We consider it reasonable for the Government to defend people who can’t fight with their fists, or with their lawyers, because they are dead. If you make the same accusation without proof about a living person, it’s also an insult.
An insult is not an opinion, it’s an insult. A documented fact is not an opinion. Please don’t call factually untrue things “opinions”. That pie is 3.14 continued is a fact. That blue light is a certain wavelenght, and yellow a different one is a fact. An opinion is whether I like blue better than yellow. An opinion is that I don’t like Freds face, and can’t help it. Calling Fred an asshole for it is an insult, not an opinion. Calling Fred a liar and cheater if I have proof is not an insult or disparagement or an opinion, it’s a fact. If I don’t have proof, it’s not a fact, not an opinion, but an insult/disparagment.
I don’t know why you keep alluding to intentions of the supporters again. If you had suspicions, your little story would have gone different - you would tried to bribe Bob, or appeal to how long ago it was, or whatever, but you would have avoided bringing it into court, where Bob could show his proof.
German law demands proof for assertions and stops baseless insults and factless defamation.
Besides, we don’t regard most historical figures as saints. We know that most people are people. We don’t even give a shit about what our living politicans do in bed, because we don’t believe that only saints make good politicans, we expect them to do a good job a lawmaking, the rest is their private business. Schröder was divorced four times or so, and nobody brought it up.
I don’t care about Mill or other idealists living before modern times. Plato laid a groundwork for the rule of tryrants when he declared that the wisest of the wise should rule, because obviously, every smart person would agree with the obvious one truth. I don’t care what Plato said in that regard, however smart he might have been in other areas, because it’s obviously wrong.
But that only works if you accept and acknowledge that your country was part of the slave trade, and that it was bad, and that because you know it was bad, you make amends as best as possible.
If you were denying that the slave trade took place, or that it killed and harmed thousands and thousands of innocent people, or that it was wrong, then the guy wouldn’t have said that.
Presumably you mean me. I don’t know what you mean with excoriate, but I wanted you to please take your ranting about Muslims laughing about our softness and taking over Europe elsewhere, because it has nothing to do with the Holocaust. If you can discuss Muslims without ranting, in a rational way, and with some aspect that’s relevant to this discussion, then do so, but I didn’t see that in your previous comments about Muslims, only a lot of hate and ignorance about Muslims.
First, I would like a cite that the second is an actual law in a secular country with muslim population, like Turkey. (Which is of course a vehemently seperated Church-state in its law, based on Kemal Atatürks philosophy. In Turkey itself, girls and women aren’t allowed to wear the shawls/scarfs around their head in public schools and universities - in Germany, it’s still being discussed how much religious freedom and how much indoctrination of children is allowed in schools).
If you can only show law in theocracies like Iran, than that’s not comparable, as those are obviously not the same as secular modern European states. And context does matter.
It’s also the question of the application of the law. When in Sudan a teacher asked the class to name a pet, and they chose Muhamed (as popular name) and some religious fanatics got upset and decided that was an insult to the prophet - then it wasn’t the case of the law being there first (I’m not even sure there was a law in Sudan with that wording at that time), it was the fanatics being upset and making a fuss.
Similar to the religious fanatics you have in your country, who whip the crowds into a frenzy, until a bunch of guys go out and kill gays like Matthew Shephard.
How many of your states in New England still have I think called “blue laws” on the book about things like selling or cinemas or dancing not being allowed on Sunday because Sunday is Christian day for Church only? Maybe the laws are not enforced often - though I’ve read that in some states it’s difficult to buy alcohol on Sundays, so people drive over the border into the neighbor state.
No. There are obvious standards - at least over here - for the difference between insult, truth and opinion.
Some words are subjective, not factual, and are considered to be meant as insult without ambiguity. E.g. Asshole.
Some words can be true or insult, e.g. Thief or Liar. If you provide proof, then it’s a fact and true. If you can’t provide proof, it’s an insult.
In the case of the people who wrote the Grundgesetz, it doesn’t matter how the rest of the population was mixed up, we know who they were, what they did during the Nazi time and afterwards, and why they choose to modify the Weimar Constitution regarding the lessons learned from the failures and also looking at what other countries have, what good ideas would work in Germany. They didn’t have nefarious motives to hide the Nazi discussion under the rug because of their own involvment because we would know about it.
