Table of Contents
Until quite recently there appeared to be a consensus in Western democracies as to the desirability of abolishing the offence of blasphemy and blasphemous libel. Indeed, in 1949, Lord Denning argued that ‘the offence of blasphemy is a dead letter’. According to Lord Denning, the basis of the law against blasphemy was the idea that ‘a denial of Christianity was liable to shake the fabric of society, which was itself founded upon the Christian religion’, a danger that no longer existed. A long series of judicial remarks and government reports, most recently by the House of Lords Select Committee on Religious Offences in 2003, stressed the archaism of the offence, and endorsed some form of proposal to abolish or further confine it. However, in the 1990s, dissenting voices were raised against the consensus, particularly from Muslims who argued that in fact the law should be extended beyond Christianity. Misgivings about the effect of such an extension on the freedom of speech have dogged such proposals, particularly where they have found form in laws against religious vilification.
The offence of blasphemy is often treated as a question of freedom of speech. A frequent argument against the continued vitality of the law of blasphemy is that it is an outmoded imposition on the freedom of speech, as can be seen in the public framing of the two most notorious modern cases: Gay News, which concerned the publication of a poem by James Kirkup, and Choudhury, concerning Salman Rushdie’s Satanic Verses.
I do not hold to the position that freedom of speech is an absolute. Moreover, I do not think that it is in general necessary or even useful to treat speech as a class distinct from action, or that expression deserves some different protection over and above other forms of action. Indeed, my argument in this chapter is that the problem with the law of blasphemy has very little to do with the fact that it (largely) targets speech. The central difficulty of the law of blasphemy is not that it deals with speech and its freedom, but that it deals with the place accorded to God, or to different Gods, in human society. The law of blasphemy appears archaic and incoherent today not because it unfairly restricts speech, although it might indeed do so in specific instances. My argument is that the law of blasphemy is incoherent insofar as it has lost its central rationale, the requiting of offence to God.
In making this argument, I draw on the story of Thomas Aikenhead, who was the last person executed for blasphemy in Britain. Even in Aikenhead’s time, in the late seventeenth century, the law of blasphemy had largely lost its coherence as punishment of affront to God, and had largely been reconstituted in terms of punishment of offence to believers. This shift in the focus of the law destabilised the category of blasphemy, long before widespread liberalisation of views on free speech. A final implication of my chapter is that attempts to recover some of the ground of the law of blasphemy through religious vilification laws are misguided. Religious vilification laws can be defended on other grounds, for example as measures against discrimination, but not as a practical reclamation and extension of the object of the law of blasphemy.
Before I begin, I want to caution that in the course of the chapter I shall be repeating claims that have been prosecuted in law and culture as blasphemous, and my repetition of those claims might be counted as a further transgression, traditionally requiring the tearing of garments. This practice is portrayed in cultural artefacts, from Giotto’s Christ before Caiaphas through to Mel Gibson’s The Passion of the Christ, that represent the moment when Jesus is brought before the Sanhedrin and is asked whether he is the Christ (Matthew 25). On Jesus’ allegedly blasphemous reply, the high priest Caiaphas tears his robes. Such rending of garments was required even in the presentation of evidence in ancient blasphemy prosecutions. However, I shall take my lead from Rabbi Hiyya, who said that after the destruction of the Second Temple, such rending is no longer required, otherwise we would all be walking around in tatters.
An important milestone in the history of blasphemy concerns a young medical student at the University of Edinburgh in the 1690s called Thomas Aikenhead. Aikenhead engaged in spirited conversations with his friends and fellow students on matters of religion. Accounts by at least five of those friends formed the basis for his indictment before the Scottish Privy Council which alleged that Aikenhead,
shakeing off all fear of God and regaird to his majesties lawes, have now for more than a twelvemoneth by past...[vented] your wicked blasphemies against God and our Saviour Jesus Christ, and against the holy Scriptures, and all revealled religione...you said and affirmed, that divinity or the doctrine of theologie was a rapsidie of faigned and ill-invented nonsense, patched up partly of the morall doctrine of philosophers, and pairtly of poeticall fictions and extravagant chimeras,...
