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1. doi: 10.1111/j.1467-856X.2011.00453.x BJPIR: 2011 VOL 13, 514–533Religion, Risk and Legal Culture:Balancing Human Rights against a‘War on Terror’William L. Miller‘Legal cultures’ in European countries have been under the twin pressures of moves towards‘European and international standards’ on the one hand, and the ‘war on terror’ on theother—the ﬁrst exerting pressure in a liberal direction, the second exerting pressure in an authori-tarian direction. Data from focus groups and interviews with the general public and Muslimminorities provide insight into how the public in general, and Muslims in particular, haveresponded to the pressure of terrorism and the ‘war on terror’ in a spectrum of ﬁve countriesranging across Europe. Muslims have very different attitudes towards paying the price of theso-called ‘war on terror’, but our study suggests that attitudes towards that price are directlyinﬂuenced more by ‘risk assessment’ than by religion.Keywords: terrorism; religion; risk; legal cultureIntroduction: The ‘War on Terror’Since the collapse of communism in 1989 the concept of a ‘United Europe’ has beenpursued with vigour. Political and economic integration has been sought throughEU enlargement to the east, deeper integration within the EU, and beyond the EUthrough the European Economic Area (EEA) mechanism and the Near Neighbour-hood Policy. At the same time, the Council of Europe with its strong commitmentto human rights has also extended even further to the east. But it is argued thatgenuine partnership across the whole of Europe can only develop on the basis ofshared common values—in particular, democracy, the rule of law and respect forhuman and civil rights (Ford, cited in Kuzio 2004); and common values imply someharmonisation of ‘legal cultures’ (Friedman 1997, 34; Nelken 2004)—by which wemean public perceptions of and attitudes towards law and law enforcement, as wellas the legislation itself.The pressure of European unity on legal cultures, with its emphasis on respect forhuman and civil rights, has been in a liberal direction. But there are other inﬂu-ences and pressures on popular legal cultures in Europe: historic legal traditions,religious traditions, experiences of communism, the impact of globalisation andmigration and, especially over the last decade, the pressure exerted by terrorismand the so-called ‘war on terror’. European integration has exerted pressure onnational legal cultures in a liberal and convergent direction, but terrorism and the‘war on terror’ have exerted pressure on legal cultures in illiberal, authoritarian anddivergent directions. © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association
RELIGION, RISK AND LEGAL CULTURE 515The focus of recent terrorism has been divisive, targeting some European countriesbut not others. And its impact has been to provoke an authoritarian reaction.Commenting on ﬁndings from the 2007 British Social Attitudes report, ConorGearty concluded: our survey shows a general public that remains on the whole committed to civil liberties [but] with less enthusiasm than in the past and with a greater susceptibility to be persuaded to dispense with them ... the very mention of something being a counter-terrorism measure makes people more willing to contemplate the giving up of their freedoms. It is as though society is in the process of forgetting why past generations thought these freedoms to be so very important’ (NatCen 2007; see also Johnson and Gearty 2007).Increasing attention has been given to two allegedly dangerous concepts: ‘themorality of the lesser evil’ (Ignatieff 2004; Gearty 2007b, 351); and a ‘war’ againstterrorism (Campbell and Connolly 2003; see also Zedner 2005).The phrase ‘war on terrorism’ has a lengthy history. In the late 19th century it wasused by the press in connection with attempts by European and American govern-ments to stop anarchist attacks on politicians and ofﬁcials. In the 1940s it was usedto describe British efforts to end attacks by Zionist Jews in British-administeredPalestine—still remembered, and perhaps more surprisingly, still cited spontane-ously in at least one of our English focus groups (see below).In the public mind, terrorism has often been associated with religion, indeed withmany religions: in the last few decades with Catholics, Protestants, Jews, Muslims,Buddhists, Hindus and Sikhs. Nonetheless, in most recent times within Europe andthe US, the phrase ‘war on terror’ has been used almost exclusively in regard toIslamic terrorism, and Muslims may therefore be particularly alienated by it. Thephrase is now most closely associated with President Bush’s reaction to the 9/11destruction of the Twin Towers in New York, and the loss of almost three thousandlives—along with a simultaneous attack on the Pentagon and a fourth planebrought down in rural Pennsylvania as passengers fought the hijackers. Five daysafter 9/11, Bush was widely reported as saying: ‘this crusade, this war on terrorismis going to take a while’. He was advised to avoid using the word ‘crusade’, butcontinued to speak of ‘the war’ on terrorism.Some critics have suggested that the use of the word ‘war’ was an attempt to‘externalise’ the threat though it had some legal signiﬁcance within the complex USpresidential system. The term itself was not used in the UK but it is argued that ‘theBritish government’s response to the London bombings sought to make the terrorof that day foreign, even though it appeared largely domestic’ (Bulley 2008, 379).Others however have emphasised the importance of links between second- andeven third-generation immigrants and their ancestral lands (see Githens-Mazer2008, 565), so that recent terrorism, in this view, really does have foreign over-tones. Nonetheless, many of the terrorist actions in England over the last half-century have involved terrorists who were entitled to a British passport (thoughsome were entitled to Irish passports, as well as, or instead of, British passports).In Northern Ireland, where various groups of terrorists caused more deaths than in9/11 (admittedly over a 30-year period from 1969 to 1998, but out of a population© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
