Mark S. Weiner

Of Mexico, Blasphemy, and the “Feel-Clash” of Legal Difference

In Aesthetics, narrative, form, Blasphemy, Cross-cultural encounters & comparisons, Freedom of speech, Islam, Law and literature, Method, Mexico, Pakistan on September 26, 2012 at 7:09 pm

Last week I attended an exciting talk by the journalist David Lida, who for over twenty years has documented everyday life in Mexico, particularly Mexico City, in ways few other writers are able to do (because Lida has both great compassion and serious nerve). During the event, Lida read from the manuscript of a semi-autobiographical novel, and an episode he recounted nicely illuminates an issue I’ll be examining centrally on Worlds of Law.

In addition to his career as a writer, Lida has an unusual side job. He works as a “mitigation specialist” for attorneys representing Mexicans in the United States who are facing the death penalty. What this means, in essence, is that he unearths the back-story of people who have been accused or convicted of capital murder to help persuade courts to show them leniency—if a sentence of life without the possibility of parole be can called lenient. In practice, the job requires Lida to travel to humble, sometimes dangerous places and persuade strangers to reveal intimate details about other people’s lives: about their friends, parishioners, cousins, brothers, and sons. He then stitches those fading snapshots together into a narrative for American defense lawyers.

It is work that requires moral and physical bravery, a surplus of “negative capability,” and a skilled pen.

The reading was hosted by the Beinecke rare book library at Yale, one of the greatest collections of rare books and manuscripts in the world. The building’s façade is semi-translucent marble, and a six-story glass tower filled with books shimmers within its main interior, providing a home for mysterious, ancient volumes displayed on shelves like countless gems set in a row. As Lida stood at a lectern, the sunlight shone ever-so-faintly through the rock. These photos are taken from Wikipedia’s digital commons:

Lida began by explaining that when he first arrived in Mexico, he found that the majority of great books about the country written by American and English writers—Katherine Anne Porter, Graham Greene, D.H. Lawrence and others—failed to capture the Mexico in which most Mexicans actually live and that he was slowly, gratefully coming to know. They failed to capture the quotidian world of struggle and love that exists behind the doors of modest dwellings cobbled together from found materials, with windows veiled by plastic roller shades and walls decorated with a picture of the Virgin. (One notable exception, he emphasized, was Malcolm Lowry’s Under the Volcano.)

What these works typically fail to do, he implied, is to enter sympathetically into the lives of ordinary Mexicans and render their stories artistically in a way that they might present themselves.

Lida was making a criticism about how stories are told—and providing an insight into the ways that approaches to storytelling can hinder or facilitate a cross-cultural encounter.

Strikingly, when he read from his own novel, which bears the working title One Life, Lida told a story of a personal cross-cultural encounter, a conversation between two people, that was framed as an encounter between two legal systems. The novel’s narrator is a mitigation specialist who, in the scene Lida read, travels to the fictional town of Puroaire to gather the story of a woman facing a possible death sentence. The sleepy settlement lies in the middle of Mexico’s “hot zone”—hot not simply because of the blistering sun but because in recent years it has become a battleground for the country’s drug gangs.

After drinking Nescafé from a polystyrene cup in the market square, the narrator seeks out the client’s eldest brother. He is a quiet gentleman who has built his home with money earned in fields and dishrooms across the United States, and he is proud. He leads the narrator into the back of the house, away from the ears of his grandson. The gentleman and the narrator sit silently face-to-face in two chairs. There is not much time to establish intimacy. And so the narrator introduces himself to the man whose family story he hopes to gather by cutting to the chase.

Sir, he says, I come from a country in which the state sometimes puts people to death for their crimes.

That’s all it takes. With this, the gentleman has a flicker of recognition and is thrown back into memory. He begins to tell the story of his and his sister’s life.

*

For the past two weeks, news media have carried a host of stories—horrific, tragic, and terribly, unspeakably sad—that are the product, in part, of a cross-cultural legal encounter. I refer to the violence perpetrated in the wake of the blasphemous video “Innocence of Muslims.” Although the violence was frequently motivated by local political concerns, it was often justified or explained as a reaction to the production.

I won’t use this space to discuss the video, except to say that I have been struck by how many American commentators describe it as an aberrant part of our popular discourse. In fact, our speech environment is awash with far more profane material, insulting of every possible group. I also won’t address the violence the video sparked, though I will in a future post. Instead, I want to draw attention to an obvious fact that points toward something less evident but more far-reaching.

