

will seek to explain why it is inaccurate – and indeed, perhaps even dangerous

– to see the conflicts between Islam and the West as indicative of a “clash of 7 Huntington, 1996

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civilisations,” and what steps must be taken in the future to avoid conflict.

Most importantly, though, this paper will argue that human rights are

culturally based rather than universal, taking Islam and the freedom of

expression as a basis for examinations of other cultures and other, non-

Western conceptions of human rights. However, in making this argument, this

paper will also establish that while understandings and interpretations of rights

may be culturally based, there is still a core of human rights that remain

consistent and respected across cultures, and can thus be considered universal.

Rights may be culturally approached and based, but ultimately, they are shared

as well.

2. Philosophical Groundings of Human Rights

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Before anything about cultural bases or lack thereof of human rights

can be discussed, it must first be understood what perspective this project aims

to take with regards to rights and the philosophical groundings of them. While

this project does not have the time or space to argue in depth about the source

of human rights, there must be at least a basic discussion of this paper’s

understanding of the source of human rights and the perspective it will be

taking.

In her work Islam, Liberalism, and Human Rights, Katerina Dalacoura

lays out several arguments regarding the source of rights. While this paper

does not necessarily agree with her conclusions surrounding the source of

human rights, her arguments do largely succeed in laying out the basis of

rights, the philosophy behind these bases, and the potential problems with the

current model of human rights.

On the whole, Dalacoura argues, human rights as codified in

documents such as the Universal Declaration of Human Rights (UDHR) and

other Western conceptions of rights can be seen as being based in a

combination of Christian natural law theory and Enlightenment theories about

the dignity of a human being and what ought to be protected as part of this

dignity. In the case of Christianity-based natural law theory, the argument for

the source of rights can be seen as God providing rights, and thus, humanity’s

natural dignity being preserved via divine mandate. Human rights exist by

virtue of people being human because they are made in the image of God.8

Though no longer explicitly laid out in these terms, the idea of rights being

8 Dalacoura, 2003, pg. 10

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inherent by virtue of being human is not unpopular. Indeed, it is often used as

the basis for arguing why rights are and can be universal.9

This particular view presents obvious problems for any perspectives

outside Christian Europe, or indeed, from a secular viewpoint as well. If rights

are granted as a result of being human because of a divine mandate, there is an

underlying assumption that this automatically means that humans are in some

way more special or more touched by the divine than other groups. It also

assumes the existence of some objective truth and objective standard which

ensures dignity rather than rights being assured by virtue of people

themselves.

Of course, it is, as Dalacoura points out, also problematic to take the

stance that human rights are not existent by virtue of being human, but rather

that they stem from some other source.10 As she rightly argues, this leads the

way to being able to declare rights illegitimate or to being able to say that

certain groups of people are inherently less able to access rights than others by

virtue of not having the same bases for these rights. If there is any discussion

of rights as being universal, there must be a universal basis for them,

something that is true of all people, regardless of their circumstance or culture.

Natural law allows for this, but is problematic at best.

Dalacoura also suggests that Enlightenment philosophies could be

considered a valid source of human rights, but this once again raises the

question of why these particular philosophers have legitimacy when others

might not.11 Their ideas can be seen as effective, but Enlightenment

philosophers were still operating within a natural law and European

9 Tharoor, 1999, pg. 610 Dalacoura, 2003, pg. 8 11 Dalacoura, 2003, pg. 10

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framework, meaning that, though they were making universal claims, the

actual universality of their philosophies can absolutely be questioned. Any

source of rights from within a culture will ultimately bear the marks of that

culture, regardless of how universal it attempts to be. This must be taken into

consideration when discussing the source of rights and the universality of

human rights.

Interestingly, Dalacoura briefly mentions a Nietzschean approach to

rights before dismissing it as untenable, but the possibility of a Nietzschean

argument merits more than a brief brushing-over.12 Though Nietzsche never

explicitly wrote about human rights, his existentialist and nihilist philosophies

can nevertheless provide a potential basis for discussing the source and

legitimacy of human rights.

Nietzschean philosophy revolves around the essential idea that there is

no objective truth.13 Rather, what we perceive of as the truth is the product of

our subjective experiences, and thus, truth itself is subjective.14 This concept

of “truth” lies in stark contrast to natural law, as a Nietzschean truth has at its

core that there is no essential truth of humanity, and that we are what we make

of ourselves and what we perceive ourselves to be. In essence, we are the

creators of our own truths, and any universality of truth comes not from some

outside source, but rather as the product of consensus.

Dalacoura argues that a Nietzschean, subjective approach to human

rights is guaranteed to fail because there is no real incentive to ensure that

rights are protected and followed. Rather, she points out, subjective rights

allow for things such as the abuse of women under the guise of “cultural

12 Dalacoura, 2003, pg. 1413 Nietzsche, 190114 Nietzsche, 1901

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practice” as well as a host of other things she considers to be human rights

abuses.15 Because there is nothing inherent in the human or any outside

“truth,” there is no reason to believe that people are in any way special or in

any way worth protecting. Her argument is that without this objective nature,

there can be a laissez-faire element to human rights which undermines the

entire concept of rights.16

Some of Dalacoura’s points are quite valid. If one adopts a subjective

view of rights, it does become extremely difficult to argue against certain

cultural practices which can be seen as oppressive. After all, if rights are

subjective and based on one’s own perceptions of “truth” and the world, then

most abuses can, in some way, be justified. However, what’s important to bear

in mind is that a Nietzschean approach to rights need not be laissez-faire. Even

if truth is inherently subjective, there can be communal truths created within

this subjective truth. A community can, for instance, all agree that it is wrong

to murder one’s neighbour arbitrarily. This truth may not necessarily have any

objective nature to enforce or legitimise it, but the fact that it is agreed on by

every member of the community grants it a sufficient level of legitimacy.

There need not be a natural right to not be murder by virtue of being human if

the community agrees that there is a right not to be murdered. There is no

reason that a subjective view cannot be as legitimate as an objective view.

This view of Nietzschean human rights can be seen as a sort of

communal subjectivity, where it is not the individual who decides what are

and are not rights – which Dalacoura mistakenly asserts is the case – but rather

the individuals as a group. Rights are granted legitimacy because the group

15 Dalacoura, 2003, pg. 2616 Dalacoura, 2003, pg. 26

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has decided that these ought to have legitimacy, and that they represent

something the community sees as essentially true. In the case of neighbours

being wantonly murdered, if the community agrees that neighbours ought not

to be murdered – or, to put it in terms of rights, ought to have a right not to be

murdered – and this right is agreed upon by the majority of the community,

then that right gains legitimacy by virtue of being a subjective truth that is

accepted and deemed sufficiently objective. It may be the case that there is no

real outside truth enforcing this particular right, but there doesn’t need to be.

The community creates its own truths and enshrines its own rights within

those communal, subjective truths.