Yes, there was a general move towards “Lets forget and move on” under Adenauer, (and it was only the 68 revolutionaries who properly lifted that carpet) … but a big part of that was that the US complelty changed its tune from “lets find every Nazi no matter how small and punish him” to “look, there’s communists in the East! Scary! Lets all forget the past and be close buddies again! Oh, by the way, we know you said ‘no war shall ever start again from german ground’ - but we need you to have your own army, against those evil russians ( only 10 years after war). And we want to install nuclear rockets on your soil. No we won’t give you the keys, they are really ours. Of course, if they are fired, the response will devastate and burn your cities, not ours far away… but you are our buddies! Ah, tough luck of the war, lets not talk about it, just go along with it and obey us.”
Protecting the dead is an absurd undertaking unless you specify how far back in history you want to protect them. Just to WW-II or further back? 70 years, 100 years. How far back?
I have been stepped too long in a post-modern educational system not to wince a little when someone says the truth has been established once and for all. But of course the truth has been established for the Holocaust. But the Holocaust is not singular in the history of mankind and many other events of an equal or worse evilness are far from established. The famine in Ukraine was mentioned. The number of deaths in Soviet Gulags, another. Yet a rule like banning denial of the Holocaust will set a precedent and people will rightly point to it and say that if that should be banned then this other thing ought also be banned. Say minimizing the role of Soviet military victory in WW-II or denying that The Ukrainian genocide was a planned event. Or perhaps banning Communist symbols. There is no end and the subjects will become increasingly less black and white. And next month there will be increased pressure to abolish the right to ridicule religion at the Durban II conference – with much the same argumentation. If the dead shall be protected against outrage why not the living – and besides Muhammed and Abraham and Maria and Jesus are dead so they should be protected too. I also find it perhaps telling, that there are a lot fewer Internet sites dedicated to debunking the Holocaust-didn’t-happen theory than the 9/11-was-an-inside-job myth. Perhaps because the ban has stifled debate?
So if Russia was more democratic you’d think it was fine to ban minimizing the Soviet military victory in WW-II? I wonder what that would entail? Should it be a crime to say that Red Army soldiers too behaved with inhuman evil against German civilians, ethnic cleansed entire regions and raped hundred of thousands or millions of German women? It is rather endearing if a little ironic, that in Germany it is illegal to deny the Holocaust (of which German victims were a minority) but not the barbaric crimes against the German people. Do they not too deserve protection and denial of minimizing of German suffering is regularly done for political or ideological reasons.
They have such a law. I think they’ve had it always. And it is used against journalists and authors. Often Kurdish.
Some European countries have such laws – against minimizing the Holocaust. Others have not. I see no indication that European countries without the laws are further on the route towards violence against certain people than countries with the laws.
A cite? My goodness, it’s perfectly obvious that it’s not an actual Islamic Law. You can tell it’s not a real Islamic Law because nobody gets stoned to death or gets a hand or a foot or a head chopped off. Nobody ends up spending years under police guard because the religious leader of the entire Iranian national religion/state has sentenced them to death for the very crime listed above … but I digress.
My point, which you neatly eluded, was that there is no practical difference between the two statements. I invite readers to consider the implications of that equivalence.
No, this is simply not true. The so called “Beleidigungsparagraph” (185 StGB) (Insult)
“Die Beleidigung wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe und, wenn die Beleidigung mittels einer Tätlichkeit begangen wird, mit Freiheitsstrafe bis zu zwei Jahren oder mit Geldstrafe bestraft.”
Insult shall be punished with imprisonment for not more than one year or a fine and, if the insult is committed by means of violence, with imprisonment for not more than two years or a fine.
doesn’t define at all what an insult is, however, it’s very precise in naming the penalty for a violation that exists whenever a judge decides it does.
The same is true for § 192 StGB, “Beleidigung trotz Wahrheitsbeweis” (Insult Despite Proof of Truth) and it only gets worse when it comes to insults with regard to the authorities (e.g. § 90 “Verunglimpfung des Bundespräsidenten” (Disparagement of the Federal President) or § 103 “Beleidigung von Organen und Vertretern ausländischer Staaten” (Insult to Organs and Representatives of Foreign States)).
The problem is that all these laws deal with the violation of some “honour” – that is nowhere defined. It’s a meta-construct, easily abusable by anyone in the jurisdiction willing to do so.
