On Secular Government and the Right to Offend
Archpriest Vladislav Tsypin, researcher and author of numerous works on canon law and Church history, comments on the inordinate reaction to Russian legislation against offending people’s religious sensibilities.
In Novaya Gazeta [Moscow] an article was published to break the shocking news: the secular government has been overthrown in Russia. This daring journalist’s prank was colored in the scoffing tones of a joker. He informed the public of a “coup” in a way that was not entirely serious; however the article’s tone, the author’s mood were far from happy-go-lucky--they were filled with something more resembling a universal sorrow over the changes occurring in Russia. Why was this vigilant commentator so downcast? Where did he see the signs of some imminent or already committed evil, which he compared to a government takeover? As it turns out, it was the fact that the State Duma is discussing new legislation that would introduce into the criminal code responsibility for offending religious sensibilities. In other words, according to this remarkable and (one would hope) rare publicist’s sense of justice, one of the inalienable characteristics of a secular government is the right to publicly offend with impunity the religious sensibilities of its citizens. Otherwise, that government has been changed from secular to theocratic.
My conviction that in making use of his precious right to offend the sensibilities of believers this newsman also offends human reason while he is at it by expressing such an amazing and astounding position, and that he is he is quite original, was shaken when I was forced to hear another undoubtedly smarter and better educated journalist discussing pedophilia on television. While admitting that this was not a praiseworthy matter, even a criminal act, he nevertheless posed the question: If the government starts forbidding propaganda of this vice and other similar deviations, won’t that mean that the government ceases to be secular, since it would be basing its decision on the beliefs of traditional religions, which disapprove of any violation of the seventh commandment, especially if those violations are carried out in particularly perverse ways? Perhaps it was for the sake of preserving the secular character of government that some human rights activists recently stood on the steps of an elementary school (or was it a nursery school?) and demonstratively spread the propaganda of an alternative lifestyle (or it would be more precise to say a lifestyle of death, because this particular lifestyle does not provide for the continuation of life)?
But is the secularity of government as declared in the Russian Constitution really such a threatening, monstrous principle as these selfless fighters for human rights imagine it to be—the right to offend people’s religious feelings with impunity?
Now the time has come to take a look at the etymology of the concept, “secular”. This word comes from the French, which has two different words that are rendered into Russian by one word, svetskost. One of these is words is mondiale, and although it has various meanings it usually refers to grande monde (great world), that is, to the royal court. (In Russia, by the way, the past two decades have brought a significant semantic metamorphosis upon that word: secular, or worldly events began to signify the entertainments of persons who in the old days had no access to the upper echelons, or “world”, except perhaps to the so-called bourgeois “half-world”, and that not on their own merits, but only within the entourage of the most undiscerning nouveaux riche. However, this is not directly related to the present article, but rather to contemporary manners.) The equivalent Russian term for “secular government” is also another French expression: état laïque. The word laïque is used as the opposite of the idea of clerical and only in this opposition does it acquire a logical and legitimate meaning. In other words, “secular” means literally “lay”—that is, “of the laity,” which is the opposite of “clerical”, or “of the clergy”, and not in the derivative meaning of political clericalism, or the drawing of clergy into politics, but in the original meaning, which relates to the clergy, its professional activities, and status in society. In other words, the term “secular” (“lay”) gets its full meaning in the context of a Christian society, within a religious population, where there is a recognized difference between the clergy and the laity; and a secular state, a secular school, or secular literature are the opposite of Church government, a parochial school, or religious literature. However, this does not at all mean that “secularity” is inherently “antichristian” or “anti-Church”, but only—and I emphasize—lay. Thus, in old Russia high schools where the Law of God was taught as a required subject (although students of other faiths were not obligated to take it) were nevertheless considered secular; while a seminary was religious. The works of the Church fathers, the Lives of saints, and theological or ecclesiastical-historical monographs and articles were considered religious literature, whereas the novels of Dostoevsky, however religious and Christian their content, were considered secular literature.
