The Bottom up Journey of “Defamation of Religion” from Muslim States to the United Nations: A Case Study of the Migration of Anti-Constitutional Ideas

• Published date: 03 August 2011
• Pages: 121-211
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000056008
• Date: 03 August 2011
• Author: Robert C. Blitt

THE BOTTOM UP JOURNEY OF

‘‘DEFAMATION OF RELIGION’’

FROM MUSLIM STATES TO

THE UNITED NATIONS: A CASE

STUDY OF THE MIGRATION OF

ANTI-CONSTITUTIONAL IDEAS

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Robert C. Blitt

ABSTRACT

This chapter is intended to elaborate on the existing academic literature

addressing the migration of constitutional ideas. Through an examination

of ongoing efforts to enshrine ‘‘defamation of religion’’ as a violation of

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This chapter is based on presentations made at the America Association of Law Schools 2010

annual meeting, as a guest of the Faculty Scholarship Roundtable Series at John Marshall Law

School, and as a guest at Marquette University Law School. I am indebted to Austin Sarat for

his patience, and extend thanks to Ben Clarke from the University of Notre Dame Australia as

well as to the anonymous external reviewer, both of whom provided insightful and helpful

comments on an earlier draft. I am also indebted to the University of Tennessee College of Law

for a summer grant that supported a signif‌icant amount of the research conducted for this

project, to Professor Gary Pulsinelli for his insight into copyright law, and to Jenny Tang for

her editorial assistance. The chapter is dedicated with love to Idan Eli.

Special Issue: Human Rights: New Possibilities/New Problems

Studies in Law, Politics, and Society, Volume 56, 121–211

Copyright r2011 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000056008

121

international human rights, the author conf‌irms that the phenomenon of

migration is not restricted to positive constitutional norms, but rather also

encompasses negative ideas that ultimately may serve to undermine

international and domestic constitutionalism. More specif‌ically, the case

study demonstrates that the movement of anti-constitutional ideas is not

restricted to the domain of ‘‘international security’’ law, and further, that

the vertical axis linking international and domestic law is in fact a two-

way channel that permits the transmission of domestic anti-constitutional

ideas up to the international level.

In reaching the f‌indings presented herein, the chapter also adds to

the universalism–relativism debate by demonstrating that allowances

for ‘‘plurality consciousness’’ on the international level may in certain

instances undermine fundamental norms previously negotiated and

accepted as authoritative by the international community. From this

perspective, the movement in favor of prohibiting ‘‘defamation of religion’’

is not merely a case study that helps to expand our understanding of how

anti-constitutional ideas migrate, but also indicative of a reenergized

campaign to challenge the status, content, and stability of universal human

rights norms.

INTRODUCTION

The study of how and why legal norms move from one jurisdiction to

another continues to generate much attention and controversy. Whether

borrowed, bricolaged, transplanted, transmitted, or migrated, ‘‘foreign’’

legal norms have gravitated or been actively pulled into the orbit of various

states around the globe for hundreds if not thousands of years. The constant

evolution and ref‌inement of the associated theories and terms applied to

identify and describe this movement testify to the desire for an overarching

framework while betraying the academic uncertainty achieved to date (see,

e.g., Langer, 2004;Teubner, 1998; and discussion below). For the most

part, academic writing has focused on positive examples of norm exchange

(see, e.g., Slaughter, 2000; Kommers, 2002) or has taken a value-neutral

approach (see, e.g., Watson, 1993) with regard to the content of norms being

transmitted. Yet, alongside the promise of benevolent ideas traversing long

distances and potentially transcending various cultural and political

systems lies a parallel story less told. This is ref‌lected in the movement of

ROBERT C. BLITT122

anti-constitutional ideas that operate in practice to restrict the currently

recognized panoply of human rights principles.

Applying the recent scholarship of Sujit Choudhry and others to an

analysis of the international movement in favor of prohibiting ‘‘defamation

of religion,’’ this chapter suggests that a modest corollary to the theory of

‘‘migration of constitutional ideas’’ is advisable. In the f‌irst instance, the

effort by a coalition of states to harness the force of international law to

secure what amounts to a ban on blasphemy conf‌irms Choudhry’s position

that the phenomenon of migration is not restricted to positive ideas ad-

vancing constitutionalism, but may in fact encompass deleterious norms as

well. However, this case study also signals that the existing understanding of

migration theory requires elaboration: First, it illustrates that the movement

of anti-constitutional ideas is not restricted to the domain of ‘‘international

security’’ law. And second, it demonstrates that the vertical axis linking

international and domestic law is in fact open to two-way traff‌ic that allows

for the transmission of domestic anti-constitutional ideas from the bottom

up to the international level, rather than only in a top-down manner.

This chapter also adds to the universalism–relativism debate by dem-

onstrating that allowances for ‘‘plurality consciousness’’ (Menski, 2006)and

‘‘equal discursive dignity’’ (Baxi, 2003, p. 50) in reshaping existing

international human rights law may sometimes operate to undermine norms

previously negotiated and accepted as authoritative by the international

community. In the context of entertaining a prohibition on defamation of

religion, an approach based on ‘‘plurality consciousness’’ may result in the

perverse outcome of eliminating plurality in practice. From this standpoint,

examining the effort to outlaw ‘‘defamation of religion’’ not only expands our

understanding of how anti-constitutional ideas migrate but also harbingers

an energized campaign to challenge the status, content, and stability of

universal human rights norms. Accordingly, the phenomenon of defamation

of religion deserves a concerted and clear response by all actors committed to

upholding long-standing and universal individual rights including freedom

of expression and freedom of thought, conscience, and religion or belief.

The section that follows introduces the debate over approaches to

comparativism and the study of how legal norms – specif‌ically constitutional

norms – pass from one jurisdiction to another. This survey highlights the

recent scholarship around migration of constitutional ideas, emphasizing

the theory’s openness for identifying anti-constitutional ideas. With this

theoretical framework in place, the third section focuses on the origins of

‘‘defamation of religion’’ and the problems associated with municipal

enforcement of blasphemy offenses. The fourth section addresses how the

A Case Study of the Migration of Anti-Constitutional Ideas 123