On Comparative Law

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.


  1. Karen, this should make the networks. That’s not predictive, it’s wishful thinking.

  2. Very interesting indeed. I totally agree that we need to become more aware of how foreign legal systems work in order to do a better job of communicating with people from these countries.

  3. Aaron Brown says:

    Thank you, Karen.

  4. This to me is like trying to teach the abused wife how to tip toe better so her husband doesn’t go into a rage…then the mice in the wall set him off. She should have had the place fumigated…defintiely still her fault. The longer we perpetuate this idea that SHE must somehow change and has control over his behavior…the slower she is to realize she’s dealing with a completely broken mad man.

    We can’t control the random idiot. the random idiot isn’t going to care one bit about the real cultural differences you mention. Yet that random idiot MUST have the right to be offensive so that we as a people can maintain the right to offend our government when necessary. The thing is it doesn’t really appear the “riots” were based on the video at all. They appear planned and coordinate well in advance all set for Sept 11 with mortar and grenades at the ready. The chants were obama, we are all osama….no mention of the idiot video maker, or the video. It’s a manipulative, controlling move to even toss out that the video is in any way responsible.Even though the video is obviously offensive. It’s as we are taking for granted that a reasonable response to highly offense free speech is murder. As long as we have any sort of free speech and the internet exists they can choose some random thing to blame and we will scurry around trying to change and considering censorship and better understanding…ignoring the fact that we are dealing with mad men who think violence is a reasonable form of communication.

    I’m not saying the OP isn’t interesting. It is good to remember just how different other cultures are. But if the other cultures think murder is reasonable, and they hate us…I just don’t see how us being sensitive to the difference in laws will change a thing. mad men will be violent no matter who sensitive and kind and perfect we are.

  5. Lesson number one, I’m a bit frustrated by your comment. I would just like to point you back to the OP where I very clearly state that I do not support censorship, and where I very clearly place the blame for the violence at the feet of the perpetrators. You are responding to what you wanted me to say, and not what I actually said.

  6. Amen, Karen. Great and important post.

  7. My take of the Op is a call for understanding. You are offering information about their system of law so that people can better understand. Understanding does lead to better communication.

    in your post you suggested crimes for which they arrest..incuding blasphemy. Undoubtedly the video blasphemed. So i would expect from your OP that they arrested our government representatives…thinking that we sustained the random youtube video by allowing it’s existence. that didn’t happen. the government didn’t call for that. how can we understand them if we don’t recognize that ey don’t have rule of law…just a different law? Sex outside of marriage is sometimes killed for as well..At least the woman…even if it was rape. That’s not rule of a different law that we can understand and then communciate with.

    this is also assuming they don’t understand that on embassy property it is US law that reeigns…not sharia law.

    for me the op is like the girlfriend of the abused woman suggesting she read men are from mars and women are from venus…forgetting entirely that abusers are from hell.

  8. Lessonnumberone–how much experience do you have with diplomacy? How much with Islamic traditions? Wouldn’t it be better for you to learn from someone who has the actual experience rather than find analogies within your own cultural framework?

  9. This post needs to be an Op-Ed in a major newspaper. Incisive and timely as usual, Karen.

  10. So great of you, Karen, to go above and beyond in your post by soliciting a commenter to represent the very caricature you are speaking against. Touche!

  11. How about this as an analogy. Imagine there is a country where all types of sexual media (no exceptions) is legal–protected by their Constitution. And somehow that country decides that it must permit all those presentations (including depictions of the underaged) to be placed on an internet connection where the entire world can view it . I imagine Americans would be rightly incensed. Because we do not believe the First Amendment protects obscenity (particularly involved the underaged).

    I think, but do not know, that in some cultures blasphemy or some forms of blasphemy are viewed as filthy and undeserving of any protection.

    Yes, I know that there are fundamental differences between the two types of communication. And yes, I understand that the Western societal bans on certain kinds of communication are morally justified but that Islamic criminal bans on blasphemy are immoral. But I cannot say that their view is irrational.

  12. should read: “I think, but do not know, that in some cultures blasphemy or some forms of blasphemy are viewed just as filthy and undeserving of any protection as sexual depictions of the underaged are here.”

  13. If the problem is one of intercultural communication, why aren’t American Christians rioting over the (mis)treatment of Christians in Muslim-majority nations?
    Also, sharia does not “condemn” violence against kaffirs. Closer to the truth to say it requires it!

  14. Regarding sharia, see the troubling survey results in:

  15. The other point is that the proper response is to refer to those who breach the embassy not as those who have trespassed on American soil, but as those who have violated the duties of a host to a guest and sinned against the rules of hospitality.

