Professor, School of Law, University of Reading
Member since June 23, 2016
No worries at all -- I hope that the roundtable has been productive and informative for all participants. this will likely be my last email until tomorrow morning as I am off to give a lecture this evening, and my ability to type lengthy messages on my phone has significantly decreased since being forced to leave (my beloved) Blackberry and move to an android phone!
I think that you have raised two points that really are the flipside of the same coin -- the interrelationship between law and politics. On the one hand, laws and legal mechanisms are being deployed owing to the refusal or failure to use political methods to address state involvement in terrorism. On the other hand, states may well choose not to engage with the legal mechanisms and laws, depending on their political ability and willingness to take such a route. And of course all actors involved know the political and legal games being played.
This, of course, goes back to the central question asked by many law scholars -- is international law anything more than politics? Of course it is, but the degree to which it is law as understood through a national lens is debatable.
Going to your points about friends and allies in terms of counter-terrorism, how do you think this might affect the relationship between the US and key allies? Or indeed between other friends and allies should other countries follow suit and enact similar legislation? If trust is such a crucial component (another topic that I find fascinating in terms of research undertaken by psychologist and philosophers) then what is the effect of laws and policies of this type?
Also, I am willing to show my ignorance on these matters in order to delve deeper into the counter-terrorism aspects -- what is the Five Eyes Agreement?
Good morning, Fiona
Thank you for that latest email, and particularly for the Obama quote that succinctly summarises many of the key issues. I do think that the US will be exposed to even more liabilities for 'the work' it does around the world, even if those court cases are symbolic and unenforceable. Of course, the US has paid money to victims of drone strikes and other unintended consequences of its 'work' around the world, and by doing so has accepted some liability or responsibility. There are many people who feel strongly that the US ought to be held accountable, legally and/or politically, and perhaps JASTA will lead to similar legislation elsewhere that will provide for 'lawfare' cases (ones brought for advocacy or political purposes rather than because there is any hope of winning or enforcing them).
Oh, Fiona, the more that we email the gloomier I feel about the whole 'walking-off-a-bridge-with-eyes-closed' car crash that is looming if Trump gains power through this election.
Just tidying up my emails and getting ready for the weekend. I think we have covered more ground about the elections in these emails than I have done in countless face-to-face conversations over recent months. There is little doubt that we will both be up all night watching the results on 8th November, and I hope we will continue these discussions by email or Twitter on that night.
For now, fingers and toes are crossed that the polls start to swing in Clinton's direction. The remainder of my day will be spent keeping a close eye on the UN Human Rights Council, where the erosion of international human rights law has picked up significant pace over the past 12 months. From one area of doom-and-gloom to another, but thus is the life that we have chosen in our respective fields of research and expertise!
Thank you for the informative and intelligent discussion, for the very interesting links to articles, and for being willing to engage on some tricky and delicate issues.
All the very best from a rather sunny London.
Good morning, Fiona. I hope that you slept well.
I do not think that you were being overly dramatic about Donald Trump. The thought of him being in such a powerful position fills many of us with dread. But the scary thing is that when the media expose his lies, his moral bankruptcy, his financial mismanagement, and more, many within the American public simply do not believe it. Perhaps no-one within either party thought that he would get this far, and so it was too little too late in terms of exposing his awful traits and awful policies.
Perhaps we can talk about some of those policies. For me, the worst are his claims that he will build a wall between the US and Mexico (and then send a bill to Mexico to pay for the construction), that he will deport all Muslims, that he will further reduce access to abortions and to reproductive health, and that he will pull out yet more oil and gas in the US (presumably at least partly through fracking). Then again, he changes his policies frequently, and even those that are on his official website mostly are so vague that it is near-impossible to understand how they will be implemented.
Clinton's policies, on the other hand, are pretty standard, and it is clear the directions in which she wants to move in relation to key areas. But of course, coverage of policies is not sexy enough for soundbite TV. It was striking that I heard less about the candidates' policies when I was in North America earlier this month than when I have been home in the UK. Yet there was back-to-back coverage of the elections, as though nothing else was going on in the world. It is remarkable that even after the debate on Monday most of the discussions have been about personalities not policies.
I know this is moving away from discussions yesterday, but that is what happens when I sleep on things! What are your thoughts on the meat of what they are both offering? From your perspective and expertise on security and on constitutionalism, how do the candidates' policies shape up?
Hope it is a good one there
Ah, but Prof, the nature of our relationship always has been me asking you for predictions because you do know the right answers. I would call you Mystic Egg, if I was not so scared of your scoldy reaction!
