January Seven


Werner Gephart: “Blasphemy” as an iniquity of spheres? Thoughts on the legal-cultural attunement of political and cultural sphere in modernity

Werner Gephart: January Seven

Raja Sakrani: « Je suis français, je suis juif, je suis musulman. Je suis Charlie. » On the trail of Convivencia


Werner Gephart:

“Blasphemy” as an iniquity of spheres?

Thoughts on the legal-cultural attunement of political and cultural sphere in modernity

In relation to art, law acts as a sort of drawer of demarcation lines. The freedom of the arts as a fundamental and human right to aesthetic practice also requires institutional spaces in which it can prevail against economics, politics and religion and can exist as a place of aesthetic resistance. Dictators dislike this kind of art; this was true in the period of Nazism, Stalinism and still applies to a wide range of authoritarian orders today. Actually or supposedly religiously legitimized world-views likewise react very sensitively. For this reason, the concept of freedom of the arts in its societal and – in a sense – also “cultural meaning” goes far beyond protection of the artist. The inherent power of the arts to address us not only with our reason, but also with our senses also makes them attractive for various purposes of persuasion: from political propaganda over advertising to vestmental fashion and everyday design, the borders between aesthetic practice and different spheres of life are fluid. Phenomena of differentiation can be studied particularly well here, as law with its power to define what is art simultaneously reveals its powerlessness to understand. Therefore, particular legal artistry is required to prevent overreach in this border area while at the same time preserving freedom of the arts as a subject of protection. For in modernity, the arts escape rule-based definitions: the only remaining basic norm is that of permanent change and the duty to innovate.

On what does it depend whether the arts are granted this paradox or whether other, particularly political forces take it upon themselves to resolve these paradoxes for example through violence and destruction, as was the case in Paris on 7 January 2015? Do religious concepts about the inherent power of the arts of transcendence and imagination play a role? Durkheim stressed the functional relationship between art and religion, about which he claims “…étrangères à toute fin utilitaire, elles font oublier aux homes le monde réel, pour les transporter dans un autre ou leur imagination est plus à l’aise…”[1] The systematic program of German idealism likewise affirms this relation. Beuys’ projects of sacralizing nature and Anselm Kiefer’s sacralization of memory could be named as examples for a transgression that requires the protective space of artistic freedom so as not to be accused of heresy, blasphemy or apostasy. The caricature dispute therefore remains relevant in order to learn fundamental aspects of how cultures interact with each other that are precluded both from engaging in political defamation under the protective mantle of art and from limiting the space of expression and depiction based on their particular confession by reference to freedom of religion. Law therefore does not only act as an instance of denial, but also as an usher that demarcates the limits of spheres. Law therefore protects the right to autonomy in the arts that can only live up to their meaning of offering a strong-headed and oppositional world as criticism, celebration or transgression of daily life if they are thus protected and removed from other purposes. If the arts, however, lose touch with other systems and life worlds, they deprive themselves of their own resources to develop a power of interpretation and design that is in so far independent of the powers and orders that be.

Whether the sacredness of a conception of god is considered worthy and in need of penal protection varies considerably between “legal cultures”. From “blasphemy” as a legally punishable offense to the regulation in § 166 StGB (German penal code), a distinct development can be noted and discussion has by now flared up whether a complete decriminalization as in France[2] might not be in order.[3] This discussion can be seen as an expression of how the limits of spheres are not immovable, but are contested in the political space. The object is thus one of central constitutional values in society, where the right to freedom of speech through the medium of artistic expression collides with the right to social recognition of religious definition and provision of meaning. 

We cannot depart from some universal conception of what constitutes an “image”, let alone that humans can be universally defined as a homo pictor. Rather, monotheistic religions appear to have laden humanity with a prohibition on depictions that has resulted in different cultures of iconoclasm. The question of validity emerges sharply here: Legal cultures legitimized through the nation state that reject a prohibition of visual representation as an offense of blasphemy (as in France) or – as is now being called for in Ireland[4]  – are seeking to remove it from the constitution face a sharp question of validity: How to deal with purely religiously motivated expectations from a particular subset of society that their own culture of opposing images be protected? This conflict becomes visible not only in the reduction of this question through physical destruction, but also through worldwide protest by Muslim organizations and communities against the most recent edition of Charlie Hebdo. A conflict that we – in the West – observe with distress, but that has not defused the state of tension arising in a world society in which events are circulated by the media and expectations of validity transcend national borders.