It is worth mentioning as well that the human rights regime as it

currently stands relies on this idea of commonality to create its definition of

rights as well. The ratification process of treaties and human rights documents,

for example, inherently relies on states agreeing that certain ideals are ones

that they believe are rights that all people ought to be able to enjoy by virtue of

being human. If states do not ratify these treaties, it doesn’t matter if what’s

enshrined within it is a human right – without enforcement and without

agreement on it, it may as well not exist, and doesn’t in the eyes of the law.

Indeed, the very fact that states themselves are required to ratify and protect

rights suggests that there is an inherently communal element to rights that

requires agreement, rather than something each person simply has and knows.

In discussing human rights, then, it’s possible to take the approach that,

while not all human rights are universal, some may be by virtue of being

universally accepted. These are primarily negative rights such as the right to

be protected from murder, torture, or genocide, but there is unquestionably a

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core of rights that nearly every community considers worth protecting and

considers to be rights.17 It’s why there are prohibitions against murder in every

culture; this is a universal right that is universal by virtue of being subjectively

accepted.

Of course, this does raise the obvious problem of rights that exist

outside this framework of commonality. Freedom of expression provides an

excellent example, as the way it’s commonly perceived is as being the

freedom to do or say anything, though this paper will show that this idea is

problematic. The Islamic conception, on the other hand, is often seen as being

too limiting, though once again, this paper will argue otherwise. These can be

understood as different subjective truths, and it is these that raise the biggest

problem for any conception of rights. It is because of these clashes that it is

difficult to argue for the universality of rights, especially ones that don’t

necessarily cross cultural boundaries, like negative rights regarding murder

and genocide.

However, this paper will still approach rights from a Nietzschean

perspective, arguing that, rather than being based on natural law or anything

objective, rights are instead subjective creations that have legitimacy and

power because the community grants them this power and legitimacy. Rights

are products of the cultures surrounding them, and while some might be

universally agreed upon, it is not because there is anything inherently

objective to them, but rather because the subjective experiences of the human

community have led to the idea that these ought to be rights. While this

approach can be problematic – as freedom of expression demonstrates – it is

the hope that these problems will be better explored and clarified through 17 UN.org, 2014

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discussion of examples. A Nietzschean approach, however, rather than a

universal one offers the best chance for a reconciling of various rights clashes,

and the best hope for a resolution.

3. Bases of Freedom of Expression

Now that it has been established what perspective this paper will take

on the source and legitimacy of rights generally, it is undoubtedly useful to

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examine the source and legitimacy of freedom of expression more specifically.

This is, after all, the right at issue and, as has been previously stated, can be

interpreted in a number of ways.

The freedom of expression is often enshrined as one of the core

foundations of western democracies. It is the first amendment to the United

States Constitution, article 11 of the Declaration of the Rights of Man, and

article 19 of the Universal Declaration of Human Rights, to name just a few. It

has been argued that without this fundamental right, democracy itself cannot

survive, as there is no forum in which people can express their views and

engage with others.

Perhaps one of the best defenses of freedom of expression – and

certainly one of the most cited – is Milton’s Areopagitica. Written in 1644 in

opposition to censorship and licensing of printers required by the English

parliament, it lays out the basic reasons why freedom of expression is

necessary for a society.18 While it focuses on books and published literature

specifically, his defense can and has been extended to include all speech. His

primary argument is that, even if an argument is one that a reader disagrees

with, the very fact that the reader is given the chance to engage with the

argument will allow them to react and think about it.19 Even in the case of

morally harmful arguments, the ability to engage with the argument provides

the best defense of morally good arguments because it allows for the reader to

better understand their own position.20 Essentially, then, freedom of expression

is necessary if people are to engage not only with others’ ideas, but also with

18 Milton, 164419 Milton, 164420 Milton, 1644

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their own. Exposure to hostile ideas better allows people to recognise their

own positions.21

Of course, Milton is not entirely willing to allow all books and works

to exist in tranquillity. He argues that destroying books after they have been

published is acceptable as this destruction at least means that someone

engaged with the ideas rather than dismissing them out of hand.22 However, it

must also be understood that while Milton is arguing that all ideas ought to

have a right to be heard, he is not arguing that that right ought to be permanent

or that all ideas are worth hearing.

Milton’s ideas regarding freedom of speech are also well-iterated by

John Stuart Mill in On Liberty. In making statements such as:

“If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if

he had the power, would be justified in silencing mankind.”23

Mill makes his position abundantly clear. All opinions and ideas have

merit, regardless of whether or not they are offensive or immoral. Regardless

of the reaction to it, an idea has the right to be heard and responded to.

However, this is not all Mill has to say about freedom of speech.

Though On Liberty strongly advocates for freedom of speech, Mill does not

argue for unlimited free speech. Freedom of speech, in Mill’s conception,

exists not because opinions themselves hold particular worth, but rather

because they allow for the exploration of these ideas to their logical fullest. It

is necessary for the dignity of persons to be able to explore ideas rather than

21 Milton, 164422 Milton, 164423 Mill, 1869

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having them explored for them, and thus these ideas must be allowed to be

communicated.24

When considering that Mill’s reasoning for the value of freedom of

expression is based in the concept that ideas can be explored, it becomes

possible to question this conception. If an idea has no logic to consider, or if

speech is intended deliberately to harm, can that speech be said to contribute

to the dignity of persons, given that there is no greater idea to consider?

Mill responds to this argument as well with his Harm Principle. The

Harm Principle states:

“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”25

This presents an obvious problem for freedom of expression. While

speech can provide ideas for people to consider, this can be harmful as well.

For instance, there are few who would argue that yelling “Fire” in a crowded

theatre will not in some way cause harm. While Mills’ definition of “harm” is

vague at best, the Harm Principle can be seen as providing a way to reconcile

freedom of expression with other rights, such as the right not to be harmed.

That speech which is harmful can be seen as not contributing to human dignity

– indeed, can be seen as detracting from it – and thus does not fall within the

domains of freedom of speech.

Interestingly, the Harm Principle provides a highly communalistic

view of what is traditionally a deeply individualistic right. Mill’s conception

and defense of the freedom of speech grants the individual opinion the same

power and rights as a mass opinion, but also acknowledges that the

24 Mill, 186925 Mill, 1869

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community can be harmed by this single – or minority – opinion. In essence,

then, an individual freedom like the freedom of expression can be seen as

being limitable if its exercise actively harms the larger group. Individual

freedom can sometimes be sacrificed for the good of the group, but cannot be

limited for any other reason.

However, “harm” is a limited principle, and Mill does not define it,

leading to problems of interpretation. If harm is meant broadly, it can

encompass far more than what Mill might have meant, but if interpreted too

narrowly, it might not encompass enough for the principle to mean anything at

all. It is vital to understand what “harm” means, and how it can be best

understood in the context of freedom of expression.

Joel Feinberg chooses to expand and refine the Harm Principle with his

own Offense Principle. The Offense Principle takes the same stance as the

Harm Principle – namely that speech should only be limited in a few very

specific instances - but also expands that principle to encompass the

recognition that speech need not actively harm to be dangerous.26 As an

example, the Offense Principle could be used in the banning of hate speech.