So much of the Brexit debate across the media has been distilled into (a) economics and (b) nationalism. Do you think there are any other key factors in play? (My vote had little to do with either of those factors, but then again I do tend to march to the beat of my own drum too frequently.)
I agree that Brexit offers no solutions. But what does 'remain' offer? In universities, it is clear that we will be poorer (not just financially) if Article 50 is triggered. But who else will suffer other than the intelligensia and the financial services industry? Have we yet made the case -- culturally, politically, and in other ways -- for remaining in the European Union? We are struggling to do so, as are the Germans, the French, and the Italians, let alone the newer members in Eastern Europe. The economy and/or the threat of another Cold War are not sufficient to convince many people that it is worth their while to remain part of the EU. So, Oracle, what can we do?
Yours, as ever
Eric, one of the great joys of engaging with you is that your interest in and understanding of the world, language skills, and intellectual abilities combine to provide holistic insights that are sorely lacking elsewhere. (No, I am not about to ask you for a favour -- for once I am being complimentary simply because it is the truth.)
There are many points that I want to pick up on, and perhaps we will return to some of them later, but I shall start with your last paragraph...
Many people in the UK voted to leave (only a few more than voted to remain, but still a large number nonetheless). Since that vote the lack of transparency has infuriated the Brexiteers as much as the rest of us. If we do not end up leaving, whether because the whole thing fizzles out or because a few minor changes are made to our current relationship with the EU, what will happen to those voices? Do we push them further into Marine LePen-style nationalism? We should remember that there are people from every walk of life who voted to leave.
The House of Lords committee point is also interesting. Of course, the referendum was not legally binding, but does that mean it can be ignored altogether? If so, why didn't we just ignore it from the moment that (call-me-Dave) Cameron fell on his sword? Or why did we even bother in the first place?
It is a glorious morning here, and I am tempted to go out for a walk while the sun is shining. Looking forward to reading your response when I return.
Thank you for your good wishes, Prof. I am looking out of my window across a beautiful, leafy campus, and feel very excited about the new job.
I agree that for some a ban does not help, as it forces those women who choose to wear the banned item either to remain hidden at home or to break the law when leaving their homes. But that is true of all bans -- people have to make choices when something is banned. Governments bring bans into effect to protect society or individuals from potential harms (from speed limits to banned substances and beyond), and while those bans may cause some controversy we largely accept that some level of regulation is required in order not to return to Hobbes' state of nature. (Incidentally, it was you who taught me about Hobbes and Mill many years ago...)
The question is whether the burkini or full veils or other religious attire causes harm, to society or to individuals. There is a part of me -- the feminist, perhaps -- that does see how banning certain practices can effect change in the way that men 'more-or-less coercively dictate[d] their wives', daughters', sisters' or mothers' apparel in countless cultural contexts'. Banning Female Genital Mutilation, or child marriage, or removal of children from schools under a certain age, have all played a significant part in that process.
Hi Rosa -- On these points I'd recommend a well-mellowed Shiraz or Chardonnay. Nothing too acidic.
I'm taking a 'purely' secular point of view. It's the only one a secular
democracy under the rule of law can coherently take, whatever its
traditions or majority culture may be.
democracies have well-established rules of "reasonable accommodation"
that are perfectly plausible. An employer will certainly have no
for going out of its way to frustrate religious practices beyond what is
required for the job. Ultimately, however, the qualifier 'reasonable'
gives the game away -- that infinitely malleable standard will
inevitably depend on particular contexts and circumstances. To stray
further is to subvert democratic foundations: Do we count all 'religions'? Or only religions that are sufficiently established (but
then what does that mean?) or with enough adherents
-- but then how many? What counts as a religion? Who decides what a
religion requires? A democratic state has no competence, and ought neither
to seek nor to claim any competence in deciding those matters. What it
therefore maintains is a power to determine reasonable accommodation,
even if it means that some must indeed choose between their faith and
their preferred employment.
Again, on France, I
agree that regulations outside spaces of state administration claim no
obvious justification and the norm of laïcité ends up invoked with
great rhetorical flourish but little substantive force.
I know many will resent the analogy, but a choice in favour of the burka is like a choice in favour of sexual slavery or sexual masochism. Yet people do make such choices. As long as all parties concerned exercise free, informed, adult discretion and inflict no harm on a non-consenting party, a secular state can have no plausible grounds for impeding the choice. Assuming no family or community coercion, a woman donning a burka is certainly exercising an individual choice, but the sheer fact that a woman exercises an individual choice in no way means she is eo ipso exercising a feminist choice -- no more than everything gays choose are gay choices, no more than everything Christians choose are Christian choices, no more than everything Marxists choose are Marxist choices; no more than everything ethical philosophers choose are ethical choices, and so forth.