The Tactical and Strategic Problems of Preemptive State Regulation of Religious Literature

by Christopher Pieper

Last month, a court in the Black Sea city of Novorossiisk, Russia determined a widely-used Russian translation of the Koran to be “extremist” literature and ordered the destruction of all copies.[1] This event serves to highlight the tactical (short-term) and strategic (long-term) security and justice problems that arise when a state seeks to regulate religious literature.

Those who support state regulation of religious literature assert that, by carefully scrutinizing and restricting literature that has the propensity to cause violence or other dangerous activity, the state can prevent people from being inspired to conduct the proscribed behavior. I contend that preemptive regulation not only fails to serve this purpose by ultimately making everyone less safe, it also imposes other costs, such as bad jurisprudence and overly severe constraints on freedom of conscience.

Religion scholar Philip Jenkins has noted that when religious groups are persecuted, they go underground. At that point, they have a propensity to adopt effective military traditions, develop violent and apocalyptic ideologies that seek to make sense of their suffering, perceive the outside world as hostile, and provide justification or support for violent action.[2] These sub-state counter-societies can pose serious threats to national and international stability. As a side note, Russia’s Central Asian neighbor to the south, Kazakhstan, recently opted to push minority religious groups underground by requiring an extensive re-registration process for all religions in the country. Preliminary figures showed a 60% drop in the number of confessions with at least one registered religious association[3] — and it is doubtful that the unregistered groups have completely ceased operations and shuttered their organizations as a result of the re-registration.

In the case of Russia, it is similarly unlikely that many of the existing copies of the proscribed Koran will actually be turned over to the state for destruction. This gap in enforcement undermines the power of the judiciary and its ability to enforce other, perhaps more valid, orders. It also serves to illustrate how proscribed activity tends to go underground, as Jenkins noted. Furthermore, Russia’s move provides another tool in the belt of violent extremist groups in Russia and elsewhere that are seeking to recruit adherents and excite political or religious fervor for violent activity against state actors. Finally, even if we were to accept the wrongheaded premise that the Koran itself is a cause of violence; would a state’s decision to regulate or eliminate its use serve to mitigate any unwanted effects? This contention is dubious at best. Any possible benefits of state regulation are severely outweighed by national and international security concerns.

Grim and Finke’s 2011 book The Price of Freedom Denied highlights this trend on a global scale. They found that social and governmental restrictions within the 198 countries they surveyed result in a “religious violence cycle”: the restrictions result in violence related to religion which then leads to higher social and governmental restrictions. On the other hand, fewer restrictions on religious organizations correlate significantly with lower levels of armed conflict and a lower portion of the GDP spent on the military.[4]

In addition to undermining the court’s legitimacy in matters of enforcement, regulating religious literature presents practical jurisprudential problems. By engaging in analysis of religious texts, the state must make value decisions of the doctrinal and theological positions of religious organizations. In doing so, it de facto inserts itself as more of an expert on the religion in question than the adherents themselves. Furthermore, preemptive regulation of religious literature requires the state to engage in the problematic exercise of defining the legally elusive terms “extremism” and “religion” – an analysis that the U.S. government has wisely sought to avoid throughout its history.

The discussion to this point has not addressed the obvious and immediate individual religious liberty concerns. Access to religious literature implicates both the freedom to hold religious beliefs (forum internum) and the ability to manifest those beliefs (forum externum). Literature serves to shape personal beliefs and the process of engaging sacred and religious texts is a fundamental means of expressing belief in nearly all faith traditions. When an individual is denied access to the very material that shapes his or her beliefs, any claims of religious freedom seem hollow and superficial.

The proper approach is for states to focus their efforts on actual threats to national security through vigorous enforcement of criminal law. This paradigm not only brings to justice the people who have in fact harmed the state, it also provides robust preventative measures through the doctrines of threat, attempt, and conspiracy. By relying on the criminal justice system, states can ensure that they aren’t skirting essential due process principles or basing enforcement actions on biased, anti-religious viewpoints.

Russia and other states that preemptively seek to regulate religious literature would do well to heed the conclusion of the International Crisis Group to treat these matters, “as a security issue, not just a human rights issue, and advocate unequivocally that regional security can only be assured if religious freedom is guaranteed and the legitimate activities of groups and individuals are not suppressed.”[5] Given the dubious benefits and significant costs of state regulation – in the areas of security, freedom, justice and sound jurisprudence – preemptive control of so-called “dangerous” religious literature is a bad move, tactically and strategically.

Christopher Pieper is a Brigham Young University law student, currently visiting the S.J. Quinney College of Law for his final J.D. semester.  After receiving an undergraduate degree from the College of William and Mary, he was a Fulbright Scholar in Kazakhstan and worked in Congress as a Legislative Assistant to the House Foreign Affairs’ Subcommittee on Asia, the Pacific and the Global Environment.

[1] Geraldine Fagan, Russia: Muslims rush to challenge Koran “extremism” ruling, Forum 18 (27 Sept. 27, 2013).

[2] Philip Jenkins, The Politics of Persecuted Religious Minorities, in Religion And Security: The New Nexus In International Relations (Robert A. Seiple & Dennis R. Hoover eds., Lanham: Rowman & Littlefield 2004).

[3] Nate Schenkkan, Another Futile Attempt at Control in Kazakhstan, Freedom at Issue Blog, Freedom House (Nov. 5, 2012).

[4] Brian J. Grim & Roger Finke, The Price of Freedom Denied: Religious Persecution and Conflict in the Twentieth Century (Cambridge: Cambridge University Press 2011).

[5] International Crisis Group, Central Asia: Islamist Mobilisation and Regional Security, March 1, 2001.