According to the evidence of his friends, Aikenhead called the Old Testament ‘Ezra’s fables’, and the New Testament ‘the History of the Imposter Christ’. Aikenhead had affirmed that Jesus ‘learned magick in Egypt, and that coming from Egypt into Judea, he picked up a few ignorant blockish fisher fellows, whom he knew by his skill and [sic] phisognomie, had strong imaginations, and that by the help of exalted imaginatione he play’d his pranks’, that is, miracles.
The indictment and evidence in the case present for the most part a consistent account of what Aikenhead had said, and Aikenhead and his counsel seem not to have disputed the reports offered as evidence. The summation of the indictment noted that Aikenhead claimed that he ‘preferred Mahomet to the blessed Jesus’, and continued with a recital of claims:
and that you have said that you hoped to see Christianity greatly weakened, and that you are confident that in a short tyme it will be utterly extirpat, and you have been so bold in your forsaid blasphemies, that when you have found yourself cold, you have wished to be in the place that Ezra calls Hell, to warme yourself there’.
This latter remark was made outside the Tron kirk, apparently in August.
The mention of the Prophet is of course a very interesting aspect of Aikenhead’s case to us today. I think that too often we assume that multiculturalism and the problems it raises are something new to modernity, and that older societies were more homogeneous in action and belief than was actually the case. Aikenhead was tried at the end of a century of civil conflict and war in England, a conflict which concerned the place of God in civil and political matters and which revolved in part over who wore what on their heads. Aikenhead was allegedly more loyal to the Prophet than to any of the warring Christian dispositions. Patrick Midletoune, a fellow student, testified that Aikenhead had told him that ‘Mahomet was both the better airtist and polititian than Jesus’. Although some of the sources of Aikenhead’s ideas are clear, it is possible that Aikenhead knew of the extraordinary work by Henry Stubbe, An Account of the Rise and Progress of Mahometanism. As Abdal Hakim-Murad notes, the vehemence of some seventeenth century polemics against Islam also suggests that there was more sympathy for Islam within English Dissenter circles at that time than is commonly acknowledged. The minister Robert Wylie hushed the critics of the action against Aikenhead by arguing that ‘no man shuld in the face of a people spitefully revile & insult the object of their adoration,’ adding that, after all, ‘a Christian could not be innocent who should rail at or curse Mahomet at Constantinople’.
Aikenhead was charged under Scotland’s two blasphemy acts. The 1661 Act passed by the first Scottish Parliament under Charles II mandated death for one who ‘not being distracted in his wits shall rail upon or curse God, or any of the persons of the blessed Trinity’. The 1695 post-Settlement Act upheld the 1661 Act and set out a graduated scale of penalties depending on the obstinacy of the offence by ‘whosoever shall in their wryteing or discourse denye, impugne or quarrell, or argue, or reason against the being of God, or any of the persons of the blessed Trinity, or the authority of the holy Scriptures, of the Old and New Testaments, or the Providence of God in the government of the world’.
In November 1696, Aikenhead was summoned to the Scottish Privy Council to be charged, and was sent ‘to be tryed for his life’ to the courts. Five of the jurors summoned had refused to attend and were fined; while these refusals are seen by some writers as a protest against the action, I am not so sure given the assiduousness with which many people avoid jury duty. Aikenhead was found guilty of cursing and railing against God the Father and the Son, denying the incarnation and the Trinity, and scoffing at the Scriptures. He submitted a petition for leniency at the end of December and again on 7 January, although it has been suggested by Michael Hunter that the ‘gushing profession of faith’ in these petitions might have been written on Aikenhead’s behalf by others. On 8 January 1697, at the age of 20, Thomas was hanged and buried on the road to Leith.
This was the last recorded execution for blasphemy in Britain. Soon after, the Scottish Privy Council began what was to be the last major witch-hunt in Scotland, the affair of the Renfrewshire witches. Macaulay’s history later linked the Aikenhead and Renfrewshire prosecutions as actions ‘worthy of the tenth century’, conducted by men whose ‘own understandings were as dark and their own hearts as obdurate as those of the Familiars of the Inquisition at Lisbon’. These men, Macaulay says, ‘perpetrated a crime such as has never since polluted the island’, executing Aikenhead for nothing more than ‘the prate of a forward boy’. The cruelty of the prosecution and sentence certainly did not go unremarked or unprotested at the time either.