Phryné – The Betrayal Of The Judges

January 2019

The Betrayal of the Clercs

In 1927, the French philosopher Julien Benda published La Trahison des clercs (The Betrayal of the Intellectuals), a book that at the time unleashed violent polemics in France. The term clerc referred to “all those whose activity essentially is not the pursuit of practical aims, all those who seek their joy in the practice of an art or a science or metaphysical speculation, in short in the possession of nonmaterial advantages…” (p. 30), Socrates being the archetype or paragon of the clerc.

Benda saw “for more than two thousand years… an uninterrupted series of philosophers, men of religion, men of literature, artists… whose life were in direct opposition to the realism of the multitudes,” i. e. opposed to political passions. They were either indifferent to political passions as were Leonardo da Vinci, Malebranche, Kepler, Newton or Goethe, or as moralists they reflected on the conflicts caused by human egotists, such as Erasmus, Kant and Renan. These scholars argued in the name of humanity or justice, i. e. the adoption of abstract principles that are superior to political passions. Admittedly, “… thanks to the ‘clerks’, humanity did evil for two thousand years, but honoured good.”

Benda asserted that “at the end of the nineteenth century a fundamental change occurred: the ‘clerks’ began to play the game of political passions” (p. 31; emphasis in the original). At Benda’s time, thinkers such as Péguy, Maurras, d’Annunzio or Kipling exercised political passions with a “thirst for immediate results … the scorn for argument, the excess, the hatred, the fixed ideas.”

The Condemnation of Elisabeth Sabaditsch

I was drawn to rereading La Trahison des clercs when I learned about the judgment of the European Court of Human Rights in Strasbourg in the case of E. S. v. Austria. Last October, just three months ago, the court under the German president Angelika Nußberger ruled, among seven judges, unanimously that there has been “no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.” Here we have the Betrayal of the Judges.

The case is about the unemployed housewife Elisabeth Sabaditsch-Wolff, an Austrian national, born in 1971 and living in Vienna. In 2009, she gave two seminars for young voters about The Foundation of Islam (“Grundlagen des Islam”) to the Freedom Education Institute, an academy of the Free Party of Austria – the Social Party of our Homeland (Freiheitliche Partei Österreichs – die Soziale Heimatpartei, FPÖ).

In the context of her political activism, she discussed the fact, undisputed by Muslim authorities, that Muhammad married Aisha when she was 6 years old and consummated their marriage when she was a child of 9. How thoughtful and considerate of him to wait for three long years!

The comment, made between meetings in informal conversation with participants of the seminars, that became the focus of the accusations was that Muhammad “had a thing about children… a 56-year old and a 6-year old?” („…hatte gerne mit Kindern ein bißchen “was gehabt… ein 56-Jähriger mit einer Sechsjährigen?”). However, apart from this elliptical sentence, other comments were perceived, or at least claimed to be perceived, as incendiary as well, such as: Muhammad had a “relatively significant ‘attrition’ of women” („relativ großen Frauenverschleiß“). This comment was based on the fact, as affirmed and accepted by both Sunnites and Shiites alike, that for years Muhammad had about a dozen wives simultaneously, not counting his female slaves who were always available. In fact, he was so craven for women that he offered marriage to a young and pretty Jewish woman, Rihana, on the same day he had her husband, and probably her father and brother as well, murdered after the Battle of the Ditch in 627. After every battle won, Muhammad as the spiritual leader exercised his right of the first “pick” from among the female captives.

The reputedly socialist, German language weekly NEWS (English title!) had deceptively planted a reporter in the conference hall, who recorded the first two of three seminars. The reporter submitted the tape and transcript of only 30 minutes to the Vienna public prosecutor’s office with the claim that the tape was evidence of hate speech. This was the beginning of a four-stage legal nightmare.

Stage 1. In February of 2011, the Vienna Regional Criminal Court (Straflandesgericht) ruled that Sabaditsch was guilty of disparaging a religious doctrine. The judge made a distinction between pedophilia and child marriage. It was, according to him, legitimate to talk about child marriage, however illegitimate to even insinuate, let alone affirm, that Muhammad was a pedophile. One might ask whether the difference is one between a disorder of society vs. a disorder of an individual, and if so what the significance of it is, or whether “pedophilia” as a Greek word with a (pseudo)scientific aura sounds more ominous than “child marriage.”

Thankfully, Sabaditsch was exonerated from the charge of incitement to hate (“Verhetzung”), because her statements were not made in a “provocative manner.” She was condemned however to a fine of €480 plus court costs, alternatively to 60 days in prison. Indeed, she was found guilty of disparaging Muhammad in contravention of the Austrian blasphemy law §188, but she appealed her sentence.

