"The Judicial System Is Sick" — Raphaël Liogier at the CICNS Round Table

In this extract from the round table of jurists and academics at the CICNS colloquium « Sectes : fléau social ou bouc émissaire ? », Raphaël Liogier argues that the French judicial system has become arbitrary, and grounds the diagnosis in his first-hand account of testifying as a scholarly expert for a Soka Gakkai member whose client refused, on that ground alone, to honour a contract.

CICNS round-table extract, first of two videos. (English translation of the talk as published on the CICNS YouTube channel on 29 October 2011; the French transcript was machine-transcribed from the video and cleaned before translation. One surname could not be verified against the machine transcription and has been withheld.)

[Interviewer]: Raphaël Liogier is director of the Observatoire du religieux and a university professor at the Institut d’études politiques d’Aix-en-Provence. His various interventions in the media are carried by the researcher’s passion. They move without rupture between the general and the anecdotal, upsetting many received ideas about laïcité, French institutions and their relation to the religious. He is the author of several books, notably Le bouddhisme mondialisé and Une laïcité légitime. La France et ses religions d’État. He spoke at the round table that brought together jurists and academics, of which we present extracts in two videos, this being the first.

[Liogier]: I believe the French system is sick as a whole — and not the French system only in relation to the religious. That is almost an epiphenomenon, I was going to say — a phenomenon that causes a great deal of suffering, but an epiphenomenon all the same. I believe the French juridical system, and in particular the French judicial system, is sick today.

I often say to the students — they are students of the Institut d’études politiques — I put a question to them: in your view, what difference is there between the arbitrary — a regime that would be arbitrary — and a regime that would be authoritarian? There is a big difference. In an authoritarian regime that would not be arbitrary, while still being authoritarian, you have an authority that imposes itself non-democratically, that does what it wants, whatever you like, etc., but that lays down a certain number of authoritarian rules. Let us say, for example — and it is completely unjust —: those who have a nose longer than so many centimetres will end up in prison, full stop. But at least those who have a nose longer than so many centimetres know that they will end up in prison. That is authoritarian. It is unjust; it is authoritarian. An arbitrary regime is different. Because an arbitrary regime means that one cannot foresee how the power will act, because the power does not even feel bound by legitimacy — by its own declaration of moment T1 at moment T2. That is to say: at moment T1, it says something; at moment T2, according to what it has to do, to the power relations, it will change, it will reinterpret. What was reproached, moreover — the great problem, because it contributed all the more to the suffering during the Nazi period — was of course that it was authoritarian, of course that it was everything we know today: anti-human, a crime against humanity. But in addition, it was arbitrary. That means it could vary. They would say: ah, blue eyes — yes, all right, but still, it is possible. The result is that it becomes a sort of permanent anguish — never knowing what is going to happen, never knowing under what criteria, even if those criteria are dictatorial, non-democratic, etc.

Well then — in France, the problem of the courts… I have a student whom I am currently having work on the sociology of normative production through court decisions. Well, he tells me — he is at present on placement in a court, the student in question — he tells me: it is terrible, because many lawyers find themselves in a difficult situation — not only on the religious, but over the simple little party-wall problem, over anything you like. That is to say: whatever the rule of law, transgressed or not transgressed, one does not know in advance, statistically, what the judge’s decision will be. That is, after all, very grave. It means that, statistically, one cannot find a sociological regularity in the decisions — even though rules have been voted in that regard. So that is truly an extremely grave sickness. It means we say: we are in a democracy; the deputies are theoretically paid to make laws — laws that are sometimes not bad, sometimes laws that serve no purpose, but well, at the limit… But there it is: those laws are not applied. I do not know whether you have seen the Depardon documentary — with the sociologist, precisely, who is before the judge, and who says: I shall defend myself on my own, because it so happens that the knife — I was arrested and told I was carrying a weapon of such-and-such dimensions, etc.; but it is not true, because in the penal code… The judge says: you are not going to teach me the law, surely. And why should she not be taught the law? She is supposed, a priori, to uphold the law. The fellow is convicted all the same — even outside the law, outside what the penal code prescribes; who cares, that’s how it is.