The topic of the Käte Hamburger Center for Advanced Study in the Humanities "Law as Culture" for the current research year on the relationship between “Law and the Arts” shall further investigate this state of tension, its historical conditions and current risks with a view to potential solutions, as already foreseen in the application for extension (for the sixth research year).

Bonn, January 25, 2015

[1] “… strangers for all practical purposes, they allow people to forget the real world to be transported into another one where their imagination is more at ease” (own translation), Emile Durkheim, Les forms élementaires de la vie religieuse, Paris 1912, p. 543.

[2] By now there is also a debate in Alsace-Moselle whether the provision on blasphemy should not be removed, something that is also supported by Muslim communities. Cf.: Les cultes préconisent l’abrogation du délit de blaspheme (22 January 2015).

[3] As can already be noted in the reasoning of the special committee on criminal law reform: “To forego blasphemy as a punishable offense avoids running into the misunderstanding that God could be the object of worldly protection and prevents unnecessary discussion of the concept of God in the court room.” (Drucksache V/4094, p. 28, own translation). Cf. further the seminal study by Josef Isensee on “Religionsbeschimpfung. Der rechtliche Schutz des Heiligen”, 2007.

[4] On the announcement of a corresponding referendum in Ireland, after the offense of blasphemy has last been applied in 1855, cf: www.thejournal.ie/ireland-blasphemy-law-referendum. On the Netherlands, cf. Cora Schuh, Marian Burchardt and Monika Wohlrab-Sahr, Constested Secularities: Religious Minorities and Secular Progressivism in the Netherlands, in: Journal of Religion in Europe 5, 2012, pp. 349-383.


Werner Gephart:

January Seven

The events in France – that may mark an epochal shift similar to that of September 11 – affect us at the Käte Hamburger Centre for Advanced Study in the Humanities “Law as Culture” at different levels. A personal statement from the Director can but insufficiently mask our sense of helplessness. Nevertheless, sharing a few thoughts seems in order:

  • The physical liquidation of a group of caricaturists and journalists as well as security personnel lacks historical precedent. To seek aid by deriving meaning through whichever religion is absurd.
  • To claim legitimacy in the name of a monotheistic, Abrahamic religion completely misses the message of an Islam that has historically indeed acted as a peaceful force, for instance in convivencia Al Andalus or in the Maghreb (see the contribution by Raja Sakrani).
  • However, to what extent liberal interpretations of the Qu’ran will be able to prevail going forward depends on a multitude of factors.
  • A “right to laughter” (as our Fellow Upendra Baxi memorably formulated) cannot be limited through a supposed claim to the impermissibility of representing the highest being in an iconoclastic manner, even if the limits toward blasphemy cannot be arbitrarily moved.
  • Who would not support the call for security, a central task of the state? At the same time, it would be utterly irresponsible to neglect the complex causes for Islamic fascism.
  • That fascism cannot be countered by lawlessness is a democratic truism. But will we be able to resist the dangerous temptation to hollow out the culture of the rule of law in Europe?
  • Has a realistic perspective for a dignified life been offered to those ideologically seduced and deprived in Europe and how shall we handle this issue going forward?
  • And may we allow ourselves to lose faith in places and islands in which a different, democratic relationship of Islamic civilization with the state, law and society is beginning to take shape, as is currently the case in Tunisia?
  • In supporting this process, would we not protect the values of a life of liberty, dignity and community that is shared across cultural differences?

As citizens, we cannot ignore these questions. As academics, we must encounter them systematically with our “weapons” of concepts, analysis and empiricism.

Werner Gephart, January 12, 2015.


Raja Sakrani:

« Je suis français, je suis juif, je suis musulman. Je suis Charlie. »

On the trail of Convivencia

What did they attack?