And worse, all these laws violate a principle that is, in fact, proclaimed in § 1 – that there should be no punishment without a law or if the offense isn’t defined precisely.
I think you continually miss a major objection to your interpretation of the value of the laws discussed here: they open the door wide to arbitrariness and they can be used (or abused – if you take the constitution into consideration) to punish at will for any wording that’s isn’t considered to be moderate.
You know, it shouldn’t be easy for a citizen to insult the authorities, it should be impossible.
The staggering amount of verdicts in that area that are later overruled by the highest courts should tell you that the discrepancy between the intention of the constitution and all these libel laws is a sad fact.
You are kidding, aren’t you? Totalitarian dictatorship wasn’t an invention of the twentieth century. It’s been with us rather a long time. The fact that Mill was writing when freedom of speech was considered an outlier, rather than the norm, IMHO gives his analysis more weight, rather than less.
People now are so used to general freedom of speech in Western nations that they are willing to trade it away at the edges. A man not far removed from monarchical rule in his homeland, and not geographically far from autocratic rule on the continent of Europe seemed to value the idea of free speech a little higher. Doesn’t mean he is right, necessarily. But to suggest Mill was a man who lived in a time “before totalitarian dictatorships” suggests to me you need to learn some history.
wintertime points out the obvious, that such standards in fact don’t exist. Me, I don’t see how they are even theoretically possible. Let me bring up my previous example to show why.
I say that Islam is a cruel and barbaric religion. Is that an insult, a truth, or an opinion?
For me, any religion that in the 21st century advocates publicly stoning women to death for adultery is cruel and barbaric … so for me it is a truth.
For someone else, that may be just an opinion. Fair enough.
For a die-hard Islamic follower, it is definitely an insult, and a big one.
Now, you claim you have some kind of you-beaut “obvious standards” for distinguishing between the three (insult, truth, & opinion) … so throw my statement under your patented truth-o-scope and give us the reading.
Which one is it? Truth? Opinion? Insult?
As I’ve said before, one man’s truth can be another man’s deadly insult … but I’ll wait on the results from your truth-o-scope to see your point of view.
In fact, I crafted my little morality play above so that Bob had no evidence to back up his disparaging claims about my Grandfather … but it turned out they were true nonetheless.
So when he came up with them, were they truth, opinion, or insult? For me, they were an insulting opinion that was later revealed to be the truth … like I say, I carefully designed the story to fog up the lenses in your truth-o-scope.
However, you dodged the question. You very carefully avoided commenting on what an insulting opinion which is nonetheless later shown to be true might mean for a law that criminalizes “disparaging the dead” …
I’m sure other readers noticed it, however, and understood what it means to such a law.
Well, an isolated, strictly hierarchical culture, like the Japanese in earlier times, might have (had) such a homogeneous idea of certain constructs, like honour, that laws can be based on them without defining the constructs properly in letter because they are ingrained in the culture by uniform education and social pressure.
Which isn’t true for any modern, western society, of course, but they are not the only cultures that ever existed. Truth, opinion or insult are not absolutes but they might be relative absolutes in a particular group; and that group might be/might have been a whole culture.
An interesting thought, wintertime, and quite true. However, as you point out, the distinction between say an insult, an opinion, and a truth in the modern world is not at all clear. constanze claims there are definitions in German law that make it possible to clearly distinguish between the three.
I’m waiting for him to explain how that works, as I know of no way to do it. And no, constanze, I’m not busting you for not answering in time. We’re not on the clock here. I’m just waiting for the explanation.
Since the day “insult” was first introduced into German law (May 15th, 1871) it has been a source of misunderstandings among people, feuds within the legal profession and (attempted) oppression of opinion and speech by the authorities.
A famous example of the difficult, sometimes impossible distinction between insult and opinion is a sentence from one of our best-known political writers, Kurt Tucholsky.
In 1931 he wrote (“Der bewachte Kriegsschauplatz”, sorry, in German):
Da gab es vier Jahre lang ganze Quadratmeilen Landes, auf denen war der Mord obligatorisch, während er eine halbe Stunde davon entfernt ebenso streng verboten war. Sagte ich: Mord? Natürlich Mord. Soldaten sind Mörder.
For four years, there were whole square miles of land where murder was obligatory, while it was strictly forbidden half an hour away. Did I say: murder? Of course murder. Soldiers are murderers.