    Romney (especially, as the man was in league with anti-Mormons as well as anti-Islamists) could have easily stated:

    Not only has this man insulted you, but he has insulted me. His pride and arrogance know no bounds.

    But your rage at him does not excuse your violation of the law of hospitality, your betrayal of the duties of a host, and your assaults on others he has insulted. You have joined him, doing what he wants rather than ignoring him as the outcast cur that he is.

    That would have been the right thing to say had he been actually talking to those involved in the mobs.

    David, “I think, but do not know, that in some cultures blasphemy or some forms of blasphemy are viewed just as filthy and undeserving of any protection as sexual depictions of the underaged are here.” — pretty much hits it on the head. With a dose of it appearing to be an attack as well.

  16. MarkTh … Sharia condemns violations of the law of hospitality. As for the word choice, k***** is a pretty harsh term, much like n***** Just fyi.

  17. I guess if you are the original inhabitants of a region you’re not a guest desrving of this hospitality?

  18. Ardis E. Parshall says:

    Mormon blogs are generally not as friendly to hate speech, MarkTh, as whatever rock you’re accustomed to crawling under. Ewww.

  19. Ummm, now you are censoring the Koran? Kaffir is a Koranic term for un-believers. Can we get off the eupemism treadmill for long enough to have an intellectual discussion?

  20. and thanks for immediate esort to ad hominem and comparing me to a bug under a rock.

  21. MarkTh–regardless of its history, the word k**** is not used in polite company. Use it again, and you’ll find yourself banned. (And no, the irony of doing that on a thread in part about free speech is not lost on me. I’ll do it anyway.)

  22. Seriously, where are you getting this “non-rule” from? You can’t read an English-language translation of the Koran in polite company? And, apparently, heaven-help you if you attend an Islam-0riented symposium at Oxford or Stanford, both locations where I have heard the term bamdied freely in recent years.

  23. what exactly is the ideal in the OP? if every American truely understood about law in the middle east…how do you see the relationship working? with Lybia, for example, would americans justneverblaspheme? What about other offenses…premarital sex for example….

    i guess I just have a hard time imaging us being acceptable in every way. let’s pretend we were in ever possible way keeping sharia law exct that we weren’t muslim….wouldn’t that alone be an offence?

    i don’t feel like the ambassador is dead because he didn’t inderstand Lybia or respect sharia law.

  24. I’m sure there are specialized contexts in which all the participants understand the usage. In many contexts, the word is understood as a vicious racial slur (check a dictionary), and therefore I’m asking you to think of a different way to express yourself. Thanks.

  25. lessonNumberOne. Read it again. Karen’s not talking about why the ambassador is dead. She’s talking about how people might (mis)understand the U.S. government’s failure to censor or condemn the video.

  26. Khristine, I’ve read the op several times. I totally understand why they might assume we allowed this video to exist on purpose. i can see how greatly improved understanding will aid communication.

    i just feel that understanding is limited when we don’t take into account that the gvernment and culture have shown themselves over and over again to jump to violence not only outside the law but as an integral part of enforcing their law. When the government consider death a logical consequence for having been raped…it seems reasonable that the people see murder as a reasonable reaction to blasphemy. That level of violence is not something I consider a reasonable part of rule of law.

  27. 19: I’m actually referring to the hate-mongering of your posted links. If I had the power to censor anything, it wouldn’t be the Koran; it would be linking to hate sites like the ones you post.

    And “ad hominem” is too big a word for you. It does not mean what you evidently think it does. Jerk.

  28. Ardis, yes, your comparison of me to a bug is an abusive ad hominem. That is, like, freshman philosophy 101 at, like, pomona, so-LOL!

    Now linking to the narrative of a Hindu kicked out of the Kashmir Valley by his co-ethnics who are Muslims and sent rape-threats from their mosques is a “hate site?” Where I come from we call that a primary historical source. And there’s plenty more to back it up. Google is your friend.

  29. Are Holocaust narratives hate-speech? Why is the Hindu to be silenced from telling his story with the label “hate”?

  30. An excellent post, Karen, thoughtful and thought-provoking. I really appreciate the legal perspective on recent events. I’m sorry some responses here have been so disappointing.

  31. Thank you, Karen. This is something we really need to consider and understand much better than we generally do.

    As always, it’s sad when a thought-provoking post gets highjacked by obsession over a soapbox issue that doesn’t address the point of the post. Sometimes swinging a hammer at a perceived nail that isn’t in the OP illustrates as much as the perceived nail itself.

