In the English translation of an article published by uutiset on May 3rd, Finland’s Justice Minister Anna-Maija Henriksson
“…has expressed concern over claims by a local NGO that Jehovah’s Witnesses in Finland have their own judicial committee meting out justice to wrongdoers. Responding to a report by the UUT which advocates for victims of religious organisations, Henriksson said that Finland has no room for two separate judicial systems.”
(View the rest of the article here.)
My colleague Mike Garde of Dialogue Ireland already has commented a possible problem with this stance regarding religious freedom in his blog for May 5th. Since then, I have had further thoughts on possible effects of this approach, both for religions and for social groupings generally.
Justice Minister Henriksson’s phrase, “no two separate judicial systems”, is an interesting if potentially problematic approach to a serious issue. What does she mean by this phrase, and how strictly would she like to apply it? I too would like to see an end to the harm caused by shunning in all its forms. However, some results of this approach could be undesirable.
The Myth of Only One Judicial System
When people come together for any purpose, they may need to protect the group from being undermined or hijacked for some other purpose. The group develops protective procedures that may take on some or many of the forms and functions of a “judicial system”. This routinely occurs throughout society in countless organizations of all kinds, at least in free countries.
Defining the Term
To begin with, to restrict the term “judicial systems” legally, how can it be defined precisely enough to permit only those systems of internal discipline which we find acceptable and necessary, while preventing only those which we want to stop? If great care is not taken, Finland, and other nations that follow suit, could end up with a legally binding definition of “judicial system” that fails to prevent the very abuses we want to end. Alternatively, we could end up with a definition that prevents companies from disciplining employees, restricts professional ethics committees from maintaining standards, and stops other such legitimate actions that currently protect people.
Legal definitions are notoriously tricky things, and once they are enshrined in law, legislators are slow to alter them. Get them wrong and they become handcuffs for the law-abiding, or loopholes for the criminally malicious. Or both.
This is not some theoretical problem that would not affect most of us. It might have implications not only for corporations and other places of employment that have their own disciplinary procedures as part of their human resources management (including hospitals, police departments and the like), NGOs, professional guilds and boards of accreditation. It also could affect the operation of scouting organizations and other clubs for children and adults, hobbyist societies, labour unions, religions and religious organizations, charities and voluntary service organizations, organizations controlling professional sports, amateur sporting associations (including the Olympics), and more.
These varied social collectives all are defined by their purpose and often, by those things their purpose excludes, and which are ruled out by their articles of constitution. They already may have in place protective procedures to safeguard their raison d’etre and uphold their constitutional guidelines. It is no coincidence that such procedures resemble a judicial system: over centuries we have created procedures that minimize the possibility and appearance of partiality, and they tend to look like court proceedings.
I believe that if a useful legal definition can be devised, it must acknowledge that not all secondary judicial systems can or should be outlawed. At the same time it will monitor and regulate the activities of these secondary systems to prevent detriment and harm to members and others.
Two underlying questions are first, at what point does the internal judicial system of such associations cross over from being an acceptable exercise of self-definition and protection, to becoming a law unto itself, conflicting with the law of the land and nullifying the human and civil rights of its members, ex-members and outsiders? Second, once such a cross-over point is found, what remedies will be most effective in halting existing abuses while at the same time avoiding the creation of new ones?
Deciding the Target
Once we have a workable definition for “judicial system”, and a way to evaluate groups and their procedures, to whom should it apply? Should we restrict its use to certain pre-selected organizations we suppose to be abusive, or should we extend it to all social groupings, just in case?
For this axiom of “no separate judicial systems” to be followed fairly, shouldn’t it be applied to every kind of association of people that currently enforce their constitutions (often, by legal requirement) through judicial-type proceedings?
Either we can aim to eliminate all other judicial systems from our countries, or the axiom can be be a slogan meant primarily to target Disfellowshipping Courts, Committees of Evidence and the like. If Finland (or any of the rest of us) really mean “NO separate judicial systems”, then I do not see an easy way to avoid reviewing the nature and scope of the powers and punishments exercised by all disciplinary mechanisms throughout society. Such a review across the board might prove to be a good thing eventually, but it will not be a “quick fix” to hurtful practices like disfellowshipping. Extending it to all associations would create other problems, not least of which is the extra time and personnel (and money) required.