While hate speech doesn’t cause physical harm in and of itself, Feinberg

argues that it could be seen as causing intense offense that can’t be avoided.27

The simple knowledge that people hold these views and are parading them in

public can be enough to cause this offense, and that must be taken into

consideration when considering the speech.

This view of limiting free speech is a useful one. It balances the

freedom of the individual to speak with the freedom of the individual to not be

26 Feinberg, 1985, pg. 2627 Feinberg, 1985, pg. 23

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attacked in some form. While it does curtail a right – namely, the right to

speak – it does so not for curtailing’s sake on its own, but rather because it

takes into consideration that rights exist to protect the people. The value of the

right to, say, freedom of expression is not to be found in the value of

expression, but because it protects a person’s dignity and their right to express

a thought. It is this idea of the rights-holder as a protected person and a person

worthy of dignity. With this at the core of rights, it becomes clearer how rights

can be – and indeed, must be – curtailed in certain circumstances. If rights

exist to protect the dignity of the rights-holder, then that dignity of the rights-

holder must lie at the heart of all interactions of rights. If the use of a right

actually harms the rights-holder, this does not protect their dignity, and so the

action must be curtailed.

Of course, one of the most obvious criticisms of the Offense Principle

is that there are many forms of speech that cause offense. However, offense in

and of itself does not necessarily harm the dignity of the person hearing it.

One could be offended by a grandmother swearing when she stubs her toe or –

more dangerously – could be offended by one politician speaking ill of another

during a political campaign. Citing all of these as bannable offenses through

the Offense Principle sets the dangerous precedent of essentially banning that

speech which a person doesn’t want to hear.

It must be kept in mind, though, that an affront to someone’s dignity as

a rights-holder is potentially separate from the actual feeling of offense. One’s

dignity is attacked when the reaction to the speech is visceral, unavoidable,

and creates an utter sense that one is under attack. Once again, hate speech

falls very clearly into this category as it declares an entire group of individuals

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as lesser because of some inherent, unavoidable characteristic. It attacks the

very fibre of one’s being, and thus attacks their dignity. If Granny’s swearing

blamed, say, all Asians for the fact that she stubbed her toe, it might then be

justified to accuse her of violating the Offense Principle, but simply cursing

would not as it does not provide an affront to the dignity of a person or group

of persons. Equally, if the politician said another politician was subhuman

because he had brown hair, that might fall under the reach of the Offense

Principle, but otherwise would not.

Feinberg also clarifies his position of offensiveness, making it clear

that the publicness and avoidableness of speech contributes to its

offensiveness. Speech that is unavoidable or which incites a public call to

violent action is far more offensive and falls very clearly within the purview of

the Offense Principle than speech which is uttered within the privacy of one’s

home.28 To return to our swearing grandmother, if Granny chooses to hurl

racist epithets within the confines of her own home and without anyone

hearing, it can be difficult to argue that these words constitute a blatant attack

on a person’s dignity. If, however, Granny instead voices her concerns about a

certain group of people and her views on them on a stage in front of a million

people, it is much more difficult to imagine that these words would not cause

offense in some way.

While the Offense Principle does limit speech more than the Harm

Principle, it also does so in a more intelligent and nuanced way, recognising

that words constitute their own sort of harm, and that it is the dignity of the

person that matters. Human rights ostensibly protect this dignity, and

therefore, if the exercise of these rights is infringing on the dignity of rights-28 Feinberg, 1985, pg. 212

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holders, it must be asked what good these rights actually are. Keeping dignity

of the person and of the group in mind as the key aspect protected by human

rights allows us to better understand under what circumstances freedom of

expression can be curtailed and what the justification can be.

4. Freedom of Expression in an Islamic Context

With the Harm and Offense Principles in mind, we can now examine the

freedom of expression – and, more specifically, the depiction of Muhammad -

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within Islam and the justifications for either its limitations or permissibility.

While Islam does not explicitly use either Mill’s or Feinberg’s justifications

when discussing freedom of expression, it does use a somewhat similar

justification, namely that the needs of the community ought to override the

voice of the individual. This justification can be found by examining the

history of the development of Islamic law and the various ideas that shaped it.

In order to understand the development of Islamic law, one must

examine some of the historical context in which Islam arose. The early history

of Islam is one of persecution. Muhammad and his early followers, for

instance, were driven from Mecca because of their faith and because of the

political implications of that faith. The fact that they were practicing

something other than the native polytheism meant that Islam became a threat

to the Meccan leaders, leading to the religion’s exile from the city.

Indeed, even after the exile, the dual nature of Islam as both a religion

and a political power meant that religious concerns were also political ones.

Yohanan Friedmann argues that this political nature of Islam early in its

development came to define Islamic interactions with other religions.29 The

development of Islamic law – and dhimmi30 law, especially – reflects a need to

ensure the security of the society and the empire. Abudullah S. Saeed and

Hassan Saeed, too, explore this concept of religious law safeguarding an

empire in their book Freedom of Religion, Apostasy, and Islam. In this

particular work, the authors explore this particular motivation for an Islamic

perspective on the freedom of expression.31

29 Friedmann, 2003, pg. 130 Non-Muslim practitioners of Abrahamic faiths. This term has also been expanded to include Zoroastrians, Buddhists, and Hindus in certain schools of Islamic thought. 31 Saeed and Saeed, 2004, pg. 89

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The greatest limitation – or at least the law most commonly invoked –

on freedom of expression centres around blasphemy and apostasy laws.32

These laws focus on what constitutes blasphemy or apostasy, and what the

punishment for each ought to be.

There are many understandings of what constitutes “blasphemy” in

Islam, with some schools of thought taking a much stricter approach to it than

others.33 As Mashood Baderin lays out in International Human Rights and

Islamic Law, these approaches are highly diverse both in their motivations and

their reactions. Ibn Tamiyyah,34 for instance, advocated for inviting those who

chose to renounce or denounce Islam into the faith, welcoming them rather

than punishing them.35 Some Maliki jurists have a similar view, seeing

blasphemy as a sin, but one for which there is no earthly punishment. Rather,

because the crime is against Allah instead of man, it is for Allah to punish.36

However, it has also been seen not as an expression of thought, but rather as

an act of political rebellion, thus becoming something which must be

responded to as a political crime.37 Overall, however, there is an agreement

that blasphemy must be done with the intention of causing harm; simply

saying something that could be construed as insulting Muhammad or Islam is

not sufficient.38

The same largely holds true for apostasy, with some schools taking a

much more strict approach to it than others. However, there is also a great deal

less ambiguity about what constitutes apostasy. An act of apostasy entails

32 Saeed and Saeed, 2004, pg. 10833 Friedmann, 200334 Islamic scholar of the Hanbali school of thought, lived 1263-132835 Baderin, 2003, pg. 12136 Baderin, 2003, pg. 12337 Baderin, 2003, pg. 11938 Baderin, 2003, pg. 127

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denying that Allah is god or that Muhammad is a prophet – essentially,

denying the fundamental foundations of Islam.39 Once again, not every person

is able to commit apostasy to the same extent, at least according to some

schools of thought. A female apostate is not as severe as a male one, and it’s

debated whether children under a certain age are able to commit apostasy at

all.40 Importantly, though, apostasy is a crime that can only be committed by

Muslims, whereas blasphemy can be committed by those outside the faith.41

What is more problematic, however, than defining blasphemy or

apostasy is the punishment associated with each. This, too, is heavily debated

and not agreed upon by the various schools of thought. More problematically,

while the nature of blasphemy and apostasy as crimes against Allah are made

clear in the Quran, the punishment for them is not.42 Instead, the punishment

for these crimes is partly based upon a hadith which, while a fairly canonical

hadith, is ambiguous in what it’s saying about apostasy as a crime.

