On blasphemy, religious hatred and the law

A friend (who understandably wishes to remain anonymous) has set me the following exam question:

Having put in place laws against incitement to religious hatred, the Government now proposes to repeal the law against blasphemy.  How far in making derogatory remarks about the founder of Islam would that entitle one to go?  Till now I've been very careful, when quoting to my students from Dante or Tasso or Camoens concerning the Prophet (Peace be upon him), to make it plain that those poets' views are not necessarily my own (even when they are!).  I'm pretty clear about which side of the line the Danish cartoons would fall, but how about Gustave Doré's illustration from Dante's Divine Comedy (Inferno XXVIII, 29,30) showing a naked Prophet ripping his breast apart?  The whole of Inferno XXVIII is dangerous stuff, unspeakably blasphemous to any Muslim, and easily viewed as incitement to religious hatred. As for the illustration, well…

The essential query is 'When does blasphemy lay itself open to interpretation as incitement to religious hatred?'  The follow-ups are 'What about the great literature and art of the past?' and, as David Lodge would say, 'How far can you go?' — and, just as important, 'How far dare you go?'

Just to get you away from Russia, NATO, Obama bin Laden and the rest for a wee moment…

My friend has also sent me his own blood-curdling translation of the relevant passage from the Inferno, but to reproduce it here would probably be as much as my life's worth;  as bad as, if not worse than, reproducing the celebrated Danish cartoons.  But the reference above should allow any seekers after truth or blasphemy to look it up:  you can get a rough idea from this, and, as to the text, here's a clue. 

The first comment to make in response to this dodgy challenge is that the present blasphemy law offers no protection to Islam, nor to any other religion apart from Christianity, and within Christianity only to the Church of England: the BBC's account makes it clear that it is 'restricted to protect the "tenets and beliefs of the Church of England."'  So its repeal won't affect any other religion, church or sect.  There have been a few vague proposals to extend it to cover all religions, or to the main religions by name, but in the light of the widespread view (which of course I share) that any law against blasphemy is an anachronism and an unwarranted abridgement of the right to freedom of speech, any extension of the existing law should and would be fiercely resisted.  The discriminatory nature of its present application can therefore, in my opinion, be cured only by repealing the whole wretched thing.  (The last conviction and prison sentence under it in England was in 1922, and the last prosecution under it in Scotland was in 1843, so the practical effects either of its continued presence on the statute book or of its eventual repeal are or would be purely symbolic.)

So we come to the Racial and Religious Hatred Act 2006, in which —

29A  …“religious hatred” means hatred against a group of persons defined by reference to religious belief or lack of religious belief.

Acts intended to stir up religious hatred

29B (1)  A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.  [Emphasis added]

According to Wikipedia, the original draft of the Bill was qualified by House of Lords amendments —

which have the effect of limiting the legislation to "A person who uses threatening words or behaviour, or displays any written material which is threatening… if he intends thereby to stir up religious hatred". This removed the abusive and insulting concept [in the original text, taken from the Public Order Act 1986], and required the intention – and not just the possibility – of stirring up religious hatred.

Critics of the Bill (before the amendments [inserted in the House of Lords] adding the requirement for the intention of stirring up hatred) claimed that the Act would make major religious works such as the Bible and the Qur'an illegal in their current form in the UK.  Comedians and satirists also feared prosecution for their work…  Supporters of the Bill responded that all UK legislation has to be interpreted in the light of the Human Rights Act, which guarantees freedom of religion and expression, and so denied that an Act of Parliament is capable making any religious text illegal." 

The intention test also presumably precludes action under the Bill against pre-existing works of literature, whether religious or secular.  Dante seems to be off the hook.

So to be guilty of an offence under the Act, it's necessary both (1) to use threatening words or behaviour in public, and (2) to intend those threatening words or that threatening behaviour to 'stir up hatred' against a group of persons defined by reference to religious belief or lack of it.  I doubt whether using insulting words about the Prophet, or Jesus, or any other religious figure, real or imaginary, would in itself qualify under either part of that test.  Whether the courts would agree, however, is of course another matter.

Finally, is the Act, with such heavily circumscribed application, really necessary at all?  Threatening words or behaviour deliberately designed to stir up hatred of any group, whether or not religious, would seem on the face of it to be more than adequately criminalised by the Public Order Act 1986, which provides in its very first Section that —

A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he —

            (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

            (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

Tipping religion — or the absence of it! — into this capacious pot seems both unnecessary and undesirable:  clogging up the statute book with virtually meaningless gesture politics.  Despite the faintly comical inclusion in the definition of groups protected from hatred by the Racial and Religious Hatred Act of persons defined by their lack of religion, the general impression given by having such an Act at all is that religious groups of all kinds both need and deserve special protection from the stirring up of hatred of them by others.  Of course the violent animosity frequently exhibited by one group of religious people against another group of marginally different religious people — Northern Ireland, Iraq, Israel-Palestine come to mind — might be thought to require a specific law to restrain it.  What though can surely not be justified is any protection of religion itself from criticism, however vigorously expressed, and including mockery.  In a free society, nobody, even the religious, has any right to automatic and unearned 'respect' from others, nor any right to legal protection against being offended by what others say or do, subject only to the laws of the land. 

It will be a sad day for our freedoms and our democracy when we are legally prevented from asserting publicly that in the 21st century, all religious belief and practice has on balance an overall negative effect on human happiness:  that ancient writings containing social and moral commandments for communities of an earlier age in conditions quite different from our own should not be regarded as having supernatural or universal authority and that their prescriptions each require rational justification before they can properly demand to be respected:  that the founders of religions, like everyone else, can't be immune from rational assessment of their behaviour and teachings in the light of reason and of contemporary values and knowledge; and that the use of violence or compulsion to impose any form of religious practice or belief on others against their will is totally unacceptable.  It's more than ever necessary to assert that our understanding of the kind of people we are and our ability to manage the world we live in depend on the principle that we should believe, and act on, only those propositions for which good evidence exists and which are probably true or valid in the light of well documented human experience, at least until further experience or evidence demonstrates the contrary; and that human progress and understanding are impeded by belief in propositions that are improbable and for which no reliable evidence exists.  If this means (as clearly it must) rejecting as improbable and unsubstantiated the existence of a supernatural creator,  supernatural interference in the natural order, the survival of the human personality after death and the possibility of resurrection from the dead, so be it.  It can't seriously be maintained that insistence on these basic rational criteria threatens or stirs up hatred against those who persist in their contrary religious faith, memorably defined by Mark Twain's schoolboy[1] as "believing what you know ain't so".  Scorn, possibly;  pity, more likely;  hatred, no.

I think my anonymous friend can relax. 

[1] Mark Twain, Following the Equator, ch. 12, "Pudd'nhead Wilson's New Calendar" (1897)

Brian