Tuesday, March 22, 2011

"The Law of Criminal Libel"

John King, The Law of Criminal Libel (Toronto: Carswell, 1912) at pp. 14-26.

King's 1912 book on criminal libel in Canada devotes several pages to blasphemous libel. King relies heavily on British caselaw, especially the 1883 case Ramsey & Foote, which contained Coleridge's classic statement that "if the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel." King also discusses Stephen's critique of that view and his argument that even a tasteful denial of Christ's divinity could be punished under British common law.

Looking at Canada's Criminal Code in light of the debate, King concludes that "[t]he declaration in the Code, as to what is not a blasphemous libel, represents the more tolerant view of the law, comparatively speaking, as expounded in the latests leading English cases." (p. 16) Interestingly, King states that "no case was to be found in the books of Ontario of an indictment for blasphemy . . . and we believe this is true of the other provinces." (p. 24) This overlooks the R. v. Pelletier case reported in 1901 (6 R.L.(n.s.) 116 Q.c.). Although King believed there were no reported prosecutions for blasphemy in Canada available for discussion, he does devote substantial space to two cases that dealt with blasphemy in a more indirect fashion: Pringle v. Napanee (1878) and Boucher v. Shewan (1864).

Friday, March 18, 2011

"Blasphemy" in the Encyclopedia of Religion, Second Edition

Lindsay Jones, Editor in Chief, Encyclopedia of Religion (2nd ed.) (Farmington Hills, MI: Thomson Gale, 2005) at pp. 968-977.

The second edition of the Encyclopedia of Religion contains three articles under the general entry "Blasphemy." The three articles are "Blasphemy: Jewish Concept", "Blasphemy: Christian Concept", and "Blasphemy: Islamic Concept".

The first article, "Blasphemy: Jewish Concept", is written by Daniel J. Lasker. According to the article, some actions which would be deemed blasphemous in most religions, like arguing with God, are actually part and parcel of Jewish history and are considered legitimate. However, Lasker identifies four actions that could be considered blasphemous: "(1) cursing God and God's name; (2) using God's name in vain, pronouncing it illicitly, or destroying its written form; (3) saying inappropriate things about God; and (4) acting in a manner that would bring disrepute upon the God of Israel (and, therefore, upon the people of Israel)." (p. 968) Lasker devotes several paragraphs to the meaning of cursing God, while the other three acts receive a smaller amount of space. Interestingly, Lasker notes that, "although the Bible prescribes capital punishment for a number of crimes [including blasphemy], rabbinic law was instrumental in limiting the possibility of judicial executions" by imposing stringent requirements on proof and other restrictions. (p. 969) Another interesting feature of blasphemy in Judaism, one that sets it apart from most other religions, is the idea that pronouncing or writing the true name of God is blasphemous--and, as Lasker notes, various alternatives or euphemisms tend to be imbued with holy status over time, and become themselves forbidden.

The section on blasphemy in Christianity was written by Leonard Levy in 1987, and includes material that appear in his two books on blasphemy. Levy traces Christianity's prohibition on blasphemy to Exodus 22:28 ("You shall not revile God") and the punishment of death by stoning to Leviticus 24:16. An interesting discussion in the article is the relationship between heresy and blasphemy. For much of Christian history, according to Levy, the two terms were largely interchangeable. Over time, distinctions began to be drawn between blasphemy, which was a more narrow sin which required cursing or mocking of God directly, and heresy, which was a broader term that could encompass divergent doctrinal views. Levy notes that "Protestants during the Reformation had to reinvent the crime of blasphemy on the fiction that it was distinguishable from heresy. Because 'heresy' was the Catholic description for Protestantism, Protestant leaders tended to choke on word heretic and preferred to describe as 'blasphemy' anything they disliked or disagreed with, just as the church had used 'heresy.'" (p. 973) Levy goes on to trace how the concept of blasphemy evolved from a religious sin into a secular crime in seventeenth century England. The rest of the article is a concise distillation of the legal history of blasphemy in England and the United States, drawn all or in part from Levy's books.

The article on blasphemy in Islam was written by Carl Ernst in 1987. According to Ernst, blasphemy in Islam includes insulting Muhammad or any part of the divine revelation. Ernst notes that "[t]here is no exact equivalent to blasphemy in the Islamic tradition," (975) but that prohibitions on apostasy or "infidelity" ("the deliberate rejection of God and revelation") are comparable. The article briefly discusses the concept of blasphemy in early Islam before moving on to blasphemy in Islamic law, theology, and Sufi mysticism.

Saturday, March 12, 2011

"Church-State Relations in Canada (1604-1685)"

Cornelius Jaenan, Church-State Relations in Canada (1604-1685), Volume 34, CCHA Study Sessions, pp. 9-28 (1967).

This article from 1967 argues that there is a dearth of research into church-state relations during the New France era of Canadian history. After a brief and somewhat unfocused overview, it then discusses ten aspects of this history that are said to warrant further investigation. Each aspect receives a few paragraphs of attention, and the article concludes with an impressive list of sources in footnotes. The topics discussed are:

1) The role of clergy in colonial administration.