So, when it was said that there was a problem with justice in France, people said: there are not enough judges. But in a way there are too many, to a certain extent. And that there is a training problem — I agree. Me, I want to say to the judges — I am not very proud of this: I take part, indirectly, in the training of the judges of the French Republic, since at the Institut d’études politiques we run a preparation course for the École nationale de la magistrature and we get a large number of students admitted. But I want to say to them: I am not very proud of training people who, afterwards, either do not know the basic principles of law, or do not apply them — sometimes for reasons that give the feeling that it is… you know, the chivalrous side, etc. But precisely: the law is there to constrain the judge to apply a law beyond the chivalrous side, beyond sentiments, beyond whatever else. That is what it is for. Because it is caricaturally arbitrary, what happens concerning religion: parliamentary reports that are supposed not to apply, that are not legally enforceable — but which, in reality, are enforced, because building permits are refused here, visas there, etc. And which are enforced all the more, as a result, precisely because they are not enforceable: because when you say “it is because of that that my building permit was refused”, you are told “that’s not possible, since in theory it does not apply”. Yes, all right — but it is still the mayor who looked at the list… But no: you can defend yourself even less, because it is supposed not to apply, if you will. That is quite a degree. So we are at a degree of arbitrariness in definition so caricatural that it is blinding — like everything right in front of our nose, so close that we do not see it — and that is what is happening today.

A little anecdote — something that truly shocked me. I rarely engage, clearly, in civil society, doing things for individuals who are in new religious movements and who are being harassed. But I had, I was going to say, the misfortune… I did it, let us say, once. For a member of Soka Gakkai who found herself in a situation of such injustice that I could not resist writing an expert’s testimony as a researcher — since I am, I believe, among the two, three, at most three French researchers who have taken an interest in Soka Gakkai. I worked on this group for fifteen years; I know rather well how they function — their functioning, etc. So: there is a young woman who set up her own business, which was doing quite well — a consulting business, I believe; I no longer remember exactly. And at a given moment, one of her clients — whom she advises, and advises very well — terminates the contract, unlawfully according to the terms of the contract, saying: we can no longer work with you, receive your advice, and so we are no longer paying you — even for the advice you have already given us. Is that possible? Do you realize what that means? Because you are a cult — a member of a cult: Soka Gakkai.

I do not know whether you realize — I should like to draw your attention to something. It is that our society — that is, those who supposedly defend modernity, the Republic, etc. The Republic is, after all, founded on contract. Contract means that individuals are supposed to be capable of exchanging their wills, and that this will has juridical consequences — that is, it binds them. That holds in politics, through what is called the social contract and the vote: it is my commitment, agreed? It holds in my individual dealings, with the civil contract and the commercial contract, agreed? There — what is being done is that we are walking, like that, as if it were filth, over the very principle of the social contract, of the commercial contract, of the civil contract — which supposes that individuals, when they commit themselves, are responsible for their commitment, and must perform what they undertake. I say we are walking over it because, at first instance, the tribunal de grande instance found for the person who refused to pay for the service — on the grounds that a cult was involved; she was indeed a member of a cult; that one might be wary, etc. — and that therefore there was no religious discrimination. But in any case there is discrimination — I mean: cult or no cult, etc., there is discrimination.

So, between the first and the second instance — between first instance and the appeal, because obviously there was an appeal — she asked me for this text. What I wrote — me, I did not want to write something like that; I wanted to say: whether it is a religion, a cult, or anything else, etc., in any case one cannot fail to honour these contractual obligations. It is graver, I was going to say — it is graver, with respect to the foundations of our society, than even if there were a dangerous cult. It is graver, because there, it is truly the foundation of our society: if the contract, the exchange of wills, is no longer honoured, there is no point any more. So I did, all the same, do what she wanted — because, while telling the truth, I said: here — Soka Gakkai is a Japanese religious movement, issuing from the roots, from an origin, of Nichirenism; a movement one may criticize — as one may criticize Christianity —; which had its periods of nationalism, which went through various evolutions, which today is like this, like that, etc. But a religious movement, undeniably, one with an established standing in Japan, etc. Full stop. I mean: Raphaël Liogier, university professor, director of the Observatoire du religieux, EA — host research team — 2211, national, accredited, thing; master’s degree in religion and society, State diploma, bang, whatnot, etc. You see — because you have to, in France; supposedly, in 1789, everything to do with status was eliminated, etc., but… — and then: CNU, section 19, obtaining of the thing, etc. Right — I do the whole business, I put it all in; I even added a bibliography, showing that all the researchers in the world… To tell you: usually, when one is a researcher, one likes to say one is a bit original; there, I confess, I am not very original — because there is nobody who says the contrary of what I say. Nobody, among researchers, in the world.

