Laws of Blasphemy and Human Rights - Is There a Modern Connection - Essay Example

Laws of Blasphemy and Human Rights - Is there a modern connection By Devangini Mahapatra Chauhan Blasphemy can be described as the breach of the sentiments that hold closely a religion, group or community in its beliefs, traditions and basic lifestyle. Until the 1970s, the offence of blasphemy was found to be typically dismissed as archaism that existed at the margins of criminal law. This rendered it practically obsolete and of little significance in context of broad analytical interest. While there has been no successful prosecution on the subject in the last fifty years, it may be interesting to note how blasphemy has now come under the purview of human rights to demonstrate pluralism and the politics of law. At a point when legal developments have come to focus on the excitement created by renewed controversy, the social and cultural significance of the offence and the legal strategies have been questioned. In the course of this paper, I have attempted to examine the law of blasphemy in uncertainties surrounding the impact of secularization and cultural pluralism, which invest it with considerable symbolic consequence. This brings to the fore the recent revival of blasphemy laws through an assessment of the paradoxical nature of its effects, with particular emphasis on those difficulties that have been posed for liberalism as a political philosophy that tries to steer through an era of plurality and harmonious co - existence. In this way, the significance of blasphemy is related to the question of the status of religion in contemporary western societies in context of the appropriate response of the legal machinery of various countries, as well as the conflict that exists between the desire to rationalize the offence and the desire to equalize the protection it affords. Further, in recent times, there have been numerous accounts of the parameters of the law which has sparked a critical analysis of its relationship to laws dealing with the adjacent areas of sedition, obscenity, outrage to public decency and offences against public order. Therefore, dissension over the future of the blasphemy law arises at the intersection of a cluster of intractable debates which have rendered the topic as extremely sensitive and hard to judge. It is now imperative to chart a brief history and evolution of blasphemy to understand the journey of its evolution and how it has come about to be associated with Human Rights in the present day. Having originally been a part of canon law, in the 17th century the offence of blasphemy was declared a common law offence by the Court of King's Bench, punishable by the common law courts. From the 16th century to the mid-19th century, blasphemy against Christianity was held as an offence against common law, apart from being used a legal instrument to persecute atheists, Unitarians, and others. All contumelious reproaches of Jesus Christ, all profane scoffing at the Holy Scriptures, and exposing any part thereof to contempt or ridicule, and finally all blasphemies against God, including denying His being or providence, were punishable by the temporal courts with fine, imprisonment, and corporal punishment. In 1656, the Quaker James Naylor suffered flogging, branding and the piercing of his tongue by a red-hot poker. An act of Edward VI (repealed 1553 and revived 1558) set a punishment of imprisonment for reviling the sacrament of the Last Supper. Further, it was in the 1676 case of Rex v Taylor, when the Lord Chief Justice Sir Matthew Hale stated that "Such kinds of blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government, and therefore punishable in that Court.... Christianity is parcel of the laws of England and therefore to reproach the Christian religion is to speak in subversion of the law." (www.google.com) Those denying the Trinity were deprived of the benefit of the Act of Toleration by an act of 1688. Commonly called the Blasphemy Act, an act of 1697-1698, stated that if any person, educated in or having made profession of the Christian religion, should by writing, preaching, teaching or advised speaking, deny that the members of the Holy Trinity were God, or should assert that there is more than one god, or deny the Christian religion to be true, or the Holy Scriptures to be of divine authority, will be dealt with appropriately. At the first offence, he should be rendered incapable of holding any office or place of trust, and for the second incapable of bringing any action, of being guardian or executor, or of taking a legacy or deed of gift, and should suffer three years imprisonment without bail. The court declared that they would not suffer it to be debated whether to write against Christianity in general was not an offence punishable in the temporal courts at common law in the 1729 case of Rex v. Woolston. Yet they did not intend to include disputes between learned men on particular controverted points. Woolston was imprisoned until his death in 1733. This law also states that a person offending under the statute is indictable at common law An act of 1812-1813 excepts from these enactments persons denying as therein mentioned respecting the Holy Trinity. Although, in other circumstances, the common and the statute law on the subject remain as stated. In 1841 Edward Moxon was found guilty of the publication of a blasphemous libel (Percy Bysshe Shelley's Queen Mab). The prosecution had been instituted by Henry Hetherington, who had previously been condemned to four months imprisonment for a similar offence, and wished to test the law under which he was punished. In the case of Cowan v. Milbourn (1867) the defendant had broken his contract to let a lecture-room to the plaintiff, on discovering that the lectures in question were to propogate the so called "defective" character of Christ besides maintaining that his teaching was misleading, and that the Bible is no more inspired than any other book. Further, the court of exchequer held that the publication of such doctrine was blasphemy, and the contract was therefore, declared illegal. In this case, the court reaffirmed the dictum of Chief Justice Hale, that Christianity is part of the laws of England. The commissioners on criminal law (sixth report) noted that although the law forbade all denial of the being and providence of God or the Christian religion, it is only when irreligion assumes the form of an insult to God and man that the interference of the criminal law took place. In England the last prominent 19th century prosecution for blasphemy was the case of R. v. Ramsey & Foote, 1883, 48 L.T. 739, when the editor, publisher and printer of The Freethinker were sentenced to imprisonment. Profane cursing and swearing