Sunday, August 29, 2010


Judge Hercules & Obama’s Ground Zero Mosque
By Kelly O'Connell Sunday, August 29, 2010
In the current controversy engulfing survivors and families of the September 11th tragedy, unfolds a train-wreck of legal and moral claims about use of the site. This pits supposedly well-meaning Muslims against suspicious stalwarts opposed to Islam establishing a beachhead in the area. So, what is the right answer and who should prevail in the matter? Does a legal property right confer a larger “right” of development within the community, regardless of anything else?

Professor Ronald Dworkin has a suggestion treating thorny legal disputes. In his book Law’s Empire, Dworkin offers his Judge Hercules to tackle such cases. Hercules is a Superjudge who tackles the “hard cases” from which other judges shrink. He uses the law as it stands, but adds such criteria as “Integrity,” “Community,” “Morality” and the social and historical matrix law develops within to find his “Interpretive” conclusions.

Interestingly, Dworkin claims a good jurist can find the “Right Answer.” This is the “single best answer” to a hard case not only creating a new standard but representing the emergence of real justice to a previously confused situation. This is what this essay aims to do on the question of the Ground Zero Mosque.

I. Ground Zero Mosque Debate
A debate has erupted over land in the area leveled by the 911 hijackers, which Muslims have purchased to build a mosque. This structure has become the piece de resistance for many Liberals, whereas the idea has horrified many other people across the spectrum. The subject has drawn out a classic debate over the issue of constitutional rights.

II. Judge Hercules
Imagine if you had a world class jurist, completely unbiased with an almost divine knowledge of law, history, philosophy, religion and human nature to decide your case? Wouldn’t you be relieved? This is Ronald Dworkin’s Judge Hercules, whom the New York Times describes:

Hercules is Superjudge, endowed with unmatched knowledge of the law and unlimited time to trace the implications of principle. No mere magnification of any human judge, he is instead a metaphor for the way adjudication ideally should be done. Hercules, grasping all the interconnections of the law, understands fully the purpose of the law. He decides cases in the way that puts the law in the best possible light  according to its purpose. For Hercules there is one right way to decide a case, and he achieves the right way. A decision by Hercules displays justice, fairness and integrity.

III. Judge Hercules’ Tools
The interpretive legal bag of Judge Hercules contains some of the following tools:

A. Black Letter & Case Law
Hercules accepts the basic law everyone else does, found in the Constitution, federal and state statutes and case law. He is not a legal rebel or a judge trying to legislate from the bench.

B. Community
Dworkin offers three levels of community. First is a community occurring by chance, who have nothing in common except as a “defacto accident of history.” Second is the “rulebook” community which is committed to each other merely obeying all the same rules. The third is a community of principle, committed to one another via political principles the group aspires to. This is the highest good of group.

C. Moral Naturalism
Judge Hercules must make his judgments based upon a moral understanding of the law. This means that he must study and understand the values of his community, and then represent them drawn from the intentional ethical standards of the people he judges.

D. Integrity
Dworkin’s touchstone is “Integrity.” Law as Integrity means doing “Constructive Interpretation.” Propositions of law are true if they follow from principles of justice, fairness and procedural due process, giving the best insights into the community’s legal practice.

IV. Judge Hercules Decides
Mosque Background Considerations
Dworkin explains the proper background for judging hard cases. He says,

Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards.

Please consider the following issues when judging this case…

A. Arguments Favoring the Ground-Zero Mosque
Constitution & Private Property

Americans deeply revere a constitutional definition of private property. Citizens have every right to use their own property as they see fit. No group should unduly inhibit the decision by private parties for arbitrary purposes. We also must make sure that if we do inhibit the use of private property, such as land, we do not damage its value to undermine the 5th Amendment, amongst others.

Freedom of Religion

Freedom of religion is perhaps America’s most fervently held freedom. We must use every possible means to increase the practice and enjoyment of this freedom. No shackling of free worship should be allowed, and other restrictions on activities by religious groups must be closely monitored to keep from repressing this precious right.


In the interest of both harmony and greater understanding between diverse groups, we must encourage inter-religious ecumenism, being the further interaction between the world’s religions. This will result in more harmony and peace, and less strife and war, and so this should be a top priority in America.

Justice & Fairness & Due Process

The bottom line for Judge Hercules is Law as Integrity, which means putting first Justice, Fairness, and Due Process in legal decisions. This should be especially true for alien groups because we as Americans must prove that we take our idea of fairness most seriously when it most inconveniences us.

Harm of Blocking

The argument for the mosque should include a claim that stopping the mosque would create a much worse harm than allowing it to be built.

B. Arguments Criticizing the Ground-Zero Mosque
Area History

The history of the area of the Twin Towers makes it not just a mass grave site but also a war memorial; which is of great import not just to New Yorkers, but to all Americans. Therefore, normal rules of development may not apply.

City & Neighborhood Sentiments

The persons who live in a neighborhood have a larger say in its development than any other group. Further, in this case, those killed at the site, survivors and their families have an outsized vote on future developments given the nature of the tragedy, and the cemetery nature of the site.


Persons who were not established at the Ground Zero previous to the tragedy site might not get a preferred place at the table when it is rebuilt.


