Magazine article The American Conservative

Law Breaking

Magazine article The American Conservative

Law Breaking

Article excerpt

Untethered from tradition, ancient code becomes modern whim.

WHAT IS A GOOD secular liberal to do when unliberal behavior challenges liberal legal principles? As a recent court decision in Germany shows, liberalism loses.

A German court recently ruled that a Muslim woman could not obtain a speedy divorce on the grounds that her husband had abused her. The court ruled that because the couple is of Moroccan descent, and because supposedly "it is not unusual that the husband uses physical punishment against the wife" in that culture, such abuse was not proper grounds for a divorce under German law. That the wife had been born in Germany and the husband already had a restraining order against him for previous abuse were of no consequence.

The decision caused a predictable uproar, and the judge was removed from further participation in the case. She did not go quietly but issued a statement defending her ruling, suggesting that the husband could argue that his "honor was compromised" because his wife had adopted a more Western lifestyle and therefore, presumably, his abuse could be explained. The New York Times weighed in, assuring its readers that such abuse was not sanctioned by "mainstream Muslims" or the Koran, despite what the judge implied in her opinion. Indeed, shortly thereafter, the Times profiled a female Islamic scholar whose work centered on new translations of the very verses that some believe give warrant for such abuse. But the report on the case ultimately sounded an ambiguous tone. It noted that there have been a string of honor killings of Muslim women in Germany and that many women in similar cultural circumstances already fear going to court to protect themselves. In other words, it is unclear just how numerous or influential those "mainstream Muslims" are.

This ruling is just the most recent in a series of confrontations between European elites and the limitations of their worldview when confronted by a sincerely religious minority. As with other controversies, such as the recent French law concerning wearing headscarves and other religious clothing in school and the temporary decision, on security and other grounds, to cancel a Mozart opera in Berlin because of its depiction of the head of Muhammad, the judge's ruling tells us more about the death rattles of liberalism than the underlying disputes about Koranic injunctions or cultural traditions. These controversies illustrate that liberalism's proponents increasingly face the conclusion that it cannot fully explain or defend its premises outside its own cultural context, particularly that of the heritage of Christianity.

For a generation, liberal judges have been trained to treat all cultural practices as equal and are becoming more hard-pressed to defend the very law that gives them the authority to adjudicate disputes. In America, we have seen this (so far) to a lesser degree. The recent controversy over the Supreme Court's invocation of international law in Roper v. Simmons to strike down a deathpenalty statute and in the military-detainee Hamdan decision, however, give the flavor of what is to come. If no law or tradition is better than any other, and any source can be invoked to justify a judge's own preference, why defer to the Congress or stick to the language of the Constitution?

The German judge faced a dilemma: multicultural tolerance required that German law not intrude upon cultural practices that it in other circumstances would forbid, yet permitting them offends the liberal principle of equality. That conflict arises from the nature of contemporary liberalism itself because its main premises are simply infeasible in practice.

Since the 1970s, liberalism has been in a death spiral because it cannot reconcile its incompatible assumptions. First, there is an obsession with material equality in which a forced distribution of wealth and income, based on a notion of people separate from any shared heritage or tradition, is considered a prerequisite for a just society. …

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