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How far can satire go? Religious abuse as a criminal offence in Germany
23.02.2015
- Languages: de

In Germany, some debates just keep coming back, never losing their relevance even after several decades. They might for a time disappear from popular consciousness, might even appear to have been settled once and for all, but then they come back into the limelight, stronger than ever.

 

Given the way in which society is constantly changing, it is the emotive issues associated with the relationship of state and religion that tend to recur, reappearing each time with some new, interesting twist.

 

IN BRIEF

 

  • Freedom of religion protects belief in and practice of a religion, not its right to immunity from any criticism

     
  • In Germany, however, 'Abuse of Religion or of Confession' remains a criminal offence

     
  • Law distracts our attention from the real social problem; for in this question it is social incompatibilities that are in conflict and at stake

 

 

The recent terrorist atrocities in Paris have accordingly added to existing German discussion over the integration of Muslims in Western societies, reviving debate about extreme religious criticism and the application of criminal law.

 

Those in favour of blasphemy being a criminal offence seem uneasy with the forms of religious criticism adopted by, in this case, "Charlie Hebdo". Of course, there has always been argument about the limits of criticism and of satire, especially when it comes to religion.

 

French caricatures have long been thought to verge on the unacceptable: even in 1919, Kurt Tucholsky's legendary defence of satire in the "Berliner Tageblatt" argued that some French caricatures were “disgusting”, “but what force they had, such elemental rage, such reach and effect! Quite certainly: they held absolutely nothing back.”

 

Nonetheless, in Germany discussion of the acceptability of extreme religious criticism is not simply a matter of aesthetics or even of good taste, but of the law: what one can do, and what the state forbids one to do.

 

In Britain blasphemy was taken off the statute book in 2008; in France, it has not been an offence since the French Revolution. In Germany, however, 'Abuse of Religion or of Confession' remains a criminal offence; although a modification introduced in 1969 made it clear that the legislation was aimed not at the abuse as such, but at the preservation of public order.

 

It is for this reason that Article 166 Paragraph 1 of the Criminal Code associates abuse with a potential disturbance of the peace: “Whosoever publicly distributes writing … whose content in any way involves abuse of religious confession or of some other system of belief held by others and which is likely to provoke a breach of the peace will be punished by imprisonment of up to three years or by a fine.”

 

One can argue about the legal implications of this norm, and for the past twenty years there has certainly been vigorous discussion of this kind, without however there being any broader public involvement.

 

For the most part it has been atheistic abuse of Christianity that has been at issue, and not of Islam; it was only when the cartoons of Mohammed were published in Denmark in 2005 that this happened.

 

Right up to the present day it has been mainly those of a conservative persuasion who have sought a more legal stance, arguing that the norm in its present form does not provide sufficient protection for religious confession. By contrast, there are also those, especially the Greens, who have sought the abolition of a norm which they consider obsolete.

 

Neither of these initiatives succeeded, since the prevailing parliamentary majorities were not persuaded of any need for change. As recently as 2014 the annual meeting of the Congress of German Lawyers declared itself to be opposed to the abolition of religious abuse as a criminal offence, arguing that “in a society increasingly characterised by cultural and religious pluralism this statute, together with other statutes protecting public order, has a largely symbolic significance, but nonetheless also performs a function that endorses values and has legal significance. It lends religious minorities a sense of existential security.”

 

In fact, there are in Germany only about a dozen convictions a year (there are however many more prosecutions); although such reference to the small number of convictions is a rather odd way to defend a law, since the point of any conviction is not a function of its empirical frequency.

 

The norm itself is criticised for the unclear way in which its two principal elements are defined: abuse of confession on the one hand, and the manner in which this constitutes a disturbance of the peace on the other – in both cases, it is left to the court and its subjective judgement to decide how these are to be construed.

 

Public debate over these issues is in Germany not merely a political issue, but usually also a constitutional matter. This alters the problem: it is no longer a question of whether Parliament should change a norm for political reasons, but whether it is required to do so on constitutional grounds – or even, in the absence of action on the part of the legislature, whether the Constitutional Court will simply annul the norm (astonishingly, the Constitutional Court has never yet turned its attention to Article 166 of the Criminal Code).

 

To some extent, these argumentative variations can be criticised for their authoritarian or undemocratic overtones, on account of the way they presume a limitation of parliamentary will, replacing the criterion of 'lack of political utility' with 'forbidden by the Basic Law' – something that in Great Britain for instance would be quite unthinkable.

