Shifting protection from beliefs to believers
THIS paper attempts to describe the transformation of laws protecting religion, focusing in particular on the passage from laws punishing blasphemy, widespread in Europe until not so long ago, to other forms of legal protection. In the course of this transition, which is far from complete, some states have stopped offering protection to God, religion, religious doctrines and symbols and instead have begun to protect people who are insulted or become the object of hatred because of their religious (and sometimes non-religious) beliefs. This article tries to analyze the consequences of such change.
The different crimes that more frequently recur in sections of European penal codes aimed at protecting religion can be divided into three groups, with the caveat that no clear-cut distinction is possible as these wrongdoings partially overlap.
Although it may have a broader significance, the crime of blasphemy as considered in this paper can be defined as an offence against God, the tenets and symbols of a religion. For example, in Germany the representation of a crucified pig in a musical performance was considered blasphemous. In the same country, a person who printed toilet paper with the words ‘The Quran, the holy Quran’ and sent it to mosques and TV stations has been convicted of blasphemy.1 The crime of insulting religion sanctioned in some penal codes can be classified in the same category.
Insulting an individual or a group because of the religion they profess is a different crime. What is protected is not the religion per se, but a person or a group who believe in that religion. A statement like ‘their [Jews] brains have been circumcised’ has been considered an insult to a group of persons identified on the base of their ‘national, ethnic, racial or religious affiliation’ (Art. 257 of the Polish Criminal Code),2 but there is no element of blasphemy in it. The crime of offending the religious sentiments or sensibility of a group of people, although frequently defined in terms that raise justified reservations, comes close to this definition.
There is no universally accepted definition of hate speech. Sandra Coliver defines it as ‘an expression which is abusive, insulting, intimidating, harassing, and/or which incites violence, hatred or discrimination’ directed at individuals or groups identified on the basis of a number of different grounds (nationality, gender, race, colour, etc.), among which religion is usually included.3 The first part of this definition concerns expressions that come very close to insulting an individual or a group; it is one of the overlapping cases mentioned above. The second part of the definition regards a different situation, characterized by the presence of incitement. A statement like the one reported in the previous paragraph regarding Jews, does not constitute a case of incitement, while a sign saying, ‘Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in,’ posted on a street in a New Jersey town,4 could be regarded as such. The crimes of insult and hate speech against believers are slowly replacing those of blasphemy and insulting religion in many European criminal codes.
Summing up this first set of considerations, criminal codes of European states contain provisions that punish (a) offenses against religion, (b) offenses of defamation and (c) incitement to hatred against the followers of a religion. While the group (a) crimes can correctly be subsumed in the category of blasphemy, the groups (b) and (c) crimes have little to do with such a category. They do not concern offences against God, they only regard offences against individuals and communities, be these offences caused by the religion they profess (as in the case we are studying), the race, ethnicity or nationality to which they belong, the sexual orientation they follow or other relevant factors. If and when the passage from the (a) crimes to the (b) and (c) crimes is completed, Europe could righty claim to have found its way out of the quandary of blasphemy. Whether something valuable is lost in this process is another aspect that has to be taken into account.
From the very beginnings of Christianity, blasphemy has been condemned as a sin and a crime and punished in accordance with Canon Law. Starting from the fourth century and the recognition of Christianity as a state religion, blasphemy against the Christian God, religion and symbols, also started to be punished by Roman law. These laws were followed by many others and the enactment of legal provisions and ordinances against blasphemers continued steadily, reaching its peak between the beginning of the 16th century and the middle of the 17th century.5 Later it slowly started to decline, but in many European states the existing laws on blasphemy were repealed only in relatively recent times, although their enforcement had become less frequent since the second half of the 19th century. Throughout these centuries, blasphemy was a crime if directed against the tenets and symbols of the majority religion. Minority religions did not receive any protection; on the contrary, openly propagating the tenets of a minority religion frequently exposed its followers to accusations of blasphemy.6
Originally blasphemers were prosecuted both by ecclesiastical and civil courts. Starting in the 16th century, the power of ecclesiastical court declined. This was part of a larger process of consolidation of the national states, claiming for themselves alone the right to administer justice. As far as blasphemy was specifically concerned, this claim was supported and justified through two arguments. Firstly, insulting the divine majesty entailed insulting the royal majesty, which derived its legitimacy from the former.7 In other words, blasphemy contained a component of subversion of the established political order that could not go unpunished by public power. Second, blasphemy affected the moral order on which public order was based, weakening respect for religion that was essential for social cohesion. At the beginning of the modern age, the manifold nature of blasphemy –already recognized by Roman law – emerged with increasing clarity; blasphemy is an offence against God, the state (embodied by the king), and society at the same time.
