Last update: 2019-06-24 10:17:07
Observing the parabola of constitutionalism and the spread of a culture of human rights between West and the Middle East, one seems to witness phenomena that are at least partially specular. In North America and Europe, bioethical questions and family law in particular have witnessed a flowering of new rights. From genetic manipulation to euthanasia, from education in a democratic culture of coexistence to new forms of para-conjugal unions, which in their turn open up new problems such as adoption by homosexuals: each terrain appears by now able to create new ‘human rights’. The statement of the philosopher and jurist Michael Perry, according to whom the language of human rights has by now become the ‘lingua franca’ of the moral experience itself, hits home. According to some commentators, in the West these new rights are being hampered because of the resistance put up by pressure groups or at times by the populations themselves who are said to provide an impulse of a conservative kind. Strengthened by their electoral weight, populations are said to counter the expansive potentiality of human rights, in this way lapsing from the most advanced points of juridical culture and of minorities themselves in search of legitimisation, in the name of traditions which, on the path of decline, use law in order to keep themselves alive.
The Middle East, on the other hand, would appear from many points of view to be impenetrable to modern juridical culture: the prevalence of religious law over secular law (Jewish law in Israel, Christian law and above all Islamic law in the rest of the region); a strong resistance to the principle of equality, above from a sexual and confessional perspective; politics and an institutional life in which charismatic figures have an weight unthinkable elsewhere, constitute the principal elements of contrast with the prevalent idea of rights. A contrast for which the religious traditions of the Middle East and North Africa are almost invariably held responsible. In substance, the West and the Middle East are said to share the same situation, at least according to the views of certain analysts: the ‘wheat’ of the culture of rights is said to be suffocated by the ‘tares’ of tradition. It is without doubt difficult to deny that at times tradition and law come into conflict and probably it is not helpful to dwell too much on this point. It is worthwhile, instead, to dwell on the probably more neglected area of the relationship between the two: the propulsive role of tradition in relation to law. This is specifically borne out by some of the most crucial subjects, such as bioethics, family law and the very interpretation of Constitutions. Here as well, the phenomenon is to be encountered transversally in the West and the Middle East. Some examples illuminate this fact. A recent study on the legislation and practice of assisted fertilisation from a comparative perspective has produced rather interesting results. Italian legislation is decidedly more restrictive than legislation in Israel or in Egypt. In Israel the legislative framework is more advanced, in Egypt it is more permissive, but in both these countries research and resort to the practice of assisted fertilisation are on an equally large scale.
The result of this survey, beyond questions of suitability, produced results that were perhaps unforeseen: the Islamic tradition in Egypt and the Jewish tradition in Israel support research and practice in this sphere and even legislation that is especially favourable to assisted fertilisation, since both Islam and Judaism closely link the institution of marriage to procreation. Israelis and Egyptians, through assisted fertilisation, have multiplied instruments to achieve a goal that is perfectly congruent with their religious traditions. In contrary fashion, the Catholic tradition of Italy has organised in a different way the relationship between marriage and procreation, paying greater attention to other aspects such as the status of the embryo and the conditions in which it can come into existence. The result has been a control on the part of the state which has been more greatly monitored. With the popular referendum which was held in 2005 as well, this approach has been shown to have broad support within the population of Italy.
The Equality of the Sexes
Family law within the context of the Middle East above all else has been shown to be at a crossroads between tradition and modernisation. In 2004 Morocco engaged in a profound reform of this sphere of law and reproduced, although with certain differences, what had happened decades earlier in Tunisia. The pathway towards the equality of the sexes in these two countries, indeed, has had a profound effect on the institution of marriage, restricting or even eliminating the possibility of polygamy. This strong revirement of an organisation of the relationship between men and women that goes back a thousand years in reality took place within the same Islamic tradition that legitimised polygamy. Indeed, the pathway that changed the physiognomy of marriage first in Tunisia and then in Morocco – encountering by no means few forms of resistance, for that matter in sectors of civil society and the judiciary – did not merely lead these two countries beyond their traditions and classic Islamic juridical methodologies. Side by side with egalitarian movements of a more secular approach, a reformist current spread that drew specifically on the sources of Islamic tradition.
