S074808142000020Xjra 250..269 the limits of liberal inclusivity: how defining islamophobia normalizes anti-muslim racism rebecca ruth gould Professor, Islamic World and Comparative Literature, University of Birmingham abstract Responding to recent calls made within the UK Parliament for a government-backed deni- tion of Islamophobia, this article considers the unanticipated consequences of such propos- als. I argue that, considered in the context of related efforts to regulate hate speech, the formulation and implementation of a government-sponsored denition will generate unfore- seen harms for the Muslim community. To the extent that such a denition will fail to address the government’s role in propagating Islamophobia through ill-considered legisla- tion that conates Islamist discourse with hate speech, the concept of a government-backed denition of Islamophobia appears hypocritical and untenable. Alongside opposing govern- ment attempts to dene Islamophobia (and Islam), I argue that advocacy efforts should instead focus on disambiguating government counterterrorism initiatives from the govern- ment management of controversies within Islam. Instead of repeating the mistakes of the governmental adoption of the International Holocaust Remembrance Alliance (IHRA)’s denition of antisemitism by promoting a new denition of Islamophobia, we ought to learn from the errors that were made. We should resist the gratuitous securitization of Muslim communities, rather than use such denitions to normalize compliance with the surveillance state. KEYWORDS: Islamophobia, Islam, British Muslims, hate speech, free speech, regulation, racism, terrorism, ideology, politics of language On April 23, 2018, the All-Party Parliamentary Group on British Muslims (APPG on British Muslims) issued a call for evidence “to facilitate the adoption of a working denition of Islamophobia that can be widely accepted by Muslim communities, political parties, and the Government.”1 In between this call and the release of the report, the mandate switched from a call for a “working denition” into a call for a “legally binding” one.2 In both the United Kingdom and the United States, political mobilization for such a denition is growing, particularly among Muslim advocacy organizations. Although no government agency has adopted any such 1 All-Party Group on British Muslims (@APPGBritMuslims), Twitter, April 23, 2018, 12:29 p.m., https://twitter.com/ APPGBritMuslims/status/988454757084909568. The call was circulated only via Twitter; it was not disseminated elsewhere, either online or in print. 2 All-Party Parliamentary Group on British Muslims [hereafter APPG on British Muslims], Islamophobia Dened: Reporting on the Inquiry into a Working Denition of Islamophobia, 2018, 1–72, 27, https://static1.squarespace. com/static/599c3d2febbd1a90cffdd8a9/t/5bfd1ea3352f531a6170ceee/1543315109493/Islamophobia+Dened.pdf. Journal of Law and Religion 35, no. 2 (2020): 250–269 © The Author(s), 2020. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University doi:10.1017/jlr.2020.20 250 journal of law and religion of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms https://orcid.org/0000-0002-2198-5406 https://twitter.com/APPGBritMuslims/status/988454757084909568 https://twitter.com/APPGBritMuslims/status/988454757084909568 https://twitter.com/APPGBritMuslims/status/988454757084909568 https://static1.squarespace.com/static/599c3d2febbd1a90cffdd8a9/t/5bfd1ea3352f531a6170ceee/1543315109493/Islamophobia+Defined.pdf https://static1.squarespace.com/static/599c3d2febbd1a90cffdd8a9/t/5bfd1ea3352f531a6170ceee/1543315109493/Islamophobia+Defined.pdf https://static1.squarespace.com/static/599c3d2febbd1a90cffdd8a9/t/5bfd1ea3352f531a6170ceee/1543315109493/Islamophobia+Defined.pdf https://crossmark.crossref.org/dialog?doi=10.1017/jlr.2020.20&domain=pdf https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core denition, UK political parties have.3 Many formulas for dening Islamophobia have been pro- posed. These include “the presumption that Islam is inherently violent, alien, and inassimilable”4 and that it is “an ideology similar in theory, function and purpose to racism . . . that sustains and perpetuates negatively evaluated meaning about Muslims and Islam.”5 Most recently, Islamophobia Dened, the report that resulted from the APPG on British Muslims’ Islamophobia inquiry, has proposed the following denition: “Islamophobia is rooted in racism and is a type of racism that targets expressions of Muslimness or perceived Muslimness.”6 Finally, another approach, closer to the spirit of this article yet less frequently engaged by main- stream media, identies “the state, and more specically the sprawling ofcial ‘counter-terrorism’ apparatus” as “absolutely central to the production of contemporary Islamophobia—the backbone of anti-Muslim racism.”7 This reading, which emerges from “Critical Muslim Studies,” holds that “Islamophobia can perhaps be dened as the disciplining of Muslims by reference to an antagonis- tic Western horizon.”8 In the face of such momentum, I suggest here that well-intentioned efforts to develop a legally binding denition suitable for governmental adoption may have the negative effect of bringing Muslims further under governmental surveillance. Past government efforts to regulate speech tar- geting other minorities and religions indicate that a governmental decision to back a denition of Islamophobia with the coercive force of the law will do more harm than good, to Muslims spec- ically, and for society generally. Finally, and most crucially, I argue that the adoption of such denitions on behalf of any religion or minority group for the purpose of censorship compromises a state’s democratic legitimacy.9 By way of elucidating the intersection between anti-Muslim racism and the policing of contro- versial speech, I consider here the relationship between government-led efforts to protect vulnerable minorities and government-led efforts to persecute them (which also involves viewing them as inherently suspect and placing Islamic discourse under disproportionate scrutiny). I examine how these two agendas, incompatible as they appear on the surface, actually reinforce each other. Beyond considering the mutual reciprocity of efforts to ban Islamophobia and to heighten govern- ment surveillance of Muslim communities, I also consider their convergence in post-9/11 liberal democracies such as the United Kingdom. None of the proposals for a governmental denition of Islamophobia that have been aired to date have taken account of the lessons that should have been learned from the government’s ill- fated adoption of the International Holocaust Remembrance Alliance’s (IHRA) denition of 3 The APPG on British Muslims’ denition of Islamophobia was adopted by the UK Labour Party and the Liberal Democrats in March 2019. See Frances Perraudin, “Labour Formally Adopts Denition of Islamophobia,” Guardian, March 20, 2019, https://www.theguardian.com/politics/2019/mar/20/labour-formally-adopts-denition- islamophobia. 4 Khaled A. Beydoun, “Islamophobia: Toward a Legal Denition and Framework,” Columbia Law Review Online 116 (2016): 108–25, at 111, https://columbialawreview.org/wp-content/uploads/2016/11/November-2016-11- Beydoun.pdf. 5 Chris Allen, Islamophobia (Farnham: Ashgate, 2010), 190. 6 APPG on British Muslims, Islamophobia Dened, 11. 7 Narzanin Massoumi, Tom Mills, and David Miller, “Islamophobia, Social Movements and the State: For a Movement-Centred Approach,” in What is Islamophobia? Racism, Social Movements and the State, ed. Narzanin Massoumi, Tom Mills, and David Miller (London: Pluto Press, 2017), 3–32, at 8. 8 Salman Sayyid, “Out of the Devil’s Dictionary,” in Thinking through Islamophobia: Global Perspectives, ed. Salman Sayyid and Abdool Karim Vakil (London: Hurst & Company, 2010), 5–18, at 15. 9 This aspect further develops arguments rst articulated in Rebecca Ruth Gould, “Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy,” Jurisprudence 10, no. 2 (2019): 171–87. the limits of liberal inclusivity journal of law and religion 251 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.theguardian.com/politics/2019/mar/20/labour-formally-adopts-definition-islamophobia https://www.theguardian.com/politics/2019/mar/20/labour-formally-adopts-definition-islamophobia https://www.theguardian.com/politics/2019/mar/20/labour-formally-adopts-definition-islamophobia https://columbialawreview.org/wp-content/uploads/2016/11/November-2016-11-Beydoun.pdf https://columbialawreview.org/wp-content/uploads/2016/11/November-2016-11-Beydoun.pdf https://columbialawreview.org/wp-content/uploads/2016/11/November-2016-11-Beydoun.pdf https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core antisemitism in 2016. Yet the problems with such denitions and with their application become more apparent with every censorious exclusion of Israel critics from the public sphere.10 My past work documenting the harms of censoring Israel-critical speech following the government’s adoption of the IHRA’s denition has led me to regard the campaign for a government-backed denition of Islamophobia with reservations.11 The example of the adoption of the IHRA denition shows how government-sponsored censorship inevitably undermines the ght against racism while marginalizing dissidents and further entrenching the boundaries of permissible speech. I outline in these pages why and how such denitions pose a greater threat to civil liberties than appears at rst sight, and scrutinize the (mostly unexamined) assumption that legal denitions pro- tect the communities they are intended to benet. I begin by discussing the problem intrinsic to dening a religious tradition as internally diverse as Islam, and consider the risk that homogenizing denitions pose to Muslims in a pluralistic society. I then turn to the anti-democratic implications of censoring speech, and examine the government’s contradictory position in this regard. I conclude by suggesting more effective means through which the government can combat racism and Islamophobia and promote equality for Muslims within Muslim-minority societies. Among the most pressing, yet most obscured, issues in the debate around dening Islamophobia for legal purposes is how the government’s “sifting of Muslims” transpires amid “a highly securi- tised discourse around Islam.”12 Proposals underway to adopt a government-supported denition of Islamophobia in order to facilitate the criminalization of anti-Muslim speech risk normalizing this securitized discourse under the guise of protecting Muslims. There are many reasons to support efforts to dene Islamophobia for the purpose of critiquing (in contrast to banning) public dis- course, provided we resist falling into “the trap of regarding Islam monolithically.”13 More danger- ous and less helpful are efforts to give any such denition government backing, or otherwise aligning an adopted denition with the coercive force of the law. When it uses a denition of Islamophobia to facilitate the censorship of Islamophobic speech, the state adopts the mantle of dening Islam while evading the most injurious and impactful type of Islamophobia: that fostered by the government itself, through a range of securitizing policies, most notoriously in the UK con- text, Prevent (legislation introduced in 2006 as part of a wider counterterrorism strategy and updated in 2015 in section 26 of the Counter-Terrorism and Security Act). While denitions can be useful in identifying harms, when used to silence controversial speech, government-backed denitions undermine democratic governance. A democratic state, I argue, must uncompromisingly uphold the citizen’s free speech prerogative rather than engage in the invidious task of dening Islam. Since pluralistic democracy ought not to police the boundaries of Islam, it therefore also 10 Anshuman Mondal’s documentation of the uneven attention given by government to antisemitic as compared to Islamophobic speech sheds light on some of these issues. See Anshuman A. Mondal, “The Shape of Free Speech: Rethinking Liberal Free Speech Theory,” Continuum 32, no. 4 (2018): 503–17. 