Thursday, May 10, 2012

Humanising law

One of the standard complaints against giving queers (by ‘queer’ I mean any person who does not conform to being definitively male-or-female and heterosexual: i.e. same-sex oriented, same-sex attracted, intersex, transgender people) equal protection of the law is that it is an offense against the Christian, or Judaeo-Christian (if Christians want to include the Jews rather than practising more traditional exclusion thereof), traditions of the Western civilisation. To put it another way, it involves de-Christianisation of law.

Controlling women
This is true. But so did giving women equal protection of the law and giving Jews equal protection of the law. Giving women the right to exit a marriage, and to control their fertility, was equally an “offense” against the Christian traditions of Western civilisation. Indeed, if one examines the Christianisation of Roman law, and of proto-common law, one sees the same pattern. As Christianisation advances, women lose the right to control their fertility, they lose the right to exit a marriage. Being so completely untrusted as decision makers in such key areas of their life, the natural corollary was that they lost control over property as well; hence the development of coverture marriage and married woman as chattel of her husband. A free women in C8th England had far more legal standing, property rights and social opportunities than a free woman in C18th England and the reason for the difference was a thousand years of Christianisation of law.

As institutions and technology developed, and the ambit of religion as a source of meaning and explanation (and so authority) shrank, the legal status of women rose in a steady unravelling of the aforementioned Christianisation of law. They regained property rights, they regained the right to exit a marriage, they regained control over their fertility. (Such rights and control having been features of Celtic, Germanic and late Republic/early Empire Roman law.) Women became legally and socially recognised as full decision-makers, with dramatic expansion of their social opportunities.

That Islam, particularly in the Middle East, has not experienced the same shifts—institutional and technological changes being either outside impositions or grudging adjustments to outside pressure—and the ambit of religion as a source of meaning and explanation has (after a temporary period of retreat) resurged, explains the precarious status of women in such countries.

Oppressing Jews
The case of the Jews is, if anything, even clearer. Christianisation of Roman Law involved a steady process of stripping Jews of legal protections and imposing ever more legal constraints. (Pagans were even more severely treated.)

The Germanic conquests of the lands of the former Western Roman Empire was generally a benefit to the Jews, since persecution of belief was not a feature of Germanic law. Indeed, the Carolingian dynasty valued Jews as revenue-producing, law-abiding believers in God. The relentless hostility of the Catholic Church, however, led to the steady stripping of legal protections from Jews and the imposing of harsher and harsher legal constraints. (To their credit, both Karl-lo-magne and his son Louis the Pious resisted the Church’s demands that Jews be stripped of rights, but the collapse of Carolingian power removed that block.)

It was only with a process of de-Christianisation of law that Jews were able to enjoy full legal protections. By the middle of the C19th, places where a monopoly Catholic or Orthodox Christian Church had the most power (the Papal states, Tsarist Russia, Romania) were where oppression of Jews were most intense. During the C19th and early C20th, the Catholic Church put considerable resources into promoting Jew-hatred.

It has been a standard Catholic refrain over the last few centuries that liberal modernity is evil because it gives people rights. Liberal modernity is evil because it gives Jews equal standing law; liberal modernity is evil because it gives women control over their fertility and the right to exit a marriage; liberal modernity is evil because it gives queers equal rights. The Catholic Church has been a strong proponent of the “insult of equality”—that it is an insult to decent, God-fearing Christians that Jews have the same rights as them, that women have control over their lives, that queers have equal rights. All this is even more intensely true in Islam.

Which leads to two questions: why is monotheism so hostile to equal protection of the law? Why has liberal modernity successively embraced equal protection of the law?


[Read the rest at Skepticlawyer.]

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