Religious Unorthodoxy

The first thought crimes were theological. Disobeying God was the original sin. When crime and sin were largely the same, worship­ping deities other than your own people's god was among the first offenses.

Sin, irreligion, immorality, and crime were at first largely indistin­guishable. Crimen could mean both “sin” and “crime.”¹⁷ Both sins (in the broad sense of being irreligious and immoral) and crimes violated laws given by god(s) and enforced either directly by them supernaturally or indirectly through authorities, whether religious or worldly. Attacking the leader, who was also god's earthly repre­sentative, transgressed both religious and secular authority. Heresy and treason were thus much the same offense—attacks on leaders. In ancient Greece, sacrilege and treason were closely related, the tem­ple being the home of the state's protector.¹⁸ Sins such as blasphemy were treated like secular transgressions such as murder or theft, as violations of the divine order, and enforced by the authorities.

Sin and crime were eventually separated out. The transcendent religions of the Axial Age—Buddhism, Confucianism, Jainism, then Judaism, Christianity, and Islam—desacralized this world. God and the divine were elevated to a higher plane, no longer interacting much with the mortal and certainly not on a daily basis.²⁰ By the nineteenth century, the legal reformer Anselm von Feuerbach was able to argue that God could not be insulted and that he certainly would never stoop to exacting revenge for injured honor.²¹ The Greek and Roman gods had constantly meddled in human affairs. The Western Christian world was eventually, after kings and popes had sorted their relations, ruled by secular law, with religious pre­cept only at a remove.

If the divinity did not intervene, religions themselves could only persuade. They could censure and influence believers. Excom­munication had an effect only insofar as the spiritually banished remained sufficiently adherent to agree that it imposed a cost on them. If used too often, as among seventeenth-century Jewish com­munities against Sabbatian heresies, its effects were shrugged off.²² Only those who still accepted the orthodoxy could be punished by it. For similar reasons, religion's most effective leverage, hell, failed to work for those whose faith had changed or faded. Besides such voluntarist measures, religion could enforce its precepts only when it allied with the state, turning sin into crime.

Religious orthodoxy and the state therefore intertwined. A lan­guage, as the old joke goes, is a dialect backed by an army. So, too, a sect becomes religion only once it can enforce itself.

Long persecuted, Christians now went after each other. After Nicea, Constantine issued an edict against heretics aimed at Nova­tian schismatics and Gnostics.²⁶ A millennium later, that cycle repeated itself with the Reformation. Just as treason wipes the slate clean by its own success, so victorious heresy becomes orthodoxy. Though hounded to near extinction, Waldensians, Hutterites, and other sects sowed their seed in those areas where Protestantism later flourished.²⁷ Severely persecuted by Catholics, mainstream Protes­tantism in turn went after many of its own bewildering array of sects. Luther had at first rejected coercion in matters of faith. As he gained power, however, worried by the excesses of Anabaptists and other schismatics, he changed his position. John Calvin's vicious hounding of Michael Servetus to a gruesome death in 1553, who had already been persecuted by Catholics for his views on the Trin­ity, was among the worst examples.

So long as religion was considered society's cement, belief was a public issue. Incorrect thoughts threatened order and stability. If God insisted on human society's purity, individual deviations became a collective problem. Heresy could spread like disease and had to be stamped out. The threat of divine wrath at sin obligated human authorities to police themselves. Chinese rulers anxiously scanned the heavens for omens and signs of supernatural displea­sure that required a recalibration of their policies.²⁸ Romans were largely indifferent to theology so long as order was maintained, but Christians feared that wrong thinking affected the entire commu­nity. Heresy threatened God's wrath through famine, earthquake, and pestilence. Theologians of the eleventh and twelfth centuries insisted that a universal, uniform faith alone won God's favor for the Christian world. Emperor Maximilian issued the first imperial law against blasphemy in 1497 because he feared epidemics, fam­ine, and natural disasters.²⁹

As we have seen, both treason and heresy were first regarded as defiance of collective religious and political authority. In 1199, Pope

Innocent III treated heresy analogously to treason. Both were crimes against the ultimate authority, whether secular or religious.³⁰ Her­esy was not just an individual crime but, like treason, also offended against the community of faithful. Only subjects or citizens could be traitors since foreigners were definitionally unable to betray a ruler to whom they owed no allegiance. Foreigners could be enemies, of course, but not traitors. Believers may quibble whether Soren Kierkegaard was right that pagans could not sin. But atheists proba­bly cannot sin—unless it turns out they are wrong, and God exists.³¹ Similarly, only believers could become apostates and heretics.

But non- and other-believers could blaspheme or verbally assault sacred values. Early Christianity drew such distinctions imprecisely.