11 Rebecca Ruth Gould, “Legal Form and Legal Legitimacy: The IHRA Denition of Antisemitism as a Case Study in Censored Speech,” Law, Culture and the Humanities, published ahead of print, August 18, 2018, https://doi.org/ 10.1177/1743872118780660; Rebecca Ruth Gould, “The IHRA Denition of Palestinians: Dening Antisemitism by Erasing Palestinians,” Political Quarterly, published ahead of print, July 28, 2020, https://doi.org/10.1111/ 1467-923X.12883. 12 “If We Want to Stop Islamophobia, We Have to Challenge the Laws that Enable It,” (blog post), CAGE, November 22, 2018, https://www.cage.ngo/if-we-want-to-stop-islamophobia-we-have-to-challenge-the-laws-that- enable-it. 13 Mohammad H. Tamdgidi, “Beyond Islamophobia and Islamophilia as Western Epistemic Racisms: Revisiting Runnymede Trust’s Denition in a World-History Context,” Islamophobia Studies Journal 1, no. 1 (2012): 54–81, at 76. rebecca ruth gould 252 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://doi.org/10.1177/1743872118780660 https://doi.org/10.1177/1743872118780660 https://doi.org/10.1177/1743872118780660 https://doi.org/10.1111/1467-923X.12883 https://doi.org/10.1111/1467-923X.12883 https://www.cage.ngo/if-we-want-to-stop-islamophobia-we-have-to-challenge-the-laws-that-enable-it https://www.cage.ngo/if-we-want-to-stop-islamophobia-we-have-to-challenge-the-laws-that-enable-it https://www.cage.ngo/if-we-want-to-stop-islamophobia-we-have-to-challenge-the-laws-that-enable-it https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core ought not to give its backing to any denition of Islamophobia that presupposes a denition of Islam. Instead, it should actively oppose anti-Muslim racism, and refrain from targeting Muslims as racial, cultural, and religious others. pluralism, free speech, democracy Before arguing that a denition of Islamophobia is inconsistent with pluralistic democratic legiti- macy, it is necessary to unpack these concepts. I do so in what follows by examining how two specic theorists—Chantal Mouffe and Eric Heinze—reconcile the mandate of free speech with lib- eral democracy. I focus on Mouffe and Heinze because they usefully straddle a range of different political positions. Both, notably, are critics of political liberalism. Equally, their shared interest in agonistic deliberation as a foundation for democracy illustrates how an emphasis on free speech can promote rather than suppress minority rights. In her political theory of democracy, Mouffe introduces the concept of agonistic pluralism as an alternative to the liberalisms of John Rawls and Jürgen Habermas. Although pluralism is widely recognized as normative within modern political theory, this concept has a foundational status for Mouffe, who understands it is as the “dening feature of modern democracy.”14 Mouffe argues that pluralism is constitutive of contemporary democracy. For Mouffe, a state is either plural, in the sense of being comprised of individuals with conicting aims, backgrounds, and beliefs, and hence democratic, or it is not a democracy at all. Mouffe further rejects a model of democracy (entailed to her mind in both Rawlsian and Habermasian liberalism) that makes differences among citizens politically irrelevant by relegating areas of potential conict to the “sphere of the private.” Mouffe’s account of democracy reinforces Rainer Bauböck’s claim that “the question of who must be included as a citizen in order to achieve democratic legitimacy cannot itself be answered by democratic decision.”15 Bauböck and Mouffe together help us understand the entangled rela- tionship between pluralism and democracy. On Mouffe’s account, a state populated by like-minded citizens who follow the same creed will be unable to sustain democratic legitimacy because it would lack the necessary difference that makes deliberation possible. This is the case even when free speech is nominally enshrined in law. Mouffe’s concept of agonistic pluralism is thus both consti- tutive of democracy and prior to it. Mouffe views her project of agonistic pluralism as radical because it questions “the objective of unanimity and homogeneity, which is always revealed as ctitious and based on acts of exclu- sion.”16 Yet at the same time, the pluralism Mouffe values so highly is given at least nominal rec- ognition in generalized terms in most contemporary liberal democratic states. Few democratic theorists reject pluralism, or argue for its diminution. The major challenge within democratic polit- ical theory is to maximize pluralism without compromising state security, or citizens’ right to equal representation. Mouffe’s concept of agonistic pluralism is premised on the existence of protest, for an agonistic public sphere requires that opposing viewpoints can be freely expressed, in public forums and through all modes of public discourse. Thus, while liberal democratic theorists may encourage pluralism, Mouffe makes clear that pluralism without active dissent is democratically empty. Although Mouffe does not single out free speech as a condition for her concept of 14 Chantal Mouffe, The Democratic Paradox (London: Verso, 2000), 19. 15 Rainer Bauböck, “Global Justice, Freedom of Movement and Democratic Citizenship,” European Journal of Sociology 50, no. 1 (2009): 1–31, at 16. 16 Mouffe, The Democratic Paradox, 19. the limits of liberal inclusivity journal of law and religion 253 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core democracy, the right to dissent is a type of freedom of expression, a fact that highlights the impor- tance of free speech for Mouffe’s agonistic pluralism. The link between free speech and democratic legitimacy is more forcefully outlined by legal the- orist Eric Heinze, who considers free speech to be constitutive of democracy in much the same way that Mouffe understands pluralism to be its condition of possibility. Heinze argues that the citizen’s prerogative of free public expression is the only distinctively democratic value, from which all other democratic values derive, including voting rights. As Heinze writes, “Voting remains derivative of something more foundational, something constitutive of it. It derives from, as a formalized proce- dure for, expression within public discourse,” more simply termed free speech.17 He reasons that the “non-viewpoint punitive expression within public discourse” is “even more primordial than voting”; it “cannot legitimately be regulated for the sake of democracy because it signally consti- tutes democracy.”18 While Mouffe and Heinze consider the forms of democracy they endorse to be emergent rather than established, both thinkers insist on the foundational status of their favored concept, and argue that democracy cannot be conceptualized apart from it. In this article, I draw on the insights of Mouffe regarding pluralism and Heinze regarding free speech, while also broadening their implications. I link both approaches in an effort to develop a solid foundation for pluralist democratic legitimacy that does not use government-backed deni- tions of racism to censor controversial (or even racist) speech. In a society wherein everyone thinks the same way, follows the same religion, or adheres to the same ideology, free speech might have symbolic meaning, but it would lack political value due to the absence of public disagreement. Under such hypothetical conditions, freedom of expression is reduced to a mere ornament of civility rather than the foundation of political existence. A state can easily uphold the citizen’s prerogative of free expression when all citizens agree with each other. The proposed denitions of Islamophobia and antisemitism present a radically different scenario: they bring into focus ineluctable differences that cannot be rationalized away through enlightened deliberation. Although it comes under greater stress the more diverse society becomes, a state’s ability to uphold free speech in a pluralistic context is sine qua non for its democratic legitimacy. A state acquires democratic legitimacy by maximizing the scope for political difference through fostering pluralist norms. Such a state must also permit forms of public discourse that challenge its existence and legitimacy. Further, it must permit forms of public discourse that challenge its pluralist commitments, including the bigotries of xeno- phobic discourse. Hateful speech (more commonly called “hate speech”) has increasingly become a battleground for democratic legitimacy in pluralistic societies.19 The harms that are associated with such speech have often been used to justify the suppression of controversial or offensive speech. Adapting and broadening the frameworks offered by Mouffe and Heinze, I here examine hateful speech pertain- ing to Muslims and involving stereotypes of Islam in an effort to scrutinize the implications for democratic legitimacy of legally suppressing such speech. While hateful speech is often adjudicated 17 Eric Heinze, Hate Speech and Democratic Citizenship (Oxford: Oxford University Press, 2016), 47. 18 Heinze, Hate Speech and Democratic Citizenship, 47 (emphasis added). 