  32. This kind of cross-cultural understanding is in such dire need. The violence and the idiot(s) that provoked the violence are something we seem unable to handle today as our modern, open, democratic society clashes with others.

  33. This was great Karen. I couldn’t help think of Roger Fisher’s obit as I was reading this: http://www.economist.com/node/21562880 Given the clear advantages it confers in any negotiation, it is strange how resistant we are to trying to better understand our adversaries. At the same time this resistance is so deeply embedded as it seems to simply be a part of what it means to be human.

  34. Thanks ZDEve, Ray, Trevor, and Mathew. Yes, I am perplexed by the resistance to simply trying to add more understanding to the situation. I think we sometimes have this knee-jerk “fandom” reaction to most situations–I like Mathew’s description that it seems to simply be part of being human.

  35. My mission president used to say that once you get to know people, it is impossible to hate them. I don’t know that this is universally true, but it seems like a good rule of thumb.

  36. Excellent post. I’m reminded of my mission in Russia, where many missionaries did not understand Russian culture. Truly, better understanding would have helped immensely in our missionary efforts.

  37. There’s no question that cross-cultural exchange will improve understanding and relations. And the OP does a fair effort of explaining how differing legal traditions can lead to unexpected reactions from the view of the outsider. Stephen Marsh’s response in #15 demonstrates a cultural awareness that calls upon the faithful to consider their complete faith and beliefs when weighing an appropriate response.

    But I believe there is more than just cultural misunderstanding going on here.

    The average American thinks, “What is wrong with those people, they seem to feel the need to react violently when someone pokes fun or denigrates the prophet Mohammed.”

    It DOES seem like an overreaction.

    The average Yemeni or Egyptian or Libyan hears about the video and shakes their head asking, “What’s wrong with those Americans, why can’t they show respect toward our faith and why aren’t putting the producers of such filth in jail?”

    That said, the average Yemeni or Egyptian or Libyan also isn’t storming the walls of an embassy, they didn’t drop everything and go lighting torches or loading their firearms. In fact, the news reports indicate that man on the street interviews leave the impression that they are just as bewildered by the extreme behavior of a small group of their countrymen as Americans are.

    There are extremists in any faith and any country. They often live their lives looking with paranoia toward those who would oppress them or attack their beliefs. When you couple extremism with poverty and idle young men with few prospects in life, it is easy to stir up a reaction toward an apparent offense. And in the heat of the mob, a few well placed individuals can encourage violent behavior.

    The protests are understandable in a legal, a historical, a religious and a cultural context. The violence is not. Those with agendas are manipulating the mobs and inciting the young men for their own benefit, in order to settle a score or for some other reason. Why else would the US embassy staff in Egypt be calling out the double speak coming from the Muslim Brotherhood’s English vs. Arabic twitter feeds?

    Would mutual trust be fostered if we spent more time collaborating? Possibly. But I suspect they would trust us even more if the US didn’t have a history of such a massive military presence and support of oppressive regimes and the apparent willingness to continue in this vein in spite of what our leaders say – because our actions speak much louder when the desire to protect petroleum availability is such a driver. So there are many bridges to be built.

  38. ” the word k**** is not used in polite company”

    “I’m sure there are specialized contexts in which all the participants understand the usage. In many contexts, the word is understood as a vicious racial slur (check a dictionary)”

    Tonight on All Things Considered they reported on Libya and Islam, I heard 2 experts use the word kaffir several times in the story, exactly as Mark Th used it. I wouldn’t call an NPR story any more of a specialized context than this blog discussion and they generally seem quite polite.

  39. Yeah, KLC, I heard that, too. Nonetheless, the word has an ugly history (mostly from S. Africa), and there’s no particular reason for us to use it here, since, in fact, it is not a well-known word. “Unbeliever” is both less charged and more readily understood, and I think it would work just fine here.

  40. Alain, I really appreciated your comment. The strong military arm of the US has got to be a factor…as well as the organized extremists who are willing to take advantage of…or possibly greatly foster protests.

    Your comment also made me think more about the extremists in our faith and what weaknesses and gaps they represent in our faith. I thought of the phrase “police our own” which seems woefully inaccurate for what really needs to happen…maybe heal our own or love our own or understand them and in many cases changes ourselves.

  41. Thanks all for the really interesting comments. One thing I’ve been thinking over the last couple of days and should have articulated in the original post is that this possible comparative misunderstanding is not only those who chose to react with violence (or acted with violence for some other reasons.) I think there are a whole lot of people in the region who do not agree with the violence, but who are nonetheless disturbed by the perceived lack of action response. In some ways, creating mutual understanding with the people who are leaders, educators, and change agents is even more important.

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