516 WILLIAM L. MILLERmuch less than 1 per cent of that in the US), the British government did not declarea ‘war on terror’ (though British troops were stationed in Northern Ireland). Froma Northern Irish perspective, Colm Campbell and Ita Connolly (2003, 341) cite ‘thedangers of a “war” model in complex and violent disorders’. And even after the alQa’eda-inspired 7 July 2005 bombings of the London Underground, which killed 56and injured many more (followed quickly by another attempt on 21 July whenfurther casualties were only avoided by the bombs failing to explode), the term ‘waron terror’ was ofﬁcially criticised in Britain. Writing in The Times (24 January 2007),Ken McDonald, the UK’s Director of Public Prosecutions, argued that the July 2005bombers were not ‘soldiers’ in a war and should be dealt with by the criminal justicesystem. In his view a ‘war’ on terrorism simply legitimised terrorists. He furtherargued for a ‘culture of legislative restraint’ in passing new anti-terrorism laws sincethe ‘primary purpose’ of these attacks was to tempt Britain to ‘abandon our values’:the response, he argued, should be ‘proportionate, and grounded in due processand the rule of law’.Richard English (2009), in his major study of the IRA, Terrorism: How to Respond,argues that the most effective response to terrorism is to avoid over-militarisation,address the underlying causes, respect the existing legal framework and adhere tothe established rule of law.But Gearty (2007a, 42–49) warns at length of ‘the subversive power of the counter-terrorism narrative’. Indeed he argues that while the half-century following the1948 Declaration of Human Rights might be described as an ‘age of human rights’,the half-century after ‘9/11’ may come to merit the title of an ‘age of counter-terrorism’ if not an age of ‘war on terror’ (a phrase that he particularly dislikes),citing the ‘plethora of anti-terrorism laws’ and ‘the harnessing of the human rightsideal itself to legitimize action that in any other context would be condemned asbeing in violation of basic rights’ (Gearty 2007b, 340).In her study of The Cost of Counterterrorism, Laura Donohue (2008) warns of the‘security or freedom dichotomy’ (Donohue 2008, 25) and sets out ‘to recalculatethe price the US and UK have paid for their counter-terrorist regimes’ (Donohue2008, 31) citing a British Law Lord’s claim that ‘the safety of the state has alwaysbeen used as a justiﬁcation for undermining civil liberties’ (Donohue 2008, 32).In her conclusion she asserts that ‘the accretion of dangerous executive poweris indeed the hallmark of counter-terrorist law ... blinded to the broader and moreprofound costs of our counter-terrorist regime’ (Donohue 2008, 359–360).But our focus here is not upon what distinguished academics or lawyers feel aboutthe ‘price worth paying’ to combat terrorism; instead, our focus is on how thegeneral public and Muslim minorities in various countries feel about the ‘priceworth paying’ to combat terrorism.Using data mainly from our 5,000 hour-long survey interviews with the generalpublic and 1,000 with Muslim minorities we look primarily at the public responseto the pressure of terrorism on popular legal cultures in ﬁve countries: Norway,England, Poland, Bulgaria and Ukraine. (To avoid any potential problems of cer-tainly different legal systems, and possibly different legal cultures, we exclude fromour sample those residing in Northern Ireland, Scotland and Wales, whose opinions © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
RELIGION, RISK AND LEGAL CULTURE 517 Table 1: Five Countries, the Rule of Law and the Threat of Terrorism Q126 Our Govt & people Q121 Percentile on World respect and obey the There is a real threat of Bank 2008 law more (v. less) terrorism (v. no threat, or Rule of Law Index than in rest of Europe threat exaggerated) Percentile % % Norway 100 93 49 England 92 58 70 Poland 65 29 44 Bulgaria 51 11 26 Ukraine 31 10 13Note: The World Bank Rule of Law percentile for England strictly applies to the UK (though the population of Englandcomprises 84 per cent of the population of the UK). The other data come from questions Q126 and Q121 in our survey.merit separate investigation. But, of course, terrorist actions anywhere within theUK have an impact on English public opinion.) We also draw some insights fromthe 84 focus groups that preceded our surveys and from the 750 free-formatinterviews with ‘legal insiders’ (i.e. legislators, prosecutors, lawyers, judges, gov-ernment ofﬁcials, police) that followed our surveys.Our spectrum of ﬁve European countries ranges from Norway which regularlyscores at or near the top on World Bank ‘Rule of Law’ ratings (World Bank 2008)to Ukraine which scores nearer the bottom—a ranking that is echoed by theirpublics in our own survey (see Q126 in Table 1).These ﬁve countries also range from those that have suffered major terrorist attacks(England) to those where the people feel they are almost invisible to internationalterrorists (Ukraine, see Q121 in Table 1). The English especially may be morewilling to accept a reduction in their civil liberties than Norwegians, Poles, Bulgar-ians and Ukrainians since England has been directly affected by IRA terrorism from1969 to 1998 and more recently by al Qa’eda terrorism.In our focus groups and interviews, we avoided the emotive and much criticisedphrase ‘war on terror’ and asked instead about public perceptions of ‘terrorism’ orthe ‘threat of terrorism’; about whether the supposed ‘threat of terrorism’ is real orexaggerated; about whether to prioritise civil rights or combating terrorism; andabout whether the government and security services should respond to the ‘threatof terrorism’ by ‘staying within existing laws and procedures’, ‘enforcing existinglaws more strictly’, ‘introducing new and tougher laws’ or ‘stepping outside the lawwhenever they think it useful’.Terrorism or the ‘war on terrorism’ is likely to have inﬂuenced popular legal culturein all ﬁve countries—though to different degrees. Reﬂecting their recent experi-ence, the English are the most concerned about the ‘threat of terrorism’ within their© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