The hadith itself involves Muhammad dealing with a man who has left

Islam and become a spy for a rival power.43 The man is captured, and

Muhammad is deciding how to deal with him. Ultimately, the man is put to

death.44 Because the man’s status as a spy and an enemy of Islam is directly

linked with his status as an apostate, the hadith has largely become interpreted

as a guideline for how to deal with apostasy, with the obvious conclusion

being that apostasy is a crime punishable by death. However, as Friedmann,

Saeed and Saeed argue and which this paper agrees with, the hadith in

39 Baderin, 2003, pg. 12440 Baderin, 2003, pg. 12141 Baderin, 2003, pg. 12842 Saeed and Saeed, 2004, pg. 143 Saeed and Saeed, 2004, pg. 6044 Saeed and Saeed, 2004, pg. 60

Parrish 24

question is not nearly as unambiguous as this interpretation might suggest. The

fact that the man is a spy adds more than just a touch of drama to the story. It

makes his crime not only apostasy, but also espionage, which has been and

still is dealt with as a more severe matter, entirely separate from any freedom

of religion or freedom of expression. Espionage is a crime against a state, and

represents a threat to the security of the state. It is a crime that extends well

beyond the individual and instead to the community.

Some verses of the Quran have also been interpreted as providing

some explanation for what should be done with apostates. Sayyid Abul Ala

Maududi45, for instance, sees verse 9:11-12 to be Quranic support for the death

penalty for apostasy.46 The verse reads:

“But if they repent and establish worship and pay the poor-due, then are they your brethren in religion. We detail Our revelations for a people who have knowledge. And if they break their pledges after their treaty (hath been made with you) and assail your religion, then

fight the heads of disbelief - Lo! they have no binding oaths - in order that they may desist.”47

Maududi reads this verse as saying that it is the crime of apostasy that

merits the death penalty, though that reading is hardly universal. Others - such

as S.A. Rahman48 – read the verse as instead ensuring a punishment in the

afterlife rather than one inflicted by man.49

However, it is also important to read verses 9:11-12 – and the verses

surrounding them, 9:2-14 – with historical context in mind. Once again, Surah

At-Taubah was dictated during a period when Islam was as much a political

entity as a religion. One interpretation of the Surah At-Taubah is that it was

revealed after the Battle of Tabouk, and so the question of what to do with

45 Pakistani Islamic scholar, lived 1903-197946 Maududi, 196747 Quran, 9:11-9:1248 Chief Justice of Pakistan, lived 1903-199049 Rahman, 1972, pg. 2

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those who switched sides over the course of the battle would have become

relevant. Equally relevant would have been the question of what to do with the

non-Muslims that the growing Islamic domain was encountering. A further

reading of the surah makes this perspective clearer. Verses such as 9:6 add the

context that “idolaters” refers not necessarily to non-Muslims as a whole, but

rather to those who explicitly fight against Muslims.50 The same holds true of

9:7, where it is made clear that the problem with non-Muslims isn’t

necessarily their lack of belief, but rather with the fact that some of these non-

Muslims have broken treaties or gone back on deals with Muslims.51 9:13, too,

stresses the fact that treaties and agreements are at issue rather than the

explicit non-Muslimness of the people making the treaties.52 Given the greater

context of dealing with non-Muslims or Muslims who represented political

threats, the idea of executing those who did represent a threat is not overly

radical. Rather, the surah can be seen as providing a potential solution for how

to deal with these prisoners. This one again emphasises that it is not apostasy

that is the problem as such, but rather the nature of apostasy in this particular

historical instance. In this instance, the nature of apostasy rendered it a

political crime with political implications. These political implications needed

to be dealt with, and the solution was to do so via execution. Once this

historical-political situation was dealt with, however, the surah remained, and

so was reinterpreted to fit without regards for its original historical context or

intention.

50 Saeed and Saeed 2004, pg. 3851 Saeed and Saeed, 2004, pg. 3952 Saeed and Saeed, 2004, pg. 60

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Al-Shafi’i’s53 interpretation of parts of the Surat al-Baqara, too, present

a potential Quranic justification for the death penalty for apostasy as well,

though these too have been thoroughly disputed. Verse 2:217 states:

“They ask you concerning the sacred month about fighting in it. Say: Fighting in it is a grave matter, and hindering (men) from Allah's way and denying Him, and (hindering men from) the Sacred Mosque and turning its people out of it,

are still graver with Allah, and persecution is graver than slaughter; and they will not cease fighting with you until they turn you back from your religion, if they can; and

whoever of you turns back from his religion, then he dies while an unbeliever-- these it is whose works shall go for nothing in this world and the hereafter, and they are the

inmates of the fire; therein they shall abide.”54

Al-Shafi’i’s interpretation is essentially that this verse supports the

idea that turning away from Islam represents a crime that ought to be

punishable by death.55 However, once again, a greater examination of its

context can help elucidate a different interpretation. Surat al-Baqara is a surah

more generally urging non-Muslims – and especially dhimmi – to convert by

retelling the stories of prophets from a Muslim standpoint. It also provides

general guidance for warfare as well. In this context, the surah is similar to

Surah al-Taubah in that it provides an explanation for what to do with those

who could be seen as political opponents to the budding Islamic political

power. This is not necessarily a statement on what to do with non-Muslims –

and certainly not an endorsement of slaughtering non-Muslims – but rather

can be interpreted as providing political advice.

It is these verses and hadith that provide a great deal of support to the

idea that the punishments for – and indeed, very conceptions of – apostasy and

blasphemy are inherently rooted in Islam’s nature as both a religion and a

political entity. In a less explicitly imperial or political religion, there is not as

53 Founder of the Shafi’i school of Sunni thought, lived 767-82054 Quran, 2:21755 Al-Shafi’i and Khadduri, 1987

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much of a need to protect the sanctity of the state, and thus blasphemy and

apostasy can be seen as individual choices rather than as active threats to the

safety and security of an empire. Even in the case of a conception of rights that

holds the community at its core, an ordinary community has little to fear from

espionage. However, this hadith provides a basis for understanding that

apostasy is not simply a case of someone choosing to leave Islam, but rather a

case of someone’s leaving presenting a threat to Islam as a whole. The choice

is no longer that of an individual. Rather it must be understood in the context

of the effect it has on a community.