was made punishable by the Profane Oaths Act 1745, which directs the offender to be brought before a justice of the peace, and fined an amount that depended on his social rank. The sixth edition of "Textbook on Civil Liberties and Human Rights", by Richard Stone reads like a straightforward and stimulating account of this important area of law. Apart from consisting of a study of all the main areas of undergraduate courses on civil liberties, including police powers, freedom of expression, terrorism and public order, this book sets the law in its social and political context. While the book reaches out to the sensibilities of the 21st century reader, it also provides a full discussion of the developing law on the Human Rights Act 1998, by considering the decisions of the European Court of Human Rights. The author has tried to provide a deep analysis of the rights that protect privacy apart from exploring the issues of asylum and discrimination. This approach is driven by the need to give the reader a full understanding of the relevant legal material, without ignoring the social and political context within which the law operates. While the layout is clear and user-friendly, each chapter has a list of suggested further reading at the end. This enables students and scholars to develop further their knowledge and understanding of the topic by providing a base for further research. Apart from being fully updated to cover new legislation, including the Serious Organised Crime and Police Act 2005 and the Equality Act 2006, this latest edition also contains a new chapter on terrorism and human rights, including of the Prevention of Terrorism Act 2005, and the Terrorism Act 2006. In short, it enables further research around the subject of civil liberties and human rights, by talking about important updates which provides details of any changes in the law. The introduction gives way to a brief overview of the Human Rights Act 1998. This is followed by a chapter on the freedom of the Person in case of arrests and searches. Another chapter along the similar lines talks of detention and questioning; Entry, search, seizure and surveillance. Then there is the all important and very topic issue of terrorism and its the effect on liberty. Further, the freedom of assembly and public order are studied clolsely while the freedom of expression goes into the official secrets and freedom of information; as well as issues like contempt of court, obscenity and indecency. Then there is the issue of the protection of reputation and privacy, followed by extradition and deportation and finally freedom from discrimination. These are the ingredients that make it a perfect book when it comes to understanding the basic principles of human rights law, owing to the fact that the Human Rights Act is described in an easy to understand way. According to the author, blasphemy has no significant utility as a means of promoting religious tolerance. The history and development of the law of blasphemy indicates that the criminal law and its sanctions were used to enforce the pre-eminence of one religion over all others. While recognising the socially divisive and destructive effect of religious and racial conflict, the author has grave doubts as to the remedial possibilities of the criminal law and considers that modern anti-discrimination legislation is a superior vehicle to promote religious freedom and social tolerance, and to remedy conflict based on social difference. It would be perverse indeed if concepts of pluralism and multiculturalism were used to justify the retention and significant expansion of a criminal offence which was developed precisely to enforce the maintenance of a single set of established beliefs by severely punishing expressions of dissent. (Stone, 2006) This brings us to the new brand of crime that has sprung from terrorism and blasphemy. "Hate crime" refers to crime motivated by prejudice, bias or hatred towards a particular group of which the victim is presumed to be a member. Victims of hate violence are in this position because they are members of a particular group, and not because of what their identities are as individuals. This is a significant difference from other forms of interpersonal violence. Hate crime is intended to intimidate all other people who belong to the same group as the victim. This brings us to the issue of public order. It is quite clear that public order is capable of being preserved without the offence of blasphemy - a law that is yet to be made use of in this century. The general criminal law, including offences relating to incitement and offensive behaviour, covers this area adequately. Further, it is inappropriate for the criminal law to be used to protect an individual's religious convictions in a secular society. This holds true especially where the adherents of only one faith are protected. The offence curtails freedom of speech, without a sufficiently compelling countervailing right. Whether the offence is capable of adequately educating the community to respect the beliefs of others must be questioned. Finally, it is unclear why religious beliefs merit special protection whereas other beliefs do not. When talking of modifications, the author maintains that any attempt to codify the offence of blasphemy would need to remedy its discriminatory application. However, this is more easily stated than achieved due to the fact that the main problem lies in defining precisely what would constitute a religion for the purposes of the offence. A narrow definition would deny coverage to some bona fide religious groups which are new or outside the mainstream, while an overly broad definition could encourage the contrivance of religious status to attract the protection of the offence. This would merely result in an unjustifiable impingement upon free speech. Various solutions, including a single definition to be applied by the courts on a case-by-case basis, definition by reference to other legal criteria (such as the law of charitable trusts) or a comprehensive list of religions have been considered by various Human Rights commissions and bodies. (Stone, 2006) It has been noted by several bodies that the offence should remain an indictable one, so that it would be the role of the jury (or the judge alone if an accused person has so elected) to determine questions of fact with regard to prevailing community mores, attitudes and sensibilities. This will help preserve the right to freedom of speech and other civil rights without creating the confusion that the law in its present state does. References Cited: Stone, Richard. Textbook on Civil Libirties and Human Rights (6th Edition). Oxford University Press, 2006 Google Inc. URL: www.google.com (Accessed on: 5th of December, 2006) Read More