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Criminal Law - Lecture on Blasphemy

 

Ross McWhirter Foundation’s Dicey Conference on Religion and the Rule of Law

St Edmund Hall Oxford,

13 Mar 1990

 

Blasphemy at common law

 

1990.006 'The Treatment of Blasphemy in English Law'

 

[Full version of lecture delivered at the Ross McWhirter Foundation’s Dicey Conference on Religion and the Rule of Law at St Edmund Hall Oxford on 13 March 1990.]

 

Opening

 

I should begin by explaining that I am not an expert on blasphemy law. Nor am I an expert on religion. I have had to do a good deal of research for this talk. This has not been easy, because the subject is complex and the materials are scattered or non existent. Some of you who have read Max Beerbohm's Oxford novel Zuleika Dobson may remember the uncouth undergraduate named Noaks who shared lodgings with the gilded Duke of Dorset. I have discovered what Noaks (spelt Nokes) did when he left Oxford. He wrote a history of the crime of blasphemy, which was published in 1922. It seems to be the only book entirely devoted to the treatment of blasphemy in English law. I hastened to study it in the Bodleian Law Library, where I do my research. Alas it was stolen from the library in 1980, and has not been replaced. Such are the tribulations of the legal researcher.

 

Here I must utter a warning. Normally in a talk of this nature it is possible to enliven the proceedings by giving examples. However if I gave examples to you today I might offend religious susceptibilities. Moreover I would be committing breaches of the criminal law. I must therefore rely on straightforward exposition, though inevitably it will be necessary to quote some extracts that may offend.

The law of blasphemy has been much in the news in recent years. As I speak, we are awaiting the decision of the High Court in a case where the Action Committee for Islamic Affairs are attempting to bring a blasphemy prosecution against Salman Rushdie and his publishers over The Satanic Verses. This is part of an ongoing controversy over whether our law of blasphemy (1) should be extended to cover all religions, or (2) should remain as it is generally believed to be now (applying only to Christianity), or (3) should be abolished. I hope in this talk to give you some material on which to form a judgment of your own on that question.

Blasphemy has been dealt with in English law over many centuries, though in many different ways. It is necessary therefore for my treatment of the subject to be on historical lines. We can distinguish three periods:

 

1. Pre Reformation.

2. The Court of High Commission 1558 1640.

3. The common law period.

 

Pre Reformation

 

The Bible

 

We start of course with the Bible. God said to Moses

‘And thou shalt speak unto the children of Israel, saying, whosoever curseth his God shall bear his sin. And he that blasphemeth the name of the Lord, he shall surely be put to death, and all the congregation shall certainly stone him: as well the stranger, as he that is born in the land, when he blasphemeth the name of the Lord, shall be put to death.’ [Leviticus 24, 15 16.]

 

Jesus himself was often accused of blasphemy. When they brought him a man sick of the palsy, Jesus said: ‘Son, be of good cheer; thy sins be forgiven thee’. Whereupon ‘certain of the scribes said within themselves, This man blasphemeth’. [Matthew 9, 2 3.]

 

These two instances show two different aspects of blasphemy, which we shall find recurring. The first shows what is also called profanity, cursing the name of God. The second is more to do with doctrine. By claiming the right to forgive sins, Jesus seemed to the Jewish scribes to be usurping the power of God. His claim was heretical in the context of the Jewish faith, though of course it was orthodox in relation to what came to be known as Christianity. We can also distinguish between early treatment of blasphemy as an offence injuring God, and later treatment of it as injuring (1) religion as a social institution, (2) individuals or groups of believers, and (3) the fabric of the state.

 

Historical

 

Historically blasphemy, literally evil speaking or name calling, in most if not all its forms can be looked on as a species of heresy. So too can such sins as apostasy (renouncing the faith), sorcery, witchcraft, perjury and cursing (using God’s name in vain). The word heresy comes from a Greek word meaning to choose. The orthodox obediently follow the course laid down by the practice and authority of the Church; the heretical choose to adopt the doctrine or practice that suits them, even though it is condemned by the Church. The freethinker is a heretic because he insists on choosing for himself what he will believe. The atheist is a heretic because he has no belief. Thomas Aquinas equated heresy in all its forms with unbelief.

 

The whole course of the Christian church up to the Reformation showed the Pope and the Church Councils striving to lay down right doctrine in the face of constant attempts by various heretical groups to go off and follow lines of doctrine of their own. Complying with God’s command to Moses, the Church punished all such attempts in whatever form they occurred. Its reason for doing so was concern for the souls of its flock.

 

Continued . . . . . .