These multiple aspects of blasphemy are significant from two different points of view. On the one hand, they explain why blasphemy survived the end of denominational states, and continued to be regarded as a crime even after states stopped believing they were bound by any obligation to defend the true religion. The need to protect morality and social order were good enough reasons to justify the ban on blasphemy even in a secular state. The transformations and persistence of blasphemy in secular societies finds its explanation here. On the other hand, the multifaceted nature of blasphemy makes clear that it cannot be reduced to an offence against God, but has to be seen in a broader perspective as the transgression of a boundary that protects principles and values considered to be central to the existence of a social community.8
When social cohesion is based on secular values – for example a political ideology – these may undergo a process of sacralization at the end of which ‘blasphemy against the secular sacred’ is ‘punished by the legal system in the same fashion as blasphemy against the religiously sacred is punished, though of course the laws will be given different names and perhaps different justifications.’9
The decriminalization of blasphemy in Europe represents a long process that took its first steps in the second part of the 17th century and has not yet been completed. The secularization of the state’s legal apparatus has been the main factor in the decline of the crime of blasphemy. These factors made the prosecution of blasphemy increasingly infrequent, but blasphemy has never been completely erased by the ‘book of law’ of European states and is occasionally used to sanction deeds and words that offend the majority religion and its symbols.
The decriminalization of blasphemy involved four stages. The development of the legal concept of blasphemy was the first step. The leading theological definition of blasphemy was formulated by Thomas Aquinas in the Middle Ages: Blasphemy means denying to God what belongs properly to Him or ascribing to Him what is not Godly. Starting in the 17th century, lawyers supplemented the theological definition of blasphemy with another element; blasphemy as an offence to divinity (theological conception) that troubles social order (legal concept). Initially this argument was formulated in a modest way by affirming that the punishment of blasphemy had to be commensurate to the evil society might suffer and not to the offence given to God. This new idea slowly paved the way for concluding that only society-disrupting blasphemy was liable to criminal sanctions enforced by civil courts, which is the key to the survival of the crime of blasphemy in secular societies (if social order is at stake, a secular state also has an obligation to punish blasphemy).
The legal concept of blasphemy developed along three lines. First, to be punished blasphemy had to be intentional (statements lacking defamatory intent should be exempt from punishment). Second, only ‘public’ blasphemy can trouble social order; therefore ‘private’ blasphemy cannot and should not be criminalized. Finally, ‘immoderate’ blasphemy can be punished, but blasphemy expressed in a moderate language is not liable to criminal prosecution. In this way the language in which blasphemy appears became more important than the content of blasphemy and its potential to disrupt the established truth. Today these three characteristics qualify the crime of blasphemy in most countries where it is still punished.
The philosophical destruction of the foundation of blasphemy was the second step. Until the beginning of the 18th century the legal debate had focused on the limits that could be applied to the punishment of blasphemy, but few people seriously questioned the sovereign’s right (and duty) to repress it. Things changed with the Enlightenment.
‘What is blasphemy in Rome ... is piety in London.’10 With these words Voltaire synthesized what Pierre Bayle had already written, ‘So-and-so, we say, speaks intolerable blasphemies and dishonours God’s majesty, in the most sacrilegious manner there be. What do we have here, after we have given it our close and dispassionate consideration? We have the fact that in the manner in which God may be honourably spoken of, he has ideas other than our own.’11 This time it is no longer a matter of being more or less harsh in the punishment of blasphemy. What is at stake is whether blasphemy should be punished at all, as the rational foundation of this crime is contested. Partially deprived of its legitimacy, the crime of blasphemy is enforced less frequently and in some countries (as in France in 1791) even the laws forbidding blasphemy have been repealed.