(italics added by me)
It won’t surprise you that such a statement, uttered by a public figure of some standing, didn’t go unchallenged. The printing of this sentence led to charges against the publisher, Carl von Ossietzky, but even in the year 1932, the court wasn’t willing to interpret the statement as an insult or slander of the Reichswehr and Ossietzky was acquitted of the charge. Needless to say – but telling, Nazi courts had uniformly a different point of view.
During the 60+ years of the second republic, judges had to deal with cases regarding this sentence many times (because the peace movement and activists made it public in many ways) and lower courts quite often decided to go with the prosecutors. The Constitutional Court, however, favored more often (but not necessarily) the freedom of opinion, as explained here.
So, what is this sentence? An insult, an opinion, the truth? All of it, none of it, something in between? Depending on what? Is the decision among the alternatives even the point?
I don’t think so, at least not when it comes to the authorities. They should neither have the right to decide for us what it means nor enforce that decision authoritatively with their Gewaltmonopol (monopoly on the use of force).
On the other hand, the public discourse surrounding such issues, the open discussion within the legal profession and the diligence of the higher courts show a democracy at work, so, don’t get me wrong: it is a society grounded in civil rights and liberties – and the public is interested enough to think about them, redefine them and protect them.
wintertime, I noticed an interesting point in your thought-provoking post above, viz:
Couldn’t agree more. How is “disparaging” different from “insulting” from “minimizing”?
My problem is that one single statement can be a mortal insult to one man, a self-evident truth to second man, and a simple opinion to a third.
I must confess that I am gobsmacked to find out that in German Law it is illegal to insult someone. And even more amazed that there is a separate law criminalizing insulting the President. Man, insulting the President is more than an American right … it’s almost an American duty.
But the one that blew me away was “Insult Despite Proof of Truth”.
wintertime, could you quote that one? The only interpretation I can put on that title is that it is against the law to say/write something insulting about somebody even if it’s true. Is that actually what it says?
In the US/UK, truth is an absolute defense against libel/slander.
In the US there is something called “fighting words”. Fighting words are words that when you say them in some particular situation, a fight is likely to break out because the hearers feel mortally insulted. In some states they are illegal.
Not as clear as I like laws to be, but the intent is clear. It’s like the signs in the zoo that say “Don’t provoke the animals”.
There is an exception, however, in the law. Police officers are held to a higher standard. What might be “fighting words” if said to a civilian have been ruled not to be fighting words when said to a police officer. Police are presumed to follow my mom’s advice about how sticks and stones can break my bones, but words can never hurt me. Worked for me then, works for me now.
Me, I don’t like the law. Why? The reason is because it is one of the most broken laws on the books. In the bars and streets and playgrounds and dances and prisons and schools and rodeos and all across America, people utter fighting words every day. They are words used to provoke a fight. They are very effective. They are used all the time. Most fights are not unprovoked. They are provoked by words. Fighting words.
Curiously, at least in my experience, “fighting words” are generally uttered before a fight by both sides. In this way, both sides signal to each other that they are ready to rumble. One side goes “Yer mama lays down for money!” The other side goes “Oh, yeah? Well, your daddy is really your grandad.” And POW! BIFF! BANG! (Always wanted to say that.) The fight is on.
True story. I was sitting in the Willow Bar in Dillingham, Alaska, along with whole bunch of other seasonal commercial salmon fishermen and locals. A local guy “who had strong drink taken” sat down next to me. I thought “trouble” as he very ostentatiously put on a pair of fingerless gloves and glared at everyone. I looked everywhere but at him … the floor, the wall. My beer.
Suddenly, he turned to me and very aggressively said “Do you want to punch my face?”
I allowed as how that was the last thing on my mind, I’d had a horrendous long work day and I just wanted to drink my beer. He thought about that for a few moments … and a few moments more … and said “OK”. He abruptly stood up and walked to the next table. Some rowdy loud fishermen were sitting there. He asked if any of them wanted to punch his face. They said no thanks, they’d just had two pitchers of beer and they were having fun. Managing to look both angry and dejected, he left to repeat his fighting words, “Do you want to punch my face?” to various tables.
Well, it was Alaska after all, and these were commercial salmon fishermen, so before long, someone said “I’d love to punch your face, you scumbag!” and it was BIFF! POW! BANG! I watched … drank my beer.
