Inchoate Terrorism: Liberalism Clashes With Fundamentalism

Abstract

Islamist terrorism presents a culture clash between religious fundamentalism and the rest of the world. One view of the clash is that it is a battle between a peculiarly Arab perversion of Islam and the West. Another view is that it is a clash between the descendants of colonial regimes and their perceived oppressors. Whatever the sources and dimensions of the clash, it is a violent pattern that will play itself out over the next few decades at the same time that international tribunals are attempting to implement values of freedom embodied in human rights documents and conventions. To some degree, the human rights values of emerging international law are articulated from Western heritage. But the international community promotes those values as universal, and indeed it should be possible to find at least some variation of those values in every society. It just happens that it is from Western sources that the written form of those principles has been drawn. By these values, whether Western or universal, when does a person commit a crime by urging action in pursuit of his or her side of a culture clash? Western liberalism has struggled for centuries with trying to forestall violent or other harmful conduct while permitting maximum play of individual freedom. This tension is inherent in attempts to penalize inchoate crime. Limits on conspiracy law can be found in the due process notion that a person is not to be punished for thoughts without producing an actual threat. Limits on precursor crimes such as incitement or material support can be found in the related values of free expression. All of these values point to the same difficulty: a person is responsible for incitement to imminent lawless action. No better phrasing of the test has yet been suggested. The fact of imminence will be determined by judges and juries with whatever individual and community values they can bring to bear on this critical factual question.