Freedom of speech? Certainly. France and, by extension, Europe? Undoubtedly. Islam? Also. But above all, the possibility to live together. Living together excludes being shocked by the Other; it excludes conceiving of the Other as the radical exterior which is to be exterminated in a time of an uncertain collective ‘Us’: The telltale sign of struggles over identity within this culture. In Islamic societies of old, even though they were certainly never homogenous or mono-religious, a certain coherent perception of the “Muslim” Self permitted the accommodation of otherness within cultural and religious pluralism. This psychological and cultural capacity culminated in attempts to reestablish the Self through permanent reference to the Other and influenced the independent Islamic perception of the Self as an Other1, that is to accept the Other not as the counterpart to the Self, but as belonging to the “intimate constitution of its meaning”2. During the time of Convivencia, a period in Spanish history running from the conquest of the Iberian Peninsula through Umayyad Muslims at the beginning of the 8th Century to the completion of the Christian Reconquista around the end of the 15th Century, Jews, Christians and Muslims were able to live together in relative harmony.3 The “intimate constitution of the meaning of Self” – to follow Ricœur – through the Other was, in fact, constitutive to medieval Andalusian history, the historical knowledge of which is essential today given the complex challenges of contemporary society in the Occident4 and Orient alike. In the wake of the works of philologist and historian Américo Castro5 on the genesis of Convivencia, James Carroll6 made this concept a corner stone in European history due to the important role it played in the passage of Greek philosophical heritage to Europe thanks to Arabic, Hebrew and Latin translations. This was certainly an artful passage. And those who passed it on were well versed in negotiating the language and culture of the Other for the greater good of Europe and the Renaissance. For present day Europe, Convivencia, “convivance” or “convivence”7 is much more than a simple quest for the beautiful old time lost. It is necessary, first, to better understand the present through its historical premises. Further, it represents a complex multi-dimensional and civilizational work: the work of memories; the reunion of historical links in public life and painful separation; the return of history: its identities, errors and misfortunes.

The terroristic attack against the satirical journal Charlie Hebdo, the assassination of caricaturists and columnists, of a Muslim police officer and four Jews – including two Sephardic Jews – in a kosher supermarket is not an attack by Muslims on non-Muslims. It is an attack on a way of living together, where Muslims and non-Muslims stand side-by-side in a pluralist society. Indeed, several French Jews and Muslims who spoke during the historical march on Sunday, January 11 repeatedly recalled the Judeo-Muslim Convivencia in the countries of the Maghreb, their countries of origin – an apparent historical and cultural extension of their Convivencia in Al-Andalus – such as a Sephardic Jew born in Algeria who continued to speak Arabic and live side-by-side with Muslims or a Rabbi who was close to the victim Yoav Hattab, born and raised in the spirit of living together in Tunis. He continued by practicing Tunisian liturgical rites in a Parisian synagogue and maintained the cultural habits of his native country, including the culinary traditions. The attacks seek the destruction – from within European societies – of a mode of cohabitation and coexistence that is sought after not only in Europe, but also in the Arab-Muslim world. A world of rapport woven between Jews and Muslims over fourteen centuries, both happy and tragic. A world amputated with massive waves upon waves of Jews leaving starting in the 50s and 60s. A world drowned in rivers of blood and bogged down in terror from Islamist fascists who are wreaking havoc from Syria to Morocco, via Iraq and Yemen. In Tunisia, for the moment the only remaining island fighting to escape this fate, the day following the attack of Charlie Hebdo saw the release of a video of the purported8 execution by the Libyan branch of ISIS of two journalists that had gone missing in Libya since September, one of whom was a very active blogger during the Tunisian revolution. In this world of totalitarian madness operating under the black veil of Islam, civil societies are attempting to construct multicultural societies in which citizens enjoy the means of living together with their differences.

The fascist Islamist ideology is thus not only a fundamentalist religious movement, even if part of its program indisputably belongs to the Islamic religion and, even worse, finds its origins and raison d’être in a literal reading of Quranic text; above all, it embodies an ideology that carries all the characteristics of mass totalitarian ideology, “[n]o matter what the specifically national tradition or the particular spiritual source of its ideology (...)”, as Hannah Arendt aptly put it.9 It becomes a totalitarian myth capable of engulfing and handing over Europeans, whether they be Muslims or converts, to the machine that produces terrorists ready to operate in the four corners of the globe. This helps to clarify at least two issues. First, the “bad” Muslims (i.e. non-jihadists), infidels and “Westernized”, are a target in the same way as any non-Muslim, be it Christians, Jews, Buddhists, atheists, etc. This is testified by the growing number of intellectuals, lawyers, journalists, police officers, liberals… that fall victim to terrorist bombs, Kalashnikovs and swords in Arab-Muslim countries and the sub-Saharan region on a daily basis. Second, the daily increasing number of European converts is at heart a protest movement that can become non-religious and needs to be “de-religionized”.

Millions of people in France and throughout the world have taken to the streets in homage and solidarity. It is an expression of shock, but also of solemn reflection and an assembly against terror, against this new form of violence and Islamic fascism that threatens to shatter all forms of tolerance and peaceful coexistence in Europe and beyond.

Chilling video sequences have circulated around the globe since January 7. After the assault on the office of the satirical journal Charlie Hebdo, the first police officer arrived on the scene. The footage shows him lying wounded on the sidewalk as one of the Kouachi brothers turns back towards him, Kalashnikov in hand and executes him with a bullet to the head. The police officer, Ahmed Mrabet, was a Frenchman with Tunisian roots, he was Muslim.