Then — second instance, appeal: lost. They lost again. Me, I was sure she was going to win. They say: the proof — and they pile it on — that it really is a cult, is that it is in the parliamentary report dating from whenever, etc., no other thing, etc. — a report that is not enforceable, I mean, right there in hand. Above all, what is grave, too, in this situation — what was grave for me, personally; I confess it shocked me a little, though it takes a lot, I mean, truly, it takes a lot — is that the opposing party sought advice — because they were bothered by my attestation — sought advice from the celebrated Interministerial Mission of Vigilance and Fight against dérives sectaires, which replied in the person, I believe, of its secretary general, who is a magistrate, and who wrote a long letter to the opposing party, saying that: one, it was not clear why this person — in this instance, me — could claim to act as an expert before the courts. As far as I know — as far as I know — I was nevertheless selected through the Caudine Forks of the French Republic, in a domain which is the sociology of religions; and then I obtained my habilitation to direct research with a work on Soka Gakkai, etc. So the least one can say is that, if I cannot be considered an expert before the courts, I should very much like to know who can. That is — it is possible that there are… — I should all the same like to know who. It is not normal. It goes: “because he is director of the Observatoire du religieux — but that is not the observatory of cults, so it is not the observatory, so it is…” And then it is this, it is that — it is a text stuffed with contradictions. And at the end — then, cherry on the cake; cherry on the cake — I have more in store for you: there is a cherry on the cherry that is on the cake, because progress never stops. And there, the second-to-last sentence, then, is: it so happens that a researcher named Louis Hourmant — who does indeed work on, has worked on, Soka Gakkai; moreover, he is still on his thesis; I do not think he has yet defended his thesis, but he has done work, which is what it is; me, I know Louis Hourmant in passing, from having met him at colloquia; I have nothing to say against his work; I believe he is quite honest — but anyway, that is not the point — is said to have declared, at a conference — that is what she wrote, mind you, verbatim —, at a conference, that his doctoral study was financed by Soka Gakkai. Consequently, Raphaël Liogier is not legitimate to speak of Soka Gakkai. Well then: one — where is the proof that Louis Hourmant was financed by Soka Gakkai? Two — there are quite a few theses, you know, on the Catholic Church, financed by the Vatican; we find that very good, provided they are well done and the methodology has been applied; there are grants, you know — there are even [as machine-heard]. Three — I have no connection with Louis Hourmant: I studied, on my own side, what I had to study — they could find nothing, no declaration. So, as a result, because Louis Hourmant… — I did not quite understand the reasoning; well, for a judge, it is a bit… Usually, I thought one had, on the contrary, to be very specific: I had no right, in the proceedings, to say that — since Louis Hourmant, let us imagine, had been paid by Soka Gakkai — I, by ricochet — you barely know him, Louis Hourmant — by contagion, exactly, no longer have the right to speak of Soka Gakkai. Signed — mind you: it is in a letter which is within the framework of legal proceedings, but in which she is not acting as a magistrate — Madame [surname withheld — unverified], magistrate. It is forbidden, until proof of the contrary, to sign in one’s capacity as magistrate within the framework of functions that are different.

So — those people, who defend the Republic — that is what shocks me, truly; it shocks me profoundly — who defend the Republic, in reality trample on it copiously, and in particular have no respect for the people — I am sorry to say it — who were nevertheless selected by the Republic: that is, me and my researcher colleagues. So, if they have respect for the Republic, the least they can do is to listen — a minimum — to the people who were selected by the Republic, and not only to the people they designate themselves, so as to be answered, as by an echo, with their own prejudices — because that is not a good thing, precisely, for the French Republic. Even so, this person lost on appeal — before something that is evidently arbitrary, profoundly illegal, anticonstitutional, contrary to human rights, contrary to basic obviousness — and nothing can be done. Nothing. That is: there is a case; one must wait until all remedies are exhausted — cassation, and then bang, European Court, wham.