Resonances of such hierarchies persist. Few today see sorcery as a valid competitor to religion. When in the Republican presidential primaries of 1980 George H. W. Bush called Ronald Reagan's supply­side policies “voodoo economics,” the description was regarded as an uncontroversial commonplace, even as Vodun's practitio­ners accused him of slander.³⁶ Nations with official state religions decide which variants they recognize as legitimate competitors. In Germany, both the Society of Friends (Quakers) and Scientology are classified as sects, not religions. European authorities question whether such would-be religions qualify for state subsidies (or can collect religious taxes). In the US, tax exemptions have been the main issue: whether to grant Scientology standing as a religion has been the remit of the fiscal authorities.³⁷

Transgressions against the faith eventually became crimes against the state. In the fifth century BCE, the Greeks began punishing the impious and those who refused to recognize the gods.³⁸ Plato argued that even well-meaning citizens who committed impieties should be put to death if after being instructed and admonished for five years in a house of correction, they had still not repented.³⁹ Socrates was only the best remembered of such victims.

Christianity's challenge to the state cults threatened public order even as the Romans took little interest in its theological claims. They viewed Christians as another annoying, standoffish sect that shunned public festivals, sacrifices to local deities, and homages to the emperors' statutes. Neither the Christians' portentous prophe­cies of unbelievers' fates nor rumors of secret bloody and sensual rituals helped their image. Rome firmly regulated and occasion­ally suppressed Christians along with the Bacchantes, the Druids, and followers of the cults of Isis and Serapis.⁴¹ Christians, however, proselytized effectively, universalizing Judaism's monotheism and its unwavering claim to the truth. They ignored the Roman state, which, besides persecution, had few tools to deal with a belief that despised worldly power. Once the emperors converted to Christian­ity in the fourth century, religious and political power aligned. The state now policed orthodoxy, and heresy and blasphemy became among the most commonly prosecuted crimes.⁴²

Church and state together battled heterodoxy through the Mid­dle Ages. Pope Gregory IX decreed that blasphemers undertake pub­lic penance in church, while secular authorities fined them. Secular laws against blasphemy followed in the early thirteenth century.⁴³ Forbidden to shed blood, clerics farmed out heresy's punishment to the state. In England, Henry VIII combined political and religious power in the same hands, and the two forms of dissent became indistinguishable. Objecting to his variant of the Reformation was both heresy and treason.⁴⁴

Religion began to be exempted from the state's concern in the Elizabethan era. Francis Bacon promised that the authorities did not seek to “make windows into men's souls.” And in 1570, the queen agreed that all subjects who were obedient to her laws would be free from “any molestation to them by any person by way of examina­tion or inquisition of their secret opinions in their consciences for matters of faith, remitting that to the supreme and singular author­ity of almighty God, who is only the searcher of hearts.”⁴⁵ The right to remain silent was invoked in this era to protect religious dissidents from persecution, indirectly allowing them freedom of conviction by not having to testify to their variant beliefs. That innermost thoughts need not be divulged to secular authorities was invoked by Thomas More in his trial in 1535.⁴6 Extremists such as the Arians and Anabaptists were persecuted, but Catholics and Puri­tans only if also their activities threatened political dissent. Though adopting the Thirty-Nine Articles as official doctrine in 1571, the Elizabethan church did not rigorously enforce them. Catholics

attended established churches or paid fines for recusancy and went to mass in private. The state demanded only outward conformity and pro forma obedience.⁴⁷

Insofar as the state wanted heretics to repent or convert, it could not just execute them. With thought crimes, capital punishment indicated failure, so heretics were often imprisoned and tortured in hopes of conversion. Used to extract the truth, torture also served to persuade. Dead heretics, Thomas Aquinas pointed out, could not do penance.⁴⁸ The Spanish inquisitors repeatedly urged the accused to examine their consciences, identify the charge against them, and confess. Only then were formal charges brought.⁴⁹ Because particu­lar thoughts were not an ineradicable part of humans—as ethnic­ity would later be considered—they could be changed and did not seal their thinker's fate.⁵⁰ Only those who valued their convictions above all else faced death. Luther came to consider Anabaptists, who rejected the state and its coercions, blasphemers and seditionists, calling for them to be killed. Not everyone was cut out for martyr­dom, however, and many convicted heretics lived after recanting.⁵¹

From Theology to Politics

Over time, faith grew private, no longer a threat to the state. Dissi- dence moved to politics instead. We have followed this development with treason. Threats originally posed to the person of the ruler were later aimed at the system as politics ceased being a dynastic mat­ter. With the spread of representative government and later democ­racy, some degree of political dissidence was baked into the system as reform, with only outright attempts to destroy it outlawed. Only in the totalitarian regimes did political dissent retain a theological aura, with even trivial acts regarded as mortal threats. Nonethe­less, liberal democracies, too, took an interest in citizens' political thoughts. Nationalism sometimes presupposed an adherence to the community that prompted the state's concern with its members' beliefs, not just their conduct. The faithful congregation found its counterpart in the patriotic nation.