So I see “fighting words” as having an almost ritualized place in American culture. It’s how you find people that want to punch your face. This guy was just much more honest than most …
I consider myself an honourable man, a man of honour. In reality I may or may not be honourable, but that’s my honest view. Here’s why I disagree with the German Law.
I am that self-same man of honour whether someone insults me or not. My honour is not affected by his insult.
My honour could easily be affected by my response to his insult. But it is not touched by the insult itself.
If someone’s honour can be endangered by an insult … well, don’t know quite what to say about that. Maybe Germans mean something different by honour than I do.
The US/UK libel/slander laws prevent someone from spreading lies about you. If someone says a politician visits a prostitute nightly, he can sue them. If he can show in court that they are lying, he is entitled to damages. That’s why newspapers check their facts. That seems reasonable.
But a special law that I can’t call the American President an old poopyhead? A law that criminalizes someone “insulting” me?
Not so much.
My thanks to everyone for the ongoing contributions to fighting my ignorance about German Law.
Our President is rather a figurehead and has little designated power though might have considerable influence by initiating or leading public discourse – which was done by some of them masterfully. The President is highly respected and talking about him in a derogatory manner will only weaken your argument; still, defaming him or his office is a penal law, though one paragraph has made sure that it has never been used as a whip:
(4) The offence may only be prosecuted upon the authorisation of the President of the Federation.
And yet, in a totally different political climate the following law could be easily abused:
Whosoever publicly defames the President of the Federation, in a meeting or through the dissemination of written material (section 11 (3)) shall be liable to imprisonment from three months to five years.
(2) In less serious cases the court in its discretion may mitigate the sentence (section 49 (2)) unless the conditions of section 188 are met.
(3) The penalty shall be imprisonment from six months to five years if the act constitutes an intentional defamation (section 187) or if the offender by the act intentionally supports efforts against the continued existence of the Federal
Republic of Germany or against its constitutional principles.
§ 192 StGB
Beleidigung trotz Wahrheitsbeweises
Der Beweis der Wahrheit der behaupteten oder verbreiteten Tatsache schließt die Bestrafung nach § 185 nicht aus, wenn das Vorhandensein einer Beleidigung aus der Form der Behauptung oder Verbreitung oder aus den Umständen, unter welchen sie geschah, hervorgeht.
Insult despite proof of truth
Proof of truth of the asserted or disseminated fact shall not exclude punishment under section 185 if the insult results from the form of the assertion or dissemination or the circumstances under which it was made.
I’m sure I can make this as unclear as humanly possible. (It’s a gift) Let’s say, I told constanze that you were a gay Alaskan. If you were indeed gay and from Alaska, I would have told her the truth, equally so when you lived there and happened to be a merry chap. If both statements were true in their first sense, you could hardly be insulted. You might be miffed (depending on your attitude) with my choice of words used in the second sense but I think most people would agree to call it rather a really lame joke than an insult and you wouldn’t find a German judge who would condemn me to work in your underground sugar mines.
But I could have also used terms that, although telling the truth, were so highly derogatory that their use by, well, an American public figure would force them to apologize ruefully to avoid virtual stoning.
So, although I would have said something that is factually true, I would have said it in a manner that wasn’t meant to convey facts but insult you and would have been understood that way by your fellow Americans.
*
And now I need to know: Is there a word for Alaskans that could get me in trouble? For that matter, is “Alaskan” correct? *
It is. And if my words gave you a different impression, I was stupid. There must be laws that give anyone the opportunity to defend himself against lies, otherwise public discourse might get corrupted beyond repair and people would seek other paths, less … controlled ones, to fight back. And we don’t want that. Well, … no, we don’t want that!
I think, I need to put this into perspective. First of all, any law suit regarding an insult, a defamation or something similar deals with the balance among rights, like any other one. For example, if you called our President publicly (so, not privately — that’s your business) an imbecile for doing … whatever, a judge would have to ask himself what has more weight in the specific situation; and your freedom of opinion would certainly prevail, the higher the court the more certain (although I’m sure someone could dig up verdicts that contradict me).
And although the police has to deal with a lot of reports regarding insults etc., prosecutors decide most of the time that a prosecution is not in the public interest, which translates to: “Stop wasting my time and the taxpayers’ money, you petty moron!”
Of course, far too many people still decide to bog down arbitrators – and if it can’t be arbitrated – courts with a private suit (private prosecution?, I’ m not sure that I use the correct English term) because someone said something nasty about their hair. Annoying? Sure. Costly? Definitely. But not exactly earth shattering.