Aside-step was representad by the passage from a religious to a secular crime: The slowly fading crime of ‘religious’ blasphemy did not entail the disappearance of the crime of ‘secular’ blasphemy. New elements replaced religion as the content of what is ‘sacred’ at the core of blasphemy. In the 19th century in many European countries, national identity replaced religious identity as the basis for social cohesion, and patriotism became the new religion of the citizens.12 This process took its first steps with the French Revolution. ‘Our catechism shall be the Constitution’;13 this slogan manifests the displacement of the sacred, from God to the state, the nation, the citizen. The process gained impetus during the age of nationalisms. The crimes of contempt for the national flag, anthem and constitution replicated the structure and contents of the crime of offense to God that was the essence of blasphemy. The national flag replaced religious symbols, the Constitution became the equivalent of the Holy Scriptures, the nation came to embody the ultimate value that was previously a prerogative of religious faith.
The political religions of the 20th century (communism, fascism) did not change the situation. They overcame the national dimension and built a new type of identity and solidarity, focused not on national citizenship, but on transnational ideologies able to provide an interpretation of reality and, at the same time, to warm the hearts of their followers. However, they too created their own gods and, consequently, their own crimes of blasphemy. From this point of view, the history of blasphemy is a good illustration of the theory of secularization as transfer (as opposed to replacement) upheld by Löwith and Schmitt:14 the sanctification of the political replaces the sanctification of the religious, reproducing the same approach in a secular form.15 The persistence of blasphemy in a secular age reveals ‘the necessity of sacred or sacralized references, whether religious or not, as guarantors of social and civil cohesion.’16
The fourth stap is the replacement of blasphemy. What happened to the crime of blasphemy against God, deprived after the Enlightenment of sound philosophical foundations? It survived in the criminal codes of many states until the end of World War II. After this event, history followed different routes in the eastern and western part of the Old Continent. In the countries under Soviet influence the crime of blasphemy was repealed as the religious policy of Communist countries did not contemplate special protection for religion. After the fall of the Berlin Wall, the new legal systems of eastern European states, frequently drafted under the supervision of international organizations and the influence of the United States, did not revert to the old blasphemy laws.
In western European countries, starting in the ’70s, blasphemy laws became progressively indefensible due to (a) the increasing religious diversity of the population that questioned the special protection afforded to the majority religion, and (b) the secularization of society and legal systems, questioning the need to offer religion a special protection, regardless of the fact that it is a majority or minority one. With a few exceptions, European states decided to abolish the crime of blasphemy and, at the same time, to enact new laws that accord religion a different type of protection, often mediated through the protection of their believers.
European countries have followed different paths to address the challenges raised by the transformation of religious landscapes of the Old Continent. (a) Extending blasphemy laws. Some European states (Italy, Greece, Ireland and Finland for example) retained their blasphemy laws and, when this was not already the case, extended them to protect minority religions. Legal provisions are differently formulated, but in all of them protection is directly granted to God, the Divinity, or ‘matters held sacred by any religion’, as stated in the 2009 Irish Defamation Act. The countries that still retain the crime of blasphemy have a state religion (Finland) or a legally pre-dominant religion (Greece) or, until recently, have been religiously homogeneous (Ireland, Italy, San Marino). These legal provisions are seldom enforced. Their main weakness lies in the fact that they answer the first challenge (religious diversity) but not the second (secularization).
