Many of my recent posts have been a call for more ecumenicalism in our interactions with others. The recent events in the Middle East have brought home to me that the point of that kind of cross-cultural empathy is not merely a feel-good response to our neighbors. It can be critical, even vital, to understand fundamental philosophical differences when trying to chart a way forward. I think that some basic understanding of comparative law could be helpful in framing the events in the Muslim world right now.
Our system of laws has been developing for hundreds of years, and grows out of the English system of common law. Historically, the elements of crimes and the ability to bring others to court for non-criminal acts (torts), have not been reliant on a legal code adopted by legislative bodies. Rather they developed as a consensus of judicial decisions over time that made sense for that community. So, someone could theoretically be charged, tried, and convicted for the crime of assault even if there was no mention of assault in that jurisdiction’s law, because the elements of the crime of assault are established in the common law. This type of precedential law enforcement creates a high degree of consistency of expectation among the community. There are also efficiencies achieved by basically leaving some dispute resolution over harm out of the criminal realm of government law enforcement–essentially, this is a privatization of the attorney general function. The government doesn’t have time to go after negligent behavior that leads to injury, but people can sue each other over it, leading to a curbing of that behavior that benefits society as a whole. That’s what our tort system does. Of course there are downsides to our common law system. It requires jurists to have access to vast libraries of previous judicial decisions, or have the technology to access them online. It also leads to a litigious society, where dispute resolution is overly formalized through the courts. These are the trade-offs, and in general, we’re quite comfortable with them. It’s our system in America, we’re used to it, and we probably don’t think about it much.
One particular tort that most people are familiar with is libel–the the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, religion, or nation a negative or inferior image . (See wikipedia entry on defamation for more details.) In the American system, one party can sue another over the tort of libel. If they can prove all the elements of the tort, and the other party has no defense (truth is a usually a defense to libel) then the party that brought suit can collect damages. This is how we’re used to dealing with harmful speech. The government does not get involved as a party. In this way, our first amendment right to free speech fits in nicely with our legal system. There are limitations to what we can say, such as the classic “you can’t shout fire in a crowded building” example or libel as another example. However, absent some compelling reason that falls under one of these exceptions, we can pretty much say whatever the hell we want. Even if it is stupid, mean, or evil. We’re used to being surrounded by stupid people whose speech is unregulated. This is America.
Civil law, however, is quite different from the common law. And outside of the former English colonies (like us) most countries follow civil law. Civil law is heavily reliant on a code created by legislation. Judges do not need to refer to the decisions of other judges–they simply read what is stated on the face of the law and render a verdict. In this way, areas that are poor or technologically challenged can still administer justice. There are problems with consistency under civil law systems, however, because people can never be sure how the judge will interpret the law. Also, there is no tort system in civil law countries. The government becomes a party to issues that fall under the code, and so in many civil law jurisdictions libel is a crime. It is punishable by the government, which forces the government to become involved in the regulation of speech. To people who live in a country where libel is a crime, there is the automatic expectation that the government would regulate speech. If you are raised in this society and have had no exposure to the comparative laws of other countries (and why would you?) then you expect that the government regulates speech.
Add to this the element of sharia law. In most Muslim countries there is a clause in their Constitutions that say something to the effect of “No law shall be contrary to the principles of sharia.” This isn’t surprising, and many countries have sharia courts set up to determine what is and is not contrary to sharia and how that should be enforced. It is a highly legalistic system of jurisprudence, and those living under it do not give much thought to the fact that this system of laws may be foreign to others. Why would they think about it? How often do you think about what is and is not legal in Madagascar, Sweden, or Japan? This inclusion of sharia principles often plays out most starkly in the penal codes of these countries. Actions that are not crimes in the American understanding of the word are criminalized in Muslim countries. For example, drinking alcohol or having sex outside of marriage. (This shouldn’t be too shocking to us, as we played around with criminalizing both of these actions in our not too distant past). Another crime is that of blasphemy. If someone is openly mocking religion, deity, or the Prophet Muhammed, they are arrested.
So, let’s start pulling all this together. In the areas where the riots have been occurring, the people are inheritors of two legal traditions in which it is expected that the government would regulate speech. Therefore, if the speech is not regulated, there is the assumption that it is sanctioned. Think about that. A well publicized event that would be immediately responded to by the governments and legal systems that these people are used to is very publicly not responded to by the American government. They have no way of knowing that under our system of laws that type of free speech is protected. They have no way of knowing that according to our conception of the rule of law, our government is actually constrained from interfering with the speech. All they see is inaction. It’s not too hard to realize that we have a massive, massive problem of intercultural communication here–one that is heavily exacerbated by the existence of facebook, youtube, and the internet in general.
Before you start flaming me in the comments, let me say very publicly that I’m not apologizing for the first amendment, America, the flag, apple pie, or chubby cheeked American babies. I happen to be one of those hyper-vigilant libertarian leaning fans of the right to free speech. I think it’s a hugely important part of who we are, and I honestly think that most places in the world would be better off with more free speech protections. However, I do recognize that my thoughts are aspirational and reality is much different. Further, the abhorrent violence that claimed the lives of those American diplomats is simply disgusting. Every legal tradition we’ve talked about–common, civil, and sharia–condemns it. The people who did that must be publicly brought to justice. I do think, however, that any hope of a more peaceful future is utterly reliant on a better understanding of each other, more education, more travel, and more friendships with those who are unlike us. We have to find a way to talk about what we believe, but listen to what others believe.