518 WILLIAM L. MILLERcountry. Nonetheless, the English are second only to Norwegians in claiming thattheir ‘government and people respect and obey the law more than in the rest ofEurope’. It is an odd combination, this perception of a relatively law-abiding butterrorism-prone society. Despite Dan Bulley’s logical arguments, the English publicreally do seem to have, in some peculiar sense, ‘externalised’ their perceptionsof terrorism, so that their fear of terrorism does not contradict their perceptionof a generally law-abiding public—and indeed a law-abiding government. Theirimage is of a law-abiding society under attack from atypical outsiders—including,in some peculiar sense, ‘outsiders’ who live among generally law-abiding citizens,hold British passports and may well be English by birth. And their image of theirgovernment is that of a law-abiding government forced by terrorist outsiders to takeharsh measures.Al Qa’eda has targeted some of our ﬁve countries—notably England—more thanthe others, partly because Britain is seen as an old colonial power and now as a closeally of America. Moreover al Qa’eda seeks what it describes as ‘spectacular targets’and targets in London or New York are likely to grab more international attentionthan targets in Kyiv or Soﬁa. So we might expect sharp country variations acrossour ﬁve countries in terms of their signiﬁcance as terror targets and consequentlyin terms of public attitudes towards a defensive or retaliatory ‘war against terror’.And since al Qa’eda sympathisers are predominantly Muslims, Muslims ingeneral—who may not themselves sympathise with al Qa’eda—may nonethelessfeel, with some justice, that they are the principal targets of the security forces.Consequently we might expect sharp differences between Muslims and others intheir attitudes towards a retaliatory, or even a defensive, ‘war against terror’.But on the other hand, the most direct and immediate inﬂuence on attitudestowards prioritising a ‘war on terror’ over the rights and liberties of individualcitizens and minorities may simply be perceptions of ‘risk’ or ‘threat’.Perceptions of Terrorism in Focus Group DiscussionsAs we might expect, participants in our English focus groups have much more tosay about terrorism than participants in any of the other countries. Their commentscan be grouped into two broad categories: ‘visibility’ and ‘fault’—comments dis-playing an awareness of terrorism past and present (which might be classiﬁed as‘visibility’) and comments assigning blame (which might be classiﬁed as ‘fault’).Terrorism anywhere in the UK is highly visible to the English. English participantssuggest terrorism is endemic. ‘ENG4-1:1 there has always been terrorism’; ‘ENG5-3:we have lived under the threat of IRA for I don’t know how long’; ‘ENG4-8: andbefore the IRA, well, you’ve got the Jewish terrorists before Israel was a country’.They cite recent examples, notably the attacks on the London Underground (7July 2005) and Glasgow Airport (30 June 2007)—though not the much earlierLockerbie bombing in Scotland (21 December 1988) which killed 11 people inLockerbie in addition to the passengers and crew of the Pan Am ﬂight that crashedon Lockerbie en route from London to New York. © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
RELIGION, RISK AND LEGAL CULTURE 519Police activity also raises awareness of terrorism: ‘ENG7-2: you can see it’s a threatbecause you go to an airport, there’s police with guns and that never used to be[Not quite: police with sub-machine guns have patrolled British airports since IRAterrorism erupted.]’. And there is more direct local awareness, sometimes verylocal: ‘ENG8-7: I’ve actually met a terrorist [cites the terrorist’s name] ... yes, he wasvery nice’; ‘ENG9-4: but who’d have thought that three young Asian men fromLeeds [focus group 9 was in Leeds] would go to London and blow themselvesup—and other people’; ‘ENG7-7: it’s our kids that are born and bred over hereto some extent, that are going over there to train in camps ... it’s a genuine threat,there’s no doubt’.Some English participants suggest that Britain is at fault: that Britain itself is thereal cause of terrorism. ‘ENG2-5: I think the government have created a terroristsituation ... because they’ve invaded two countries’; ‘ENG2-7: we’ve upset thewhole world’. Others blame America or Britain’s association with America:‘ENG7-1: we joined forces with America’; ‘ENG4-9: this Iraq thing ... it wasn’t toobad before that’; ‘ENG7-2: the war in Iraq was like a recruiting ground for terroristsin this country’.Polish comments also fall into the broad categories of ‘visibility’ and ‘fault’. But bycontrast there is no suggestion that terrorism is endemic in Poland, no recent Polishexamples and no local awareness. ‘Visibility’ comprises only police activity withinPoland—together with an awareness of actual terrorism in other countries, notablythe US, UK and Spain (the Madrid Bombings, 11 March 2004)—all of which arecited in some detail. Participants in Bulgarian focus groups have little to say abouta real threat of terrorism. Terrorism lacks ‘visibility’ in Bulgaria, and only a fewcomments assign ‘blame’—mainly to NATO, Britain or America. ‘BUL8-1: terroristacts happen in countries which have interfered with the policy of another country.’Participants in some Ukrainian focus groups have a lot to say about the threat ofterrorism. But in striking contrast to participants in English focus groups, Ukraini-ans express generalised impressions, or fears for the future, rather than citingspeciﬁc examples of actual terrorist actions. Unlike the English, who cite a sequenceof different terrorist threats from Zionists in the 1940s, through Northern Irishrepublicans and loyalists in the last three decades of the 20th century, to thecontemporary international terrorism of al Qa’eda sympathisers, Ukrainians citeonly a variety of contemporary terrorist threats: threats from Muslims reactingagainst the invasion of Iraq; but also threats from Russia; and most especially threatsfrom what they call ‘local’ terrorism, whether these are from unspeciﬁed ‘localgangsters’ or from ‘local Tatars’.A few Ukrainians blame local gangsters: ‘UKR12-3: showdowns between all sortsof clans ... gangsterism’. Many more, especially in Crimea, blame Tatars. Partici-pants in Ukrainian focus groups nearly always refer to them as ‘Tatars’ rather than‘Muslims’—stressing the ethnic, and the territorial, rather than the religious dimen-sion: ‘UKR16-1: if land lots that the Tatars want to grab are not allocated to them,there can be a terrorism threat’; ‘UKR16-6: we live as on a volcano’; ‘UKR16-7: thesituation in Ukraine is explosive’; ‘UKR19-5: we sleep on a volcano, frankly speak-ing’; ‘UKR20-4: Crimea is the only center of real terrorism, in my mind’; ‘UKR20-6:© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