The right to have as many as four wives at the same time, in fact, is subordinated in the Koran to the condition of being able to treat them all with justice. In largely restricting polygamy, Morocco, most recently, conjoined this precept of the Koran with another verse from the sacred book where it is stated that man does not know how to treat his wives with justice. The contemporary legislators thus linked two statements which up to that point had never been placed together. What for centuries had been seen as a right to polygamy, in the light of a new interpretation was shown to be subject to an impossible condition, being changed thereby into a prohibition. This argument, which was able to locate the reform in Morocco in an Islamic context, thereby avoiding a clear cultural and juridical fracture, was without doubt also animated by the evolution in mentalities and the infiltration of Western sensibilities into the sphere of rights in Morocco. However, this new reading of the Koran does not appear in the least to be something that can be liquidated as artificial rhetoric. It appears, rather, to document how tradition is not unchangeable luggage but, rather, the object and also the subject of potentially unending reworking and reflection. More than in the phenomena of reform, however, it is in the sphere of interpretation of existing laws and regulations that tradition plays, every day, a significant and strongly dynamic role.
This has happened without doubt in the Middle East and North Africa. Some examples, taken respectively from the Islamic and Jewish contexts, may serve to provide a framework for the analysis. It is specifically Tunisia, which had eliminated polygamy from its legal system, that has witnessed certain forms of resistance by judges who have diminished, through their own jurisprudential activities, these legal innovations. Indeed, the legislators of Tunisia simple removed mention of polygamy from the legal framework without expressly introducing a prohibition of it. This gave judges an opportunity to interpret this normative silence in line with the traditional physiognomy of the legal system. In the Jewish case, we may refer to two events which are especially interesting because they demonstrate how the juridical tradition of Judaism has evolved in a particularly innovative way when faced with the creation of the State of Israel. First of all, with the creation of the State of Israel we may observe the fact that the very rare cases of bigamy allowed by classic Jewish law and even more rarely practised by certain communities of the Jewish diaspora disappeared. There was almost no debate on the matter: the tendencies favourable to this practice yielded to the prevalent lineage of monogamy, drying up in definitive fashion the vein of polygamy as regards Jewish marriage.
The second aspect that should be taken into consideration with respect to the relationship between Jewish law and Israel concerns the interpretation of the ‘law of return’, which in fundamental terms attributes Israeli citizenship to those who are seen as Jewish on the basis of religious law, that is to say to people who are born to a Jewish mother. Practice has witnessed major moderations of this rule which have been particularly favourable to those people who, even though they do not belong to this category by birth, provide evidence of a strong cultural and religious membership of Judaism, but which have been restrictive in relation to those who, in contrary fashion, on the base of classic law, are certainly Jews but in reality adhere to another religion. In this way, the traditional juridical fact – a Jew is the child of a Jewish mother – has been explicitly adapted to the need for contemporary Israel to conserve a population which not only in terms of its roots but also because of its culture and way of live maintains the prevalent tradition. In this sense, Jews who have abandoned that tradition for another religion do not offer sufficient guarantees, differently, paradoxically, from those who, born to a Jewish mother, lead a totally secularised existence far from Judaism. Although these last, too, do not constitute a guarantee for the survival of the State of Israel, they do not see Israeli citizenship denied to them because for Jewish law what counts is conversion to another religion and not the mere abandonment of faith.
Western development, as far as the role of tradition in the interpretation of rights goes, displays different configurations. To engage in a summarising analysis, resort to the facts of tradition appears to be less conscious and at times particularly selective. It was seen previously in Oasis how the history of the display of crucifixes in school class rooms and in public offices, in Germany and Italy, has had an especially troubled pathway. A strong dialectic between judges was installed which created profoundly divergent results. However, it is interesting to observe that in prevalently Protestant regions (such as northern Germany) the display of crucifixes was criticised at the level of doctrine and jurisprudence because it was said to constitute a profanation of the symbol itself. This did not happen in Catholic areas where the subject of profanation was almost ignored (Bavaria and Italy). The concrete case was analysed in the light of two different sensibilities which have a different conception of the structure of the temporal and spiritual spheres and even arrive at divergent results. The fact however is noteworthy that neither the Catholic world nor the Protestant world generally thought that their approach to the question was influenced by the prevalent tradition.