With the understanding that protection of the community lies at the

heart of these laws and their interpretations, we can begin to examine the

prohibition on some forms of expression, and especially the prohibition on the

depiction of the prophet Muhammad.

The ultimate goal of Islam is to ensure that the faithful are living in

line with Allah’s will. To do this is to ensure their own safety and security. It

is for the good of the individual to abide by the teachings of the Quran.

However, it must also be kept in mind that there are forces that seek to turn

people away from Allah and to corrupt them. Succumbing to these forces and

being turned away from Allah is deeply harmful to the individual. If it is the

goal of Islam to ensure that as many people are able to submit to Allah as

possible and that as many people remain submitted to Allah, then Islam must

make it possible for people to recognise Allah’s will and be able to live in

accordance with it. This means trying to limit corrupting influences as much

as possible and to limit exposure to things and ideas that might persuade

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people to turn away from what has been presented as the one true path to

salvation.

The same holds true of prohibitions on the depiction of Muhammad.

Considering the deification of Jesus and the general idea that he was a prophet

rather than any divine figure, using the prevention of idolatry as a basis, the

prohibition on depictions of Muhammad can be seen as being meant to prevent

such idolatry and instead maintain focus on Muhammad’s message rather than

on Muhammad as a man. For the good of the community, depictions of the

prophet were varyingly discouraged or outright banned, at least in Sunni

communities.

What this discussion begins to demonstrate is the bases for some of

the prohibitions that non-Muslims have found problematic. While it is true that

these prohibitions place the rights and needs of the community ahead of the

rights and needs of the individual, the discussion of Mill’s Harm Principle and

Feinberg’s Offense Principle shows that the same could be said of the right to

free expression in the western world as well. The Harm Principle and Offense

Principle, too, place the community and communal dignity before the

individual in much the same way that Islamic prohibitions do. This provides a

potential route to reconcile the two paths, with the fact that there is this

common desire to protect the community providing some headway.

Furthermore, ensuring that the Islamic prohibitions on apostasy and

blasphemy and their roots are thoroughly understood allows us to be able to

advocate for a reading of verses 2:217 and 9:11 that can meld better with

rights language. Knowing that there are multiple interpretations as well

justifies this advocacy and makes this reading of the Quran more justifiable.

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5. The Jyllands-Posten controversy: A case study

The term “clash of civilisations” was first popularised by political

scientist Samuel Huntington in his 1996 book of the same name. Its thesis is

essentially that conflicts in the post-Cold War era will be fuelled not by

competing political ideologies or by a need for resources, but rather by

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fundamental differences in cultural and religious identity. These clashes would

occur because the differences between civilisations are so broad and

fundamental that there is no way of reconciling them. Instead of peace, the

world will descend into conflict.56

However, using our new understanding of Islamic perspectives on

freedom of expression in mind, we can turn to an instance that represents what

Samuel Huntington might refer to as a “clash of civilisations” and examine

whether or not his theory holds true and whether conflict really is inevitable.

On 30 September 2005, the Danish newspaper Jylland-Posten

published a series of twelve cartoons, each depicting the prophet Muhammad

in a different way. Some of the cartoons poked fun at the editors of the

newspaper for having the cartoons published, calling them “rabble-rousers,”

while others took a decidedly less light-hearted tact, depicting Muhammad

wearing a bomb as a turban or draped across the shoulders of two veiled

women.57 The publishers and artists defended the cartoons, saying that their

intention had been to incite debate about the freedom of expression and the

limits imposed on it by Islamic prohibitions.58 This sentiment was picked up

and echoed around the western world, with other newspaper editors supporting

Jylland-Posten and the editor’s decision to run the cartoons.59

Initially, the Muslim reaction to the cartoons was small, with peaceful

protests in Denmark and calls for the Danish government to act in response to

the cartoons.60 This was coupled with a pursuit for a court ruling on the

cartoons under sections 140 and 266b of the Danish Criminal Code. However,

56 Huntington, 1996, pg. 157 Aina.org, 200558 Rose, 200659 Hervik, 2012, pg. 4160 Klausen, 2009

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on 6 January 2006, this complaint was thrown out of the court on the grounds

that journalists have freedom of speech on issues regarding public interest.61 In

the wake of this and the Danish government’s refusal to address concerns

about the cartoons, a group of Danish imams known as the “Committee for

Prophet Honouring” brought a dossier containing the cartoons and other

materials said to be representative of Danish attitudes towards Muslims and

Islam to Egypt, Syria, and Lebanon.62

While the imams’ dossier of cartoons and Danish Islamophobic speech

was initially presented to political and religious leaders, it rapidly gained

media attention, bringing the issue to the more general attention of the

public.63 This sparked protests across the Islamic world, including in the UK,

US, Australia, Europe, and other countries with substantial Muslim

minorities.64 Some of the protests became violent, with protestors storming the

Danish and Austrian embassies in Lebanon, and the Norwegian and Danish

embassies in Syria.65 This was accompanied by a mass boycott of Danish

products and companies, which caused great economic distress to some

Danish companies.66 In total, at least two hundred people died as a result of the

protests.67

On 8 February 2006, Jylland-Postens published an open letter

apologising for any offense caused by the cartoons, stating that the intention of

the cartoons had not been to cause offense, but rather to depict the prophet in a

“sober” way.68 At the same time, however, newspapers across Europe 61 Klausen, 200962 Hervik, 2012, pg. 10763 Keane, 2008, pg. 85964 Hervik, 2012, pg. 10765 Hervik, 2012, pg. 10766 Hervik, 2012, pg. 10767 Keane, 2008, pg. 84568 Juste, 2006

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republished the cartoons, citing a desire to stand with Denmark in defense of

free speech.69 However, at this point, fervour over the cartoons had largely

died down in the Muslim world. Despite this, though, the cartoons continued

to be a focal point in discussions of freedom of expression and limitations to

that expression, serving as an example of how Islam was “limiting speech”

and to what extent there was self-censorship regarding Islam and Islamic

issues specifically because of fears of the repercussions. This concern for

Islam limiting freedom of expression ultimately set off other protest

movements, including Everybody Draw Muhammad Day in 2010.70

Everybody Draw Muhammad Day, too, sparked protests, with the

Pakistani government blocking access to Facebook to limit the impact of the

event.71 While the protests weren’t nearly as violent or widespread as those

around the Jyllands-Posten cartoons, the cartoonist who proposed and

organised the event went into hiding after death threats were issued against

her.72

There can be no doubt that the issue of freedom of expression and the

prohibitions placed on it by Islam sometimes come into conflict. Many would

– and have – claimed that this conflict is irreconcilable, with Islam by its very

nature being an anathema to human rights, and especially to the freedom of

expression. Some embrace this view, especially with regards to Islam.

However, this view is limited and misses entirely the nuances and reasons

behind this conflict and others like it, preferring instead to argue for the

inscrutable other.