520 WILLIAM L. MILLERthe Tatars think that this is their Motherland. Their land. They even say so; thateverything will be theirs. They will take this from us’.So, in complete contrast to English references to ‘actually existing’ and ‘inter-national’ terrorism, participants in Ukrainian focus groups talk only of ‘potential’and ‘local’ terrorism. And in further contrast to the English, Ukrainians expressno feelings of remorse or responsibility for triggering that ‘local’ terrorism: they seethemselves purely as victims—albeit only potential victims as yet.Muslims and the General PublicWithin each of our ﬁve countries, we interviewed approximately 1,000 respondentsdrawn to represent the general public, together with an additional ‘Muslim sample’of approximately 200 Muslims using questions drawn largely from the ideas thatemerged from the focus group discussions.The self-chosen ‘family background’ of Muslims interviewed varies systemati-cally from country to country: in Norway they are predominantly (54 per cent)Pakistani; in England predominantly (67 per cent) Pakistani; in Bulgaria over-whelmingly (92 per cent) ‘Bulgarian Turk’; in Ukraine overwhelmingly (99 percent) Crimean Tatar; and in Poland our sample was designed to include 50 percent long-established ‘Polish Tatars’, with the other 50 per cent incomers—predominantly from Russia (20 per cent) or Turkey (22 per cent). The sheerdiversity of Muslims’ self-declared ‘family backgrounds’ cautions against anyassumption of monolithic uniformity. But we might expect that under the pressureof the ‘war on terror’, differences between Muslims and non-Muslims within asingle country are more likely to reﬂect the peculiar circumstances of Muslims (anyMuslims) within that country at the present time, rather than their speciﬁc familybackground.To avoid an overemphasis on differences between small samples, we focus primarilyon the difference between the cross-country averages for Muslim opinion andthe opinion of the general public—effectively basing our analysis on comparisonsbetween 5,000 drawn from the general public and 1,000 Muslims. That provides amore general cross-European perspective on Muslim/non-Muslim reactions to thethreat of terrorism and their support for counter-terrorist measures. Occasionallyhowever, we take the statistical risk of citing Muslim/non-Muslim comparisonswithin a single country—notably within England where the perceived threat ofterrorism is greatest and Muslims might reasonably feel particularly exposed to thepressures of counter-terrorism.Paying the Price: Combating Terrorism versus Rightsand FreedomsAs noted, the UK’s Director of Public Prosecutions argued that the ‘primarypurpose’ of terrorist attacks was to tempt Britain to ‘abandon our values’. Tomeasure the extent to which terrorism has succeeded in getting the public toabandon the value of ‘individual freedom’ we asked respondents to prioritise © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
RELIGION, RISK AND LEGAL CULTURE 521 Table 2: Prioritising Individual Freedom? Q7 Which do you feel General publics Muslims should be more (n = 1,000/country) (n = 1,000) important at this time: Nor Eng Pol Bul Ukr Mean Mean To combat the threat of terrorism 47 58 43 25 18 38 28 To protect individual freedom 48 33 49 53 50 47 60 Net majority for combating the -9 -32 threat of terrorismNote: For brevity, the percentages who spontaneously replied with uninvited answers such as ‘both’, ‘neither’,‘don’tknow’, ‘cannot decide’, etc., are not shown in this or subsequent tables even though they can be large. They can easilybe calculated however, by subtracting the percentages shown from 100 per cent.individual freedom versus combating terrorism: ‘Q7 Which do you feel should bemore important at this time: to protect individual freedom or to combat the threatof terrorism?’ (Table 2)This is not a simple question about public support for a ‘war on terrorism’. Such aquestion might be worded: ‘How important is it to take action to combat the threatof terrorism? Very important? Somewhat important? Not very important? Not at allimportant?’ That wording would focus on a single concept: combating terrorism.But the question we asked is not so much about the importance of combatingterrorism as about the price—in terms of popular legal culture (which is our centralconcern)—that the public are willing to pay for combating terrorism. Combatingterror is not ‘cost-free’, and the price that the public is willing to pay for combatingterror can be measured in its impact on popular legal culture as well as in treasure.On average across the ﬁve countries, both the general public and Muslims put‘individual freedom’ above ‘combating terrorism’—the general public by only avery narrow margin of 9 per cent, however, while Muslims by a much larger marginof 32 per cent. (Reﬂecting their more direct experience of terrorism however, theEnglish prioritise ‘combating terrorism’ even over ‘individual freedom’.)In Norway and Poland, the general public’s opinion is fairly evenly divided. Butin Bulgaria and Ukraine the priority is ‘individual freedom’ (by a margin of around30 per cent). And in sharp contrast, the general public’s priority in England iscombating terrorism (by a margin of 25 per cent). So faced with global terrorism,Bulgarians and Ukrainians opt strongly for the liberal side, the English opt stronglyfor the authoritarian side, and Norwegians along with the Poles are split downthe middle. That cross-national pattern of prioritising the need to combat terrorismclosely reﬂects the cross-national pattern of perceptions of risk or threat (seeabove).This question of combating terrorism at the price of ‘individual freedom’ was askednear the start of our lengthy interview. Towards the end of our hour-long interview,another question posed the price to be paid for combating terrorism in slightly, but© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
