The Curious Persistence of Blasphemy

Image of Osgoode Hall, via their websiteJeremy Patrick (Osgoode Hall Law School, York University) has just made an important new paper “The Curious Persistence of Blasphemy” available via SSRN.

Here is the abstract:

Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the “defamation of religion” movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting “religious vilification” laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred – religiously or culturally – blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

On the position here in Ireland, Patrick provides an excellent summary:

B. Ireland’s Surprising Resurrection of Blasphemy

Ireland has had a strange and surprising relationship with blasphemy laws. The earliest reported common law prosecution for blasphemy dates to 1703, and a couple of other prosecutions have been discovered dating to the mid 1800s. Despite there not having been a prosecution since 1855, the framers of the Irish Constitution of 1937 decided to include, as an exception to the document’s free speech guarantee, a statement that “[t]he publication or utterance of blasphemous . . . matter is an offence which shall be punishable in accordance with the law.” Still, the legal concept of blasphemy seemed a dead letter for decades until, a full 141 years after its last invocation, a prosecution was brought in 1996 [in Corway v Independent Newspapers [1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999)] … And then, almost fifteen years after Corway and seemingly out of the blue, the Legislature suddenly decided to define the elements of blasphemy [in section 36 of the Defamation Act, 2009]. … The Minister of Justice responsible for the move, Dermot Ahern, stated that he could not “wilfully ignore the Constitution” and was “bemused” by criticism. Although the statute goes on to provide an affirmative defence for publications of “genuine literary, artistic, political, scientific, or academic value”, it provoked a counter-movement which advocated a repeal of the law and a referendum on removing the blasphemy provision from the Constitution entirely.50 In March of 2010, Minister for Justice Ahern agreed to hold a referendum on the topic by the end of the year. …

And he concludes:

Blasphemy laws in some form or another remain a part of most legal systems around the world. They may be changed, renamed, deemphasized, or revitalized, but they will not disappear anytime soon. As the threshold between the sacred and the profane, the concept of blasphemy — religious, legal, or cultural — expresses something fundamental about human nature. The drive to push against boundaries, to provoke thoughts which at first seem abhorrent and then become accepted, to express truth in the face of pain, imprisonment, and death, always remains present in some members of a society, whether that society be democratic or totalitarian. Similarly, the fear of blasphemy — incarnated as the risk of angering God, disrupting society, hurting minorities, or something else — points to the drive for conformity and unity by societies and institutions, be they State, Church, Community, or Family. The need to blaspheme and the need to suppress blasphemy continue to persist, and perhaps the only truly curious aspect is why we ever thought they would fade away to begin with.

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