On Friday, January 9, a kosher supermarket in Porte de Vincennes in Paris was attacked by another jihadist. Despite the liberation of several hostages, Amedy Coulibaly killed four Jewish victims, two of which were Tunisian. François-Michel Saada, a Frenchmen born in Tunis on June 6, 1951 and Yoav Hattab, a Tunisian national. A 22-year-old student, Yoav was the son of the grand rabbi of Tunis and director of the Jewish school Benyamin Hattab. He had come to Paris the previous year to study international trade.

One needs to have the courage to admit that even though these young French terrorists were the product of transnational fascist Islamist ideology, they were also the product of a complex of tragic conditions in France. There is the problematic relationship of the Republic with its French/Muslim Other, often confined to being pushed out to the urban periphery, in the margins of French life particularly in the prisons. Let us recall that two of the three terrorists, Chérif Kouachi and Amedy Coulibaly met each other in prison and remained in contact since (the mid-2000s). Anthropologist and sociologist Didier Fassin revealed the shocking results of his study into the prison system in his most recent book L’ombre du Monde. Une anthropologie de la condition carcérale (Shadow of the World. Anthropology of prison conditions): 50% of the inmates are Muslims, 2/3 are blacks and Arabs from the “milieu populaire”, i.e. disadvantaged neighborhoods. Are they more numerous in prison because they are more criminal than the rest of society? Or is it because society feeds the prison machine – that unfortunately also produces the most dangerous terrorists – by seeking answers to socio-economic problems only in the penal system? There is also the law of 1905 on laïcité in its dealings with Islam. Let us not forget that this law prohibits the state from financing places of worship, in this case mosques. But since the Judeo-Christian tradition has a longer history on French ground, the mosques have been generally financed by states such as Algeria or Saudi Arabia. Is one to tolerate that the mosques’ imams are educated in Algeria, Qatar or Saudi Arabia? How to explain the problem of the CFCM (Conseil français du Culte Musulman or French Council of the Muslim Faith) created by Nicolas Sarkozy that is torn between theological quarrels and political calculus to the point that in Paris, mosques even claim to be Algerian or Moroccan? Is one to tolerate that a country such as Saudi Arabia finances mosques in France when a 30-year-old blogger was cuffed at his hands and feet and whipped 50 times in front of a crowd of believers after the Friday prayer on 9 January 2015? Raef Badaoui’s crime, for which he was sentenced to ten years in prison, fined one million Rial (267,000 dollars) and condemned to one thousand lashes spread out over 20 weeks, is that he freely expressed himself on a blog to criticize the religious police and certain religious edicts (fatwa) issued in his country.

Beyond the individual stories that make up this French drama, beyond historical, religious, sociological and political considerations specific to France that were not presently analyzed, beyond the debate on the ramifications of this event on the judicial system, as well as the security and political agenda, beyond how the events will be taken up or politically instrumentalized by right-wing nationalists in Europe or even competing Israeli and Palestinian factions – beyond all that, the spirit of Convivencia absolutely needs to be explored, studied, analyzed and understood even in an atmosphere of mourning, menace and doubt.

1 « Soi-même comme un autre », which is also the title of the philosophical work by Paul Ricœur that was published with éditions du Seuil in 1990.

2 Ibid., p. 380 (French version).

3 Here, the intention is not to idealize, nor to relate a mendacious myth of Convivencia, let alone to provide a scientific analysis of the etymology and history of the meaning of this concept that is complex and difficult to grasp both as to its academic acceptance and as to its historical realities and cultural dimension.

4 The coincidence of those events with the appearance of Michel Houellebecq´s book “Submission”, the very same day of the attacks should not be metaphysically over-interpreted. But he apparently appeals, in a negative sense, to a historical period that entails to our understanding a germ of “Convivencia”.

5 Américo Castro (1885-1972), Spanish philologist and historian. He was in exile in the US during the Spanish civil war and authored the famous book España e su historia that was first published in 1948.

6 Constantine’s Swords. The Church and the Jews. A History, 2002, 33. Convivencia to Reconquista, pp. 322-362.

7 The etymology and equivalents of the word Convivencia is a research field of its own that is complex and fascinating. Even more fascinating is how it has been used and adapted in non-European contexts such as Morocco, Québec, Latin America…

8 Whether this video actually shows the execution of these two journalists, or whether it is rather other footage from Syria is in dispute at the time of writing.

9 Hannah Arendt, Totalitarianism, Part Three of The Origins of Totalitarianism, 1968, Houghton Mifflin Harcourt, S. 158.