Information Law Possum (discontinued)

The Swiss Study Foundation is holding its second “Juristic Colloquium” in April, entitled “Emotions and the Law”. The format of the event may be named 2.0, as it is up to the participants (like me) to prepare the discussion for each session. The speakers are Franz Nyffeler, former justice at the Federal Supreme Court; Suzette Sandoz, Prof. em. and former member of the Federal Parliament; Urs Gasser, and his dad Peter, who is a Prof. emeritus of psychology.

Our session–with Suzette Sandoz as the principal speaker–deals with the relationship between emotions and the interpretation of the law. (As James confirmed today, the German term for this, “Juristische Methodenlehre”, is untranslatable: It means interpreting our statutes and codes–which are, for anglo-american standards, very vague in their wording–from different perspectives, e.g. analyzing the wording, systematic, history, purpose, constitutionality, etc. of a norm.)

Primarily to make up my mind myself on the topic, I decided to make a short case study, from which I hope to gain insight into the role emotions should play in the “Methodenlehre”.

Cannibalism.

Wikipedia says:

There is an innate disgust with the term cannibalism, which strikes at the heart of the most base of human activities. This social stigma has been used as an aspect of propaganda against an enemy by accusing them of acts of cannibalism to separate them from their humanity.

Emphasis added. Cannibalism still exists today. Wikipedia’s relating chamber of horror (text only, fortunately) can be found here. The Great Source of Knowledge also taught me that sexually motivated cannibalism is called vorarephilia. Apparently, the internet is playing an essential role in this context (quote from Wikipedia):

The wide use of the Internet has highlighted that thousands of people harbor sexualized cannibalistic fantasies. Discussion forums and user groups exist for the exchange of pictures and stories of such fantasies, a good example of which is provided by the works of Dolcett. Typically, people in such forums fantasize about eating or being eaten by members of their sexually preferred gender. The cannibalism fetish or paraphilia is one of the most extreme sexual fetishes. Very rarely do such fetishes leave the realm of fantasies, most being satisfied with pornographic stories, fetish art or photo modification (or completely computer generated images), with some enacting their fantasies in sexual roleplaying.

There have however been extreme cases of real life sexualized cannibalism, …

for instance the case of the famous Cannibal of Rotenburg:

In December 2002, a highly unusual case was uncovered in the town of Rotenburg in Hesse, Germany. In 2001 Armin Meiwes, a 41-year-old computer administrator, had posted messages … in Internet newsgroups on the subject of cannibalism, repeatedly looking for “a young Boy, between 18 and 25 y/o” to butcher. At least one of his requests was successful: Jürgen Brandes, another computer administrator, offered himself to be slaughtered. The two men agreed on a meeting. Jürgen Brandes was, with his consent, killed and partially eaten by Meiwes.

(Note the passive voice the Wiki author is using to describe the most horrible–or disgusting–part of the story.)

The legal follow-up in a nutshell:

• Meiwes was convicted for voluntary manslaughter and sentenced to eight-and-a-half years in jail.
• Upon appeal by the prosecution, the German Federal Court of Justice ordered a retrial upon in May 2005, and in May 2006 Meiwes was convicted of first degree murder and sentenced to life imprisonment (which is the highest possible penalty in Germany).

One has to add that the perpetrators of many “ordinary” murders (i.e. all killings morally worse than voluntary manslaughter) are usually sentenced to between ten and twenty years of imprisonment in Germany.

The fact that someone has received the maximum sentence for committing a crime with the victim’s consent is puzzling and can only be explained with emotion–disgust.

As announced, I shall try to use the Rotenburg case to study the role of this emotion in the interpretation of law, particularly of the relevant section of the Swiss criminal code (which does not differ a great deal from the German one in this respect).

I just came across a blog post dating from my pre-blogging phase in my life (i.e. not too long ago …): The post is by Tim Armstrong (whom I sadly never met last summer), and it features a terrific (b.t.w. CC-ed) flow chart of copyright duration in the United States. Sometimes, it is fascinating how different the laws can be from country to country even in matters that appear relatively simple–such as the calculation of a date.

