"Blasphemy, Cultural Divergence and Legal Relativism"

Clive Unsworth, Blasphemy, Cultural Divergence and Legal Relativism, 58 Mod. L. Rev. 658 (1995).

Unsworth's article examines the place of blasphemy in a country (England) that has undergone profound shifts in its cultural and legal landscape since the offence originally became part of the common law. The article explores whether "blasphemy" is still a relevant legal concept in a country that is becoming increasingly multicultural and less tied to a shared vision of morality as embodied in an established church. The link between blasphemy, sedition, and nationalism are explored at some length. For example, Unsworth argues that "[t]his affinity with sedition underlines the function of the law of blasphemy in securing a politico-religious governmental order, an institutional and symbolic church-state unity which is still of fundamental importance in investing the state with a transcendant . . . form of moral authority in its dealings with transgression." (p. 664) The article goes on to examine three cases that revealed the place of blasphemy in England: the Lemon case, the Rushdie affair, and the proceedings over the censorship of the film Visions of Ecstasy. The article is written in a style that could be called "high academic", and thus, some passages are difficult to follow, but here and there some very interesting points are made.

Polish "Death Metal" Singer Cleared of "Offending Religious Feelings" Charges

A "death metal" singer named Adam Darski, who uses the stage name Nergal (pictured), has been found not guilty of charges of "offending religious feelings" by a Polish judge. During a 2007 concert, Nergal tore up a Bible, threw the pages to the audience, and asked them to burn them. During the trial, some audience members testified that their religious feelings were not offended despite the fact that they are Christians. In finding Nergal not guilty, the presiding judge stated that the singer's actions were a form of art.

HatTip: Religion Clause Blog

Egyptian Arrested for Insulting Islam on Facebook

A 23-year-old Egyptian man has been arrested in Cairo for postings on Facebook that allegedly insulted Islam and Mohammed, and may be charged under a law that penalizes "insulting religion."

HatTip: Religion Clause Blog

"Debating the Danish Cartoons: Civil Rights or Civil Power?"

Cindy Holder, Debating the Danish Cartoons: Civil Rights or Civil Power?, 55 U.N.B. L.J. 179 (2006).

In its annual forum on a topic of legal and political interest, the University of New Brunswick Law Journal chose in 2006 the topic of the Danish Muhammed cartoons. One of the contributions was this brief article by Cindy Holder, which took the interesting position of arguing that the debate should not be over whether the Danish newspaper Jyllands-Posten should have the right to run the cartoons, but whether the newspaper was right to run the cartoons (p. 184-85). According to Holder, "having the right to free speech doesn't mean never having to say you're sorry" (p. 182) and the newspaper's decision to run the cartoon and refusal to apologize for it demonstrate that "what is actually being defended in this case is not civil liberty but civil privilege. In particular, what is at issue is the privilege to exclude and define Muslims." (p. 179). Holder argues that the cartoon controversy is "about the power of Westerners to speak as they wish about Muslims. That power includes the ability to exclude Muslims from determinations of what may be said, both by excluding them from the conversation and by being indifferent to their responses." (p. 183) She concludes by stating that "[a]t the heart of this controversy is an implicit assertion that Westerners can and should speak with impunity about Islam and its adherents."

Moving the ground of the controversy from the legal/political question of whether the newspapers should have had the right to publish the cartoons to a discussion of the appropriateness of the cartoons certainly provides an interesting new angle to address the matter. From my reading of various contributions to the debate, the reason these cartoons and the accompanying protests have become such a topic of conversation is not because they raise a traditional civil liberties issue (should the newspaper have the free speech right to run the cartoons) but because some seem them as raising an even more fundamental question: are Western values of free speech, freedom of religion, and equality compatible with Muslim religious values or is violence the inevitable result of a "clash of civilizations"? The Danish Muhammed cartoons arose in the context of a growing fear in some segments of Danish society (reflecting wider fears elsewhere in Europe) that core Enlightenment values would diminish in the face of an increasing population of Muslim citizens.

Blasphemy in "A History of the Criminal Law of England"

James Fitzjames Stephen, A History of the Criminal Law of England (London: MacMillan & Co., 1883) (Vol. II) at 470-476.