 

The division of powers in Germany has been historically conditioned, and actually poses problems for democratic theory none too different to those that arise in the USA regarding the role of the Supreme Court. But without going into these matters, one clear advantage of the present situation can be identified: constitutional law strives for consistency of decision-making on the basis of broadly-defined constitutional law.

 

'Consistency' here involves the many decisions made by the Court in the course of its more than sixty-year history; it strives for “systematic consistency”. Although a legal decision of this kind is always an expression of a value that has a political element, there is a rational core to this kind of division of powers: if the state interferes with the liberty of the citizen using the instrument of criminal law, reasons have to be given that outweigh his right to liberty.

 

It is not only the German legislature that sometimes fails to observe the inherent political rationality in this basic constitutional claim.

 

A conviction for abusing a religion can, depending on the medium in which the abuse takes place, involve different kinds of basic rights: liberty of thought, artistic liberty, scientific freedom, freedom of occupation and so on. However, any intervention of this kind is not as such a (proscribed) infringement of basic rights.

 

It can be justified if it is based upon a countervailing right anchored in the basic law; only if it is not possible to justify such intervention in this way has there been an infringement of the basic law.

 

A norm such as Article 166 of the Criminal Code would then be struck down. What is decisive for the conformity of any judgement of religious abuse with the basic law is, therefore, whether the norm creating an object of legal protection can be backed up by a constitutional object of legal protection.

 

In concrete terms: which particular constitutional principle is, in the event of extremist religious criticism, more important than freedom of opinion, and can this be afforded protection under the criminal law?

 

The religious freedom of those whose religion is abused cannot constitute an adverse right of this kind. Freedom of religion protects belief in and practice of a religion, not its right to immunity from any criticism.

 

The same is true for the general right of personality as an expression of human dignity: the personal right of an individual religious adherent is, in German legal understanding, not affected by general abuse of religion, since this right only protects persons from direct attack (for example, calumny of the Pope as an actual living person).

 

Against both adverse rights there is also the fact that the object protected by the norm of the criminal code is only public order; to seek to maintain public order by criminalising blasphemy through adverse religious rights seems to be entirely inconsistent.

 

So we are left with public order as such, which is certainly a legal object of constitutional law, whether conceived as an expression of constitutional guarantees such as physical inviolability of the person, or property, and so forth.

 

It is however extremely problematic that the person punished for religious abuse has not in fact disturbed public order directly, but it is instead simply assumed that the possibility exists that members of the religion so abused could take offence.

 

Even if the judge has to determine whether the possibility of such a disturbance exists as an 'objective' constituent fact (as the criminal law puts it), the snag here is that, ultimately, ideas held by one part of society are allowed to dominate and this – combined with a broad understanding of what constitutes 'abuse' – renders any critical engagement with a religion or a religious community difficult, if not entirely impossible.

 

And this rebounds on the basic rights that are interfered with: at the constitutional core of German discussion is the question of whether “responsibility for disturbing public order” can rest with the “religious abuser”, or whether the disturbance does not rather originate from those whose religious feelings are harmed, who indirectly endanger public peace, or at least could so endanger it.

 

There is a great deal to be said for not directly identifying a disturbance with the expression of an opinion or with a work of art. In an open society it seems quite anachronistic to use criminal law to secure public order.

 

Translated into the language of basic rights, that means: ultimately, it is disproportionate to judge the disturbance of public order by the standard of a (perhaps) outmoded conception of religion and its violent forms of expression, if in so doing this infringes very important basic rights like the right to freedom of opinion and its expression, or the freedom of artistic expression.

 

The issue of public order can therefore only be used against those who directly disturb it; and so Article 166 of the Criminal Code contravenes the Basic Law.

 

The revision to the issue of religious abuse undertaken in the Germany of 1969 is therefore an example of a step intended to modernise a principle belonging to an older, authoritarian state but which, from the perspective of today's social realities, was a step that did not go far enough.

 

That does not mean that religion and religious sentiment is unprotected in Germany; of course, it is an offence to disturb the practice of a religion, personal insults are punished, as are racist actions directed on religious grounds to the human dignity of groups of persons.

 

This detour via public order as a core problem of constitutional law does however distract our attention from the real social problem; for in this question it is social incompatibilities that are in conflict and at stake. Muslims, or for example evangelical Christians, who feel themselves provoked are faced with a learning process: that in a secular and open society like that of the West there should be no special protection for religious sensibility as such that trumps freedom of opinion or artistic expression.

 

Perhaps this differentiation can be taken to be the real test of integration: tolerating the freedom of others even in that which is most sacred to oneself. So how far can satire go? From the point of constitutional law, religious abuse can go as far as it likes.

 

Translated by Keith Tribe

 


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