Secularization of society questions the survival of blasphemy laws from different points of view. First, blasphemy laws, being aimed at protecting a belief, are formulated in a way that may easily require a state judgment on matters of religious faith and doctrine. To what extent a secular state is competent to pass such a judgment is, to say the very least, doubtful. Second, the existence of a blasphemy law almost inevitably involves a restriction of religious speech, as already shown at the time of the Wars of Religion, when most blasphemy prosecutions were directed against dissenters or followers of minority religions. Finally, God, religion and religious beliefs are better protected than atheism or non-religious beliefs, and this disparity brings into question the even-handedness of the state. In all the states in which blasphemy laws are in force, they do not take into consideration non-religious worldviews and, therefore, introduce a disparity between religious and non-religious persuasions.
(b) Repealing blosplemy laws. This was an adequate answer to the process of social and legal secularization, but did not take sufficiently into account how sensitive matters of faith and belief have become in religiously diverse societies. Therefore, the gap created by the repeal of blasphemy laws was quickly filled with other legal provisions, formulated in four different ways.
First, introducing the crime of religious insult or defamation of religion. This is the case of Spain, Austria, and Germany. In these countries a new provision was enacted that criminalizes the insult or defamation of a religion. In other countries (Cyprus, Denmark, Iceland, Liechtenstein, Norway, Romania, Switzerland) such provisions already existed. The difference between blasphemy and religious insult/defamation of religion is more apparent than real. As already noted, in most cases it is difficult to distinguish between them.
In some countries the crime of religious insult (notwithstanding its title) is defined in a way that also encompasses non-religious concepts of life. This is the case of the criminal codes of Spain and Germany where religious and non-religious beliefs are placed on an equal footing. The Spanish and German examples, however, have not been followed by the other countries where a provision punishing religious insult or defamation of religion is in force.
(c) Sanctioning offences against religious sensibility. A second group of states (for example Latvia and Poland) enacted legal provisions protecting citizens’ religious sensitivity. This approach to the problem has been criticized on two different grounds. First, because of the vagueness of the expression ‘religious sensitivity’. The religious sensitivities of a person or a group can be violated by words, pictures or behaviour that may not be intended to mock or scorn a religion or its representatives, but simply to criticize them. Second, even when the matter is not simply criticism but mockery or scorn, the state’s obligation to protect the religious feelings of its citizens is disputed.
Some argue that mocking or scorning a religion or its founders is ‘a valid means of undermining religious authority’ that ‘might be experienced as oppressive and pervasive.’ In this perspective the Danish Mohammed cartoons – their offending, shocking and disturbing features notwithstanding – are to be considered ‘a potentially important instrument in the argumentative arsenal to fight religious fundamentalism in today’s world.’17 Other lawyers disagree and affirm that the internationally accepted limitations to freedom of expression include ‘an obligation to avoid, as far as possible, expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.’ As a consequence, these expressions may be legitimately limited, provided that these restrictions are ‘proportionate to the legitimate aim pursued’, in order ‘to sanction or even prevent improper attacks on objects of religious veneration.’18
This discussion is not very helpful. Which are the elements that make a public debate ‘capable of furthering progress in human affairs’? The answer depends too much on subjective judgments that almost inevitably lead to conflicting interpretations. Finally, it is debatable whether by protecting the religious feelings of its citizens, a secular state respects neutrality in matters of religion and belief, which should call for equal protection of believers and non-believers.19 In this situation the conclusion of the Venice Commission according to which ‘it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings)’,20 is well grounded.
(d) Sanctioning offenses against the faithful of a religion. Other states (for example the Czech Republic and The Netherlands) have followed a different path, criminalizing the insult or defamation of a person or a group of people on account (inter alia) of their religious faith. Interestingly, European post-Communist countries, with the exception of Romania, have adopted this approach. When, after 1989, they enacted new criminal codes, these countries gave religion protection that is not grounded on the criminalization of blasphemy or religious insult/defamation of religion, but on the punishment of hate speech and offenses against the followers of a religion. This may be a consequence of the role played by international organizations such as the Council of Europe or OSCE in the preparation of these codes, but can also be read as a symptom that recently enacted criminal codes are more likely to adopt a perspective based on the protection of believers, rather than the protection of beliefs.