Political dissidents could be traitors or revolutionaries, more dan­gerous than ordinary criminals. Just as assassination was not merely another murder, so politically motivated crimes were “less repre­hensible morally but more dangerous to society than the same act would be if due to revenge or some other personal motive,” as the British police said of the suffragettes in the early twentieth cen- tury.⁵2 The French revolutionary penal code of 1791 made political crime an offense against the state, not the ruler: lese-nation, no lon­ger lese-majeste. Seeking to change the system was treason. Those undermining the state attacked their own people and so ultimately themselves. Opposing the people's will, they stood outside the com- munity.⁵3 Democracy's opponents were enemies of the people. This was the logic taken to its extreme in the totalitarian populisms.

But dissidents could also seek to improve, not overthrow. In this guise, they were considered political criminals. In recognition of their social status and benevolent intentions, nineteenth-century Europe punished them more leniently than ordinary offenders. Starting in the 1830s, France softened its treatment of opponents. Both Left and Right despised Louis-Philippe, the bourgeois mon­arch. Legitimists hated him for overthrowing the last Bourbon king, republicans for his narrowly upper-middle-class backing. The Orleanist regime responded with comparatively moderate laws, though robust by modern standards. It curbed free speech and writ­ing, required authorization for associations, and controlled weap­ons. The July Monarchy's reforms marked the growing lenience of laws on political crime. Political opponents were now regarded as honorable, sincere citizens, not as criminals.⁵⁴ Madame Germaine de Stael, the salonniere and writer, was allowed to remain in France, though not in Paris, and visitors to her home near Auxerre were monitored but not prohibited. Napoleon III, though authoritarian, treated opponents of his coup moderately, exiling some, allowing others to remain in France under surveillance.⁵⁵

The suffragettes of the late nineteenth century were emblemati­cally political criminals. They advocated violence yet often hailed from prominent families. Unlike the Chartists and Fenians, earlier working-class political prisoners in Britain, suffragettes were radi­calized insiders. They exploited that position, daring the authorities to treat them like drunks and other low-level offenders.⁵⁶ Using cat- and-mouse tactics, they pushed the authorities to respond force­fully, hoping to win public sympathy. They heckled, demonstrated, threw stones at meetings, broke windows, disrupted religious ser­vices, burned mailboxes, slashed paintings, rushed the House of Commons, picketed politicians' homes, held hunger strikes, and committed public suicide. Even assassination may have been dis- cussed.⁵⁷ Fined, they did not pay. Ordered to provide sureties, they refused, requiring the government to keep them in jail.⁵⁸ On hun­ger strikes, they obliged the police either to undermine their own authority by releasing them or to force-feed them, with the atten­dant bad publicity.⁵⁹ Hunger strikes had long been one of the tru­est arrows in the political criminal's quiver. Strikers in effect took themselves hostage, leaving the authorities with bloody hands by requiring them either to let the strikers die or to torture them by force-feeding. Even God had been the object of a hunger strike by Saint Patrick.⁶⁰

Yet lenient treatment of political offenders had its limits. The more authoritarian, the more twentieth-century regimes have treated polit­ical prisoners akin to ordinary criminals, refusing them the courtesy of a special status.⁶¹ And even liberal democracies have shown their harsh side. Unlike on the continent, the Anglo-Saxons generally did not recognize political crime as a special instance or grant leniency for such offenses, however well intentioned.⁶² Nor did they regard ordinary crimes as in any sense justified through being provoked by political oppression. Historians may regard crimes committed by

Blacks in the United States, whether slaves or their descendants, as protests against a deeply unfair system, thus political. But at the time they were met with lynching and oppression, certainly not treated with any understanding.⁶³ The rise of nationalism and the ideological conflicts of the interwar and Cold War decades posed quasi-theological political conflicts once again, undermining the nineteenth century's lenience toward political offenders.⁶⁴

British prime minister Margaret Thatcher held out against Irish Republican Army hunger strikers in 1980. She refused to recognize their political status or to force-feed them. Almost a dozen starved to death.⁶⁵ Contemporary terrorists, who have been willing to com­mit mass murder by suicide, have failed to win status as political criminals or its attendant sympathy. If anything, they have pro­voked the state to treat them worse than ordinary offenders—held, interrogated, tortured, and sometimes sentenced without benefit of due process, as at Guantanamo. Ransoms for release can be paid for victims of criminal kidnap, but under United Nations regula­tions and in some countries, such as Colombia, under threat from the Revolutionary Armed Forces of Colombia, it is a crime to do so for politically motivated abductions. “If it's criminal, it's legal,” was one British bureaucrat's laconic summation.⁶⁶ In such respects, ter­rorists have been treated much like anarchists in the late nineteenth century and fascist collaborators after 1945, as enemies beyond the pale.⁶⁷ The lenience with which the nineteenth century treated political prisoners evaporated in the following era.