Furthermore, the Russian Empire, in which the Orthodox Church had the status of the official religion (although governmental protection was also accorded other confessions both Christian and non-Christian, and a category of “no religion” was not even taken into consideration) was clearly a secular government because its head, the Emperor, according to the basic laws of the empire always a member of the Orthodox Church, was always a layman and not a bishop. These are absolutely elementary, obvious things; and given an at least elementary education only an emotional disturbed person could consider the Emperor ecclesiastical and not secular, and the Russian government theocratic.
For that matter, have there ever been, anywhere, governments that were theocratic and not secular? Of course there have been, but not in the Orthodox world. They were in the Catholic world. For example, there were the German states headed by the bishops of Köln, Trier, Mainz, and Strasbourg, who were in fact called “Princes of the Church”; other bishops who were not sovereigns did not have that name. Ecclesiastical princedoms were done away with during the reign of Emperor Napoleon, but one of such states still exists today, or to be more precise, was restored by the famous Lateran Pacts of 1929. It is the Holy See, otherwise known as the Vatican. This is currently the only non-secular state in the Christian and post-Christian world. But the United Kingdom, for example, does not become an ecclesiastical state just because one of its basic laws states that the head of the Anglican Church, or the head of the Presbyterian Church in Scotland, is the king. He, or as it is in our time, she, may be the king (or queen), but not a bishop.
Furthermore the right to offend the sensibilities of the faithful with impunity as an inalienable feature of a secular government is something known only to the alarmist journalist and his cronies. In the secular Russian empire there was no such right even for the most reckless journalists, although in practice these kinds of offenses often did go unpunished, apparently due to the particularity of our justice tradition, which our famous satirist so caustically and derisively emphasized.
The Russian government was secular not only during the imperial era; even before Peter the Great, another great empire whose inheritance Russia received—the New Rome, or more simply, Byzantium—was also secular. The very principle of symphony that lay at its foundation ensured its secularity. It was formulated in the preamble to the sixth novella of the holy Emperor Justinian: “A great benefaction given to people by the supreme goodness of God are the priesthood and kingdom, from which the first (priesthood, ecclesiastical authority) takes care for divine matters, while the second (kingdom, state authorities) governs and cares for human matters; but both, proceeding from one and the same source, are the adornment of human life. Therefore, nothing is so near to the hearts of sovereigns as the honor of the clergy, who for their part serve the sovereigns, praying ceaselessly for them to God. If the state authorities will righteously govern the state entrusted to them, then there shall be complete agreement between them in all things, which serves for the benefit and good of the human race.”
The secular nature of a Christian nation is an unconditional norm for the Orthodox Christian sense of justice. The fact of the matter is that any state is built upon a justice system, which is an instrument of law. But just what kind of justice system should this be? The Church has its own law, and at its foundation are canons, thus the term, “canon law.” However, the norms of this law are for internal use only. They cannot be placed at the foundation of state law for the simple reason that canons and other ecclesiastical/legal acts do not provide for the use of physical force—neither military, nor police—without which no state in this world corrupted by sin can exist. The state naturally has a monopoly on the legal right to use force, and that is what makes it different from other human societies, and of course, from the Church. Even if all the citizens of a country, along with its government and administrators were to belong to the Orthodox Church, the Church and the State are in principle different institutions, between which, in the best scenario, a symphony arises that excludes the possibility of any merging or dissolution of one into the other because of their differing natures. The striking difference between canon law and sharia law, which the monolithic Islamic world can use to govern itself because it also includes codes on, for example, criminal law, consists in the fact that canons cannot be placed in the foundation of national law—it does not provide for any sanctions on the use of force.