522 WILLIAM L. MILLER Table 3: Prioritising the Rights of Individuals and Minorities? General publics Muslims Q115 Which do you feel (n = 1,000/country) (n = 1,000) should be more important: Nor Eng Pol Bul Ukr Mean Mean Combating the threat of terrorism 60 55 50 37 21 45 27 Protecting the rights of individual 36 37 39 34 42 38 56 citizens and minorities Net majority for combating the +7 -29 threat of terrorismsigniﬁcantly, different terms: ‘Q115 Which do you feel should be more important:combating the threat of terrorism, or protecting the rights of individual citizens andminorities?’ (Table 3)When the price of combating terrorism affects not only the rights of ‘individualcitizens’ but also the rights of ‘minorities’, the balance of opinion among Muslimsshows remarkably little change and a majority of Muslims remain committedto prioritising ‘protecting rights’. But the general public switches to prioritising‘combating terrorism’. The general public differentiates between the ‘rights ofindividuals’ and the ‘rights of minorities’ in a way that Muslims do not. So theaverage gap between the opinions of Muslims and the general public widens from23 per cent to 36 per cent.Only the Ukrainian public prioritises the rights of ‘individuals and minorities’over combating terrorism. Poles and Bulgarians marginally prioritise combatingterrorism; and Norwegians join the English in strongly prioritising the need tocombat terrorism over the ‘rights of individuals and minorities’. So once againthe Ukrainians—by a large margin—choose the liberal option; while the Englishand now the Norwegians also—by a large margin—back the authoritarian option.Staying within the Law—or Stepping OutsideMoving from principle to practice, we asked in more concrete, operational terms:‘Q112 What do you feel should be the [country]2 government and security services’main response to the threat of terrorism? I mean what do you feel is the right thingto do? In your opinion, should they: (1) just stay within existing laws and proce-dures, (2) stay within existing laws, but enforce them more strictly, (3) introducenew and tougher laws or (4) step outside the law whenever they think it is useful?’(Table 4)Overall, the general public opt primarily for ‘new and tougher laws’ while Muslimsopt for ‘stricter enforcement of existing laws’. By a margin of 9 per cent, the generalpublic opt for tougher laws or even stepping outside the law; while by a largermargin of 18 per cent, Muslims opt for enforcing existing laws more strictly or evenstaying within existing procedures. © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
RELIGION, RISK AND LEGAL CULTURE 523 Table 4: Stay Within the Law, or Step Outside the Law? Q112 What do you feel should be the [country] government and security General publics Muslims services’ main response to the threat (n = 1,000/country) (n = 1,000) of terrorism? I mean what do you feel is the right thing to do? In your opinion, should they: Nor Eng Pol Bul Ukr Mean Mean Stay within existing laws and 15 11 20 4 17 13 20 procedures Stay within existing laws, but 27 27 24 32 28 28 33 enforce them more strictly Introduce new and tougher laws 36 47 33 39 29 37 24 Step outside the law whenever 21 11 18 6 7 13 11 they think it is useful Table 5: Pressure from the US? Q117 When combating terrorism or the threat of terrorism, do you General publics Muslims feel the [country] government and (n = 1,000/country) (n = 1,000) security services have been under any pressure from the US: Nor Eng Pol Bul Ukr Mean Mean To stay within the law 20 19 31 32 20 24 24 To step outside the law 46 51 17 10 14 28 30 There has been no pressure 27 19 27 29 18 24 20 from the USSigniﬁcantly, however, among both the general public and Muslims, the two mostpopular choices are the relatively moderate options of ‘stricter enforcement’ ofexisting laws (the top choice of Muslims) or ‘new and tougher laws’ (the top choiceof the general public). There is less support for the more extreme options of juststaying within ‘existing procedures’, or ‘stepping outside’ the law.Reacting to International PressureOverall, just over half the public feel their country has been under pressure fromthe US. By a very small margin, both the general public and Muslims feel USpressure has been to ‘step outside the law’ (Table 5).But there is a remarkably sharp difference between public perceptions of USpressure in Norway and England on the one hand, and the three post-communistcountries on the other. In Norway and England a large majority, among both the© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
524 WILLIAM L. MILLERgeneral public and Muslims, feel the US has encouraged their government to stepoutside the law. By contrast, in Poland, and to a greater extent in Bulgaria andUkraine, many confess that they simply do not know whether or not the US hasexerted pressure on their country; but among those who claim to know, a majorityfeel the US has encouraged their government to act within the law.It is possible—but extremely unlikely—that public perceptions of American pres-sure are everywhere accurate; that the US really did put differential pressure onBritish and Norwegian governments to step outside the law, while at the same timeputting pressure on governments in Poland, Bulgaria and Ukraine to stay withinthe law.But there are two other, more plausible, explanations. The ﬁrst possibility is thatAmerican pressure might simultaneously encourage counter-terrorist authorities tostep outside the law in Norway and England (where that is less usual) while urgingstrict legality in former communist countries (where such action may be moreusual)—what might be called a universal ‘middle way’ approach to combatingterrorism. The other, more likely, explanation is that the publics in former com-munist Europe are so used to American lectures about the need to develop the ‘ruleof law’ in post-communist Europe that they cannot believe the US would con-sciously undermine the ‘rule of law’: could the familiar preacher really be sucha sinner? East Europeans have perhaps been indoctrinated by the long years ofAmerican sermons on the ‘rule of law’, while the Norwegians and English, likeother west Europeans, have more doubts about American law (so much so that theUS could not meet the basic conditions for entry into the European Union).In every country, however, the net reaction to American pressure is negative—bothamong the general public (on balance by a margin of 29 per cent) and by rathermore among Muslims (on balance by a margin of 39 per cent). It is especiallynegative in Norway and England—both among the general public (on balance by47 per cent) and still more among Norwegian and English Muslims (on balance by65 per cent).Just under half the general public and Muslims feel their country has been underpressure from the EU. But in sharp contrast to perceptions of US pressure, both thegeneral public and Muslims (in every country and on average by a margin ofaround 24 per cent) feel that EU pressure has been to ‘stay within the law’.And while reactions to perceived US pressure are on balance negative in everycountry, both among the general publics and Muslims, reactions to perceived EUpressure are on average marginally positive—and rather more positive amongMuslims than among the general publics.The net reaction to EU pressure is positive in England, Poland and Bulgaria, thoughnegative in Norway and Ukraine—the two countries that are not members of theEU, and which might therefore be particularly sensitive to EU pressure of any sort.Among the three EU members, both the general publics and Muslims feel positiveabout EU pressure—on average by a margin of 13 per cent among their generalpublics, and by a greater margin of 28 per cent among their Muslims (Table 6). © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
