Archive for September 11th, 2012

Professor David Rosen
This is an academic discourse on the subject of ‘blasphemy’. The opinions are my own and not that of Darlingtons, Brunel University, or the Society of Legal Scholars.

I write this article on the Aristotelean premise that:

‘It is the mark of an educated mind to entertain a thought without accepting it’.

It is written because some issues need to be aired, and politically correct people telling us to leave things well alone (Especially the atheists and the nihilists), are becoming tiresome.

Until recently, the swearing of an Oath on solemn statements/Affidavits before the Courts, was mandatory. I have already written an article as to why what is left of swearing Oaths, should remain. (The Darlington’s blog archive of posts by Professor Rosen)

An integral part of British Society called upon the acceptance of a superior omnipresent being, that governed the ways of the World by way of a divine presence and divine providence.

That acceptance brought an understanding of Christian values and Christian beliefs without which it is at least arguable that the Order and foundation of moral understandings and beliefs founded upon religious values, may not have evolved quite how they did.

The obvious case, as all Law students know, is that of Donoghue v Stephenson [1932] UKHL 100, loving one’s neighbour: Essentially one of the 10 Commandments, and in any event, a Noachide Law. The entirety of the common Law of Torts is founded upon such an understanding that tortious duties exist in a wide variety of subjects such as Consumer Law, Professional Negligence, Personal Injury etc…

Indeed, fairness, mercy, and forgiveness, are all fathers of the Law of Equity, and mitigation in  Criminal Law, which are founded upon ethics and morals from the Old Testament.

One day, God became…less important in our Law. It has for some time been uncool, and über-cool to believe in nothing, so that we have a whole array of nihilists on the one part, atheists, sort-of-go-with-the-flow believers, and religiously accepting.

I wish to immediately distinguish that this article relates to blasphemy and blasphemous libel, as opposed to religious hatred which is a different thing altogether. Blasphemy was governed by various Statutes of Law which were revoked in May 2008 under the Criminal Justice and Immigration Act 2008, whereas the latter continues to be governed primarily by the Racial and Religious Hatred Act 2006.

Blasphemy was a criminal offence punishable with the death penalty until 1676, and thereafter punishable with a fine and/or imprisonment. The criminal aspect of blasphemy was abolished by the Criminal Law Act 1967.

Blasphemy as a common law offence, was abolished as recently as 2008.

What changed? What went wrong? What went right?

In a developing Society/Empire (as then it was the British Empire), Christianity was inextricably linked to the Laws of England.

In Bowman v Secular Society Limited [1917] AC 406 at 457, Lord Sumner refers to the older Taylor’s case of 1676 1 Vent, as follows:

‘…and Hale said that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the Laws, State, and Government, and therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the Law’.

Post World War II, in 1949, Lord Denning in a speech, said:

‘It was thought that a denial of Christianity was likely to shake the fabric of Society, which was itself founded on Christian religion. There is no such danger to society now, and the offence of blasphemy is a dead letter’.

Post-1945, blasphemy was considered not so much a violation of the sanctity of God’s name, but rather an attack on the moral principles which constituted the Law we have, based on Religious teachings.

In Whitehouse v Gay News Limited [1979] AC 617, the matter was debated in the House of Lords. As per Lord Scarman, the principle of the Laws relating to blasphemy are as follows:

It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language.

The test to be applied is as to the manner in which the doctrines are to be advocated, and not as to the substance of the doctrines themselves.

Blasphemy Laws only applied to the Christian Religion, because this was what was directly applicable to the foundations of The Laws of England and Wales.

The actualite of blasphemy had nothing necessarily to do with God, per se. Lord Scarman summed up the position that blasphemy has a role to play, and the Laws of England should have continued to uphold the Laws of blasphemy moderately applied as per Whitehouse v Gay News, in order to ‘safeguard the internal tranquility of the kingdom’.

The Law has moved on and developed so that anyone using threatening or publishing words or behaviour in relation to any religion or faith, or those with no faith or religion with religion imposed upon them (which is a paradox, given the basis upon which English Law developed), to stir up religious hatred, may be guilty of an offence contrary to the Racial and Religious Hatred Act 2006.

As with the Communications Act 2003, there are varying degrees of what constitutes ‘offensive’, to the extent that it is actionable. Lord Chief Justice Judge summed up the position in Chambers v DPP [2012] EWHC 2157:

‘Before concluding that a message is criminal on the basis that it creates a menace, it’s precise terms, and any inferences to be drawn from its precise terms, needs to be examined in the context in and the means by which the message was sent’.

The United Kingdom is a multi-cultural society. Some say that our Islands are populated as a direct result of the British Empire coming to an end, and the Empire coming home to roost.

Technology is evolving at a phenomenal speed. The future of World Economies are uncertain. Consumerism and Materialism are rife. Societies need guidance. Religions gave and give a structure of how to behave morally and ethically. Certainly from a Christian perspective, those same morals and ethics have found their way into the development of our Laws, and to a large extent, morals and ethics by way of altruisms are fairly consistent in every religion. How to punish, guide, or protect those morals and ethics, differ considerably from religion to religion, and faith to faith. Have we done away with religion? Do we have a firm grasp of what is and is not good? Is this reflected in our Laws?

In a Nietzschian context, is God dead? Are our Lawmakers at least, ubermentschen above the Law who can make Law for the masses?

Our Laws are based on sound morals and ethics rooted predominantly from the Old Testament accepted by Christians, Jews and Muslims alike.

There is much to learn from Religious Sages from all religions and faiths, and we would be foolish not to be open-minded and discuss such matters openly, and take all that is good and compatible with the Laws of England and Wales.

Professor David Rosen, is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. He is a visiting associate Professor of Law at Brunel University, and a member of the Society of Legal Scholars. He is also a practising Orthodox Jew.

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