Zoning is an appropriate means of creating the type of neighborhood the occupant’s desire. While the direct rules are of note, how they have been applied is also important.

Likely Impact
The overall impact of a particular ruling is of great interest to Judge Hercules. For example, if a strip club owner found a loophole in a town’s zoning ordinances allowing him to buy cheap land between a Catholic seminary and a preschool, Hercules would want to know the likely impact of such a site on the local community.


With such a touchy area as the Twin Towers site is being rebuilt, it goes without saying that the persons being allowed in would be exhaustively background checked. In this case, what is the history of the intended mosque builder? How about that of his friends, backers, etc? What might be his intentions? More generally, what is the history of his sect, and how do they tie into the 911 bombers? Or could the new site be used for the recruitment of others like them? Judge Hercules would get to the bottom of these questions before rendering any decision.


Is there any chance the new mosque would be built, or seen as an Arc de Triomphe, as created by the ancient Romans or modern French to celebrate a war victory? Further, could this mosque act as a permanent block as does the Dome of the Rock which functionally blocks the rebuilding of the Jewish Temple of Herod on Jerusalem’s most sacred Temple Mount?

Murder Inheritance Rule

Being the careful and wise judge he is, Hercules would look for precedent of any kind to import into this situation. One of the rules he might consider affecting his ruling is the murder inheritance rule which forbids those who are due to inherit on account of their murdering a relative. While this rule might not seem to apply, consider one could argue Imam Feisal Abdul Rauf’s people are relatives of the sect that crashed the planes into the Twin Towers. Both American and Muslim law forbid gaining under such scenarios. That might affect his ruling on the use of the former Burlington Coat Factory land.


Perhaps the most difficult issue to address would from US legal history involving Founder’s role model and hero, philosopher John Locke, originator of the most advanced idea behind religious freedom. While Locke did much to champion and popularize religious freedom in the colonies, he was not in favor of allowing religions with violent and oppressive histories the same rights as peaceful ones. Might Hercules decide that Islam needs a probationary period in America before being given equal status? As astounding a thought as that might be, the ever innovative Grecian could come to such an iconoclastic decision.

How Foreign Islam Treats Other Religions

Hercules might inquire into the native rules Islam uses to process non-Muslim religions whenever they have hegemony in Muslim lands to see what their own sense of fairness might entail.

V. Analysis of the Ground-Zero Mosque by Hercules
This analysis will be brief not merely because of space limitations, but in order to encourage intelligent readers to enter into the judging process with Hercules themselves. While this writer cannot prove which side Hercules will fall towards, Dworkin’s “Right Answer” thesis encourages judges to take heart and believe that a right answer does exist to be found by intrepid, intelligent, hard-working and principled jurists.

A guess as to a possible judicial decision by Judge Hercules…
If the decision came down to two choices—Community versus Constitutional Rights, it would sum up perhaps the key issues involved.

Community of Ground Zero
Judge Hercules will be quite concerned with the impact of the mosque upon the victims’ families, the overall city and the net impact upon the war victim shrine. In analyzing this he will be quite curious about the intent of the would-be builders. Judging this will generally involve studying Muslim beliefs and behavior, being gracious and yet circumspect in his conclusions.

Hercules will investigate the background of the builders, and certain curious statements, such as the Imam claiming America had blood on its hands and his wife claiming they would not back down from their intent to build the 13 story mosque 600 feet from the Twin Towers. Hercules will study whether the building will create more bad feelings than positive bridge-building.

Further, Judge Hercules will bear in mind the devastating impact of the shrine if it is misused, by triumphalism, proselytizing, or any non-peaceful proclamations, such as condemnations of America. Beyond this, Hercules might find unseemly the notion that Islam will benefit by using land cleared by the mass murder by Muslims for an Islamic religious ground.

Constitutional Rights of Muslims
A constitutional analysis will examine what harm will be done to American Islam if the site were merely moved back from the scorched earth, and whether property rights will be compromised. Hercules will question himself and others on whether being farther back from the site will really harm their ability to practice their religious, but if so—why? This seems like an odd claim. Judge Hercules will be sensitive to the notion that some subterfuge is at work in the mosque plans, and that the Imam’s strange aggressiveness could be explained by this. Constitutional interpretation must always invoke a theory of political morality.

One cannot claim Muslims are treated unfairly in not allowing their mosque if the Eastern Orthodox Church, which was previously located at the Twin Towers site is not allowed to be rebuilt. But one thing Hercules would not allow is forcing the mosque to be built based merely upon a technical right to act. This he would term as a sterile positive law approach that ignores the values of the community and morality in the search for legal integrity.


Ronald Dworkin writes about finding that singularly correct answer— “Law is a seamless system with its own autonomy. It provides one correct answer to any cases, difficult or not, by application of its rules, precedents, principles and spirit.”

In the spirit of fostering community spirit, avoiding needless harm to others, and being mindful to heed Dworkin’s responsibility for group mistakes, once can see Hercules coming to his single answer.

It seems that that costs to the Muslims would be slight, were they to relocate their mosque a few blocks away. And the emotional price and cost in good will of building their Muslim house where they own land now would be very high.

And good neighbors (or mayors or municipalities or city goverrnance) do not seek technical ways to force damaging decisions upon their neighbors.

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