2) Some cases which tested the power of the clergy to interfere in state matters.

3) The problem of "precedence" (standing in the community according to rank, honorifics, & prestige). Jaenan notes that "[i]n the late 1640's there was already interminable wrangling over precedence in processions, distribution of blessed bread, receipt of the communion, disposition of soldiers at church parades, and in placement of pews."

4) Naming of a Bishop.

5) "Frenchification of the Indians". Jaenan states that "[t]he missionaries, as cultural ambassadors, often failed to distinguish between Europeanization and evangelization, between cultural assimilation and Christianization."

6) The role of religious rivalry between Catholic sects.

7) The treatment of Protestants. Adherents of "the pretended Reformed religion" received hostile treatment in the colony, and lacked the right to practice their faith freely.

8) Tithing and Parochial Organization

9) Fur Trading & Brandy Trafficking.

10) Morality. Jaenan states that "The state supported the church in matters of censorship of reading matter; observance of holy days; attendance at mass; control of rumblings of witchcraft, crimes of violence, blasphemy, and seditious talk; combatting begging, prostitution and secret assemblies. The general impression one obtains of the colonists is that while independent and self-assertive, they were generally devout and much attached to various pious practices."

In conclusion, the author argues that "New France was neither a tyranny nor a theocracy" and that "[a]lthough the church affected everyday undertakings, and it was associated with every major decision to be made, it did not overshadow, in practice, environmental materialistic considerations and influences."

Tuesday, March 8, 2011

Select Committee on Religious Offences in England and Wales: First Report (2003)

Select Committee on Religious Offences in England and Wales: First Report (2003)

This document was the result of proposals in England to create a new offence of "incitement to religious hatred" and abolish the common law crime of blasphemy shortly after the attacks of September 11, 2001. It examines whether blasphemy should remain a crime in England and whether a new "incitement to religious hatred" crime should be enacted. As each of these things have already occurred, this document is now primarily of historical value only. This post focuses only on the sections of the report directly relevant to blasphemy.

Chapter 1 explains that the Select Committee was charged with answering two questions: (1) "Should existing religious offences (notably blasphemy) be amended or abolished?" and (2) "Should a new offence of incitement to religious hatred be created and, if so how should the offense be defined?" The Committee notes that blasphemy and incitement to religious hatred have different targets; "blasphemy concerns sacred entities or beliefs while incitement relates to people or groups who belong to a particular faith." The Committee states that it received more than five hundred written submissions on the two questions and held several public meetings to take evidence.

Chapter 2 is the Committee's attempt to provide context for the report. It notes special concern by the Muslim community that they are not protected by England's blasphemy law, nor are they protected by prohibitions on racist speech like Sikhs and Jews are.

Chapter 3, "The Law as it Stands", begins with a short summary of the common law offence of blasphemous libel in England. According to the Committee, "Two elements of the law are clear. First, the offence is one of strict liability. . . . Secondly, the offence protects only the Church of England." The chapter goes on to discuss several statutes dating from the 1800s that prohibit various types of "crimes against religion."

Chapter 4 explores three options for dealing with the law of blasphemy: leaving it as it stands, repealing it without replacement, or repealing it and replacing it with a new statute "which would cover all religious faiths and beliefs and the rejection of religion[, with t]he objects of the protection [being] faiths, beliefs, etc., not the people or groups who hold to them." On the first option, leaving the law as it stands, the Committee notes that "no [social] consensus seems to exist as to the direction in which the balance [between religious and secular elements of society] should be changed, if indeed change it must." The Committee notes that substantial segments of society believes that "the law on blasphemy offers much more than legal protection; they believe it to be an expression of the fabric of our society [and] of the values on which our relationships with one another depend[.]" In its discussion of the second option, repealing the law without replacement, the Committee notes several defects with the law: that it's a crime of strict liability, that it's discriminatory insofar as it only protects the Church of England, and that, if used, it would probably be struck down under free speech guarantees of domestic and international rights guarantees. On the third and final option, the Committee discusses the difficulties involved in trying to draft a new blasphemy offense that avoids each of these problems.

Chapters 5-9 discuss the following topics: the Ecclesiastical Courts Jurisdiction Act, 1860; the proposed offence of "incitement to religious hatred"; freedom of expression; hate crimes; and "aggravation."

Chapter 10 provides the Committee's conclusions. Unfortunately, the Committee was unable to come to a consensus on most of the crucial questions it discussed. The Committee notes that "we believe there should be a degree of protection of faith, but there is no consensus among us on the precise form that it might take. We also agree that in any further legislation the protection should be equally available to all faiths, through both the civil and the criminal law."

Friday, March 4, 2011

Another Pakistani Official Assassinated Over Blasphemy

Pakistan's Minister of Minority Affairs, Shabaz Bhatti, was assassinated on Wednesday. The Taliban claimed responsibility and stated that the murder was prompted by Bhatti's support for moderating the country's laws against blasphemy. See Religion Clause Blog and CNN for more.