69 Keane, 2008, pg. 86070 Associated Press, 201071 Hefflinger, 201072 Fefer, 2010

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To understand why Samuel Huntington’s theory of a clash of

civilisations is so grossly inappropriate for understanding this event, we must

examine the Jyllands-Posten controversy in greater detail and in light of the

philosophical justifications that have already been explored. In doing so, it

will be shown that the Jyllands-Posten controversy is not a sign of a clash of

civilisations, but rather the product of mutual intolerance, militant secularism,

and xenophobia. In demonstrating that it is these factors at work, it will also be

shown what could be done to mitigate conflict in the future and how this

particular controversy reveals a great deal about rights and cultural distinctions

more generally.

In his examination of the case, UN Special Rapporteur on

contemporary forms of racism, racial discrimination, xenophobia and related

intolerance Doudou Diène explores much of the context in which the

controversy took place. Rather than seeing it as an isolated incident, Diène

instead sees it as a symptom of the greater phenomenon of Islamophobia and

xenophobia on the part of Europe and the US.73 However, this is not to say that

the controversy’s blame lies solely on the shoulders of Islamophobia. Diène

emphasises that regardless of the offensiveness of the cartoons, violent

protests were not justified.74 His analysis provides a keen insight into the

controversy.

In the context of increased immigration to Western Europe from

Middle Eastern countries after WWII – and especially in the wake of the

events of September 11 – there has been a rise in Islamophobia, xenophobia,

and general anti-Muslim and anti-immigrant sentiment.75 This rise in anti-

73 United Nations, 2008, pg. 274 United Nations, 2008, pg. 1275 United Nations, 2008, pg. 2

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Muslim sentiment could partially be attributed to fear of attacks – though it is,

of course, ridiculous to assume that all Muslims are terrorists – but also more

generally to fear of the unknown and a sense of Muslims as thoroughly

“other.” In the wake of the September 11 attacks, however, this general

xenophobia became accompanied by a greater knowledge of the Arab world,

or at least certain aspects of it. In the case of the invasion of Afghanistan,

especially, the media image of Afghanistan and of an Islamist government

became coupled with the image of the Taliban executing women in a

stadium.76 Islam became, thanks to media coverage, inexorably linked with

human rights abuses and anti-Western sentiment. This then affected how

Muslims in the west were viewed, and increased Islamophobia against them.77

Rather than viewing individual Muslims as people, Muslims were instead

viewed as a collective entity, opposed to human rights, and opposed to western

values.

At the same time, the early 2000s saw a rise in militant secularism with

figures such as Richard Dawkins gaining massive popularity and followings.

The message of religion as an anathema to principles of progressive thought,

too, gained traction and appeal, creating an environment that became hostile to

open expressions of religion.78

This was by no means an unprecedented development. Many of the

ideas Dawkins espouses have their roots in the Enlightenment, and especially

the French Revolution. The idea of the rights of man stemming from

something other than a divine being – and that those rights exist independent

of or in some cases in spite of that divine being – gained mass popularity in

76 United Nations, 2008, pg. 877 United Nations, 2008, pg. 878 United Nations, 2008, pg. 7

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France during the French Revolution.79 These ideas of secular rights can be

seen in documents such as the Declaration of the Rights of Man, which later

went on to provide some of the source of documents such as the Universal

Declaration of Human Rights.

The fervour to embrace secularism and shed off the shackles of

religion also spread via the ideas of Karl Marx and other 19th century

European thinkers. Religion became an “opium of the masses,” designed to

keep truth and knowledge confined and the people pacified. For the good of

humanity, religion needed to be done away with.80

This idea rapidly coupled with spreading positivism and the idea of

those ideas which could be empirically proven being the only ones with

worth.81 Religion, by its very nature, can’t prove many of its foundational

claims, and thus stands in direct opposition to a positivist mindset.

It is safe to say, then, that religion and especially fundamentalist

incarnations of it have been in decline in Europe for some time, replaced by a

militant secularism which holds as its core values the idea that religion is an

anathema to rights. Indeed, the defamation of religion had become trivialised,

with statements that even a century earlier could have been construed as

blasphemous being tossed around.82 When the September 11 attacks occurred,

then, they were seen not as much as an act by extremists, but rather as the

inevitable product of the evils of religion.83 It was guaranteed that they would

happen, the logic went, because people were allowed to live under a religion

that encouraged such acts. The Quran was scrutinised and Islam examined in

79 Kopstein and Lichbach, 2000, pg. 7280 Marx, 184381 Finnis, 201182 United Nations, 2008, pg. 983 United Nations, 2008, pg. 7

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the light of the September 11 attacks rather than as a faith. Verses that could

be interpreted as supporting such attacks were taken as being indicative of all

of Islam, and indeed all religion more generally.84 Every Muslim space,

including mosques and community centres, became not a community space,

but a breeding ground for extremism.85 A general fear of every Muslim man as

a terrorist and every Muslim woman as oppressed spread.86

Coupled with this was the idea of Islam not as a religion, but as a

nationalist identity which superseded actual citizenship and national identity.

Muslims were seen as not being full citizens of their nations because of their

unwillingness to fully embrace the principles and way of life of their host

nations.87 The unwillingness to stop wearing the hijab, for instance, became

seen as evidence both of the oppression of women as universal in Islam and a

stubborn refusal to integrate to a European way of life.88 Indeed, many

European nations such as the Netherlands began to change their immigration

laws, focusing on thorough and complete integration as a requirement for

entry and the right to stay in the country.89

In some European nations as well, the fact that Muslims had partly

entered these countries via a guest worker program meant they were more

perpetually seen as “guests” rather than immigrants seeking to become full

citizens of their new country. Guest workers could be relegated to slums

without guilt as they were temporary residents only – not proper citizens or

residents of their host nation.90

84 Lean, 201385 United Nations, 2008, pg. 8 86 United Nations, 2008, pg. 887 United Nations, 2008, pg. 888 United Nations, 2008, pg. 889 United Nations, 2008, pg. 890 Tristam, 2008

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The result of all these factors was a large sense of alienation on the part

of both Muslim minorities in western Europe and a thorough lack of

knowledge on the part of non-Muslim majorities. Because there is so little

effort to integrate Islam into the image of European-ness, Islam and Muslims

remain an inscrutable “other.” This also meant that when there were protests

on the part of Muslims, these protests were seen as outside the normal range of

things that could be protested. Rather than being full protests in their own

right, they could be seen as the protests of a minority trying to impose its will

on the majority, not the complaints of equal citizens. It is precisely this

argument that was raised in the wake of Jyllands-Posten controversy.91

Muslim protests surrounding the cartoons were not the protests of Danish or

European citizens, but rather, Muslims trying to impose Muslim values on

Europe.92

Equally, Diene has argued that there was a certain degree of

intentionally inciting Muslim riots on the part of both Jyllands-Posten and the

Danish imams who travelled to the Middle East. In the case of the imams, the

dossiers they carried and distributed as indicators of Muslim life in Denmark

were not entirely accurate.93 Some aspects were exaggerated, and some were

potentially falsified, though it must be emphasised that Diene does not go so

far as to make this claim.94 Even if the imams didn’t have the intention of

inciting violence – and it’s doubtful that they did – the dossiers were

unquestionably designed to enflame passions and force some kind of reaction.