Insulting a German police office is a costly matter and easy – if he wants it to be. I know.
That’s not a good example as there seems to be no unequivocally offensively meant term for Alskanness, last year’s events nonwithstanding.
A better example for “Insult despite proof of truth” would be: A calls B a [n-word]. That’s an insult even if everyone, including B, agrees on B being in fact a black person.
The German term is Formalbeleidigung - a constructed example would be my putting up placards drawing public attention, in spiteful terms, to the undisputably true fact that a certain person regularly sh*ts.
Anyway I’d like to mention that, when from a literal reading of a statute someone infers that preposterous consequences follow from it, but, even in a country of 82m people with the consequent abundance of people of low intelligence and deficient judgement to bring legal accusations, preposterous consequences do not in fact follow, that person just might consider his reasoning disproved by practice.
And there I was, thinking that publicly telling others that some person, some well-known person, you know, that guy, was from … that place … was already incredibly offensive. Who would have known …
Unless you’re an artist, your placards have artistic value (whatever that means) and the person mentioned had done something publicly (of public interest) that would put your placards into the realm of satire.
wintertime and tschild, thank you for the continuing fight against my ignorance of German Law, and for your explanation of insulting someone with the truth.
I understand that preposterous consequences do not generally follow from Germany having some idiotic, impossibly vague laws on the books. This is a testament to the good sense of the German people. However, I am amazed that the German people allow those laws, with the huge possibility for them to be misused, to remain on the books.
After all, it’s not like laws haven’t been misused by German authorities in the past … :rolleyes:
I was also very surprised to find out that Germans think that their honor can be lessened by the words of another. That is so far from my own definition of honor that I can only suggest that using the same word for both is a source of immense confusion.
Finally, the German laws don’t exist in a vacuum. As I pointed out above, there is no difference between a law criminalizing someone “insulting” a German citizen and a law criminalizing someone “insulting” the Prophet Mohammed. If you say that one is a reasonable and valid law, then you have to say the other is a reasonable and valid law.
But insulting the Prophet was the crime for which Salman Rushdie was sentenced to death. If the German law is good and valid, then sentencing Rushdie to death was also good and valid. It only differs from the German Law in the size of the punishment, but if the law is reasonable and valid, then the size of the punishment is just a societal decision, gotta be culturally sensitive here …
Me, I think both the German Law and the various Islamic versions are huge piles of steaming dogshit. I think that sticks and stones can break my bones, but words cannot touch either my honor, German honor, or the honor of the Prophet Mohammed. I think that the laws have a huge potential for misuse, and that the Islamic versions are misused daily. I see no reason for the continued existence of such laws. A number of societies around the planet function perfectly well without such laws, so they clearly are not necessary.
If you have to take someone to court because their insults are so damaging to you, perhaps the course of justice would be better served by taking a long, hard look in the mirror. Because when I see someone going to court to protect themselves from an insult, I see someone who needs much more than a court can possibly give them. I see someone who is so unsure of their own honor that an insult sets them off balance.
What kind of honor is that, that is damaged by the slightest verbal breeze?
And when I see a religion sentencing people to prison or worse for disrespecting the religion, I see a religion that is not worthy of respect. If you have to get your respect by passing a law saying people can’t disrespect you, you are in deep, profound trouble.
intention, I think your definition of honour is a commendable one; it follows the idea that honour is self-governed, which means that your actions and omissions decide what honour you have. Thus, the opinion of others as well as their actions (in deeds, speech, writing and images) can neither offend your honour nor take it away.
Your idea of honour is well established in the history of mankind – but it’s not the only one, and it might never have been the predominant kind.
There is another honour, not governed by your perception of yourself but (first and foremost) dependent on the perception of others. Thus, your standing in society, your success, your family, your money, your prominence and the esteem you get by other people let your honour rise or sink accordingly.
The first type of honour cannot be protected by a societal set of regulations or restored by another person’s sentence; the other one, however, is dependent on laws and public rulings, because the actions of other people affect it deep into its core. The first one is strictly a private matter, the other kind equally rigorous a public one.
I agree, … to a certain degree.
For one thing, circumstances, practice and constitutional obligations do matter.
Our laws regarding insults are far less stern and the jurisdiction moderates their use as should be expected in a civilized, western society.