RELIGION, RISK AND LEGAL CULTURE 525 Table 6: Pressure from the EU? Q119 When combating terrorism or the threat of terrorism, do you feel General publics Muslims the [country] government and (n = 1,000/country) (n = 1,000) security services have been under any pressure from the European Union/EU: Nor Eng Pol Bul Ukr mean mean To stay within the law 30 39 26 48 25 34 33 To step outside the law 20 8 10 6 8 10 10 There has been no pressure 41 40 38 21 22 32 34 from the EU Table 7: A Real Threat of Terrorism? Q121 Which comes closest to General publics Muslims your view about the threat of (n = 1,000/country) (n = 1,000) terrorism in [country]? Nor Eng Pol Bul Ukr Mean Mean There is a real threat of terrorism 49 68 41 22 11 38 17 (-21) in [country] The threat of terrorism in [country] 41 26 36 35 41 36 48 (+12) has been exaggerated There is no real threat of terrorism 9 3 16 28 31 18 24 (+6) in [country]‘Risk Assessment’As a measure of ‘risk assessment’ we asked: ‘Which comes closest to your viewabout the threat of terrorism in [country]? There is a real threat of terrorism in[country[; the threat of terrorism in [country] has been exaggerated; or there is noreal threat of terrorism in [country]’. Among general publics, England stands outsharply with 68 per cent saying there is a ‘real threat’; in Norway and Poland anaverage of 45 per cent; and in Bulgaria and Ukraine, an average of only 17 per cent(Table 7).Overall, across the ﬁve countries 38 per cent of the general public, but only 17 percent of Muslims, acknowledge there is a ‘real threat’. Muslims do not deny thatthere is some degree of threat: on average, across the ﬁve countries, 48 per cent ofMuslims recognise some threat of terrorism but feel that the threat in their countryhas ‘been exaggerated’. In England, only 12 per cent of Muslims go so far as to claimthere is ‘no real threat’ of terrorism, but 64 per cent feel the threat is real but hasbeen ‘exaggerated’. (There is of course no simple way of determining whetherMuslims underestimate the threat or the general public exaggerate that threat.© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
526 WILLIAM L. MILLERWhat is clear is the difference between the risk perceptions of Muslims and thegeneral public.)The Impact of Risk Assessment on the General PublicWhen the question of prioritising citizens’ rights and freedoms over combatingterrorism is put—in an open-ended ‘in-depth interview’ format—to legal insiders(i.e. legislators, prosecutors, lawyers, judges, government ofﬁcials, police) in easternEurope, where the threat of terrorism seems less acute, a recurrent response is toopt for prioritising ‘rights and freedoms’, but then to add that their view mightwell change if the threat of terrorism increases and they have to reconsidertheir priorities. These legal insiders take advantage of the open-ended interviewformat to give—without any prompting—a ﬂexible, conditional answer. They self-consciously link their priorities to their (potentially variable) risk assessment.Our interviews with the public did not have such a ﬂexible format. But we cancorrelate public attitudes towards rights and freedoms with risk assessments, andthereby assess the impact of perceived risk on the public’s priorities.The Impact of Risk Assessment on ‘Paying the Price’ toCombat TerrorismOverall, across the ﬁve countries, threat perceptions have an average impact of 43per cent on the balance to be struck between protecting individual freedom andcombating terrorism: those in the general public who feel there is a ‘real threat’of terrorism prioritise ‘combating terrorism’ over ‘individual freedom’ by a marginof 14 per cent; while those who feel the threat ‘is not real’ or ‘has been exaggerated’prioritise ‘individual freedom’ over ‘combating terrorism’ by a margin of 29 percent—a difference of 43 per cent.Among the general public in Norway risk assessment has a greater than averageimpact, 66 per cent, on prioritising action against terrorism over protecting ‘indi-vidual freedom’; and in England risk assessment has a similar 65 per cent impact.Elsewhere, risk assessments have smaller, though still signiﬁcant impacts, on theneed to prioritise combating terrorism: an impact of 28 per cent in Poland, 10 percent in Bulgaria and 42 per cent in Ukraine (Table 8).As we found earlier, citing the rights of ‘minorities’ along with the ‘rights ofindividuals’ elicits a much more authoritarian response among the general public.Nonetheless, across the ﬁve countries, threat perceptions have on average exactlythe same overall impact, 43 per cent, on prioritising the need to combat terrorismover ‘protecting the rights of individuals and minorities’. And the country proﬁle issimilar: risk assessment once again has its greatest impact in Norway and England,and its least impact in Bulgaria (Table 9).The Impact of Risk Assessment on Respecting, Changing orDisregarding the LawOverall, the impact of a perceived ‘real threat’ on support for ‘new and tougherlaws’ to combat terrorism or even to ‘step outside the law’ is 18 per cent, thoughrising to 25 per cent in Norway and 28 per cent in England. © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
Table 8: The Impact of Threat Perceptions on Attitudes towards Individual Freedom Among those in the general Among those in the general publicBJPIR, 2011, 13(4) public who feel there is a real who feel the threat is threat of terrorism exaggerated or not real Q7 Which should be more important at this time? Nor Eng Pol Bul Ukr Mean Nor Eng Pol Bul Ukr Mean • To combat the threat of terrorism 64 68 51 31 42 51 31 37 37 26 16 29 • To protect individual freedom 31 23 42 52 38 37 64 57 56 57 54 58 Net majority to prioritise combating terror +33 +45 +9 -21 +4 +14 -33 -20 -19 -31 -38 -29 Impact of a perceived ‘real threat’ +66 +65 +28 +10 +42 +43 RELIGION, RISK AND LEGAL CULTURE Table 9: The Impact of Threat Perceptions on Attitudes towards the Rights of Individuals and Minorities Among those in the general public Among those in the general public who feel there is a real who feel the threat is© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association threat of terrorism exaggerated or not real Q115 Which do you feel should be more important: Nor Eng Pol Bul Ukr Mean Nor Eng Pol Bul Ukr Mean Combating the threat of terrorism 76 64 60 46 50 59 45 38 44 38 18 37 Protecting the rights of individuals and minorities 20 27 29 34 30 28 51 59 48 39 47 49 Net majority to prioritise combating terror +56 +37 +31 +12 +20 +31 -6 -21 -4 -1 -29 -12 Impact of a perceived ‘real threat’ +62 +58 +35 +13 +49 +43 527