Application to “Religions” Only?
On the other hand, if we try to avoid the problems inherent in applying the axiom to all social groups, by restricting it only to religious organizations, we are likely to fail to address existing problems. Separate judicial systems already occur in authoritarian sects which are political, scientific, para-military, or educational, not religious. The harsh punishments we want stopped can and do occur in such groups. We would fail to end their abuses because groups calling themselves “non-religious” would fall outside the proposed law.
Moreover, by restricting ourselves to “religious” judicial systems we would offer an easy escape route to extremist authoritarian sects that are willing to stop calling themselves a religion. They might use terms like “science of existence/reality/the mind/the soul”, “religious philosophy”, “philosophy”, “therapy”, “spiritual technology”, “self-actualization seminars”, and so on, and be exempt.
In addition, they could do away with their separate judicial system altogether to give the appearance of complying with the law. However, a truly authoritarian group will not stop punishing and abusing members and ex-members. With the last possibility of fairness removed, judicially defined punishment could be replaced by extra-judicial proceedings dictated wholly by the whims of the leader without even the illusion of an appeal to justice.
Finally, the application only to “religions” (however phrased) would be blatantly discriminatory, and probably not defensible legally.
Such a law will have failed. What then? Another law? And perhaps another?
I want to extend what Mike already has said about religious freedom. As he has written, “Each Church has its own canon law or internal rules. They must be respected. However, if they involve breaches of human rights they must be challenged by civil society”. His points are true also of Judaism and Islam.
Not many governments in the free world would be willing to apply strictly the axiom “no two separate judicial systems” to religions generally. Target major religions? For pragmatism as much as anything else, that would be any government’s (and a politician’s) nightmare. It would outlaw legitimate as well as abusive judicial processes. If it ever did happen, I do not see how it could last.
I will refrain from commenting on the kind of government that tries to implement such policies towards religions, except to say that I do not believe such a government is the intention of Minister Henriksson or of anyone looking for ways to legislate against abuse by extremist sects.
As is true of any association that has a distinct identity, a religion has key elements that make it truly itself and not something else. If we say that the only way to prevent abuse through an internal judicial system is to outlaw it without exception, then we say that no religious association may define itself. That approach cannot work without creating a different version of the underlying problem we want to solve: ideological totalitarianism. Such a “cure” is not worse than the disease. It is the disease.
What if we try to distinguish between the religions we want to protect and the ones we want to target? How would we do that? Is it even possible? How would a law embodying this axiom “no two separate judicial systems” define “religion”, “cult”, “sect” and other such terms, accurately and unambiguously? We already know those words complicate things amongst ourselves; our legislators and courts are not likely to do better. First, they have to define the terminology, then they have to decide how to apply it and to which groups. Do these questions even fall within the expertise and jurisdiction of lawmakers? I believe they do not.
Rather than trying to provide detailed alternatives, here are a few open-ended thoughts:
First, we need to acknowledge the existence and continuing usefulness of parallel judicial systems. We have them already. Most of the time they do not produce the horrendous abuses we are trying to address here. We need to persuade abusers of these systems, whoever they are, to comply with human rights and not merely find ways to circumvent them. When persuasion fails, we need to have just and legal means to enforce compliance. In short, we need to get the abusive minority to respect their members just as the majority already respect theirs.
Second, we must seek to specify the jurisdiction and powers of parallel judicial systems so that they no longer diminish or destroy human rights.
Third, where appropriate we should examine other aspects of their relationship to the primary judicial system and to society-at-large.
Fourth, we should create workable procedures for monitoring the compliance of all such groups. These procedures must be more than a polite understanding, particularly where there is a history of repeated and egregious violations.
Finally, compliance procedures must include a mechanism for prompt and effective enforcement, and an accessible complaints process accessible. They must “have teeth”.
I will end as I began: the problem of punishing doubt and dissent by shunning individuals and destroying family relationships, no matter what name it is given, should stop. However, the solution to that problem should not be the seeds of new problems. There is a balance to be sought, allowing both religious and non-religious groups to define themselves and safeguard those definitions, while also protecting individual persons from those groups and their definitions whenever such persons are threatened or harmed. Will the axiom “no separate judicial systems” really lead us to the best way to achieve this balance?
— Christian Szurko, DialogCentre UK