19 As noted by Katharine Gelber, the use of “hate” to index hate speech is problematic because “it implies that the dening feature of hate speech is virulent dislike of a person for any reason.” Katharine Gelber, “Hate Speech— Denitions and Empirical Evidence,” Constitutional Commentary 32, no. 3 (2017): 619–29, at 627. Gelber else- where notes that “the use of the term ‘hate’ to categorise ‘hate speech’ . . . implies that any expression of antipathy or dislike towards any target is substantively the core of the phenomenon.” Katharine Gelber, “Incitement to Hatred and Countering Terrorism: Policy Confusion in the UK and Australia,” Parliamentary Affairs 71, no. 1 (2018): 28–49, at 31n3. I take these reservations further by forming a copula that ensures that “hate” is not treated separately from “speech.” rebecca ruth gould 254 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core in the abstract, anti-Muslim racism has a unique place in the hate speech debate, due to its unfor- tunate ubiquity across Europe, North America, and Oceania. However the question is examined, the role of the state in shaping public opinion and in fostering hateful speech must never escape scrutiny. Whether or not we adopt the premises of Mouffe and Heinze, their shared focus on the role of agonistic deliberation in constituting democracy offers a means of reconceptualizing free speech such that its exercise promotes rather than suppresses minority rights. defining and countering hateful speech Is dening racism effective in countering hateful speech? Central to the function of denitions is boundary creation, the policing of the borders of what is and is not permissible and the exclusion of that which is deemed impermissible. Inevitably, government sponsored denitions will silence those who disagree with its mandates. The question then to pose is to what extent does this inhibit democratic deliberation, and what level of inhibition is good for democracy? The recent political turbulence and occasional censorship attending the adoption of a denition of antisemitism on which the denition of Islamophobia is explicitly based illustrates in amplitude the dangers of government-backed denitions. On December 12, 2016, the United Kingdom became one of the rst governments in the world to formally adopt a controversial denition of antisemitism proposed by the IHRA, which is an intergovernmental body founded in 1998 to “strengthen, advance, and promote Holocaust educa- tion, remembrance, and research worldwide.”20 Neither the denition nor the process of its adop- tion was subjected to parliamentary scrutiny (arguably a key criteria for democratic legitimacy). Along with the denition’s contentious content, these procedural failures have contributed to numerous ongoing violations of freedom of expression. The cancellation of events seen as poten- tially offensive to supporters of Israel, inquiries into controversial social media postings, and cen- soring of publications by academics on the topic of Israel/Palestine are just some of the more measurable ways in which the debate around Israeli policies has been constrained by the deni- tion.21 Amid these censorious acts, few voices have spoken out in defense of freedom of expression. Most institutions and most individuals in positions of authority have not hesitated to compromise on free speech when under pressure to conform to the government’s convoluted policy. Among the problematic aspects of the IHRA’s denition is its presumptive stigmatization of views on Israel that are not necessarily motivated by racial animus. Marked by a clear political slant, the IHRA’s denition in effect excludes many Jewish points of view, especially those that are distant from or hostile to Zionism. While many critiques of this denition have been aired in recent years, its lessons for the comparative study of group-specic denitions of racism have been undertheorized. One lesson we can take from this example while deliberating on a denition of Islamophobia is that the tensions that have emerged in connection with the IHRA denition are 20 “IHRA 2020 Ministerial Declaration Adopted in Brussels,” International Holocaust Remembrance Alliance, January 19, 2020, https://www.holocaustremembrance.com/press-releases/ihra-2020-ministerial-declaration- adopted-brussels. 21 The fullest legal engagement with this document to date has been Hugh Tomlinson, “In the Matter of the Adoption and Potential Application of the International Holocaust Remembrance Alliance Working Denition of Anti-Semitism,” Free Speech on Israel, March 8, 2017, https://freespeechonisrael.org.uk/ihra-opinion/#sthash. kft5TkDo.dpbs. See also Sir Stephen Sedley, “Dening Anti-Semitism,” London Review of Books, May 4, 2017, 8. the limits of liberal inclusivity journal of law and religion 255 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.holocaustremembrance.com/press-releases/ihra-2020-ministerial-declaration-adopted-brussels https://www.holocaustremembrance.com/press-releases/ihra-2020-ministerial-declaration-adopted-brussels https://www.holocaustremembrance.com/press-releases/ihra-2020-ministerial-declaration-adopted-brussels https://freespeechonisrael.org.uk/ihra-opinion/%23sthash.kft5TkDo.dpbs https://freespeechonisrael.org.uk/ihra-opinion/%23sthash.kft5TkDo.dpbs https://freespeechonisrael.org.uk/ihra-opinion/%23sthash.kft5TkDo.dpbs https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core likely to appear in connection with any group-specic denition of racism. Such denitions are use- ful only when they address the systematic structures and social norms within which such bigotry is normalized. Dismantling the processes through which racial and religious hatred is constituted will neutralize the power of prejudice more effectively than any act of banning can achieve. Having examined the politics of denitions from the point of view of their implications for dem- ocratic governance, I offer an immanent critique of recent efforts to dene Islamophobia that is informed by the history of Muslim integration into Muslim-minority societies. As noted above, any legal denition begins by considering the role of the state in dening its object. Muslim scholars such as Abdullahi Ahmed An-Na‘im have argued that the very idea of an Islamic state is a contra- diction in terms, because a genuinely Islamic understanding of the state cannot be assimilated into modern bureaucratic structures.22 Legal scholar Wael Hallaq has developed this argument further. Hallaq criticizes the projection of the nation-state onto classical Islamic political formations. In Hallaq’s view, “any conception of a modern Islamic state is inherently self-contradictory.”23 An-Na‘im’s argument has helped scholars challenge the postures adopted by regimes such as Saudi Arabia and Iran, which commit human rights violations while claiming to represent a certain kind of Islam. Hallaq’s argument concerning the impossibility of achieving Islamic governance is explicitly made with reference to modern theories of the state. In Hallaq’s view, “modern forms of globalization and the position of the state in the ever increasing intensity of these forms are sufcient to render any brand of Islamic governance either impossible or, if possible, incapable of survival in the long run.”24 While these arguments have been inuential within Islamic Studies, less attention has been given to how the impossibility of Islamic governance pertains to the internal logic of secular European states seeking to represent the political prerogatives of their Muslim citizens. As Hallaq maintains, “for Muslims today to seek the adoption of the modern state system of separation of powers is to bargain for a deal inferior to the one they secured for themselves over the centuries of their history.”25 In con- trast to the sharı ̄ʿa in its historical meaning, which “did not—because it was not designed to—serve the ruler or any form of political power,” the modern state can only serve itself.26 Hallaq recognizes contemporary nation-based sovereignty as a state’s primary mechanism of self-preservation and, by implication, as the means through which the state surveils its citizens. Democratic legitimacy requires that all citizens be represented in lawmaking. It entails, above all, consent, however mediated. For a government act to be legitimate, there must be a plausible basis for assuming that the procedure from which the action arises was consented to by those most directly affected by it, and that they have opportunities to meaningfully contest the laws they are expected to obey.27 In order to be legitimate, a governmental denition of Islamophobia would need to be able to reasonably claim to represent all Muslim citizens within this denition. The het- erogeneous constitution of the modern pluralist state makes such representation impossible. In con- sequence, any governmental denition of Islam (or of Islamophobia) would be illegitimate because 22 Abdullahi Ahmed An-Na‘im, Islam and the Secular State: Negotiating the Future of Shariʿa (Cambridge, MA: Harvard University Press, 2008). An-Na‘im’s argument is also developed in his Carl Heinrich Becker Lecture. Abdullahi Ahmed An-Na‘im, “Shari’a and the Secular State in the Middle East and Europe,” in Carl Heinrich Becker Lecture der Fritz Thyssen Stiftung 2009 (Berlin: Fritz Thyssen Stiftung, 2009), 105–40. 23 Wael Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), xi. 24 Hallaq, The Impossible State, xiii. 25 Hallaq, 72. 26 Hallaq, 72. 27 For one statement of this position from a free speech perspective see James Weinstein, “Hate Speech Bans, Democracy, and Political Legitimacy,” Constitutional Commentary 32, no. 3 (2017): 527–83. rebecca ruth gould 256 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core the criteria imposed by representation and consent in order to attain to legitimacy are impossible to satisfy in a pluralistic state. In Islamophobia Dened, the APPG on British Muslims advocates for a government-backed denition on the grounds that “[a]dopting a denition of Islamophobia not only identies a wide- spread phenomenon, but sends a positive message to all those communities and individuals who suffer from it.”28 The report’s call for a “legally binding denition,” suggests that the benets of “identifying a widespread phenomenon” and “sending a positive message” were deemed to out- weigh the dangers registered in these pages.29 Yet the report does not consider how, in dening a group as vulnerable, and in enshrining that group’s characteristics in law, the state further increases that group’s vulnerability by placing it under more extensive surveillance. Not all Muslim groups in the United Kingdom have welcomed the reifying inuence of a gov- ernmental denition. Among the most outspoken and articulate of the groups who have raised nec- essary yet—for the government—uncomfortable questions is CAGE. CAGE describes itself as “an independent advocacy organisation working to empower communities impacted by the War on Terror.”30 In responding to the APPG on British Muslims’ call for evidence, CAGE argued that the government’s use of counterinsurgency methods and tactics to treat the “wider [Muslim] pop- ulation as an enabler and supporter of insurgency and terrorism” illustrates how “institutionalised Islamophobia is linked to the erosion of the rule of law.”31 Overall, CAGE’s substantive and detailed response to the call for evidence effectively exposes what they refer to as the “strong stench of Islamophobia” in British government policies relative to Muslims.32 In its response to the APPG on British Muslims’ report, CAGE noted that the “War on Terror” has ushered in “a raft of counter-terrorism legislation . . . and policies such as PREVENT, which reinforce securitised narratives about Islam, and compel public sector workers to implement a dis- criminatory approach to Muslims, which has seen children as young as four criminalised.”33 From the viewpoint of CAGE, governmental efforts to dene Islamophobia are best treated with skepti- cism as long as the more basic structural phobias introduced by the War on Terror remain unad- dressed. Asim Qureshi, research director of CAGE, was quoted as stating in response to the report, “If the denition of Islamophobia cannot hold those in power to account for their role in manufac- turing Islamophobia, then it is inadequate.”34 Unsurprisingly, although CAGE submitted written evidence to the APPG on British Muslims as part of its Islamophobia inquiry, CAGE’s evidence was not engaged with or referenced in the report. Any assessment of a democracy’s success in protecting minority groups—and thereby in uphold- ing its pluralist mandate—must consider how government involvement affects those on the margins of the protected group as well as those within that group’s mainstream. We should also ask whether all members of the protected group can reasonably—even if only potentially—be understood to 28 APPG on British Muslims, Islamophobia Dened, 32. 29 The call for a “legally binding denition” is repeated in APPG on British Muslims, Islamophobia Dened, 17, 30, 32, 42, 43, although the precise type of legal obligation envisioned is never reected on. 30 “About Us: Striving for a World Free of Injustice,” CAGE, accessed May 8, 2020, https://www.cage.ngo/about-us. 31 CAGE, “CAGE Response to a Call for Evidence on a ‘Working Denition of Islamophobia/Anti-Muslim Hatred’” (London: CAGE, 2018), 9, https://www.cage.ngo/wp-content/uploads/2018/06/CAGE-Response-to-‘Working- Denition-of-Islamophobia_Anti-Muslim-hatred.pdf. 32 CAGE, “CAGE Response to a Call for Evidence,” 9. 33 CAGE, “If We Want to Stop Islamophobia.” 34 CAGE, “Discussions around the Denitions of Islamophobia Skirt the Real Issues We Need to Address,” Press release, November 29, 2018, https://www.cage.ngo/discussions-around-the-denitions-of-islamophobia-skirt-the- real-issues-we-need-to-address. the limits of liberal inclusivity journal of law and religion 257 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cage.ngo/about-us https://www.cage.ngo/about-us https://www.cage.ngo/wp-content/uploads/2018/06/CAGE-Response-to-‘Working-Definition-of-Islamophobia_Anti-Muslim-hatred.pdf https://www.cage.ngo/wp-content/uploads/2018/06/CAGE-Response-to-‘Working-Definition-of-Islamophobia_Anti-Muslim-hatred.pdf https://www.cage.ngo/wp-content/uploads/2018/06/CAGE-Response-to-‘Working-Definition-of-Islamophobia_Anti-Muslim-hatred.pdf https://www.cage.ngo/discussions-around-the-definitions-of-islamophobia-skirt-the-real-issues-we-need-to-address https://www.cage.ngo/discussions-around-the-definitions-of-islamophobia-skirt-the-real-issues-we-need-to-address https://www.cage.ngo/discussions-around-the-definitions-of-islamophobia-skirt-the-real-issues-we-need-to-address https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core have consented to be dened in the way presupposed by the denition. Race and gender-based dis- crimination are readily identiable on grounds that are relatively (if not absolutely) easy to specify. Hateful discourse that targets more amorphously constituted groups, for which membership is determined by a system of beliefs, pose greater challenges to the state’s aspiration to democratic legitimacy. A pluralistic democracy must oppose racism, but it must also avoid censoring purely discursive speech. Legal theorist Ronald Dworkin helpfully distinguishes between downstream laws, that target hate crimes, and upstream laws, that target hate speech.35 Jeremy Waldron further develops this distinction, while drawing a conclusion the opposite of my own as regards hate speech. While downstream laws in Dworkin’s formulation are “enacted” by the political process, upstream laws “affect” the political process.36 Were the proposed governmental denition of Islamophobia to be ratied as law (as the APPG on British Muslims’ report advocates), it would necessarily be in the form of an upstream law that, in the words of Jeremy Weinstein, could “poten- tially annihilate the legitimacy of downstream antidiscrimination laws.”37 As such, identitarian group-based denitions of racism pose unique challenges to most accounts of pluralistic democratic representation. Although they differ both as regards their internal logic and substantive content, both the deni- tion of Islamophobia that has been recommended for adoption and the adopted denition of anti- semitism share a classication that is both excessively broad (in that they extend to ideational characteristics, belief systems, and political alliances) and excessively narrow (in that they exclude members of the community whose views may not match up with the denition). Democratic legit- imacy is violated in both respects. Chris Allen, a scholar of hate studies who has written prolically on Islamophobia, and who served as a member of an earlier iteration of the APPG on British Muslims, the cross-government Anti-Muslim Hatred Working Group, has proposed to dene Islamophobia as an ideology “similar in theory, function and purpose to racism.”38 As does CAGE, critical race theorist Khaled Beydoun recognizes the role of government policies in fostering Islamophobia. Beydoun even incorporates governmental complicity into his denition of Islamophobia as an attitude “rooted in understand- ings of Islam as civilization’s antithesis and perpetuated by government structures and private cit- izens.”39 He also goes beyond the APPG on British Muslims report in examining the intersection of Islamophobia and the War on Terror.40 However, Beydoun’s contribution to the denition of Islamophobia is constrained by his failure to address the issue of free speech directly, by a conation of the attitudinal (“Islam as civilization’s antithesis”) with the infrastructural (“government struc- tures”), and by an inadequate contextualization of Islamophobia within a more structural account of anti-Muslim racism. 35 Ronald Dworkin, foreword to Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein (Oxford: Oxford University Press, 2009), v–ix. For a more extended discussion of this distinction as it relates to hate crime and hate speech, see Gould, “Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime?” 36 Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012). 37 Weinstein, “Hate Speech Bans,” 532. Given that pluralism is as foundational for democracy as the citizen’s pre- rogative of dissent, I do not follow Weinstein in making the legitimacy of antidiscrimination laws conditional on the absence of speech regulation. I do, however, agree that the undemocratic implementation of upstream laws potentially impugns the legitimacy of downstream laws. 38 Allen, Islamophobia, 190. 39 Beydoun, “Islamophobia,” 111. 40 Khaled A. Beydoun, “War on Terror, War on Muslims,” in American Islamophobia: Understanding the Roots and Rise of Fear (Oakland: University of California Press, 2018), 92–124. rebecca ruth gould 258 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core Having discussed the proposed governmental denition of Islamophobia from the standpoint of democratic legitimacy, the second half of this article will develop an epistemological account of the limitations of governmental denitions of group-specic bigotry. Denitions developed by believers to describe and dene themselves are intrinsic. They acquire legitimacy simply through usage. Governmental denitions ought to be subject to different criteria. They are extrinsic, and are intended to dene others in a certain way for others. The legitimacy of extrinsic denitions, by con- trast with intrinsic ones, is undermined when they infringe on the rights of others. Every believer is entitled to dene themselves and their religion as they see t; occasionally, a pluralist state must dene religious communities for instrumental ends. The two types of denitions should not be conated. Because there can be no transhistorically valid extrinsic denition of a religion, it follows that there can be no transhistorically valid extrinsic denition of animosity toward specic religious communities. Within any pluralistic democratic state, legal denitions of religion (like those of ide- ologies that oppose them) will always carry signicant risks and potentially negative consequences, for adherents of those religions, particularly on its fringes, or whose afliation is otherwise contested. As the APPG on British Muslims’ Islamophobia report illustrates, the exclusivity of group- specic denitions is further exacerbated when the government becomes involved. The number of Muslim groups excluded through this report is striking, as is the negative pressure faced by APPG members in prior years for associating with Muslim groups deemed to lie beyond the pale of mainstream Islam. At one point in her advocacy on this issue, MP Anna Soubry, who later co-authored the Islamophobia report, cut her ties with Muslim Engagement and Development (MEND), a group that has ghting Islamophobia as its primary mission, because, as she explained to the press, it did not “have the best of reputations.”41 Such media-driven exclusions reveal struc- tural problems of representation within the law as well as within democracy. While any denition of racism may have heuristic value by encouraging or stigmatizing certain discursive norms, when used as instruments of coercion, and aligned with the force of the law, group-specic denitions of racism may inhibit the development of an egalitarian ethos in relation to the groups targeted for protection. Denitions erect borders around concepts that otherwise overlap. While the borders they create impart cognitive coherence, the identities they capture undergo simplication when they are constrained to t narrow denitions. Religions in particular confound most reasonable attempts at denition. The three major Abrahamic religions—Judaism, Christianity, and Islam—each admit of such diversity in doctrinal and other realms, that all efforts at denition are bound to be contested, by gatekeepers and by dissenters. Historically, monotheistic religions have often embraced exclusive denitions, but pluralist states are compromised by such border