Still, that doesn’t mean they don’t share some heritage with similar laws in other, oppressive societies.
They agree on the idea that there is some kind of honour that should be protected by the law and needs to be protected by law and that it is the right (or duty) of the state to punish those who besmirch that honour.
They also share the total lack of any formally binding definition of that strange entity.
Which is exactly the reason why any such laws have no place at all in a western society.
Like I said, it is discussed within the legal profession. I can’t quantify how large the percentage is among law professors, lawyers, prosecutors and judges who disagree with these laws; my hope is that this baggage from a different time is less and less supported by the legal frame of mind.
And to address the “huge” in front of misuse: judges are kept in check by other judges, and if that failed, the democratic practices of balancing out the letter of any law with the societal reality would kick in.
Also, the mentioned constitutional concerns within the profession are not just idle talk when it comes to the duties of a judge. I don’t know how it works in the US but our judges are not just bound by the law but also by our rights. If the German legislature ever went bonkers and introduced capital punishment for, well, insulting the President, no judge would be allowed to follow such a law because the constitution clearly states:
Art. 102 GG
– Die Todesstrafe ist abgeschafft –
– Capital punishment is abolished –
You see, the law is not just kept in check by the rules set in the constitution but also by the obligation of the judges to actually follow the later one above the first.
Of course, that doesn’t prevent at all the “little” misuses that annoy me so much and that are very well capable of making a man’s life miserable. But it’s another layer of defense against the huge ones that might turn the miserable exception into the rule.
Still, I utterly agree that we should simply get rid of them. No law, no misuse at all.
And lately, the German public had to deal with the sickening consequences of “honour” run amok (see here and here).
If the public ever realises that some of our laws mirror even a tiny speck of such barbarism we might finally get rid of them once and for all.
wintertime, thank you again for your interesting, reasoned, and thoughtful postings.
As I said before, the two concepts of honour are so radically different that calling them by the same name is leading to confusion. To distinguish between the two, I will call the private one “honour”, and the second one “public esteem”.
I do not object to the laws solely because the concept of “honour” in them is nowhere defined (although that is a separate and entirely valid objection.)
I object to them on theoretical grounds. I think that the government in general has no business legislating what people can or cannot say. This is independent of the things you mention above, such as circumstance, practice, and constitutional obligations.
I also object to them on practical grounds. The German laws, for example, distinguish between opinion, fact, and insult. I say that no such distinction can be made. I hold, for example, that the statement “Islam is a cruel and barbaric religion” is simultaneously a truth to me, a mortal insult to a Muslim, and a simple opinion to a third person. This makes it impossible to equitably enforce any law that tries to regulate “public esteem” of a person or a religion … neither you, I, nor the government can possibly say what the “public esteem” of a person should be.
While I agree with you, for me the difficulty is not in how the law is applied. I still say that the restrictions and hedges around the concept in German law (while commendable) do not speak to the underlying issue.
The issue is that any attempt to enforce public esteem is an encroachment on your right to speak your mind on the issues around us. It is an attempt to regulate the public expression of thought. It is a way to keep unwanted ideas from seeing the light of day. It is a way for the authorities, whether religious or secular, to uphold and maintain their power.
Why is there a law saying we can’t offend the Prophet Mohammed, or the German President? If one law is right and proper, the other law must be. Set aside the question of the various things that ‘keep the law in check’ in Germany, and think about the laws themselves. If it is a valid exercise of power to stop people from insulting the German President, it must be a valid exercise of power to stop people from insulting the Prophet Mohammed.
I hold that, totally independent of whether there are checks and balances in the German system, and totally independent of the punishment handed down for the “crime” in various jurisdictions, it is NOT a valid exercise of power to try to regulate public esteem. Whether a particular case gets thrown out of court in the German system or ends up with Salman Rushdie sentenced to death in the Islamic system is immaterial to whether such laws should exist.
I said it before, and I will repeat it. Any religion or individual which maintains its public esteem by punishing those who speak against it is not worthy of our esteem …
Yes, the laws against libel/slander are a valid exercise of power. No one should have to sit still for for people spreading lies about them.
But if your “public esteem” is so weak that it cannot stand the buffeting of contrary opinion, facts, truths, and ideas … the solution to that is not to make the public expression of such ideas illegal.
It is to clean up your act so it is worthy of public esteem.