Compared to the previous provisions that punish the offense of religious sensitivities, the ground on which the latter are based is much firmer. First, the offence is not directed against sensibilities or feelings, but against a person or a group. Second, the offence is more precisely defined; it must be an insult or defamation (which are crimes precisely set out, albeit not uniformly defined, in many legal systems of the European countries), not a generic violation of sensitivities. Third, these provisions do not single out religion for special protection, but consider it together with other social and cultural markers (race, nationality, political convictions, sexual orientation, etc.), identifying a person or a group and exposing them to insults or defamation. In this way no preferential protection is granted to people professing a religion. For these reasons, provisions criminalizing offenses against the followers of a religion are widespread in Europe. They are sufficiently coherent with the legal principles inspiring secular and religiously diverse states and do not pose a threat to freedom of expression. Insulting or defaming a person or a group of persons because of their religious or non-religious convictions is not an acceptable way of fostering public debate in a democratic society. Nevertheless, this approach is not unanimously supported. Insult and defamation are crimes in most European legal systems and some lawyers do not think it is necessary to have specific provisions addressing insults and defamation of the member(s) of a religious group. However, the same criticism applies to insult and defamation on account of race, nationality, gender, and so on, of an individual or a group of people, unless it is possible to prove that religion does not require the same protection. Ultimately this judgment depends on the situation in each country but, in general, the increasing number of religiously motivated conflicts provide good reasons to support the opportunity (and even the need) for such provisions. Other lawyers are of the opinion that religious vilification laws are potentially a new form of blasphemy law, so that no real change has taken place. They emphasize that for many people religion is the centre of their life so that, from a subjective point of view, they ‘will feel the same amount of hatred or contempt whether they hear attacks on their beliefs or attacks on themselves as believers.’21
In my opinion, this argument is flawed as it adopts a subjective perspective, once again falling into the trap of protection of religious feelings. From an objective point of view, disparaging religious beliefs is not the same as disparaging religious believers, although it is not always easy to draw that line. The two cases are conceptually different and the shift of most European legal systems from the first to the second is a development that cannot but be welcomed.
(e) Sanctioning incitement to religious hatred. Finally there are legal provisions that criminalize the incitement of religious hatred. They are very popular in Europe. All member states of the Council of Europe, with the exception of Andorra, Georgia, San Marino, Finland and Sweden, have enacted laws that punish the incitement of hatred, enmity, violence, hostile acts and so on against individuals or groups identified by specific characteristics, among which religion is usually included. These provisions take into consideration the element of incitement that is not a necessarily a component of the crimes of insult and defamation of religious believers. Therefore, they have a different area of application and extend the protection of religion to cases that are not covered by the latter.
The almost unanimous adoption in Europe of laws that punish the incitement of religious hatred, does not mean that these laws are exempt from criticism. Apart from the usual objections based on the fact that they are ineffective and frequently employed to restrict free speech, some lawyers point to the fact that these laws do not make any distinction between majority and minority groups, with the consequence that they have been frequently implemented to protect the values of the majority, rather than those of the minority. In this perspective, the criminalization of the incitement of religious hatred can easily increase, instead of decreasing the inequality between believers in majority religions and believers in minority religions or atheists and, according to these critics, should therefore be reconsidered in order to offer stronger protection to the latter, particularly when religious minorities overlap with racial or ethnic minorities.
What can be learnt from this historical outline? It shows that the legal systems of many European states are shifting from the protection of belief to the protection of believers. In these countries blasphemy is punished only if it offends believers or incites hatred against them. God(s), religion, its symbols are protected through the vehicle of the people who believe in them. God may still be part of the picture, but only through the medium of human beings.