The obvious point is that many of the people who protested the video—whether by demonstrating publicly, which is always a worthy civic action, or by rioting, burning, and killing—have a different view of the legal significance of blasphemy and the legally acceptable bounds of expression than prevails in the United States. The view of many of the protesters is not only that the video is an offensive rebuke to their collective religious life (and surely that was its intent), but also that its creator should be punished. It is this view that underlay the recent proposal of the Organization of Islamic Cooperation to prohibit religious defamation under international law.

The belief that group insults ought to be punished is hardly limited to Muslim societies. Consider a recent case from India. In 1999, in the midst of a temple festival in Madras, two men, Panneerselvam and Mahamani, had an argument about how best to tie bulls in an ancient bull-taming sport known as jallikattu. In the midst of the disagreement, another man, Arumugam Servai, insulted Panneerselvam by hurling a disparaging phrase at him. “You are a pallapayal,” said Servai, “and eating deadly cow beef” (“pallapayal” is a derogatory term for the members of a traditionally “low” Hindu caste). A fight ensued, and blood was shed.

In 2011, the Indian supreme court sustained a conviction—against Servai—for hurling his insulting remark. Servai was punished for his speech, for simply using the term “pallapayal.” The theory the court offered to justify its decision resonates with the recent Muslim protests against the blasphemous video. “In the modern age,” wrote the court, “nobody’s feelings should be hurt. … [W]e must take care not to insult anyone’s feelings on account of his caste, religion, tribe, language, etc. Only then can we keep our country united and strong.”

Nobody’s feelings should be hurt. On this view, it is the job of the state to protect people from insults directed at the groups they hold dear.

The American theory of the modern age is precisely the opposite. It is that in a modern age, people must be willing to encounter all manner of hurtful ideas about the groups that are most important to them. This hurt is the necessary price for the personal and civic benefits a nearly unlimited freedom of speech produces.

Indeed, more generally, the American constitution makes a grand trade-off: rather than protecting groups and their dignity, it protects individuals and their liberty. (Whether Islamic law in fact requires codes against blasphemy is an issue I’ll take up in the future—as many Muslim scholars have argued, there is in fact ample room within the Islamic legal tradition to develop a liberal speech jurisprudence.)

Differences about the acceptable realm of political and religious expression in the United States and Pakistan are clear enough from recent events. But the cross-cultural legal encounter raised by the protests implicates a host of other issues as well, some almost as important as the freedom of speech. For instance, just as there is a distinctive view in Islamic law about blasphemy, there is also a distinctive Islamic approach to the legal status of the corporation—one considered recently for instance by the Turkish scholar Timur Kuran.

And, so, many Americans and many Muslims outside of the United States are encountering each other across a jurisprudential and emotional chasm. As a friend from Pakistan wisely put the matter to me in a recent email: “I would like to invite your attention towards the ‘Feel-Clash’ about different laws and interpretations among different civilizations. This is the big issue in Islamic world. How can we deal with the ‘Feel-Clash’ issue and get the acceptable-to-all solution?”

The difference between American and Pakistani approaches to free speech, or American and Yemeni approaches to economic regulation, are part of a much larger global mosaic of legal diversity. American conceptions of free speech differ from those of Pakistan, but they also differ profoundly from those of Germany, which rigorously protects individual dignity. Those of Germany differ from those of China. Those of China differ from those of Ghana. Conceptions of the business enterprise differ between all these countries, too.

It would be comforting if one could simply observe these differences from afar, like so many gems behind glass. But people act—they live their real lives—according to their laws, and so as globalization proceeds world legal differences will become ever-more significant. To borrow a metaphor from computer operating systems, the peoples of the world are running incompatible, or semi-compatible, legal platforms, and they are increasingly being asked to share files. The difference between Mac OSX and Microsoft Windows is nothing compared with that presented by global legal diversity.

This is why, more and more, the people of the world will be sitting face-to-face in two chairs, having difficult conversations about law. With so many different approaches to law, how can we live together? How can we establish, everywhere, what everyone recognizes as the rule of law? How can we address the “feel-clash”?

As we undertake these conversations—which will require both compassion and nerve—we will need to pay attention, like David Lida, to storytelling. We will need to develop ways of telling each other stories about our legal traditions, so that we can enter into them with full sympathy and appreciate the life that very different approaches to law make possible.

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