In Switzerland, copyright expires 70 years after the known author’s death (50 years with respect to software), respectively 70 years after publication if the author is unknown throughout that period. The duration was 50 years (according to the 1922 Copyright Act) for authors who died before January 1st, 1943. No renewal, no formalities, no dividend.

Certainly, the appropriateness of the coyright terms’ length can be disputed under both legal regimes. And certainly, a U.S. lawyer or policymaker would find the Swiss solution utterly crude. On the other hand, I strongly believe that statutes may reach levels of sophistication that entail disproportionate costs to society. Just think of all the law students who have to learn the rules and of all the practitioners who have to apply them. Yet, in my view the worst thing is the legal uncertainty for non-professionals such sophistication creates:

High school student Barney, for instance, has become a big fan of Hemingway’s short stories and wants to put the ones he likes best online to share them with his Facebook buddies. He heard about copyright and that copyright has a limited term, so he googles for more information. But alas, if Tim Armstrong’s flowchart doesn’t appear as one of the top results, it’s very likely that Barney is discouraged and abandons his plan. Or he posts the stories anyway, despite being worried about media reports of students who have to pay high sums for copyright infringement.

In either case, Barney is the victim of legal rules too complicated to be practical, and he feels bad.

Or, to say this rather pathetically: The law should cause grief only to the bad and guilty, and certainly not to those who want to obey the rules.

Imagine you were a judge at an international human rights court.  The bench has just established that the government of one of the court’s member states is responsible for the execution and/or disappearance of forty-one members of a domestic terrorist organization.  Now you have to decide on appropriate remedies for the surviving members of the victims’ families.  What would you do?

My (very unimaginative) answer would have been:

• compensation and amends
• a publication of the judgment

A couple of days ago, my favorite Swiss newspaper, the Neue Zürcher Zeitung, featured a report on a “recent” decision by the Interamerican Court of Human Rights in such a case:  In 1992, 41 members of the Peruvian rebel/terrorist group “Sendero Luminoso” lost their lives in prison, and the court concluded that they were executed illegally by state organs.  (The official verson of Fujimori’s government at that time was that the prisoners were killed in fightings following a mutiny …)

The judgment isn’t as recent as I would have thougt, it dates from November 29, 2006.  In return, it is massive in length (almost 150 pages), and, personally, I find the remedies granted by the Court very innovative.

Here they are (from p. 114-118):

• First, the Court declared that the Peruvian government had violated various provisions of the Interamerican Convention on Human Rights, including the right to life, the right to physical integrity, and judicial guarantees.  These declarations were in turn declared to constitute a form of reparation per se.
• Second, the Court obliged Peru to pay compensation to the survivors (between USD 20,000 and 60,000, which is 3 to 9 times the per capita GDP of Peru).
• Third, Peru has to publish certain parts of the judgment, including the sections dealing with the abuses proven before the Court.

So far, so unspectacular. But here comes the interesting part:

• Peru must immediately complete the investigations against the authors of the human rights abuses and ensure that they are punished in accordance with national law.
• The government must also immediately search for the remains of the victims, turn them over to the victims, and cover eventual funeral costs.
• The government is also ordered to hold a public ceremony of recognition of responsibility, attended by government representatives, and in presence of the survivors.
• Further, the names of the victims are to be inscribed in the national memorial “El Ojo que Llora”, which is dedicated to the victims of violence, in an official ceremony.
• From the day of proclamation of the judgment, the government further needs to provide adequate medical treatment and psychological assistance to the survivors.
• Last but not least, the government must arrange permanent education in human rights for the members of intelligence services, the army and national police, as well as for public prosecutors and judges (!).

This list of remedies is truly impressive, and it’s hard to imagine many more things a government could do to remedy past human rights violations.  Of course, one could argue that court-ordered expressions of regret are not much good for the victims–similar to Kant’s saying that obeying the law is not morally “valuable”.  But on the other hand, the ceremonies ordered by the Court might also be looked at by the survivors as symbols of their victory against the government and therefore as symbols of justice.