policing of identities. While aspects of each of these religions can be captured within the pluralist state, the selection process—which considers some characteristics more relevant than others, and denes groups according to these values—is necessarily hierarchical, political, and affected by bias. From a pluralistic and democratic perspective, religions can be thickly characterized; they cannot be comprehensively dened. To the extent that we dene religions by contrasting them with what 41 Quoted in Iram Ramzan and Andrew Gilligan, “MPs Ditch Meeting with Muslim Group Mend over Islamist Claims,” Times, October 29, 2017, https://www.thetimes.co.uk/article/mps-ditch-meeting-with-muslim-group- mend-over-islamist-claims-rgxqn0s05. Further background is provided in a report by the Henry Jackson Society, which has the clear aim of discrediting MEND. Tom Wilson, MEND: “Islamists Masquerading as Civil Libertarians” (London: Henry Jackson Society, 2017), http://henryjacksonsociety.org/wp-content/uploads/ 2017/10/HJS-Mend-Report.pdf. the limits of liberal inclusivity journal of law and religion 259 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.thetimes.co.uk/article/mps-ditch-meeting-with-muslim-group-mend-over-islamist-claims-rgxqn0s05 https://www.thetimes.co.uk/article/mps-ditch-meeting-with-muslim-group-mend-over-islamist-claims-rgxqn0s05 https://www.thetimes.co.uk/article/mps-ditch-meeting-with-muslim-group-mend-over-islamist-claims-rgxqn0s05 http://henryjacksonsociety.org/wp-content/uploads/2017/10/HJS-Mend-Report.pdf http://henryjacksonsociety.org/wp-content/uploads/2017/10/HJS-Mend-Report.pdf http://henryjacksonsociety.org/wp-content/uploads/2017/10/HJS-Mend-Report.pdf https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core they are not, we are engaging in theology, not legal or political reason. No extrinsic verbal formu- lation—whether a simple sentence or a book-length report—can denitively capture what it means to identify as Jewish, Christian, or Muslim (or to belong to any other religion). In each case, the range of valid meanings exceeds the scope of any denition. We might more usefully aim for what Clifford Geertz has described as “thick description” in the context of ethnographic eldwork than aspire to generate nalizing denitions for legal ends.42 While individuals may align with specic political ideologies, the ascription of a religion to indi- viduals automatically xes our sense of the communities to which they belong, the identities to which they can lay claim, and the activities they may engage in. Believers may seek self-denition for the purposes of clarifying their faith. No pluralist state, however, can dene religions for every- one, for legal ends, without undermining its democratic legitimacy. It may be objected that a range of pluralist non-Western states, including a range of Islamic empires, did formalize denitions of the religions that operated within their polity (for example, through the Ottoman concept of millet, reli- gious community, or the broader Islamic concept of ahl al-dhimma, protected people). Notably, however, such restrictive denitions were conned to minority religions, not to Islam; their net effect was to reify the communities under consideration. Even when the negative consequences of such reication were not always in evidence, they remained a perpetual possibility and a source of anxiety. Also worth noting is how this denitional framework created a basis for discrimination against non-Islamic religions, which then, as now, was justied under the rubric of “protection.” From the premise that a pluralist democracy cannot denitively dene religions, it follows that bigotry against members of a religion should be prosecuted as a hate crime when it involves oth- erwise criminal violence or destruction to a person or property based on the characteristics associ- ated with members of a religion. There is also scope for criminalizing anti-religious bigotry in the context of anti-discrimination legislation.43 To the extent that they pertain to material harms, nei- ther hate crime nor anti-discrimination legislation need infringe on freedom of expression. But when bigotry is expressed purely discursively because it is grounded in racist stereotypes and relies on ctions concerning the object of contempt, any justication for its censorship is inherently sub- jective. The specic content of bigotry’s fabrication is incidental to its denition; if it conforms to an identiable pattern that is both predictable and devoid of evidence, it is reasonable to describe that attitude as bigoted, regardless of the object of its animus. Such an approach counters a tendency to identify the source of bigotry in the victim by recognizing the origin of the prejudice in the bigot. By permitting hateful speech that does not result in material harms, a pluralistic democracy can reveal how bigoted discourse is disconnected from reality and thereby sever any perceived link with the ostensible target of animus more effectively than it might by criminalizing such expression. The above pertains to bigotry against people perceived to belong to certain races. But what of hostility toward religions? We can arrive at a plausible denition of such hostility only through a workable and widely accepted denition of what Islam (or Judaism or Christianity) is. Here the problems begin. For a pluralistic democracy cannot dene a religion. Yet any denition of 42 Clifford Geertz, “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973), 3–30. This point is further developed in Rebecca Ruth Gould, “Does Dening Racism Help Overcome It? Thick Descriptions in Lieu of Thin Denitions,” in Antisemitism, Islamophobia, and the Politics of Denition, ed. David Feldman and Marc Volovici (London: Palgrave MacMillan, forthcoming). 43 For a discussion of how hate crime legislation can be used to oppose anti-Muslim racism, see Jason A. Abel, “Americans under Attack: The Need for Federal Hate Crime Legislation in Light of Post-September 11 Attacks on Arab Americans and Muslims,” Asian American Law Journal, no. 12 (2005): 41–66. rebecca ruth gould 260 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core Islamophobia presupposes a denition of Islam. While believers may dene these concepts in the ways that make the most sense to them, the moment the state becomes involved in mandating or even preferring certain denitions over others is the moment when a government-backed denition of Islamophobia begins to pose a threat not only to free speech but also to freedom for Muslims within that state to dene themselves as they choose. Here we see how free speech violations threaten pluralistic legitimacy and vice-versa. Such maneuverings limit the autonomy of individual Muslims, particularly in Muslim-minority societies such as the United Kingdom, to dene Islam for themselves and on their own terms. They also compel such individuals to align with specic Muslim groups and specic versions of Islam. regulating islam In order to illustrate how a denition of Islamophobia could be harmful to Muslims, below I exam- ine the recent history of governmental efforts to counter Islamophobia within the United Kingdom. The APPG on British Muslims was formed in July 2017, with the aim of informing “Parliament and parliamentarians of . . . the aspirations and challenges of British Muslim communities” and of investigating “the forms, manifestations and extent of prejudice, discrimination and hatred against Muslims in the UK.”44 Although the APPG on British Muslims is not solely focused on dening Islamophobia, this is a large part of its mandate. This group has been haunted by denitional ambi- guity from its inception. Following public pressure, six MPs afliated with the APPG on British Muslims abruptly cancelled their plans to attend an Islamophobia Awareness event sponsored by MEND on the grounds that the group did not “have the best of reputations,” as quoted above.45 The earlier All-Party Parliamentary Group on Islamophobia was also derailed because of its afliation with this same group (when it was called iENGAGE).46 The basis for the MP’s recusal remains obscure. News reports suggest that it was linked to Tom Wilson’s report for the Henry Jackson Society, MEND: “Islamists Masquerading as Civil Libertarians.” The society describes the report as “demonstrate[ing] that MEND meets the Government’s own denition of extremism—even while local authorities, police, teachers and MPs have been working with the organisation.”47 Moreover, according to the report (which is strikingly hostile toward its subject), “Mend [sic] and its employees and volunteers have on numer- ous occasions attacked liberal Muslim groups and Muslims engaged in counter-extremism, and on occasion, Mend volunteers have expressed intolerance towards other Muslim denominations.”48 The terms highlighted here reveal a pronounced tendency to police the boundaries of Islam, such that only “liberal” Muslim groups that reject “intolerance” and support “counter-extremism” are deemed worthy of support. Pluralistic democratic legitimacy requires a much more inclusive approach than that proposed by the Henry Jackson Society and apparently internalized by the APPG on British Muslims. A pluralistic democracy will inevitably include among its members 44 House of Commons [United Kingdom], Register of All-Party Parliamentary Groups [as at 28 September 2017], https://publications.parliament.uk/pa/cm/cmallparty/170928/british-muslims.htm. 45 For a detailed account see Chris Allen, A Momentous Occasion: A Report on the All Party Parliamentary Group on Islamophobia and its Secretariat (Birmingham: Institute of Applied Social Studies, 2011), http://conservative home.blogs.com/les/appgislamophobia-allen-2011-2.pdf. For a summary of Allen’s prolic work on Islamophobia and a discussion of the denition, see Allen, Islamophobia, 187–92. 46 Allen, A Momentous Occasion, 21–23. 