Blasphemy: Historical anachronism or modern crime?
by Professor David Nash, Department of History, Oxford Brookes University, UK. He is the author of Blasphemy in Modern Britain 1789-present (Ashgate Publishing, 1999 | Amazon) and Blasphemy in the Christian World (Oxford University Press, 2007 hbk; 2010 pbk | Amazon | cover left). His talk was in three parts: the historical context; the unhappy fit with current models and theories of human development; and the implications of taking blasphemy seriously again.
First, he used the historical context to illustrate the various reasons for longevity and adaptability of concepts of blasphemy. In ancient Greece, blasphemy consisted of speaking ill of the gods and of disturbing the peace. In early Christian dogma after the Council of Nicea in AD 325, it served to reinforce the virtues of orthodoxy. Medieval Christian Europe saw blasphemy as an element of heresy, but in the 13th century, blasphemy becomes decoupled from heresy, and it evolves into what Nash charaterised as the ‘passive blasphemy’ model, where the definition and enforcement of blasphemy is a matter for the State, seeking to eradicate states of mind and opinion that are dangerous to the community. For a member of the community to know that a blasphemy has taken place is to see a threat to the survival of the community; the individual is in peril from being in the presence of the blasphemer; and to permit it to go unpunished is to court divine retribution.
Moreover, at least from the time of the black death if not from the time of the Reformation, Europe becomes obsessed with sin, shame and guilt, not only in Catholic Europe but also in Protestant Europe: as laity become involved in scripture, there was greater scope for accusations of blasphemy. He discussed two fifteenth century Dutch cases as examples of creative, extensive and often serious shame punishment which became very common in the subsequent evangelical – Puritan – era. Thereafter, from 17th century, the protection of the state becomes progressively more important, and blasphemy law reinforces the imposition of discipline on unruly populations through the centralised confessional state and the extension of monarchical power. So, in 1675 [in Taylor’s Case, 1 Ventris 293, (1676) 86 ER 189] Lord Chief Justice Hale could declare that the Christian religion was part of the law itself, and to attack religion was to attack the law, an approach enshrined in statute in the Blasphemy Act, 1697 (or 1698) (9&10 Will 3, c 32) (which described itself as an Act against Atheism and Blasphemy).
The coming of the French Revolution and of the Enlightenment not only unpicked this link between Church and State link but also changed ideas of causality and Providence. In these circumstances, blasphemy conceived as a crime against society becomes increasingly anachronistic, and the passive model unravels. Instead, the offence evolves into one of preventing offence to individuals. The State stepped back, and the prevention of blasphemy required instead the active response of affected individuals. Nash charaterised this as the ‘active blasphemy’ model, where the definition and enforcement of blasphemy is a matter not for the State but for active invovlement of individuals. Ironically, even though the State no longer punished sin, the prevention of damage to an individual’s religious beliefs allowed an individual victim perceiving blasphemy to invoke divine Providence as the basis of the offence perceived and harm suffered. Thereafter, the blasphemer became perceived as an individual with dangerous ideas, and blasphemy becomes about censorship and public order rather than religious orthodoxy.
Second, blasphemy laws don’t easily fit current models and theories of human development. In particular, they pose challenges to the limits of secularism and/or multi-culturalism in modern European countries. For example, Norbert Elias argued that the increase of interest in crime by the State is one measure of how society becomes more civilised, but blasphemy cuts the other way – as civilising processes such as print in fact encourage blasphemy, the State retreated from criminalising it. Again, Michel Foucault is skeptical about the Enlightenment and its claims to have established widespread freedom and the birth of the human, and Alain Cabantous has written a history of blasphemy in Focault’s terms (in French | in English translation). However, blasphemy fits with great difficulty into the big metanarrative of secularisation in the West which claims to offer an overarching explanation of the second millennium of Christian history. Indeed, notwithstanding secularism, the defence of religion has rejuvenated nationalism against the rise of globalisation and pan-European conceptions of morals. Consequently, these theoretical models do not explain the persistence and current relevance of blasphemy.
Third, he argued there are serious implications if cultures and legal systems take blasphemy seriously again. Nash argued that it is an awkward survival giving rise to a difficult future. The modern weakness of institutional churches has ceded space to the enthusiasm of individual members of those churches. Where blasphemy laws were rarely used, they remained as reassurance against moral disintegration, and had the potential to become a focus for individual rather than state enforcement. In the Blasphemy Laws (Amendment) Bill, 1930 an extension of UK blasphemy law to protect religions other than the established religion had been mooted; but it was rejected, in particular on the grounds of difficulty of definition of religion. Similarly, in 1994, the Law Reform Commission of New South Wales looked at its inherited common law of blasphemy, and concluded that it was anachronistic and in need of abolition. In particular, it considered the claims of religions for particular protection as special pleading undeserving of a place in a modern society.
Nevertheless, although there were few prosecutions in the UK in the latter part of the twentieth century, Nash said that the British Board of Film Classification routinely ordered cuts of movies for these reasons [and in 1989, they declined a certificate to Nigel Wingrove‘s movie Visions of Ecstasy]. Moreover, in 2003, a House of Lords Select Committee tentatively recommended that the existing blasphemy law be repealed and replaced by an offence of incitement to religious hatred. Although it eventually distanced itself from both options in the final report, the difficulties in defining religion were not – unlike in the 1930s – considered a crucial objection to the development of the incitement offence, and it was enacted in 2006. Furthermore, developments in the UN suggest that blasphemy law now has a long and bright future ahead of it.
It was in this context that he considered recent Irish developments in blasphemy law. In his view, Ireland’s current law is a return to the passive blasphemy model, where the state (and not the offended individual) does all the work. Moreover, he felt that the law raises obvious issues; in particular, he argued that it is hard to define the various terms in which it is couched; and he was particularly exercised by the fact that it permits the prior restraint of blasphemous publications. He compared it with English common law, and modern incitement laws, but felt that it didn’t really resemble either. Instead, he argued that it most resembles the amendments to UK blasphemy law rejected in 1930 as unworkable; and he suggested that those proposals and the current Irish position make it very difficult to perceive the line between fair criticism and intemperate attack.
He concluded by considering what to do to prevent blasphemy laws being awkward or worse. In the Irish context, he observed that the current self-denying ordinance that Irish blasphemy law can’t or won’t be enforced is insufficient. There is no certainty that future governments won’t seek to enforce it anyway. Moreover, although the drafting was deliberately intended to be narrow, there is likewise no certainty that that has been successful in this regard. And he warned that if a law is on the statute books, it is capable of being used by the unscrupulous.
More generally, he considered what he saw as the proper functions of both law and religion as the means by which the problems posed by blasphemy laws might be minimised. In the medieval era, at a time when people feared their god, the offence of blasphemy was understood to punish the usurpation of god’s powers and so prevent god’s retribution. We have a different relationship with god, but the link between blasphemy and Providence neverthelss continues. It ought not to be so. The modern justifications for such rules emphasise the public order consequences of blasphemous material, but Nash argued that if the issue really is a public order one, then the proper response is through public order laws.