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.
