Recently, Professor Volokh criticized an Austrian ruling that affirmed a criminal conviction for “denigrating religious beliefs.” Professor Movsesian then discussed Professor Volokh’s criticism here at CLR.
The Austrian ruling is virtually unthinkable in the United States, where we enjoy broad freedom of expression. (The defendant is Elisabeth Sabaditsch-Wolff, an outspoken “anti-jihad” Austrian activist who, among other causes, also opposes what she understands to be the treatment of women under Islam.) But, in a nation with Austria’s Second World War history, criminalizing such expression may not, as Professor Volokh asserts, be an instance of the “disappoint[ing] . . . intoleran[ce] of condemnation of religion” by “a European democracy such as Austria.” Rather, it may be an appropriate way to remedy a truly reprehensible period in Austrian history.
Americans nurtured on grade-school civics may find prosecuting someone for “denigrating” a religious belief very difficult to accept; however, Austria’s social tapestry, which includes some of the worst atrocities of WWII, is not readily comparable to America’s constitutional framework and historical experience. As Americans, we frequently pride ourselves for allowing—protecting, even—very ugly speech. That is to say, as a constitutional ideal, the great weight we accord freedom of expression outweighs any abhorrence we might feel toward the belief expressed. So that, as a legal matter, mere expression is rarely punishable (exceptions, such as those for obscenity and incitement, or, on the civil side, defamation, are judicially disfavored and strictly curtailed). But our ability to maintain this moral and legal regard for free expression on religious matters may be a result of the deviating historical experiences that make our and Austria’s socio-criminal needs so different. For more elaboration, please follow the jump. Read more
It began with an eclipse. In 1806, the Shawnee leader Tenskwatawa (“The Open Door”) declared himself to be in direct contact with the Master of Life, and therefore, the supreme religious authority for all Native Americans. Those who disbelieved him, he warned, “would see darkness come over the sun.” William Henry Harrison, governor of the Indiana Territory and future American president, scoffed at Tenskwatawa. If he was truly a prophet, Harrison taunted, let him perform a miracle. And Tenskwatawa did just that, making the sun go dark at midday.
In The Gods of Prophetstown, Adam Jortner provides a gripping account of the conflict between Tenskwatawa and Harrison, who finally collided in 1811 at a place called Tippecanoe. Though largely forgotten today, their rivalry determined the future of westward expansion and shaped the War of 1812. Jortner weaves together dual biographies of the opposing leaders. In the five years between the eclipse and the battle, Tenskwatawa used his spiritual leadership to forge a political pseudo-state with his brother Tecumseh. Harrison, meanwhile, built a power base in Indiana, rigging elections and maneuvering for higher position. Rejecting received wisdom, Jortner sees nothing as preordained-Native Americans were not inexorably falling toward dispossession and destruction. Deeply rooting his account in a generation of scholarship that has revolutionized Indian history, Jortner places the religious dimension of the struggle at the fore, recreating the spiritual landscapes trod by each side. The climactic battle, he writes, was as much a clash of gods as of men.
Written with profound insight and narrative verve, The Gods of Prophetstown recaptures a forgotten turning point in American history in time for the 200th anniversary of the Battle of Tippecanoe.
Inspired by last month’s announcement of an agreement to repair the Church of the Nativity in Bethlehem, over the break I read an interesting recent book on the church’s sister shrine, the Church of the Holy Sepulcher in Jerusalem, which many Christians believe to be the site of Jesus’ crucifixion and resurrection. Like the church in Bethlehem, the Holy Sepulcher is shared among monks from three different Christian communities, Armenian Apostolic, Greek Orthodox, and Latin (Roman Catholic), according to something called the “Status Quo,” a kind of customary law dating to Ottoman times, which governs possession and use of the church in minute detail.
It is not an entirely harmonious relationship. Monks from the rival communities not infrequently come to blows in disputes about use of altars. Only a couple of weeks ago in Bethlehem, monks got into a fistfight about who had authority to clean parts of the Church of the Nativity in preparation for Christmas celebrations. You might think these fights are driven by theological differences, but those are somewhat secondary. Under the Status Quo, cleaning an area is an assertion of possession. So communities bitterly resent unauthorized attempts to tidy up. Similarly, because paying for repairs likewise indicates possession, the communities often block each other’s attempts to repair common areas of the church, like the roof. This can lead to delays in necessary maintenance that place the church in danger of collapse.
From a Christian or even conservationist perspective, all this is very disedifying. From the perspective of a secular lawyer, however, the Status Quo is fascinating. In Saving the Holy Sepulchre: How Rival Christians Came Together to Rescue Their Holiest Shrine (Oxford 2008), Hebrew University Professor Raymond Cohen describes the decades-long process by which Armenian, Greek, and Latin monks negotiated an agreement to make essential repairs to the Holy Sepulcher, which had reached a terrible state by the middle of the last century. Working within the Status Quo, the three communities, each of which distrusted the other, somehow worked out a modus vivendi that allowed them to save the shrine. (One important prod: the communities’ fear that if they didn’t reach agreement on saving the church among themselves, secular authorities would intervene and upset the Status Quo in a way each would find unpleasant). The process led, if not to affection, then to a kind of mutual regard among the monks – at least some of them. Cohen’s story is one of the triumph of rationality over a massive collective action problem: inspiring, no matter what one’s religious commitments.
Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law takes up the fundamental question “What is law?” through a consideration of the interrelation of the concepts of law, person, and community. As with the concept of law described by secular legal theorists, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law rests upon a traditional understanding of the spiritual end of the human person and religious nature of community.
The comparison of one of the world’s ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law’s power to bind individuals and communities. Professor John J. Coughlin employs comparative methodology in an attempt to reveal the differing concepts of the human person reflected in both canon law and secular legal theory. Contrasting the contemporary positivistic view of law with the classical view reflected in canon law, Law, Person, and Community discusses the relationship between canon law, theology, and natural law. It also probes the interplay between the metaphysical and historical in the theory of law by an examination of canonical equity, papal authority, and the canon law of marriage. It juxtaposes the assumptions of canon law about church-state relations with those of the modern liberal state as exemplified by U.S. first amendment jurisprudence. No scholarly work has yet addressed this question of how the principles and substance of canon law, both past and present, relate to current issues in legal theory, such as the foundation of human rights and in particular the right of religious freedom for individuals and communities.