That is why the Roman Empire, due to the inescapable logical reality of things as it began to take on the features of a Christian state initiated by the holy Emperor Constantine, used the former Roman law. Although the state authorities vested the canons with the force of state laws, the state built its administrative and military organizations and its tax system not upon the canons, but upon the Roman laws of government. The norms of the Roman law, formed during the pagan era, did of course undergo some modification under the influence of Christian ethics. Speaking abstractly, the only alternative to Roman law could have been the Old Testament law, which allows for the judicial use of force—for example, in the realm of criminal law. However, that law had not arisen nor was it applicable on the soil of the Roman state and society—a society gradually becoming Christian but not necessarily therefore sinless and holy; for a sinless and holy society is something entirely unattainable within the limitations of human history.
Therefore, the Sermon on the Mount, which maps out ideal interpersonal relations, cannot serve as a legal codex. Any attempt to apply it literally within the framework of the state’s fulfillment of its own functions would mean the obliteration of the state, which would not be a timely thing before the onset of eschatological events. Similar feeble attempts occurred only in the most extreme heretical communities such as the Paulicians, Cathars, and Anabaptists, but not in Church circles. Never did any responsible statesman of the Orthodox Christian world—and this includes sainted kings, princes and dignitaries—ever have recourse to similar experiments, for they understood the difference between the Church and the state and the impossibility of their merging. They nevertheless strove always for an unmingled and undivided, symphonic construct in their relationship—a symphony of the clergy and the kingdom. Therefore, any worries over the secular nature of the state have no reasonable basis. Throughout the history of the Orthodox world there never have been nor ever will be any grounds for losing this secularity. As for the Orthodox [in Russia], there definitely is no one interested in attacking the secular nature of the Russian state as it has existed for ages.
But a secular government is compatible with the legal defense of the Church and even, to the greater horror of those zealous advocates of offending it with impunity, with privileges for national Churches. This is all, thank God, still a reality of the modern world. Let us look at the constitutional principle of certain modern states. A system of national Churches exists even now in such countries as Greece, Great Britain, Denmark, Ireland, Norway, and others. In the third article of the Constitution of the Greek Republic is written: “The prevailing religion in Greece is the religion of the Eastern Orthodox Church of Christ.”[i] In the Danish Constitution, the national status of the church is likewise fixed: “The Evangelical Lutheran Church is the Official Church of Denmark… The King must be a member of the Evangelical Lutheran Church.”[ii] The Lutheran Church is the official religion in Norway according to its constitution. Until only recently, the Lutheran Church had national status in the Kingdom of Sweden and in the Republic of Iceland. Until 1995, the constitution of Iceland contained the following statement: “The Evangelical Lutheran Church is the national Church, and as such it enjoys the support and protection of the government.”[iii]
Constitutional language concerning national faiths in certain states do not contain direct references to the Churches’ national status, but they do allow for their privileged position, which could be considered as approaching the status of a state Church. Thus, the second article of the Constitution of Argentina contains a statement that the Federal government supports the Roman Catholic Church.[iv] In the Irish constitution it is stated that, “The government recognizes the special position of the Holy Catholic Apostolic Roman Church as the protector of the religion confessed by a significant majority of its citizens.”[v] No one in his right mind would deny that the above-named countries, which grant privileges their national Churches, are nevertheless secular states.
But in the contemporary world there are also other states--and they are probably the majority--which proclaim the principle of separation of Church and state. In the constitution of the Russian Federation this principle is formulated in the fourteenth article: “No religion can be established as the state or mandatory religion. Religious assemblies are separate from the state and equal before the law.” The Russian Empire, by the way, also had no one religion that was mandatory for all citizens. Orthodox citizen during the imperial era could not legally apostatize from the Orthodox Church, and Christians of all confessions did not have the right to apostatize from Christianity; the conversion of the Orthodox to a heterodox confession, or of any Christian to Judaism, Islam, or paganism was punishable by law, and converts were held responsible for their action. However, although people of other religions or confessions had the right to become Orthodox, no one was ever forced to do so, and all religions recognized by the state enjoyed protection by the law.