47 Wilson, MEND. 48 Wilson, MEND, 81 (emphasis added). the limits of liberal inclusivity journal of law and religion 261 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://publications.parliament.uk/pa/cm/cmallparty/170928/british-muslims.htm https://publications.parliament.uk/pa/cm/cmallparty/170928/british-muslims.htm http://conservativehome.blogs.com/files/appgislamophobia-allen-2011-2.pdf http://conservativehome.blogs.com/files/appgislamophobia-allen-2011-2.pdf http://conservativehome.blogs.com/files/appgislamophobia-allen-2011-2.pdf https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core individuals who are neither liberal nor tolerant, yet whose speech is as deserving of protection as anyone else. The internal differences given in Wilson’s report as a reason for the government to distance itself from MEND illustrate why a democratic state should refrain from endorsing any denition of Islamophobia that would legitimate one specic Muslim group while delegitimizing others. Within a pluralist democracy, the authority to address internal differences within Islam is best left to Muslims themselves. According to this standard, a government that intervenes in such affairs by refusing to align with certain groups on reputational grounds and in response to media pressure is made less democratic by virtue of such intervention. The government’s adoption of the IHRA denition provides ample evidence concerning how government involvement in dening prejudice against a religious community can work to that community’s detriment. Many Jewish organiza- tions and Jewish individuals have voiced their opposition to the IHRA denition, even as their objections have gone ignored, by the conservative-leaning Board of Jewish Deputies, which spear- headed the IHRA adoption and, following their lead, the government itself.49 Whatever their purportedly extremist views, MEND has a legitimate place within the Muslim community. To prefer a “liberal” Muslim group over a group guilty of “intolerance” (to borrow the language of Wilson’s report) is to propagate a “good” versus “bad” Muslim paradigm that fur- ther entrenches the securitization matrix that is implicated in the production of Islamophobia.50 Private groups are entitled to divide Islam in this way, just as other groups and individuals are enti- tled to disagree with such divisions, but a pluralistic government has no such entitlement. The report by the APPG on British Muslims itself curiously evades any serious discussion of sectarian- ism within Islam, simply asserting, “it would be misleading to interpret Islamophobia as a tool that can capture, together with the issues of racialisation, issues of sectarianism.”51 This caveat is unten- able, however, because once Islam is dened by a denition of Islamophobia, sectarian divisions inevitably follow. Given her role within the APPG on British Muslims, Soubry’s decision to sever ties with MEND is a sectarian gesture, however it was intended. Soubry is within her rights as a private citizen to decide which Muslim groups to afliate with or distance herself from, just as the Henry Jackson Society is legally permitted to publicly denounce MEND within a pluralistic democracy. But when the state chooses sides, as any denition of Islam or Islamophobia would compel it to do, it also necessarily excludes many Muslims. Beyond what it reveals concerning alliances between government and certain special groups—in this case with the Henry Jackson Society and against MEND—this exclusion illustrates broader dynamics. The problem here is not rooted in the specic groups that a state aligns with or disavows; rather it is tied to the very principle of selectivity from the point of view of pluralistic democratic legitimacy. A democracy that endorses freedom of expression and which supports Islam in terms appropriate for a pluralistic state must refrain from elevating certain types of Islam over others. Contrary to then prime minister David Cameron’s insistence that the government would “actively encourage the reforming and moderate Muslim voices,”52 within British society while refusing to 49 At least three UK Jewish groups have been outspoken in their opposition to the IHRA denition: Free Speech on Israel, the Jewish Socialists Group, and Jewdas. 50 For further on this pattern within Islamophobic thought, see Mahmood Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (New York: Three Leaves Press, 2005). 51 APPG on British Muslims, Islamophobia Dened, 41. 52 David Cameron, “Extremism” (speech, Ninestiles School, Birmingham, UK, July 20, 2015), https://www.independent. co.uk/news/uk/politics/david-cameron-extremism-speech-read-the-transcript-in-full-10401948.html. Cameron deliv- ered this speech prior to the government’s introduction of enhanced Prevent legislation. rebecca ruth gould 262 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.independent.co.uk/news/uk/politics/david-cameron-extremism-speech-read-the-transcript-in-full-10401948.html https://www.independent.co.uk/news/uk/politics/david-cameron-extremism-speech-read-the-transcript-in-full-10401948.html https://www.independent.co.uk/news/uk/politics/david-cameron-extremism-speech-read-the-transcript-in-full-10401948.html https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core engage with “extremist groups and individuals,” a pluralistic democracy must not simply cater to liberal Islam, or to Islam that avoids extremism and reects British values. Viewpoint-punitive expression on the part of the government constrains Islam rather than allowing it to ourish on its own terms, as a pluralistic democracy must do. While government neutrality on all issues is nei- ther possible nor desirable, pluralist democracy lives and dies according to its ability to maintain government neutrality toward religion. Two approaches are inevitably brought into conict by UK governmental efforts to regulate and protect Islam. In the rst instance, the state endorses certain kinds of Islam over others in an effort to assimilate Islam to British cultural norms, and to continue the War on Terror. The APPG on British Muslims declares its support for this agenda specically regarding the curtailment of the citi- zen’s prerogative of free expression when it states, “qualications to the exercise of free speech abound . . . for example, in counter-terrorism legislation, including statements that encourage, either intention- ally or recklessly, the commission of terrorist acts and which ‘glorify’ acts of terrorism.”53 In the second instance, the British state claims to protect Muslims whom it surveils by proposing to criminalize Islamophobia, notwithstanding the state’s own substantial contributions to this form of bigotry. While CAGE’s public statements cited above have exposed the government’s contradictory stance, aca- demic specialists of Islamophobia have had curiously little to say concerning the hypocrisy of liberal states that claim to protect Islam while also criminalizing its departures from liberal norms on the grounds of securitization. The tension between these two views is evident in Soubry’s call for a deni- tion of Islamophobia, as well as in the stances of Muslim organizations, including the Muslim Council of Britain, asking the government to formally endorse denitions that stigmatize certain Muslims. A denitional framework leads us to focus on Islam as a religion, when it would be more pro- ductive to focus on anti-Muslim racism (in the case of discrimination) and on violence directed against Muslims (in the case of hate crimes) and on neutralizing the discursive and material power of such expressions of bigotry. The denitional framework situates the legal system within a victim-blaming epistemology, whereby any offense against a religious community is turned into an occasion for scrutinizing this community, often in the name of its protection. When sympathetic politicians engage in such scrutiny, it may appear favorable and intended to reinforce Islam’s pos- itive qualities. It would be a mistake, however, to take comfort in the simulated benevolence of the neo-liberal state. Even David Cameron had positive words for Islam in his paternalistic 2015 speech on extremism that set the stage for future government policy on British Muslims, including Prevent. As I have argued here, regardless of how such a rapprochement might appear to support the inte- gration of Muslims into European societies, it can be harmful to Muslims minorities in the long run, particularly when the same agencies mandated to protect Islam disproportionately surveil Muslims, even while categorizing Islam as a religion they must protect. making islamophobia attractive Having discussed how a governmental denition of Islamophobia would compromise democratic legitimacy and place Muslim communities under further surveillance, I now consider how the potential harms of hate speech regulations limit efforts to challenge and oppose racism. A 2006 article by Mark Steyn, “The Future Belongs to Islam,” published in the Canadian magazine 53 APPG on British Muslims, Islamophobia, 37. the limits of liberal inclusivity journal of law and religion 263 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core Maclean’s offers a case in point.54 The article became the subject of a complaint to the Canadian Human Rights Commission led by the Canadian Islamic Congress. Steyn made a series of claims that, in the words of the commission, were “obviously calculated to excite discussion and even offend certain readers, Muslim and non-Muslim alike.”55 No less disturbing than the article is the complaint against it, which qualies the complainant as someone who is empowered to com- plain “on behalf of all Muslim residents of British Columbia,” notwithstanding that, as founder of the Canadian Islamic Congress, he has no such representative status according to any Islamic institution or tradition.56 Lacking any clear community mandate, the Canadian Islamic Conference was dissolved in 2014, yet it presented itself to the Canadian Human Rights Commission as the authorized representative of all Muslims. As among British Muslims, in which context, in the words of Kenan Malik, “what is deemed an ‘offence to a community’ refers in reality to debates within communities,” this case exemplies the basic challenge of communal representation in the democratic pluralist state.57 No individual Muslim can legitimately complain “on behalf of all Muslim residents,” any more than can individ- ual Christians or Jews, or women or men, complain on behalf of the communities to which their identities are attached. In fact, Islam as a religious system provides even less support for identity- based understandings of representation due to its decentralized structures of authority: there is no priesthood or clerical class, let alone a pope licensed to speak ex cathedra. The fact that, in order to exonerate Steyn’s article, the Canadian Human Rights Commission had to determine that “the views expressed . . . when considered as a whole and in context, are not of an extreme nature, as dened by the Supreme Court”58 testies to the compromises with democratic legitimacy entailed in Canadian hate-speech legislation. Although on this occasion the commission chose to uphold the citizen’s prerogative of free expression, the commission’s reasoning and procedures remain problematic. Far from protecting controversial speech, this precedent creates a legal justi- cation for future attempts to censor materials deemed to be “of an extreme nature,” and addition- ally resonates with the United Kingdom’s subsequent approach to policing forms of Islam deemed to be “extremist” from the point of view of the counterterrorism matrix. Although the Canadian Human Rights Commission ultimately ruled against the complainer, damage was done, both to the cause of freedom of expression and to the cause of freedom to prac- tice religion. It is difcult to demonstrate harm in the case of speech suppression because the damage is often not expressed in material form. Yet, it is clear that the Canadian Islamic Conference might instead have concentrated their legal advocacy work on the actual disenfranchise- ment of Muslims, and on their persecution by government agencies and the security state brought 54 Mark Steyn, “The Future Belongs to Islam,” MacLean’s, October 20, 2006, https://www.macleans.ca/culture/the- future-belongs-to-islam/. 