By Oswald Sobrino, J.D.; M.A. (Econ.); M.A. (Theo.); M.L. (Master of Latin), doctoral student, University of Florida.

Thursday, August 19, 2010

Ground Zero Mosque: Abuse of a Legal Right

First page of the 1804 original edition of the... 
When the President and others with law degrees harp on the legal right of developers to build the Ground Zero Mosque, they fail, even with their law degrees (or, maybe, because of them!), to see the obvious, common sense point: to build this mosque so close to Ground Zero and, in fact, at a location which was damaged and where human remains were apparently found as a result of the Sept. 11th Massacre is a quintessential abuse of a legal right.

For those of us educated in the civilian law system rooted in Roman law (this legal system is used most famously in France and also in many other European nations such as Spain; even Scotland is considered a civil law jurisdiction--or, maybe more accurately, a mixed jurisdiction). In the United States, only Louisiana is a civil law jurisdiction (by "civil law" as used here is meant a legal system rooted in Roman law, not the more typical American meaning of "civil law" as the opposite of criminal law). Louisiana's status is why some American lawyers, like myself, are familiar with some of these "civilian" concepts. In Canada, Quebec is also a civil law jurisdiction.

The civil law doctrine that arguably fits this mosque controversy is the abuse of right doctrine. The Civil Code of Spain articulates one form of the doctrine:

7.1 Rights must be exercised in accordance with the requirements of good faith.
7.2 The law does not protect abuse of rights or the antisocial exercise of rights. Every act or omission that, by virtue of the intention of the actor, the object thereof, or the circumstances in which it is undertaken manifestly surpasses the normal limits of exercise of a right, causing damage to a third party, shall give rise to liability in damages and to the adoption of judicial or administrative measures that will prevent persistence in the abuse.

Article 7, Civil Code of Spain, trans. J. Romanach, Jr. (Baton Rouge, La.: Lawrence, 1994) [quoted in (2002) 47 McGill L.J. 389, 394 n. 14](emphasis added by blogger). 

It is interesting to note that this doctrine also plays a role in the legal code of Turkey, a Muslim nation (Ibid., at p. 394, footnote 14). My research indicates that the abuse of rights doctrine is even part of Islamic law (see link).

In Spain and Louisiana, unlike some other jurisdictions, malice or intentional bad faith is not a requirement for invoking this remedy. What then is an "abuse of right"? It is, as stated above, the "antisocial" exercise of a legal right that damages another. In the mosque case, it is beyond obvious that the construction of the mosque at this particular site inflicts grave emotional distress on the families whose loved ones were massacred at Ground Zero.

Shouldn't religious people, as the developers are, come to the conclusion, on their own, that it is wrong to inflict such grave emotional distress on the survivors? Should a legal argument be necessary at all? Shouldn't they recognize as religious and reasonable people a binding moral imperative not to inflict this grave and wholly unnecessary harm?

Mr. President, if you want a legal argument, here it is. Moreover, you can't duck the issue of abuse of rights by claiming that civil law concepts do not apply in the common law state of New York. In the common law, principles of equity applied in case law can be used to protect against the abuse of rights [see 

In my view, both moral and even legal grounds support a new site for this mosque--and common sense, too, for which no law degree is necessary or recommended.

Update: This article makes the same point but without the legal aspect. Yet, I think the legal analysis set forth above adds great weight to the imperative that the mosque not be built at this particular site. The best and most comprehensive legal reasoning favors no construction at this site.

Update (8/20/2010): Washington Post columnist Charles Krauthammer nails it again in this piece.