528 WILLIAM L. MILLEROn balance, even those who feel there is a ‘real threat’ resent American pressure ontheir governments—and especially so if that pressure is to step outside the law. Onaverage across all ﬁve countries, even among those who feel there is a ‘real threat’of terrorism in their country, a majority of 20 per cent feel negative towardsAmerican pressure, rising to a majority of 48 per cent who feel negative if theythink American pressure has been to step outside the law.By contrast, among those who feel there is ‘not a real threat’ or that the threat hasbeen ‘exaggerated’, a larger majority of 41 per cent feel negative towards Americanpressure, rising to a massive majority of 74 per cent if they think American pressurewas to step outside the law.Comparing the Impact of Risk and ReligionWithin the general public, risk assessment clearly has a very powerful impact onattitudes towards ‘paying the price’ in terms of rights and freedoms in order to combatterrorism. Muslims are much less willing than the general public to pay that price. Butis that because they assess the risk differently, or simply because they are Muslims?Risk assessment itself is inﬂuenced by both country and religion: risk assessmentis greater in some countries than others, and greater among the general public thanamong Muslims. Figure 1 shows a chain of inﬂuence from ‘country’ and ‘religion’,through ‘risk assessment’, to attitudes towards ‘paying the price’ for combatingterrorism (the solid lines). But it also raises the possibility of a direct impact fromreligion (and also from country) to attitudes towards combating terrorism (thebroken lines).Figure 1: Direct and Indirect Impacts of Religion, Country and Risk Perception on Attitudes to the ‘War on Terror’ RELIGION COUNTRY RISK ASSESSMENT ATTITUDES TO THE ‘WAR ON TERROR’ © 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association BJPIR, 2011, 13(4)
RELIGION, RISK AND LEGAL CULTURE 529Our analysis suggests that religion, by itself, does indeed have some direct impacton attitudes towards the ‘war on terror’, not least because Muslims might be themost affected by counter-terrorism measures in present circumstances. But it alsoshows that the impact of risk assessment is greater. When both threat perceptionsand religion are taken into account simultaneously, threat perceptions have farmore impact than religion on attitudes towards the ‘war on terror’. Muslims take adifferent view about paying the price of the ‘war on terror’ primarily (though notentirely) because they have a different level of ‘risk assessment’.There are, of course, some country-to-country variations, but these general con-clusions from the ﬁve-country analysis are conﬁrmed (and indeed strengthened) byanalyses in England—which has been most exposed to al Qa’eda terrorism, andwhere ‘risk assessment’ is greatest.The Impact of Risk and Religion on Prioritising‘Individual Freedom’On the principle of giving priority to ‘combating terrorism’ over ‘protecting indi-vidual freedom’ the impact of ‘risk assessment’ across all ﬁve countries is on average(43 per cent) three times as great as the direct impact of religion (14 per cent) whenboth risk assessment and religion are taken into account simultaneously. (InTable 10, the difference between the rows measures the direct impact of religion,while the difference between the columns measures the impact of risk assessment.)Within England, which has been exposed to terrorism more than any of the othercountries, although our analysis is based on contrasting only 200 Muslims with1,000 from the general public, a similar calculation suggests that the impact of‘risk assessment’ (55 per cent) is ﬁve times as great as the direct impact of religion(11 per cent) on the principle of giving priority to combating terrorism rather thanprotecting individual freedom.The Impact of Risk and Religion on Prioritising ‘the Rights ofIndividuals and Minorities’As noted earlier, Muslims do not distinguish greatly between ‘the rights of indi-viduals’ and ‘the rights of minorities’. But the general public certainly do notempathise with the ‘rights of individuals and minorities’ as strongly as with the‘rights of individuals’. So on the principle of giving priority to ‘combating terrorism’over ‘protecting the rights of individuals and minorities’ the impact of religion(at 29 per cent) more nearly approaches the impact of ‘risk assessment’ (almostunchanged at 44 per cent). Nonetheless, the impact of ‘risk assessment’ remainssigniﬁcantly greater than the direct impact of religion. (As before, the differencebetween the rows measures the direct impact of religion, while the differencebetween the columns measures the impact of risk assessment.)Closer inspection shows that this increased impact of religion is due almostentirely to the general public’s lesser commitment to the ‘rights of individuals and© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
530 Table 10: The Impact of Religion and Risk Perceptions on Protecting Individual Freedom Q7 Which do you feel should be more important at this time: to combat the threat of terrorism OR to protect individual freedom? Averaging over all ﬁve countries: Net majority for combating terrorism rather than protecting individual freedom If feel threat of terrorism If feel threat of Impact of risk assessment is exaggerated or not real terrorism is real (‘a real threat’) Among general publics -29 +14 +43 Among Muslims -43 0 +43 Impact of Muslim religion -14 -14 BJPIR, 2011, 13(4) WILLIAM L. MILLER© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association