55 Canadian Islamic Congress v. Rogers Media Inc., at 4 (Canadian Human Rights Commission, June 25, 2008), quoted in “Human Rights Complaint against Maclean’s Dismissed,” Globe and Mail, June 28, 2008, https:// www.theglobeandmail.com/news/national/human-rights-complaint-against-macleans-dismissed/article18452636/. Although the decision was widely reported and quoted in the Canadian press and law blogs at the time, the unpub- lished decision is no longer publicly accessible. 56 Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378, at ii, 1, http://bccla.org/wp- content/uploads/2012/03/2008-BCCLA-Argument-Elmasry-Decision.pdf (accessed October 14, 2019). 57 Kenan Malik, “Fear, Indifference and Engagement: Rethinking the Challenge of Anti-Muslim Bigotry,” in Islamophobia: Still a Challenge for Us All, ed. Farah Elahi and Omar Khan (London: Runnymede Trust, 2017), 73–77, at 74, https://www.runnymedetrust.org/uploads/Islamophobia%20Report%202018%20FINAL. pdf. 58 Canadian Islamic Congress v. Rogers Media Inc., quoted in “Human Rights Complaint against Maclean’s Dismissed.” rebecca ruth gould 264 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.macleans.ca/culture/the-future-belongs-to-islam/ https://www.macleans.ca/culture/the-future-belongs-to-islam/ https://www.macleans.ca/culture/the-future-belongs-to-islam/ https://www.theglobeandmail.com/news/national/human-rights-complaint-against-macleans-dismissed/article18452636/ https://www.theglobeandmail.com/news/national/human-rights-complaint-against-macleans-dismissed/article18452636/ https://www.theglobeandmail.com/news/national/human-rights-complaint-against-macleans-dismissed/article18452636/ http://bccla.org/wp-content/uploads/2012/03/2008-BCCLA-Argument-Elmasry-Decision.pdf http://bccla.org/wp-content/uploads/2012/03/2008-BCCLA-Argument-Elmasry-Decision.pdf http://bccla.org/wp-content/uploads/2012/03/2008-BCCLA-Argument-Elmasry-Decision.pdf https://www.runnymedetrust.org/uploads/Islamophobia%20Report%202018%20FINAL.pdf https://www.runnymedetrust.org/uploads/Islamophobia%20Report%202018%20FINAL.pdf https://www.runnymedetrust.org/uploads/Islamophobia%20Report%202018%20FINAL.pdf https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core about by the transnational War on Terror. Such cases of misdirected advocacy in the name of pro- tecting Islam suggest that the mobilization by some Muslim organizations in favor of governmental denitions of Islamophobia is in fact an admission of weakness and an endorsement of Muslims’ subordinate status within Muslim-minority states. Muslim organizations that promote the criminalization of hateful Islamophobic speech often do this as part of a trade-off that involves ignoring the harms done to Muslim citizens by the War on Terror. They are willing to tacitly permit surveillance by the government in exchange for the gov- ernment’s commitment to penalize those who make statements deemed offensive to Islam. Such a trade-off is undemocratic, as well as a dangerous bargain from a Muslim point of view, which may well undermine their security over the long term. Ironically, the trade-off calls to mind the manage- ment of religious minorities in early Islamic empires, wherein non-Muslims (Christians, Jews, Zoroastrians) were granted limited rights as long as they agreed to follow restrictive behavioral and dress codes, and to refrain from blaspheming Islam.59 In a more contemporary context, the impulse to dene religious difference calls to mind Kenan Malik’s characterization of the neoliberal state as one that manages diversity by “putting individuals from minority communities into partic- ular ethnic and cultural boxes, dening needs and aspirations by virtue of the boxes into which peo- ple are put, and allowing the boxes to shape public policy.”60 The proposed governmental denition of Islamophobia is the most recent expression of this mode of public policy making. Muslim organizations that concentrate their advocacy efforts on persuading the state to censor Islamophobic speech inevitably surrender their democratic rights as citizens in exchange for neolib- eral protections. conflating terrorism and hateful speech The strongest argument against a governmental denition of Islamophobia lies with the govern- ment itself. UK government policy and legislation in relation to Muslims conates religious incite- ment with the propagation of hate speech. The Racial and Religious Hatred Act of 2006 (RRHA), drawn up shortly after the London bombings of July 2005, exemplies this conation. “A person who publishes or distributes written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred,”61 the legislation reads. With such a formulation, the legislation denes “religious hatred” as a form of expression that is subject to criminal sanc- tions.62 Among the side effects of this conation is a focus on (Islamist) terrorism (the backdrop 59 In the extensive literature on the “people of the book” within Islamic history that delineates these sociological dimensions in greater detail, key works include the following: Mark Cohen, Under Crescent and Cross: The Jews in the Middle Ages (Princeton: Princeton University Press, 1994); Yohanan Friedmann, Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge: Cambridge University Press, 2003); Milka Levy-Rubin, Non-Muslims in the Early Islamic Empire: From Surrender to Coexistence (Cambridge: Cambridge University Press, 2011). For a case study of these discriminatory regulations, see Rebecca Ruth Gould, “Wearing the Belt of Oppression: Khāqānı’̄s Christian Qası̣d̄a and the Prison Poetry of Medieval Shirvān,” Journal of Persianate Studies 9, no. 1 (2016): 19–44. 60 Malik, “Fear, Indifference and Engagement,” 76. 61 Racial and Religious Hatred Act, 2006, c.1, § 1 (Eng.), https://www.legislation.gov.uk/ukpga/2006/1/schedule/ data.xht?view=snippet&wrap=true. 62 This provision is discussed and critiqued in S. Chehani Ekaratne, “Redundant Restriction: The U.K.’s Offense of Glorifying Terrorism,” Harvard Human Rights Journal, no. 23 (2010): 205–21, at 212; Gelber, “Incitement to Hatred and Countering Terrorism,” 33–34. the limits of liberal inclusivity journal of law and religion 265 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.legislation.gov.uk/ukpga/2006/1/schedule/data.xht?view=snippet&wrap=true https://www.legislation.gov.uk/ukpga/2006/1/schedule/data.xht?view=snippet&wrap=true https://www.legislation.gov.uk/ukpga/2006/1/schedule/data.xht?view=snippet&wrap=true https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core against which the RRHA was created) as an ideology, rather than as a mode of violence, and an assumption that the best way of combating it is to wage ideological warfare on certain varieties of Islam. Human rights advocates have criticized this ideological turn, with Conor Gearty noting that the “evolution of the term ‘terrorism’ from describing a kind of violence to a morally loaded condemnation of the actions of subversive groups regardless of the context of their actions—or even sometimes their non-violent nature . . . is a movement in language that operates wholly in favour of state authorities.”63 Government efforts to broaden the meaning of terrorism are related to the drive to broaden the meaning of Islamophobia. In both cases, broadening the denition extends the remit of the state and enhances its coercive powers. While the association between terrorism and Islam is widespread among the public and is prop- agated by media coverage, most problematically from the point of view of democratic legitimacy, it is also entailed in the RRHA. Without naming Islam, the legislation criminalizes the propagation of religious hatred on the grounds of its association with incitement to violence. This association recalls the guidelines drafted by the government to assist in the implementation of Prevent. One for- mula that features in such guidance runs as follows: “non-violent extremism . . . can create an atmo- sphere conducive to terrorism and can popularise views which terrorists then exploit.”64 Another Prevent guidance document registers this change in policy, while repeating the same formula: “the Prevent strategy was explicitly changed in 2011 to deal with all forms of terrorism and with non- violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists then exploit.”65 In both the RRHA and the Prevent guidelines, the denition of dangerous discourse is purposively extended to cover a wide range of perspectives, and to encompass views which are not prima facie supportive of violence. As long as they fall under the rubric of “extremist,” such views, according to this government policy, should be sanctioned and suppressed. Of course, views are not “extremist” in the abstract; they necessarily have substan- tive content. In the understanding of the government as well as in the popular imagination, the sub- stantive content of extremism overlaps with Islam. Aware perhaps that “extremism” may seem impossibly vague, the government has (predictably) offered a denition. According to the Prevent duty guidance, extremism is “vocal or active oppo- sition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs.”66 Echoing Cameron’s 2015 speech, this denition blurs analytically distinct boundaries while nationalizing ideological warfare as the defense of “British values.” Elided from this equation are the “British values” that encompass racism, contempt for the poor, colonialism, homophobia, and sexism. Generations of scholarship support such characterizations, even though these aws are not uniquely British. Is the scholarship on British colonialism, austerity, homophobia, and misogyny “extremist”? Why assume without demonstration that “British values” are epitomized by “mutual respect and tolerance of different faiths and beliefs”?67 Worst of all, why embed such loaded language in legislation? The 63 Conor Gearty, “Human Rights in an Age of Counter Terrorism,” in War on Terror: The Oxford Amnesty Lectures, ed. Chris Miller (Oxford: Oxford University Press, 2013), 83–98, at 85. 64 H. M. Government, Prevent Duty Guidance, 2015, at 6 (UK), http://www.legislation.gov.uk/ukdsi/2015/ 9780111133309/pdfs/ukdsiod_9780111133309_en.pdf. 65 This specic formulation is scrutinized in Conor Gearty, On Fantasy Island: Britain, Europe, and Human Rights (Oxford: Oxford University Press, 2016), 206. 