Stage 2. In December of 2011, the Vienna Court of Appeal (Oberlandesgericht von Wien) came to the same conclusion and consequently upheld the decision of the lower court. Sabaditsch, it was ruled, denigrated religious doctrines. Which religious doctrine? She was advised that if the fine is not paid within six months she would go to prison, and to go to a jailhouse to join other undesirables, indeed, was no laughing matter for her. This defeat made her appeal to the Supreme Court.

Stage 3. In 2013, the Supreme Court of Austria, not surprisingly, dismissed the application. Thus, the “guilty” appealed to the European Court of Human Rights.

Stage 4. Last October the European Court of Human Rights in Strasbourg delivered another blow to her legal wrangling, mercifully however not to her integrity. Sabaditsch, again unanimously was judged guilty on the same grounds as at the domestic courts.

Most interestingly, and here the sophistry of the judges hurts like acid in the eye, it is legitimate to declare “in isolation” that “Muhammad had sex with a child,” since that appears to be a universally accepted fact, but what makes the message a crime is the “veiling of the statement” (die “Verbrämung der Aussage”). The “Verbrämung” makes it a mockery (“Verspottung”) and that is to be condemned, it “clearly implied an excess of valuation” (“deutlich ein Wertungsexzess”). The statements “were not phrased in a neutral manner aimed at being an objective contribution to a public debate concerning child marriages.”

SAFS members will recall the deplorable events at Wilfrid Laurier University in Waterloo last year. The teaching assistant Lindsay Shepherd was reprimanded for having “neutrally” introduced the hotly debated question of how to address “transgendered” individuals. It was expected of her to disapprove of the traditional, grammatically correct pronouns, such as everyone would present Hitler, his words and deeds, disapprovingly. Would anyone talk about pronouns for the transgendered or Hitler objectively, without judgment and emotions? The delicious absurdity of the abuse that Shepherd suffered is almost comical.

Political correctness and multiculturalism appeared in two avatars. According to the code of conduct for instructors at the university in Waterloo, we are expected to be judgmental in an academic lecture or seminar, whereas in Strasbourg, according to the human rights court, we are expected to be objective in a political academy, i. e. without veiling and without being excessively judgmental!

I have to admit that I have never been at, nor heard of, a political event that indulged in “objective, unassailable truth.”

(Dear reader, please forgive me when I say that I have not yet attended a meeting presided by President Trump. Perhaps I would change my mind if I find out that Trump in political gatherings is objective and non-judgmental as is required by the European Court of Human Rights.)

The Court further ruled that the “abusive attack on the Prophet of Islam … was capable of stirring up prejudice and putting at risk religious peace.” May it be argued that to call a comment, made in between lectures, an “attack”, that the choice of the word “attack” by the judges is an “excess of valuation” and thus is to be condemned? Where are the attack and excess? And let us not forget the picayune nature of the “offense”!

Further, why is the information that Muhammad married a child “capable of stirring up prejudice”? Instead, is the information not conducive to a more realistic appreciation of his personality and thus valuable?

There is an “obligation to refrain from saying something that, unfounded, is offensive to others” (“grundlos beleidigend”). I wish the judges would elaborate what in the comment in question is “unfounded” since the content is not in dispute.

The “comment is apt to create a justified vexation” (“berechtigtes Ärgernis”). Here the judges again betray us with their condescending paternalism. During the last decades, again and again, we have been confronted by “progressives” with the exhortation that women, blacks and homosexuals have to be treated with satin gloves since members of these groups are fragile, sensitive human beings and deserve special care by robust white, heterosexual men. What intellectual drivel! Now we are expected to add immature and malevolent Muslims as well as leftist journalists to the list of fragile contemporaries.

We live today in societies in which sentimentality trumps rationality. The statement that Muhammad married a child of 9 years, whether the statement is made with or without a smile, smirk or perhaps even mockingly, makes a claim, it gives information and thus is rational. The claim of feeling offended comprises two rational decisions. First, the “offended” must compare the content of the statement with his own view on the matter and judge that there is a discrepancy between the two. Second, he must make a claim in order to instrumentalize the discrepancy in order to harm the “offender,” i. e. to bring legal action. What is bizarre is the fact that the judges’ ruling is not based on these two decisions of the “offended,” but on the claimed sentimentality. Rational decisions are debatable, but if a Muslim “feels offended” by the comment, it is these unpleasant feelings for which the speaker is held responsible. Here again, the weak and infantilized Muslim is to be protected from the powerful argument, or mere insinuation, of Muhammad being a pedophile.