RELIGION, RISK AND LEGAL CULTURE 531minorities’ rather than their commitment to ‘individual freedom’. Muslims bycontrast make no great distinction between the two questions (Table 11).Again, within England alone, the impact of ‘risk assessment’ remains almostunchanged at 53 per cent, and still reaches well over twice as much as the increaseddirect impact of religion (23 per cent) on the principle of giving priority to com-bating terrorism rather than protecting ‘individuals and minorities’.Taken together, an emphasis on combating terrorism rather than the rights ofindividuals, or even the rights of minorities, is directly driven more by ‘riskassessment’ than by religion, and especially so in the country (England) where riskassessment is greatest.Conclusion: The Impact of Religion and Risk AssessmentWe have looked at the impacts of two signiﬁcant inﬂuences on attitudes towards‘paying the price’ by prioritising ‘combating terrorism’ over the rights of ‘individu-als’ or ‘individuals and minorities’: (1) religion (i.e. Muslim or not); and (2) riskassessment. Muslims ‘as Muslims’ might regard measures to combat terrorism asjust another excuse for prejudice against Muslims. But they might also opposemeasures to combat terrorism because they feel that the threat of terrorism isexaggerated—a panic over-reaction by the authorities.These two factors are correlated, though risk assessment does not correlate perfectlywith religion. Muslims are more inclined to discount the threat of terrorism, manyregarding the threat as exaggerated, though few denying its existence. Averagingacross the ﬁve countries in our analysis, only a few more Muslims than non-Muslims deny there is any real threat of terrorism in their country. Even inEngland, where the threat of terrorism is most widely acknowledged, less than 10per cent more Muslims than non-Muslims deny there is a real threat of terrorismin their country. But Muslims tend more than others to feel that the threat ofterrorism is exaggerated—and especially so in England, where the threat of terror-ism is most widely acknowledged.There is of course no absolute standard by which we might determine whetherMuslims underestimate—or that the general public overestimate—the threat ofterrorism. We can only note the difference between them.Both religion and risk assessment have measurable impacts on popular legalculture, inﬂuencing the priority assigned to ‘combating terrorism’ over the need todefend the rights of individuals and minorities. But the more powerful inﬂuence, bya large margin, is risk assessment, not religion: the greater the perception thatterrorism poses a real threat, the greater the willingness to prioritise ‘combatingterrorism’ over the rights of individuals and minorities. This impact of risk assess-ment is strongest in England, where risk assessment itself is strongest.Religion also has a direct impact on attitudes towards prioritising ‘combating ter-rorism’ over the rights of individuals and minorities in addition to its indirect impactthrough ‘risk assessment’. The direct impact of religion is highly sensitive to thespeciﬁc inclusion or exclusion of references to ‘minorities’ that alienate the general© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)
532 Table 11: The Impact of Religion and Risk Perceptions on Protecting the Rights of Individuals and Minorities Q115 Which do you feel should be more important: to combat the threat of terrorism OR protect the rights of individuals and minorities? Averaging over all ﬁve countries: Net majority for combating terrorism rather than protecting the rights of individuals & minorities If feel threat of terrorism If feel threat of Impact of risk assessment is exaggerated or not real terrorism is real (‘a real threat’) Among general publics -12 +31 +43 Among Muslims -41 +3 +44 Impact of Muslim religion -29 -28 BJPIR, 2011, 13(4) WILLIAM L. MILLER© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies Association
RELIGION, RISK AND LEGAL CULTURE 533public, but even with their inclusion the impact of ‘risk assessment’ remainsunchanged and remains clearly greater than the impact of religion.About the AuthorWilliam L Miller, Department of Politics, University of Glasgow, Adam Smith Building, GlasgowG12 8RT, UK, email: email@example.comNotesThis article is part of the research project, ‘Legal Cultures in Transition’, which is funded by theNorwegian Research Council under Award No. 182628. 1. ENG4-1 indicates participant number one in English focus group number 4. 2. [Country] was replaced by the actual name of the country in which the interview took place.BibliographyBulley, D. (2008) ‘ “Foreign” terror? London bombings, resistance and the failing state’, British Journal of Politics and International Relations, 10:3, 379–394.Campbell, C. and Connolly, I. (2003) ‘A model for the “war against terrorism”? Military intervention in Northern Ireland and the 1970 Falls Curfew’, Journal of Law and Society, 30:3, 341–375.Donohue, L. K. (2008) The Cost of Counterterrorism (Cambridge: Cambridge University Press).English, R. (2009) Terrorism: How to Respond (Oxford: Oxford University Press).Friedman, L. M. (1997) ‘The concept of legal culture: A reply’, in D. Nelken (ed.), Comparing Legal Cultures (Aldershot: Dartmouth), 33–40.Gearty, C. (2007a) Civil Liberties (Oxford: Oxford University Press).Gearty, C. (2007b) ‘Terrorism and human rights’, Government and Opposition, 42:3, 340–362.Githens-Mazer, J. (2008) ‘Islamic radicalisation among North Africans in Britain’, British Journal of Politics and International Relations, 10:4, 550–570.Ignatieff, M. (2004) The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh: Edinburgh University Press/Princeton NJ: Princeton University Press).Johnson, M. and Gearty, C. (2007) ‘Civil liberties and the challenge of terrorism’, in A. Park, J. Curtice, K. Thomson, M. Phillips and M. Johnson (eds), British Social Attitudes: The 23rd Report: Perspectives on a Changing Society (London: Sage), 143–182.Kuzio, T. (2004) ‘Ten ways in which Ukraine is a neo-Soviet country’, Ukrainska Pravda (English version), 25 March, 17:01. Available online at: http://www.russianmeetingplace.com/forums/ showthread.php?t=2098 (accessed 7 April 2011).NatCen (2007) ‘New British Social Attitudes Report published today’, Press Release, 24 January.Nelken, D. (2004) ‘Using the concept of legal culture’, Australian Journal of Legal Philosophy, 29, 1–26.World Bank (2008) World Governance Indicators. Available online at: http://info.worldbank.org/ governance/wgi/mc_chart_print.asp.Zedner, L. (2005) ‘Securing liberty in the face of terror: Reﬂections from criminal justice’, Journal of Law and Society, 32:4, 507–533.© 2011 The Author. British Journal of Politics and International Relations © 2011 Political Studies AssociationBJPIR, 2011, 13(4)