66 Prevent Duty Guidance, 6. 67 This dimension of the legislation is critiqued in Suke Wolton, “The Contradiction in the Prevent Duty: Democracy vs ‘British values,’” Education, Citizenship and Social Justice 12, no. 2 (2017): 123–42. rebecca ruth gould 266 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available http://www.legislation.gov.uk/ukdsi/2015/9780111133309/pdfs/ukdsiod_9780111133309_en.pdf http://www.legislation.gov.uk/ukdsi/2015/9780111133309/pdfs/ukdsiod_9780111133309_en.pdf http://www.legislation.gov.uk/ukdsi/2015/9780111133309/pdfs/ukdsiod_9780111133309_en.pdf https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core government’s denition of extremism leaves these questions unresolved, resulting in a state dis- course that is concerned above all to protect the status quo, even at the cost of denying its own history. Further contributing to an impression of double standards in regards to Muslims, the section of the RRHA that protects freedom of expression focuses on the protection of anti-Muslim sentiment without extending comparable protections to the expression of non-violent Islamic belief. In terms that, considered in the context of the War on Terror, clearly evoke (and render immune from pros- ecution) criticism of Islam, the legislation stipulates, “Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents.”68 By contrast, no provision within the RRHA protects Islam from being vilied through its asso- ciation with violent incitement and hate speech. This would appear to be a textbook case of prej- udice inscribed within the law, since the free expression of anti-Muslim sentiment is protected by this legislation, which has as its primary purpose the censorship of hateful speech that speaks in the name of religion, and which the government has already associated with Islamic discourse. No explanation is given for further criminalizing hateful speech on the grounds of its religious con- tent or for perceiving Islamic discourse as more dangerous than that of white supremacist bigotry. It can be argued that, far from countering Islamophobic prejudice, such confusing provisions within the RRHA legitimate passive racism and anti-Muslim bigotry. Equally, it is at least arguable that the claims made in the Prevent guidance concerning “British values” stem from nationalist prejudice regarding the superiority of British culture to other cultures that is itself bigoted. What if “Islamic values” were demonstrably shown to represent an improvement over “British values”? Once again, generations of scholarship can be drawn on in support of such a view. Would such a position be deemed “extremist”? Why should a government that enshrines a double standard of suspicion against Islam into its legislation be trusted to protect this religion through a legal deni- tion of Islamophobia? Would it not be more sensible to critically scrutinize the Islamophobic dimensions of a state’s legislation rather than entrust it to criminalize views that are in fact rein- forced and legitimated by its War on Terror? constraining the state’s monopoly on violence Taking proposals for a governmental denition of Islamophobia as a case study, I have considered the ways in which suppressing hateful speech compromises pluralistic democratic legitimacy. I have argued that many well-intentioned advocacy efforts to protect Muslims from Islamophobic views fail to acknowledge the government’s role in propagating Islamophobic discourse. Even had the domestic War on Terror not already compromised the United Kingdom’s relationship with its Muslim citizens, a government denition of Islamophobia could never reach a democratically legit- imate consensus among the group targeted for protection. Just as right-wing bigots homogenize Muslims as a unied demographic, so do denitions of Islamophobia impose a false unity on a diverse community. It is unacceptable for democracies to micromanage conicts within Islam, nor should states align with certain Muslim groups while excluding others, as occurred when 68 Racial and Religious Hatred Act 2006, c. 1, schedule § 29J (England & Wales), http://www.legislation.gov.uk/ ukpga/2006/1/contents (amending the Public Order Act 1986, c. 64). the limits of liberal inclusivity journal of law and religion 267 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available http://www.legislation.gov.uk/ukpga/2006/1/contents http://www.legislation.gov.uk/ukpga/2006/1/contents http://www.legislation.gov.uk/ukpga/2006/1/contents https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core the MPs involved in drafting the proposed denition cut their ties with MEND in response to neg- ative media coverage. Populist political pressure—some of which is rooted in bigotry, and some of which is simply driven by self-interest—can all too easily compromise the democratic legitimacy of pluralist democ- racies. Once such legitimacy is undermined, there is practically no democracy left to defend, because non-democracies do not willingly consent to being shaped by their citizens. A state that operates through censorship creates the conditions for violence. The genre of political reasoning that is linked to contemporary debates around free speech pre- supposes the state’s democratic legitimacy. Because the modern state is uniquely entrusted with a monopoly on violence, and imposes its norms through coercive means, all citizens should be wary of gratuitously amplifying the state’s coercive capacities. Endowing the state with the author- ity to discriminate among different kinds of Islam empowers the state and disempowers Muslims, and potentially leads to further violence. The argument advanced here has relevance beyond Muslim communities; reconceptualizing free speech as intrinsic to the pluralist mandate and as a necessary component of minority rights can help with identifying and rectifying the harms inicted on vulnerable communities. In seeking to establish a clear understanding of hateful speech, Gelber suggests that we rely on “a conception of hate speech as speech that is directed at historically identiable minorities” because only such speech “discursively enacts discrimination that is analogous to other forms of systemic discrimina- tion.”69 The qualier “historically identiable minorities” importantly signals that hateful speech cannot apply to groups that have not suffered from historical discrimination. If a member of a group not known to be discriminated against is offended by a given statement, there are no grounds to classify that expression as hateful speech; equally, the mere taking of offense by an historical minority does not render a discourse hateful speech. In order to meet the bar for government sanc- tion, it must be demonstrated that such speech can inict substantial harm. Historical discrimina- tion generally refers to state policy, as endorsed by legislation, ratied by government, and adopted, tacitly or explicitly, by public bodies. Gelber’s formulation can therefore be rephrased. Hateful speech is “speech that is directed at historically identiable minorities” who have historically been discriminated against by the state. In the absence of state persecution, such minorities would not be vulnerable targets for hate speech. Government policy makes minorities likely targets of hateful speech in the rst place. The power of hateful speech derives from the disenfranchisement, state-sanctioned discrimina- tion, and legally codied racism that ethnic and sexual minorities have endured throughout history. Far from existing in opposition to it, hateful speech derives its power from governmentality. A gov- ernment that targets Islam for suspicion (including “non-violent” extremist Islam, as per the 2015 revised version of the Prevent strategy) has no legitimate authority to dene Islam for the purposes of its protection, and any such efforts should be regarded with suspicion. Inasmuch as Islamophobic discourse derives its power from government policies and practices, the ght against Islamophobia should prioritize opposition to those policies, rather than tacitly consenting to them in exchange for “protection” by a discriminatory state. The actions of the UK and the US governments in this arena in recent decades provide ample grounds for being wary of allocating to government the authority to dene Islam and Islamophobia, not least due to the harm that is likely to accrue to Muslims through such denitions. Bigotry is intersectional: antisemitism often accompanies Islamophobia, and misogyny frequently is 69 Gelber, “Hate Speech,” 626. rebecca ruth gould 268 journal of law and religion at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core manifested alongside homophobia.70 Hence, the strategies we develop to overcome Islamophobia are relevant to resisting all forms of racism, and the means of addressing anti-Muslim racism have bearing on other vulnerable communities. The strategies include more representation of indi- viduals from minority groups within government, compulsory education concerning other societies and cultures for all members of society, and revising the government’s counterterrorism legislation to disambiguate it from the persecution of Islam. Most importantly, it involves abolishing Prevent, an agglomeration of policy and legislation that unjustiably criminalizes Muslims. It means devel- oping a school curriculum that recognizes the diversity of Islamic culture across its historical and contemporary manifestations, and which embraces this heterogeneity as part of its pluralistic dem- ocratic mandate, rather than seeking to discriminate among the many varieties of Islam. acknowledgements This article owes a great deal to exchanges with Riz Mokal, Asim Qureishi, and Eric Heinze, none of whom are implicated in the views expressed here. I also thank Silas Allard for his careful reading. 70 See James Renton and Ben Gidley, eds., Antisemitism and Islamophobia in Europe: A Shared Story? (London: Springer, 2017). the limits of liberal inclusivity journal of law and religion 269 at https://www.cambridge.org/core/terms. https://doi.org/10.1017/jlr.2020.20 Downloaded from https://www.cambridge.org/core. Carnegie Mellon University, on 06 Apr 2021 at 01:18:23, subject to the Cambridge Core terms of use, available https://www.cambridge.org/core/terms https://doi.org/10.1017/jlr.2020.20 https://www.cambridge.org/core THE LIMITS OF LIBERAL INCLUSIVITY: HOW DEFINING ISLAMOPHOBIA NORMALIZES ANTI-MUSLIM RACISM Abstract Pluralism, Free Speech, Democracy Defining and Countering Hateful Speech Regulating Islam Making Islamophobia Attractive Conflating Terrorism and Hateful Speech Constraining the State's Monopoly on Violence Acknowledgements