Is something going to be lost in this passage? The answer is yes. Burning a Koran or depicting a cross with a pig crucified on it does not necessarily constitute an insult or incitement to hatred of a Muslim or a Christian. While they were treated as crimes when blasphemy or insult to religion were sanctioned, it is now left to the courts to decide whether they represent an insult to believers of the Muslim or Christian religion. So should we revert to the old blasphemy laws? The answer is no, provided we accept that the law alone cannot solve the problem. While legally speaking, the publication of the Mohammed cartoons is protected by freedom of expression, morally speaking it is debatable whether it represented a responsible way of making use of this right. The majority, be it secular or Christian, has a moral obligation to respect the feelings of a religious minority and not to offend them.22
The strong protection that European legal systems grant to freedom of expression must be balanced by a responsible use of the power deriving from this shield. Without this moral dimension, freedom of expression can cause damage – for example to inter-religious relations and social order – that will eventually encourage legal restrictions to rights that are misused. A responsible use of the right of freedom of expression is the best way to strengthen it.
1. Richard Puza, ‘Religion in Criminal Law: Germany’, in Matti Kotiranta and Norman Doe (eds.), Religion and Criminal Law. Peeters, Leuven, 2013, pp. 98-99.
2. Blasphemy, Insult and Hatred: Finding Answers in a Democratic Society. Council of Europe Publishing, Strasbourg, 2010, p. 292, concerning a case decided in Poland in 2005.
3. Sandra Coliver, ‘Editorial Note’, in Sandra Coliver (ed.), Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination, (Article 19). University of Essex, 1992, p. V.
4. John Paul Stevens, ‘Should Hate Speech Be Outlawed?’ The New York Review of Books, 7 June 2012, available at www.ny books.com/articles/archives/2012/jun/07/should-hate-speech-be-outlawed/
5. Alain Cabantous, Blasphemy: Impious Speech in the West from the 17th to the 19th Century. Columbia University Press, New York, 2002, pp. 119-49.
6. Ibid., pp. 51-52, 16 ff.
7. Ibid., p. 61.
8. Talal Asad, ‘Reflections on Blasphemy and Secular Criticism’, in Hent de Vries (ed.), Religion: Beyond a Concept. Fordham University Press, New York, 2008, p. 586.
9. Jeremy Patrick, ‘The Curious Persistence of Blasphemy’, Florida Journal of International Law 23, 2011, p. 206.
10. Voltaire, Dictionnaire philosophique. 1764; A Philosophical Dictionary. Dugdale, London, 1843, ‘blasphemy’, v. I, p. 213.
11. Jean-Michel Gros (ed.), De la tolerance: Commentaire philosophique sur ces paroles de Jesus Christ ‘Contrains-les d’entrer’. Presses Pocket, Paris, 1992; English transl. by Alain Cabantous, Blasphemy, op. cit., p. 133.
12. Silvio Ferrari, ‘Nationalism, Patriotism and Religious Belief in Europe’, University of Detroit Mercy Law Review, Summer 2006, pp. 625-639.
13. J.R. Suratteau, Albert Soboul, and François Gendron (eds.), Dictionnaire-historique de la Révolution française. PUF, Paris, 1984, p. 194, cited in Alain Cabantous, Blasphemy, op. cit., p. 158.
14. Jean-Claude Monod, La querelle de la secularisation. Théologie politique et philosophies de l’histoire de Hegel à Blumenberg, Vrin, Paris, 2002, pp. 22-23.
15. A good example is provided by the crime of ‘denigration of Turkishness’ punished by art. 301 of the criminal code of Turkey.
16. A. Cabantous, Blasphemy, op. cit.,p. 163.
17. Niraj Nathwani, ‘Freedom of Expression and Religious Feelings’, in Jørgen S. Nielsen (ed.), Yearbook of Muslims in Europe (v. 1). Brill, Leiden-Boston, 2009, p. 521.
18. These sentences are taken by the decision of the European Court of Human Rights in the case Otto Preminger v. Austria, n. 13470/87, 49.
19. Niraj Nathwani, op. cit., fn 17, p. 517.
20. Report adopted at the 76th Plenary Session, Venice, 17-18 October 2008, in Blasphemy, Insult and Hatred, p. 32.
21. Jeremy Patrick, op. cit. fn. 9, p. 217.
22. Oddbiørn Leirvik, ‘Blasphemy, Offence, and Hate Speech.’ A response to Henk Vroom, available at http://adss.library.uu.nl/publish/articles/000080/bookpart.pdf