According to the Court, the impugned comment “threatens religious peace.” Here again, the judgment reveals what Benda meant with Betrayal of the Intellectuals: Judges rule in support of the “right to have (one’s) religious feelings protected,” and by granting such “right” to a complainant, to trample on the right to freedom of speech, in order to preserve the “religious peace in Austria.” I fear, by sacrificing the rights of the woman and by protecting the journalist’s or Muslim complainant’s, the judges anticipated an easier and more secure life for themselves. I perceive those judges as comparable to the group of professors who give good marks to bad students to avoid appeal procedures and bad teacher evaluations.

It is painful to observe how ubiquitous the fear of Muslim violence has become in our societies that chafe under the pressures of mass immigration of people who share neither our values nor our legal traditions. When Hilaire Belloc in 1938 published The Great Heresies he included a chapter on The great and enduring heresy of Mohammed which spoke much more disapprovingly of the founder of Islam than anything being said in The Satanic Verses. However, there was no uproar and Belloc did not have to go into hiding like Salman Rushdie, Ayaan Hirsi Ali, Hamed Abdel-Samad, Geert Wilders, Maajid Nawaz, Ibn Warraq, Christophe Luxenberg and others, and he was not protected by the police, because the number of Muslims in Great Britain at the time was negligible.

It is utterly shameful for our democratic states to allow that judges can sentence and send to prison people who, thoughtfully or thoughtlessly, rationally or emotionally, express their views on religions and their founders. Religion is a particular ideology, based on claims about a transcendent world, that is based on affirmations that are subject to any critique, eulogy and condemnation as every other ideology. In the case of Islam it is even debatable whether it is a political doctrine in the clothes of religion, or whether it is a religion with an explicit political mandate about government, education and civic duties. The fact that Islam does not allow a separation of mosque and state therefore should make every observer careful about asserting that such or such a behavior is religious and therefore deserves special protection. Why are religious doctrines and sentiments singled out for special consideration, and why are political or cultural sentiments allowed to be impugned?

Why is the insinuation or declaration that Muhammad was a pedophile considered a religious doctrine (“eine Herabwürdigung religiöser Lehren”)? Is it not rather a fact, or fiction, to be decided by historians rather than imams? And historical facts or imaginations are open to any kind of expression, from rational and restrained to any kind of mockery and abuse.

Finally, what and where is the beauty of Islam that we make such extraordinary accommodations? Islam is a religion (and political ideology of the 7th century!) founded by a man who in one night, in 615, on the back of a winged horse with the head of a woman (al-Burâq), travelled from Mekka to Jerusalem (al-Isra). From there he ascended into heaven (mi’râj), where he met and talked to biblical prophets and entered into the presence of Allah, and during the same night returned to Jerusalem and from there back to Mekka (Coran 17, 1). This nocturnal trip to heaven is by the way the only ground for claiming Jerusalem to be a holy city for Islam! The claim of the nocturnal voyage, after all, is to be taken literally. How else could the claim to Jerusalem be made, since it cannot be asserted on the basis of a dream or fantasy? The Islamic heaven is believed to be filled with houris, dark-eyed perfectly shaped, loving eternal virgins for the everlasting pleasures of men (not women; Coran 56, 35ff). All of these delights for men are the reward for killing infidels and being killed in the pursuit of jihad, holy war.

Where is the compelling beauty of the faith and its founder that we exonerate him, and in doing so, after centuries of struggle, allow the faith-ideology to subvert our hard won cultural and civilizational accomplishments? Blasphemy laws indeed are particularly harmful and dangerous anachronisms.


In conclusion, I would like to tell the tale of Phryné. This incredibly beautiful courtesan of the 4th century B. C. lived in ancient Athens a successful life as an hetaera. Part of her legend is that she was the concubine of Praxiteles and served as his model for his sculptures of Aphrodite. Eventually, she was accused of impiety and dragged before the judges of the dicastery. Just before her sentence was to be pronounced, Hypereides, her defense lawyer, lifted the veil that covered the body of his client and exposed her in the buff to the venerable, dignified and meritorious judges, who all immediately lost their venerableness, their dignity and merits. She was just too beautiful to be condemned for anything. I personally sympathize more with the hesiasts of the agora in Athens than with the judges in the Human Rights Court in Strasbourg. The curious reader may want to google Jean-Léon Gérôme (1824-1904) or visit the Kunsthalle in Hamburg to behold his Phryné devant le jury.

Phryné devant le jury