The Strange Death of Blasphemy
| Date | 01 November 2008 |
| Author | Norman Doe,Russell Sandberg |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00723.x |
| Published date | 01 November 2008 |
LEGISLATION AND REPORTS
The Strange Death of Blasphemy
Russell Sandberg and Norman Doe
n
Recent years have witnessed a co nsiderable growth in legislation and litigation concerning reli-
gion. This article examines the implications of the latest change, namely the abolition of the
o¡ences of blasphemyand blasphemous libel by section 79 of the Criminal Justice and Immigra-
tion Act 2008.First, the article provides the context by examining what has been lost, analysing
the ambit of the o¡ence, focussing on litigation in the twentieth century both i n domesticcourts
and at the European Court of Human Rights. Second, the article seeks to explore why blas-
phemy has be en abolished now, scr utinizing ¢ve developments that led to the abolition. The
article concludes by examining the extent to which the criminal law continues to protect reli-
gious beliefs and believers, contending that while the body of the blasphemylaws is dead, its soul
lives on in a plethora of other criminal laws and, more problematically, in non-legal means of
control.
INTRODUCTION
Tucked away in Part 5 of the Criminal Justice and Immigration Act 2008, amid a
plethora of provisions a¡ecting various parts of the criminal law,
1
can be found one
line that ends a long-running debate in England andWales about the future of the
blasphemy laws. Section 79(1) states that: ‘The o¡ences of blasphemy and blasphe-
mous libel under the common law of England and Wales are abolished’. Although
many had already pronounced the o¡ence of blasphemy dead,
2
or at least mori-
bund,
3
the abolitio n of these ancie nt o¡ences in s uch an understated way has caught
many by surprise.
4
The purpose of this piece is to explain what has been lost, to
explore why blasphemy has been abolished now and to examine the extent to
which the criminal law still nevertheless protects religious beliefs and believers.
n
Russell Sandberg is Lecturer in Law and Norman Doe is Professor of Law at Cardi¡ University.
Norman Doe is the Directorof the Centre for Law and Religionat Cardi¡ Law School.
1 Part5 i ncludesprovisions a¡ecting, interalia, the lawon pornography, dataprotection o¡ences and
the use of reasonable forcein self defence. It also expands the o¡ence of stirring up religious hatred
found in part 3Aof the Public Order Act1986to i ncludehatred on grounds of sexual orientation.
2 See,egA.Denning,FreedomUnder the Law (London: Stevens,1949) 46: ‘theo¡ence of blasphemy is
a dead letter’.
3 Writing in 2005, Ahdar and Leighcommented how the o¡ence ‘has lingeredo n,e njoyinga peri-
lous existence on a life support machine while legislators, commentators and judges huddle
around the bedside debating whether it has a future’:R. Ahdar and I. Leigh, Religious Freed om in
the Liberal State (Oxford: OxfordUniversity Press, 2005) 368.
4 The popular and academiccoverage of the abolition of the blasphemy laws has bee n much more
muted than the coverageconcerning the Racial and Religious Hatred Act 2006.
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(6) 971^986
THE STRANGE LIFE OF BLASPHEMY
Blasphemers were originally dealt with bythe Church Courts;it was not until the
seventeenth century that the law was enforced by the secular criminal courts.T he
rationale for the o¡ence is clearly elucidated in one of the earliest cases heard by
the criminal courts: Ta y l o r ’s C a s e .
5
In that case it was established that blasphemy
was akin to treason: the Chief Justice of the day held that Taylor’s cry that ‘Jesus
Christ was abastard, an impostor and a cheat’was‘not onlyan o¡ence to God and
to religion, but a crime against thelaws, state and Government’. He reasonedthat
to undermine religion was ‘to dissolve all those obligations whereby the civil
societies are preserved’; since ‘Christianity is parcel of the Laws of England’, it
followed that ‘to reproach the Christian religion is to speak in subversion of the
law’.
6
Given that the law of blasphemy rested, in the main, on decisions made by
courts in the seventeenth to nineteenth centuries,
7
it was often di⁄cult to deter-
minetheexactscopeofthelaw.
8
That said, despite what one academic called the
o¡ence’s ‘chameleon-like’ capacity to adapt to changed social conditions,
9
it was
possible to outline the essence of the o¡ence.
10
The actusreus of blasphemy was to
publish‘blasphemous’material in any form.
11
To be blas phemous, the content of the materi al had to be both in co n£ict with
the tenets of the Church of England and couched in indecent or o¡ensive terms
likely toshock and outrage the feelings of the general body of Church of England
believers. The extent to which the law protected Christian denominations other
than the Church of England was an open question. Indeed, by the nineteenth
century judicial pronouncements were becoming increasingly confused. In
Gathercole’s Case,
12
for instance, it was noted that a person could lawfully attack
‘any sect of the Christian Religion (save the established religion of the country)’
because the Church of England alone is ‘the form established bylaw, and is there-
fore a part of the constitution of the country’. However, the judgment continued
to state that ‘any general attack on Christianity is the subject of criminal prosecution,
because Christianity is the established religion of the country’.
13
Nevertheless, as it
was mad e cl ear in Wil lia ms ,
14
other Christian denominations and other religions
were protected ‘to the extent that their fundamental beliefs are those which
5 (1676) 1 Vent 2 93.
6 See also House of Lords Select Committee on Religious O¡ences in England and Wales (2003),
Volume I (HL Paper 95^I),Appendix 3, para 2.
7 Blasphemy was originally both a statutory and a common law o¡ence. However, the Criminal
LawAct1967 repealed the BlasphemyAct 1697.
8 See, eg, House of Lords Select Committee, n 6 above, Appendix 3, paragraph 1;A. Bradney,Reli-
gions, Rights and the Law (Leicester: Leicester University Press,1993) 82; D.Feldman, Civil L iberties
and Human Rightsin England andWales(Oxford: OxfordUniversity Press, 2002) 913.
9 C. Munro,‘Prophets,Presbyters and Profanity’ [1989] PL 369 at371
10 See, eg P.W.Edge, Legal Responses to Religious Di¡erence(The Hague: Kluwer Law, 2002) 207^211.
11 ‘Blasphemous’ materialcould be published in a written or verbal form. See RvGott (1922) 16 CR
App R 87.
12 (1838) 2 Lewin 237.
13 Emphasis added. See also L.F. Sturge Stephen’sDigest of the CriminalLaw (London: Sweet & Max-
well, 3rd ed 1950) article 2.14,which de¢ned blasphemousmatters as those‘relating to G od, Jesus
Christ or the Bible, or the formulation of the Church of England as by law established.’Quoted
by the House of Lords in RvLemon,RvGay News [1979] AC 617.
14 (1797) 26 St Tr 654.
Blasphemy
972 r2008 The Authors.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(6) 971^986
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