Democracy's Full Circle of Hell
|The Dutch filmmaker Theo Van Gogh, victim of Islamic law as fanatics interpret it.
Islamic Law in the Netherlands?
Pierre Tristam/Candide's Notebooks, September 14, 2006
Dutch Justice Minister Piet Hein Donner says that if two-thirds of the population voted for Islamic law, or Sharia, democratically, then of course the Netherlands should adopt Islamic law. Reuters is reporting that the minister made the comments in a new book on Wednesday. Not quite. He made the comment during an interview about the book, which was released Wednesday. The book is called “Het land van haat en nijd,” or “The Land of Hate and Malice.” Donner’s actual comments: “It must be possible for Muslim groups to come to power [in the Netherlands] via democratic means. Every citizen may argue why the law should be changed, as long as he sticks to the law. It is a sure certainty for me: if two thirds of all Netherlanders tomorrow would want to introduce Sharia, then this possibility must exist. Could you block this legally? It would also be a scandal to say ‘this isn’t allowed!’ The majority counts. That is the essence of democracy.”
“It is a characteristic of Calvinism to hold moral principles too rigidly," Ian Buruma writes in his new book about the Netherlands' idea of tolerance ("Murder in Amsterdam: The Death of Theo van Gogh and the Limits of Tolerance"), "and this might be considered a vice as well as a virtue of the Dutch.” This little controversy about Donner's remarks should gove Buruma's book a nice boost. Of course, as we’ve learned from votes in Iraq, Palestine, Turkey and Algeria, the majority counts only until other powers decide that it doesn’t: if the majority elected an Islamic government in Turkey, the Turkish army would disallow the vote, Algerian style. Hamas won its election in Palestine fair and square, to no avail: it’s considered party non grata by the West. The issue Donner raises is more delicate and more pointed: Western democracies are drawn along principles that enable exactly what he claims, as long as the law is followed. If tomorrow America’s Baptists began a drive that got three-quarters of the states to ratify an amendment to the Constitution declaring the United States a Christian nation, they’d be fully in their right, however backward, to do so (as long as they managed as well to override the First Amendment). It wouldn’t be the first time the Constitution was used to ratify insanity. If Islamists began a drive that got three-quarters of the states to ratify an amendment to the Constitution declaring the United States an Islamic Republic, there’d be no difference (the only difference being that at the moment it’s the Baptists’ sort of Islamic Republic we’re heading toward, a republic no different in substance or regression from the one Islamists would impose, if they had their way). Democratically speaking though, there is no valid argument against such a “take-over.” The idea applies to religion as it does anything else, ideologies included (the same mechanism could be used tio declare the United States a Soviet state).
Before conservatives and reactionaries jump on their high horses, remember that Donner was echoing the thoughts of no less than Oliver Wendell Holmes who, in a letter to Felix Frankfurter in 1914, wrote: “I quite agree that a law should be called good if it reflects the will of the dominant force of the community even if it will take us to hell.” Eleven years later, Homles wrote a variation on the words in a famous dissent in Gitlow v. New York, the case where Benjamin Gitlow, a Socialist, was arrested for distributing pamphlets calling for the establishment of Socialism in the United States and the overthrow of the government by force if necessary. At his trial he claimed that he’d done nothing more than speak his mind. The case went all the way to the Supreme Court, which disagreed with Gitlow and upheld New York’s anti-subversion criminal-anarchy law and affirmed his conviction. Holmes (joined by Brandeis) was furious: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” How different are Holmes’s positions from Donner’s?
But that’s the wrong question today. The law is moving toward prosecuting thought, intentions, designs again, as opposed to action and consequences. The war on terror is bringing us right back to the 1920s, with a Supreme Court slowly shaping back to the very same ideologies that dominated the majority Holmes contended with. In Turkey, they use the army to subvert the law. Here (and presumably in the Netherlands), they use the law itself. Nevertheless, it’ll be fascinating to see how the debate evolves from Donner’s comments—and whether it’ll even be entertained in the United States beyond one-liners and Sean-Hannity-like reductionism.
Donner's comment has caused such a row that the government is considering an emergency session of parliament. Donners for his part tried to explain: “People are trying to put the words in my mouth, saying I am in favor of introducing Sharia law but that is not the case,” he was saying late Wednesday evening. But this is an age neither of reason nor nuance.