It presented an image of Danish Muslims as being oppressed and constantly

91 United Nations, 2008, pg. 1192 Fallaci, 2004, pg. 11893 United Nations, 2008. pg. 494 Keane, 2008, pg. 864

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persecuted for their faith to an intolerable extent.95 The image they presented

was not entirely fair, but it accomplished its goal of forcing the Danish

government – and Jyllands-Posten – to acknowledge that it caused offense.96

Equally, though, it could be argued that there was some truth in the

imams’ portrayal of Danish society. Prior to the Muhammad cartoon

controversy, Jyllands-Posten had refused to publish cartoons mocking Jesus

for fear of offending Christians.97 Diene notes that there was no real

controversy surrounding this decision – it is, after all, a newspaper’s

prerogative to decide what it does and does not publish – and certainly

nowhere near the publicity as surrounding the Muhammad cartoons.98 There

were no cries about limitations to freedom of expression or about Christianity

being oppressive. This was seen as being within a newspaper’s rights.

What ought to be clear from this particular decision on the part of

Jyllands-Posten is that it did recognise some version of the Harm or Offense

Principle. It recognised that publishing cartoons critical of a person valued by

their readership would likely be harmful, and so limited the speech. The

Muhammad cartoons, however, were not seen in the same light. Something

that could just as easily be construed as highly offensive was instead published

in the name of freedom of expression. The decision to do so in the light of a

previous decision not to publish raises questions about Jyllands-Posten’s

motivations. It suggests that this issue was not strictly one about freedom of

expression and the right to speak out. Rather, it suggests that there was

95 Keane, 2008, pg. 86496 Keane, 2008, pg. 86397 United Nations, 2008, pg. 1198 United Nations, 2008, pg. 11

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something more Jyllands-Posten intended to say about Islam, likely in the

same vein of militant secularism and positivism.

However, these dual cases do provide and interesting springboard for a

greater discussion of freedom of expression and the circumstances under

which it is limited. As stated earlier, Jyllands-Posten’s decision not to publish

cartoons mocking Jesus was squarely based in ideas like the Harm and

Offense Principles. Even if the harm was to the newspaper’s subscription

numbers, an acknowledgement that cartoons have power and do have the

potential to cause more than slight offense lay at the heart of the decision.

Jyllands-Posten was aware this could happen, at least to a certain extent. In

this instance, it embraced principles that limit freedom of expression in the

name of ensuring its readership would be happy.

More than this, however, embracing the Harm and Offense Principles

recognises an underlying goal of rights. Rights in and of themselves are

valueless. The value of rights lies in the fact that they preserve human dignity,

not necessarily in that they exist. Indeed, it is this language which abounds in

rights documents. Their sole purpose is this preservation of human dignity. As

with any principle or idea, though, this purpose of preservation of dignity can

be subverted and abused.

The question then becomes one of whether or not this was the case in

the Jyllands-Posten controversy. Did Jyllands-Posten’s decision to publish the

cartoons subvert the intention of rights? Did it destroy dignity rather than

uphold it? Or was it rather the cartoonists’ dignity that was being abused by

virtue of being unable or unwilling to depict Muhammad?

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While it’s always dangerous to speculate too heavily about

motivations, one can examine the cartoons and their message to come to a

greater conclusion about what Jyllands-Posten likely intended. While Islam

does have a taboo surrounding depicting Muhammad, it is by no means

unbreakable, with Sufis and Shia having a tradition of depicting Muhammad.99

While these ideas of depiction are by no means prevailing – and while it be a

gross mischaracterisation to say that Islam embraces or allows depiction in the

same way other faiths do – they do raise the question of what exactly about

these depictions so raised the ire of Muslims.

It is interesting that the groups’ protests revolved around bringing

Jyllands-Posten to court under a charge of racist speech. The Danish criminal

code, while containing a blasphemy code, very rarely uses it.100 However,

racism and racist hate speech does have a precedent of being prosecuted, and

while Islamophobia does not fall under its jurisdiction, the fact that the groups

sought to have their case heard under this section of the law implies that they

felt the cartoons were more akin to racism than blasphemy under the Danish

definition.101

This is not an unreasonable stance to take. The cartoons did largely

identify all Muslims as one group, all believing the same things as

Muhammad, and all, as a group, opposed to freedom of expression. The

cartoons took the stance that it was Muslims as a group rather than Muslims as

individuals – and more than just Muhammad – who were problematic in their

beliefs. Islam was the problems, and Muslims as adherents to it, were

problematic by extension.

99 Org.uib.no, 2008100 United Nations, 2008, pg. 9101 Keane, 2008, pg. 863

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It is important to bear in mind that the principles of free expression

even in a western conception are limited. The fact that countries such as

Denmark, for instance, have laws against racist speech and against hate speech

is clearly indicative of these limitations. They are rooted in the Harm Principle

and perhaps more broadly in the Offense Principle. There is a recognition that,

while speech is important, that speech must be tempered with common

decency and the acknowledgement that it is human dignity at the centre of

rights like the freedom of expression. Everyone is welcome to express their

views as long as the public space remains one where human dignity and

everyone’s well-being are upheld.

Indeed, in his arguments about the Offense Principle, Feinberg uses

racist speech as his ideal example of the Offense Principle in action.102

Because racist hate speech causes such a visceral reaction, it is an affront to

the dignity that rights are meant to protect. If freedom of expression is used as

a defense of racism or hate speech, then the right is being abused. It no longer

centres around the idea of dignity. Rather, it centres on the right of one group

to oppress the other under the guise of freedom, thus limiting the oppressed

group’s freedom by forcing them into an inferior status.

Even beyond racism, when the intention of speech is to deliberately

provoke outrage, it must be questioned whether or not this really qualifies as

upholding the point of rights. If the reason rights exist is to preserve human

dignity, then deliberately trying to make a group feel inferior and threatened

stands in direct contradiction to this purpose. The point is to provoke outrage,

and in doing so, this clearly violates the Harm Principle, around which the

freedom of expression is based.102 van Mill, 2012

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It is difficult to say for certain what the exact motivations of the

Jyllands-Posten editor were. In his own words, he sought to “conduct an

experiment to see whether or not the threat of violence could deter the

freedom of speech.” In Diene’s view, however, at the heart of this

“experiment” lay knowledge that the cartoons would cause outrage, thus

validating the editor’s position.103 If it is the case that the point of the Jyllands-

Posten cartoons was to incite outrage and offend, then it is arguable whether

or not this is an incident about the freedom of expression. If one accepts the

ideas of the Harm and Offense Principles as being reasonable limitations and

serving the spirit of human rights – as the Danish government, among others,

seems to – then the cartoons were an affront to rights rather than a beacon of

them. They served to incite mutual intolerance, thus themselves being a

human rights issue.