Certainly, grave human rights violations as in this case are irreparable.  Yet, justice is restorable.  In this light, a combination of restorative, preventive, and symbolic remedies as taken by the Interamerican Court of Human Rights seems to be the “best second-best” solution available.

These days, my article on the legal protection of (religious) sentiments finally came out of the printing press of the Swiss law journal “Aktuelle Juristische Praxis” [AJP].

In the paper, I argue that it is better to strengthen social norms through appropriate procedures than to replace them by substantive rules aimed at protecting emotions.

In Switzerland, Article 261 of the Criminal Code states: “Whosoever openly and invidiously insults or derides the beliefs of others in matters of faith, in particular the belief in God, […], will be subject to fine or a prison sentence of up to 6 months.” Similar provisions can be found in the laws of many other countries on the European continent. Their purpose is to protect public order by shielding the faithful from undue encroachment.

The nature of emotions, and especially the nature of religious sentiments, sets boundaries to the protection of emotions via substantive law: On the one hand, a legal rule aiming to protect emotions cannot—and ought not to—be entirely subjective; on the other hand, objectifying emotions necessarily involves their valuation. Yet, emotions are protected by law to a certain extent precisely because they are subjective and inaccessible to the valuation of others, be it another person or the judiciary. Therefore, objectifying emotions to a certain extent contradicts the very purpose of their legal protection.

A year ago, the publication of a dozen cartoons of the prophet Mohammed by a Danish newspaper caused a huge stir in Western Europe and in the Middle East, and to a lesser extent, as I understand, also in North America. In the light of Article 261 of the Criminal Code, the publication of the cartoons is not punishable, despite the fact that many Muslims, and by far not only the zealots, felt deeply offended by them. Obviously, the sensitivity of members of different religions of the world as to the ridiculing of the founders of their religion greatly varies.

The law, in contrast, cannot take that into consideration for various reasons, and protect each belief in a different manner, according to their degree of sensitivity. As a consequence, the protection of religious sentiments does not depend on the intensity of an encroachment, but rather—and arguably to a high degree—on the cultural background of the judiciary. In these cases, the law becomes ineffective, as it cannot fulfill its function of ensuring public order anymore.

In my paper I suggest that Article 261 should be repealed.

Instead, I argue that the provision should be replaced by a procedural mechanism which to some extent parallels existing concepts of criminal mediation, and which I chose to name a palaver*: Whoever nowadays would file a criminal complaint under Article 261 of the Criminal Code should be enabled to initiate a legal proceeding with the author of the statement concerned, in which he or she can confront that person and discuss the issue. (I am skipping the details of the procedure.)

The palaver could lead to either an apology or heated argument, ore something in between, depending on the good faith of the parties. Either result is a good one because in both cases, negative emotions caused by the concerned statement can be effectively canalized within the procedure and thus absorbed. As media coverage of the palaver can be expected particularly in cases where an offensive statement and the reactions thereto have received high publicity, the palaver will also give those people some satisfaction who do not take part in the proceeding but were nevertheless offended.

Last but not least, the remedy hopefully will have a preventive effect: Whoever is going to make a defamatory statement on religious matters in the public, i.e. via more or less unidirectional media, has the prospect of being confronted with his or her statements in a face to face situation. Since most humans tend to be more moderate and tactful in the presence of a person they know they might offend, odds are that they behave the same way when they speak or write in public. In other words, odds are that the remedy I suggest leverages the social norms governing face to face conversations in a way that they are respected when people speak through the media, instead of overriding them, as the substantive legal norm of Art. 261 of the Criminal Code does.

*) After a proposition by J.N. Druey. Palavers are known as important dispute resolution mechanisms in archaic societies.
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Update: Following a suggestion by my friend and colleague James Thurman, I replaced “religious emotions” by the more precise circumscription of the uncircumscribable, “religious sentiments.”