Blasphemy, Cultural Divergence and Legal Relativism
| Date | 01 September 1995 |
| Published date | 01 September 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02040.x |
Blasphemy, Cultural Divergence and Legal Relativism
Clive
Unsworth
*
Introduction
The offence of blasphemy was by the
1970s
typically dismissed as an archaism
existing at the margins of the criminal law, practically obsolete and of little social
significance or broader analytical interest, there having been no successful
prosecution in fifty years.’ In contrast, the debate which began then and still
continues now as to whether the offence should be retained, reformed or abolished
has assumed major socio-legal importance. The exchanges which characterise this
debate raise fundamental issues relating to law, religion and politics, and can be
read as a commentary on the relationship between law and culture in Britain at the
end of the twentieth century, and as symptomatic of some of the pivotal conflicts
which
are
characteristic of late modern societies.
At a point when legal developments are set to excite renewed controversy, this
article explores the social and cultural significance of the offence and of the legal
strategies which are in question. The initial section examines the involvement of
the law of blasphemy in uncertainties surrounding the impact of secularisation and
cultural pluralism, which invest it with considerable symbolic consequence. In
order to illuminate the nature of the offence, there follows an account of its
parameters and 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. The third section
of
the article is concerned with the recent
revival of the blasphemy law and assesses the paradoxical nature of its effects, in
particular the difficulties that have been posed for liberalism as a political
philosophy aspiring to steer society through to an era of plurality and co-existence.
Finally, the significance of a law of blasphemy is related to the question of the
status of religion in contemporary western societies, the appropriate response of
law, and the conflict that exists between the desire to rationalise the offence and the
desire to equalise the protection it affords.
An enduring anachronism: blasphemy, pluralism and the
politics
of
law
Dissension over the future of blasphemy law arises at the intersection of a cluster
of intractable debates which render the topic extremely sensitive and have so far
*Cardiff Law School.
I
should like to thank the following: the Nuffield Foundation for providing me with a grant to research the
topic
of
blasphemy, Lord Scarman for permission to quote correspondence, and Michael King, Brian
Pearce and Stewart Field for their valuable comments on earlier drafts.
R
v
Gon
(1922)
16
Cr App R
87
had been the last instance in England and Wales. See Kenny, ‘The
Evolution of the Law of Blasphemy’
(1922) 1
CU
127;
Nokes,
A History ofthe Crime ofBlasphemy
(London: Sweet
&
Maxwell,
1928)
pp
98-
102;
Walter,
Blasphemy. Ancient
and
Modern
(London:
Rationalist Press Association,
1990)
pp
59
-
60.
1
0
The Modem
Law
Review Limited
1995
(MLR
58:5,
September). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
1JF
and
238
Main Street, Cambridge,
MA
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USA.
65
8
September
19951
Blasphemy, Cultural Divergence and Legal Relativism
produced political paralysis regarding change in the law .2 Two examples may be
given of fundamental questions implicated in discussion of the law
of
blasphemy,
the difficulty of which helps to explain why the offence is taking
so
long to die.
The first is how far the secularisation of the state should progress and to what
extent the policy should dissociate itself from a traditional order of moral values
derived from Christianity, As Church of England Christianity is translated from a
religion with which the majority naturally identified into what is now for many an
arcane minority s~bculture,~ this renders problematical the relationship between
church and state, and has raised, for example, the question of whether the
Anglican church should be disestablished. In the specific context of blasphemy, the
continuation of the present special protection under the criminal law for
Christianity in general and the established church in particular is put in jeopardy.
On the other hand, the movement is not entirely in one direction. The provisions in
the Education Reform Act
1988,
requiring that schools provide a daily act of
collective worship ‘wholly or mainly of a broadly Christian character’ and
safeguarding the position of religious education within the new national
curriculum, might be seen as reflecting an aspiration, at least selectively, to
rechristianise the state.4
For
some Christians who believe that the protection of
their beliefs conferred by the law of blasphemy is justified, the struggle over its
future affords an opportunity to assert the continuing importance of the
contribution made by their religion to the nation’s cultural heritage, whilst forging
alliances with the other major faiths to sustain the social status of religion by
supporting the extension of that protection to religions generally.
The second question is how a national culture which increasingly defines itself in
pluralistic terms, refusing to privilege any particular order or way of life as
endowed with inherent rightness, negotiates the problems of relativism which
result. In particular, there is the problem of how such a culture comes to
accommodate the full range of absolutist, traditionalist and fundamentalist
tendencies which are an inescapable feature of the mix which constitutes advanced
western societies. A particular difficulty here is that once a relativistic perspective
is admitted, then the secular democratic liberal humanism which has been the
dominant ideological force shaping policy in response to pluralism, rather than
providing an overarching framework for arbitration, is itself reduced to the status
of but another enclosed discourse, unable to engage with Islamic or Christian
claims other than in its own patently subordinating terms.6 There are problems
here both of dialogue and of authority.
2 Recent evidence of this was the outcome
of
the House of Lords Debate
on
the Criminal Justice and
Public Order Bill in
1994
when the Government, though expressing some sympathy, declined to accept
amendments designed (1)
to
abolish
the
present law of blasphemy and replace it with an offence of
incitement
to
religious hatred (proposed by Lord Lester), and
(2)
simply to effect the latter (proposed
by the Bishop of Oxford): HL Deb ~01555, cols 1890- 1909 (Hansard, 16 June 1994); vol556, cols
1737- 1752 (12 July 1994). There was a division on the Bishop of Oxford’s proposal which was lost
by 9625. Lord Avebury’s Blasphemy (Abolition) Bill was refused a Second Reading in the House
of
Lords in February 1995.
3 For an intimate exploration of this subculture, see De-la-Noy,
The Church
of
England:
A
Portrait
(London: Simon
&
Schuster, 1993).
4
Education Reform Act 1988,
ss
6-
13.
5
See,
for example, the Archbishop of Canterbury’s Working Group,
Offences Against Religion and
Public Worship
(1988) (General Synod Miscellaneous 286); Routledge, ‘Blasphemy: The Report
of
the Archbishop
of
Canterbury’s Working Group on Offences Against Religion and Public Worship’
(1989)
1
Ecclesiastical
LJ
27.
6 See Green, ‘Beyond
The Satanic Verses
:
Conservative Religion and the Liberal Society’ (June 1990)
Encounter
12.
659
0
The Modem
Law
Review Limited
1995
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