This does not, of course, solve the underlying problem of freedom of

expression and intolerance. The Jyllands-Posten cartoons were not the first

nor last incidence of violence in response to blasphemy. However,

understanding why this occurs and that it is not necessarily based in a rejection

of the freedom of expression is vital in mitigating this sort of violence in the

future.

103 United Nations, 2008, pg. 11

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6. Reconciling Differences

What, then, can be learned from our brief examination of this clash of

civilisations? It would be wrong to take from this that there is an irreconcilable

difference between these two views of the freedom of expression. At the heart

of each view lies the same essential ideas about the purpose of rights and what

they ought to be protecting. Each holds at its core the idea of preserving

human dignity from outside forces that might seek to destroy it, and each sees

the individual as sometimes needing to be limited for the good of the

community.

Perhaps the clearest indicator that there is a shared conception of the

freedom of expression between the West and Islam can be found in principles

like the Harm and Offense Principles which are inherent in laws that govern

speech. The Islamic aniconism exists to help keep the community from

idolatry, and while these rules can sometimes be zealously applied, the same

can be true of other prohibitions on freedom of expression. This reflects not on

any inherent flaw of the philosophy, but rather on the potential flaws of those

executing it. Islam is not the problem, nor are the Harm and Offense

Parrish 44

Principles. These Principles reflect an underlying understanding of what the

purpose of rights is and how that purpose can best be upheld.

The most important thing that can be done to mitigate these sorts of

conflicts in the future is to understand why they happen. To say that Islam is

inherently opposed to freedom of expression misunderstands why the

aniconism exists. It exists not as a way to limit freedom as such, but rather as

method by which the dignity of both individuals and the community can be

maintained. Of course, there are those that would argue that dignity preserved

at the cost of liberty is not worth the cost, but considering legal systems

around the world disagree with this position, it seems more reasonable to take

the stance that dignity is the ultimate goal of human rights. More generally,

understanding what rights are and what they are actually about rather than

blindly throwing them about as rallying cries can do a great deal of good

towards preventing these sorts of problems in the future.

Granted, greater knowledge about rights and what they mean will not

prevent all conflict, and it would be naïve to say that it would. As the Jyllands-

Posten controversy demonstrates, there are underlying factors that can be

provoked into causing violence. Even if the freedom of expression isn’t at

issue, conflict can still arise because of the perception of Islam as limiting

rights. This perception, as Diene points out, can cause Islamophobia and an

alienation of Muslims. This, in turn, causes conflict in and of itself as there

will always be fundamental misunderstandings of the other once the other has

been rendered inscrutable and unfathomable.

However, it’s in recognising why conflict occurs that one can begin to

see a potential solution to it and the more general problem of varying

Parrish 45

conceptions of rights across cultures. The Jyllands-Posten controversy

occurred because the prohibition of the depiction of Muhammad was seen as

inherently in opposition to western values. It was seen as inherently violating

the freedom of expression. What the editors of Jyllands-Posten didn’t

understand, however, was the reasoning behind it and the fact that this same

reasoning can be found in their own conceptions of the freedom of expression.

Because of Islamophobia and the thorough “othering” of Muslims, this

reasoning couldn’t be understood. There was no attempt to understand it, and

instead just relegate the issue to the “inherently unsolvable” box.

If efforts can be made to understand the reasoning behind conceptions

of rights that are seen as antithetical to western rights, these differences can be

understood to be not differences, but the same idea echoed in various ways

throughout cultures. The western ideas of the Harm and Offense Principles can

be found at the heart of the prohibition on aniconism, even if they aren’t

explicitly stated as such.

Equally, the prohibition on speech which harms the dignity of the

community and individual can be found in the West just as much as it can be

found in Islam. Once again, the Harm and Offense Principles do exist and do

govern speech in the west, even if they aren’t always explicitly stated as doing

so.

It is in this shifting of understanding of rights that a solution can be

found. Placing others’ conceptions of rights in the context of a culture’s

understanding – or rephrasing it to fit into our own – reveals that, while there

may be differences, there is a shared core of rights which has, at its heart, the

same values across cultures. It may be understood using different philosophies

Parrish 46

and different words, but it remains essentially the same across cultures. It is

only when the rights contained in this core feel imposed rather than organic

that conflict arises. To take Jyllands-Posten as an example once again, putting

the prohibition on the depiction of Muhammad in the context of the Harm and

Offense Principles and rephrasing it to fit this language makes it less

antithetical to Western rights. Equally, taking the Western idea of freedom of

expression and placing it in the context of Quranic verses that support freedom

of expression demonstrates that these rights need not be imposed, but can

rather be found within the structures that already exist.

More simply, the current human rights regime must include

expressions of rights outside the standard Western view. It is clear that there

are shared rights, and that the rationale behind them – at least in this instance –

is similar. In including these rights and giving them equal time and space,

human rights shift from something which is perceived as imposed, alien, or

unwanted, and instead become a recognised part of each culture and its unique

way of understanding rights.

This same solution can be used with many cultures and many rights.

While this paper has focused on one particular case, there are many, and this

solution has the potential to help in all of them. If rights can be understood

within a culture’s pre-existing framework, these rights will be more readily

accepted. If the underlying purpose of these rights is understood more fully,

understandings of why prohibitions such as the Harm and Offense Principles

exist will limit how much a perception of the other governs interactions in the

future.

Parrish 47

7. Conclusion

The Jyllands-Posten crisis has been seen as a crisis of human rights,

with freedom of expression on one side and the right not to be offended on the

other. It’s been seen as an indicator of Islam’s fundamental irreconcilability

with human rights, and has been hailed as a rallying cry for Western

secularism.

These understandings, however, are wrong. Jyllands-Posten was

caused not by a fundamental irreconcilability as such, but rather a

misunderstanding of the other’s position. It is perhaps not unreasonable to call

this a wilful misunderstanding on the part of some parties. What Jyllands-

Posten demonstrates is not the fundamental irreconcilability of human rights

and Islam, but rather the paramount importance of placing rights within the

language of a culture. It is vital to understand the underlying philosophies

governing rights, and more specifically the perceived violations of them.

While it would be incredibly naïve to say there are no human rights violations

within Islamic societies and contexts, it is equally naïve to say that there is

such a thing as a culture that cannot be reconciled with human rights. While

each group may have its own understanding of rights, there is a certain

Parrish 48

universality to the reasoning and to the rights that exist at the core of human

rights.

Everyone, ultimately, wishes to live in peace, dignity, and security. It

is these ideals that run through each culture’s unique understanding and

conceptions of rights. It is wrong to smother these unique understandings by

imposing one particular culture’s understanding. Rather, this variety of

understandings of the same ideas can be reconciled and all conceptions of

rights incorporated into the existing human rights regime. If this can be done

successfully – and this paper, certainly, argues that it can – we will find that

there is no real opportunity for a “clash of civilisations.” Rather, there will be

a global society that is able to coexist with a shared understanding of human

rights.

Parrish 49

8. Appendix A

Figure 1: The cartoons published in the Jyllands-Posten newspaper

Parrish 50

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