As for the separation of religious assemblies from the state—that statement in the current Russian Constitution should not be subjected to a broad interpretation. It means only that the parishes, monasteries, synodal departments, and theological seminaries are not governmental organs or government institutions similar to state ministries, police departments, or military bases. This constitutional statement has no bearing upon, for example, the possibility of teaching religion in school as an elective course or otherwise. It is well known that although in certain countries that uphold the principle of separation, like the United States or France, religion is not taught in public schools; but other countries, where there is also no state Church, such as in Austria or Poland, religious education is provided in public schools.
The constitutional right to confess a religion or to confess no religion, the right to “the freedom to choose, have, and disseminate religious and other convictions and freely disseminate corresponding views,” guaranteed by article 28 of the Constitution, cannot be equated with the right to conduct militant atheist propaganda in the impudent and rowdy style of Yaroslavsky[vi] or Demyan Bedny[vii], or the right to offend the religious sensibilities of the faithful, as these defenders of home-grown products so desperately insist.
The statement contained in article 29, section 2 requires special commentary: “Propaganda of social, racial, national, religious, or linguistic supremacy is forbidden.” The legislators in this instance did not mean a ban against affirming the absolute truth of one’s religious teaching, for this affirmation is at the foundation of almost every kind of religiosity, and similar interpretations of corresponding statements would mean an oblique ban on public expression, and especially the dissemination of the majority of all religious teachings. This article does not refer to anything other than propaganda of some personal supremacy of the upholders of one confession over those who uphold another, and as the insistence upon legal privileges of citizens depending upon their confession.
The role of the Orthodox Church is touched upon obliquely, without any direct mention of it, in the preamble of the Basic law, in which the thought is expressed that the “multi-national population of the Russian Federation” accepts the Constitution, “honoring the memory of its forebears”. This shows the new Russia’s recognition of the heritage of the old Russia, in which the Orthodox Church, as we know, enjoyed an exclusively high status. Substantially from this statement of the preamble to the Constitution proceeds the preamble of the Federal law accepted September 26, 1997 “On freedom of conscience and religious groups,” which states: “The Federal Assembly of the Russian Federation, affirming the right of every person to freedom of conscience and freedom of religion, as well as to equality before the law independently from relationship to religion and convictions, based upon the fact that the Russian Federation is a secular state, recognizing the special role of Orthodoxy in the history of Russia, in the formation and development of her spirituality and culture, respecting Christianity, Islam, Buddhism, Judaism, and other religions, which compose an inseparable part of the historical heritage of the peoples of Russia, consider it important to facilitate the attainment of mutual understanding, tolerance, and respect in matters of freedom of conscience and freedom of religion, accepts this present Federal law.”[viii]
The inclusion of statements of analogous or similar content in the very Constitution of the Russian Federation is a completely logical and systematic act in the process of perfecting the entire system of Russian legislation. Such changes would naturally find support from those who are interested in strengthening the Russian state, in healing it of the wounds inflicted upon it during various eras of its history, including the ever-memorable 1990s. Such revisions in the Constitution, which contain not even the shadow of an attack upon the secular nature of government, nor upon the principle of separation, the essence of which is entirely compatible with symphony, could only meet with objection from those elements who would rather hear cacophony instead of symphony and harmony, who prefer enmity over cooperation and peace, and who are aggressively pushing for the “sacred” right to offend their fellow citizens with impunity. But really, is there any point in worrying about these threatening howls from out of dark alleys?
[i] The Constitutions of countries of the European Union (Moscow, 1997), 245-246.
[ii] Ibid. 303.
[iii] Cited from Religion, education, and law (Moscow, 2002), 8-9.
[iv] Ibid. 8.
[vi] Emelian Yaroslavsky (born Minei Israelevich Gubelman) was the leading ideologue of militant atheism in the Communist Party from 1920 to the early 40s.
[vii] Demyan Bedny (born Yefim Alekseevich Pridvorov), a Soviet poet and satirist who wrote the caustic anti-religious poem New Testament without defects.
[viii] The Russian Orthodox Church and law (Moscow 1999), 110-111.
02 / 07 / 2013
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