Stephen's discussion of blasphemous libel in his three-volume history of English criminal law occupies only a handful of pages, but it remains of interest due to his taking a position counter to the mainstream evolution of blasphemy law. After a very brief summary of some notable blasphemous libel cases such as Sedley, Taylor, Woolston, Hetherington, and more, Stephen turns his focus to discussing Coleridge's famous holding in the Pooley case that the criminal law should concern itself only with the style (tone/language) in which blasphemous statements are made, and not with their substance (in terms of orthodoxy). Under Coleridge's style/substance or manner/matter distinction, a temperate and carefully-phrased denial of Christ's divinity or in the validity of the Trinity would not have been cognizable by the criminal law. Although after Coleridge this view quickly became the leading doctrine of blasphemous libel in English law, Stephen takes a dissenting view: "[T]he weight of authority appears to me to be opposed to it. The cases cited all proceed upon the plain principle that the public importance of the Christian religion is so great that no one is to be allowed to deny its truth. The history of the offence confirms this view." (p. 475) Stephen goes on to argue that "To say that the crime lies in the manner and not in the matter appears to me to be an attempt to evade and explain away a law which has no doubt ceased to be in harmony with the temper of the times. . . . The[r]e are certainly strong reasons why the law should be altered. . . . [B]ut they are no reasons at all for saying that the law is not that which a long and uniform course of decisions has declared it to be." (p. 475-76) Although Coleridge's view has become settled doctrine now for well over a century, Stephen's 1883 book amasses several cases to support his view.

"Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan--Controversial Origins, Design Defects, and Free Speech Implications"

Osama Siddique & Zahra Hayat, Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan--Controversial Origins, Design Defects, and Free Speech Implications, 17 Minn. J. Int'l L. 303 (2008).

This long, thorough article examines the history of blasphemy laws in Pakistan, focussing primarily on the new offences created under the regime of dictator Genera Zia-ul-Haq which continue to have baneful effects on religious freedom in the country. The sense one gets reading Siddique's and Hayat's article is that (1) blasphemy laws are applied in a harsh and discriminatory manner by Pakistan's trial courts, which are composed of judges who are poorly-educated, biased, and unable to withstand community pressures; (2) trial-level blasphemy convictions are almost always reversed or upheld but with a more lenient sentence by appellate courts; and (3) perhaps the greatest risk of being accused of blasphemy is not what happens in court, but what happens out of it, as vigilante beatings and murders of alleged blasphemers (and those who attempt to reform the law) are commonplace. The article states that "the blasphemy laws, in their current form, are an instance of legislation inherently open to abuse, operating in an environment that is at times unfortunately conducive to that abuse." (p. 206) An interesting discussion of the Islamization of Pakistan places the blasphemy laws in context, while an analysis of conceptually-similar laws in other countries prompts an analysis of whether Pakistan's laws could be justified as a variation on hate speech.

Human Rights Committee Addresses Blasphemy in ICCPR

Several outlets are reporting that the United Nations Human Rights Committee has released a new collection of comments on the International Covenant on Civil and Political Rights. In paragraph 48 of the comments, the Committee addresses blasphemy laws. With my explanations interpolated, it states that:

"Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant ["Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law"]. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3 [allowing restrictions on freedom of expression only to protect national security, public health and morals, or the rights and reputations of others] as well as such articles as 2, 5, 17, 18 and 26 [guaranteeing equal protection, religious freedom, and more]. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith."

It is unclear to my mind whether this comment is significant. The Committee's broad statement against blasphemy laws is counter-balanced by reference to a notable exception (Article 20, Para. 2) that incorporates the exact rationale that modern supporters often give for the existence of blasphemy legislation: the need to prevent religious hatred and offence.

Moving (Way) Down South

I'm ecstatic to report that yesterday I accepted an offer to become a Lecturer at the University of Southern Queensland Faculty of Business and Law beginning early next year.

"Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers"

Stephen Ranalow, Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers, 3 Trinity C. L. Rev. 95 (2000)

Ranalow's article examines the 1999 Corway decision, in which the Supreme Court of Ireland determined that it could not give effect to the reference to blasphemy in the Constitution because the crime had not been adequately defined. Ranalow notes that the provision "is something of a constitutional oddity" (p. 95), but states that "the decision marks both a significant and unjustified break from the Supreme Court's creative tradition." (p. 96) Ranalow argues that major English cases like Ramsay and Foote and Bowman shifted the purpose of blasphemy prohibitions from a religious one (protecting the established church) to a secular one (preventing religious offence), and that those cases and other sources in Irish history are sufficient to allow the court to legitimately hold that the crime of blasphemy has an understood meaning in Irish common law. Thus, Ranalow states that "the Supreme Court's refusal to clarify blasphemy on the grounds of uncertainty is unconvincing." (p. 100) He attributes the Court's decision to a reluctance to become involved in a political controversy that would involve expenditure of limited capital for no practical benefit. So although Ranalow does not necessarily support the existence of blasphemy laws, he concludes that "the Supreme Court in Corway had both the means and the obligation to define this crime."