A more recent and delicate case is the matter of homosexual marriages. Undergoing expansion on both sides of the Atlantic, this is an institution pushed forward both by parliaments and governments and by judges. The ambiguity with which the Supreme Court of California introduced homosexual marriage, thereby modifying the existing law, is interesting. On the one hand, the Court stated that a heterogamic physiognomy was not in the least a constituent aspect of marriage but, rather, only a historical feature; on the other, it held that the already existing contract of partnership (which attributed to homosexual couples practically the same rights and duties as marriage) was insufficient for homosexuals because homosexual unions, on the principle of equality, must be able to form a part of the traditional institution of marriage. In essential terms, the Court altered the traditional features of marriage specifically in order to place homosexual unions within it: it did not break with tradition in order to liquidate it but in order to adapt it. The points made hitherto can help us to address, at least in part, the role of tradition in the Western and Middle-Eastern juridical worlds. Some aspects are without doubt shared. Indeed, tradition remains a fact that cannot be eliminated, and this in a dual sense. First of all, even the most innovative judges or the most reformist legislators cannot but begin from their own traditions: the German and Italian readings of the crucifix well illustrate the point. Secondly, it is an instrument with which legislators and judges inevitably have to come to terms in their respective activities. In the West homage to tradition forms the political agenda, directs legislators, and at times appears in the arguments of judges. In the Middle East and North Africa recourse to tradition even acts to support reforms.
Historically Achieved Solutions
However, above all in the West, jurisprudence and legislators tend to use the card of tradition in an uneven way. They seem to play it arbitrarily in order to brake the potentially disruptive implications of their own reforms. For example, it is not clear why, given the reasoning that it employs, the Supreme Court of California did not eliminate the notion of marriage in order to ferry all unions towards a uniform system of partnerships. The Court, to justify its choice, limited itself by invoking the social appeal of marriage which derives from its long history. At the level of doctrine those who criticise tradition at times argue that it is even necessary to take it into account – but only because it enjoys popular support.
Cass Sunstein, for example, believes that the only value of tradition lies in the valid solutions that it has achieved historically – in definitive terms it is useful for the good that it contains and not in itself. However, Sunstein in this way ascribes tradition to the past and portrays it as having an unchangeable physiognomy. He hopes only for gradual ruptures that do not encounter social disapproval and also maintain the good that has been produced hitherto. He seems in this way to fall into the Enlightenment temptation of separating value from what transmits it, conserving the wrapping solely because it is socially less compromising. Mary Ann Glendon, in contrary fashion, recognises that traditions have a much more active role: they are not only packets of pre-wrapped values but, rather, they have the capacity to reflect upon themselves and to improve. Traditions can renew themselves and not only break. They can bear upon reforms both because they provide them with popular support and, above all else, because they offer a suitable ideal reason: as happened, for that matter, in Tunisia and Morocco. However, this is not only an Arab-Islamic phenomenon. In the West, the blow against racial discrimination was linked to decidedly religious figures such as Martin Luther King, Malcolm X or Desmond Tutu: people who interpreted the profound vein of American or South African religiosity, re-launching it in a reformist key.
The use of tradition is not without distortions, naturally enough. At least in North Africa and the Middle East, it seems to be used in a rather piloted way: it becomes an ‘ace of spades’ that allows a manipulation of support and even of tradition itself for the purposes of power. An enlightening example comes from the Turkey of the early twentieth century, where the secular government established itself also thanks to the fatâwâ of Ankara against the old Ottoman regime. The manipulation of tradition, however, has not failed to touch the West. In Italy, at the time of the referendum on assisted fertilisation, those who were opposed to the position of the bishops even relied upon certain statements of St. Thomas Aquinas, attempting to break the link between the Christian population, those who lead it, and Catholic tradition. Albeit with analogies, one can perhaps identify a capital difference in the role of tradition in the West and the Middle East. In the first case it plays an important part which it is difficult to contextualise from a systematic point of view and one that at times applies a brake to reformist movements. In the second case, resort to tradition is more open and direct, but not for this reason is it necessarily more genuine.
Mary Ann Glendon, Tradizioni in subbuglio (Rubbettino, Soveria Mannelli, 2008).
Michael J. Perry, A Right to Religious Freedom? The Universality of Human Rights, The Relativity of Culture, «Roger Williams Law Review» 10 (2005), pp. 385-426.
Cass R. Sunstein, Designing Democracy: What Constitutions Do (Oxford University Press, Oxford, 2001).
Charles Taylor, A Secular Age (Harvard University Press, Cambridge, 2007).