Negotiating the Sacred

Blasphemy and Sacrilege in a Multicultural Society

ELIZABETH BURNS COLEMAN AND KEVIN WHITE (EDITORS)
Published by ANU E Press
The Australian National University
Canberra ACT 0200, Australia
Email: [email protected]
Web: http://epress.anu.edu.au

National Library of Australia

Cataloguing-in-Publication entry
Negotiating the sacred : blasphemy and sacrilege in a
multicultural society.

ISBN 1 920942 47 5.

1. Religion and sociology. 2. Offenses against religion.

3. Blasphemy. 4. Sacrilege. I. Coleman, Elizabeth Burns,
1961- . II. White, Kevin.

306.6

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system or transmitted in any form or by any means, electronic, mechanical, photocopying
or otherwise, without the prior permission of the publisher.

Indexed by John Owen.

Cover design by Teresa Prowse.
Art work by Elizabeth Burns Coleman.

This edition © 2006 ANU E Press

Table of Contents
Contributors vii
Acknowledgements xi
Chapter 1. Elizabeth Burns Coleman and Kevin White, Negotiating the sacred
in multicultural societies 1
Section I. Religion, Sacrilege and Blasphemy in Australia
Chapter 2. Suzanne Rutland, Negotiating religious dialogue: A response
to the recent increase of anti-Semitism in Australia 17
Chapter 3. Helen Pringle, Are we capable of offending God? Taking
blasphemy seriously 31
Chapter 4. Veronica Brady, A flaw in the nation-building process:
Negotiating the sacred in our multicultural society 43
Chapter 5. Kuranda Seyit, The paradox of Islam and the challenges of
modernity 51
Section II. Sacrilege and the Sacred
Chapter 6. Elizabeth Burns Coleman and Kevin White, Stretching the
sacred 65
Chapter 7. Colin Tatz, Sacralising the profane, profaning the sacred 79
Chapter 8. Dianne McGowan, Is that a human skull? All in the name
of art! 89
Chapter 9. Liam Dee, The bourgeois sacred: Unveiling the ‘secular
society’ 99
Section III. The State, Religion and Tolerance
Chapter 10. Ian Hunter, Sacrilege: From public crime to personal
offence 109
Chapter 11. Riaz Hassan, Expressions of religiosity and blasphemy
in modern societies 119
Chapter 12. Pauline Ridge, Negotiating the sacred in law: Regulation
of gifts motivated by religious faith 133
Chapter 13. Colin Noble, Negotiating a religious identity in modern
Japan: The Christian experience 147
Section IV. The Future: Openness and Dogmatism
Chapter 14. Winifred Wing Han Lamb, ‘We already know what is
good and just…’: Idolatry and the scalpel of suspicion 169
 Chapter 15. Eilidh St John, The sacred and sacrilege—ethics not
metaphysics 179
Chapter 16. Hal Wootten, Resolving disputes over Aboriginal sacred
sites: Some experiences in the 1990s 191
Bibliography 205
Index 227

iv Negotiating the Sacred

List of Tables
11.1. Suppose a person publicly admitted that he/she did not believe in
Allah, would you agree or disagree that the following actions should be
taken against him/her (per cent agreeing with the statement) 125
11.2. Blasphemous Attitudes, Religiosity, and Human Development in
Selected Countries 127
Contributors
Dr Veronica Brady
Veronica Brady is Honorary Senior Research Fellow (previously an Associate
Professor) in the Department of English, University of Western Australia. She
is also a Roman Catholic nun, and a member of the Institute of the Blessed Virgin
Mary (the Loreto Sisters). Her research interests include Australian literature,
and social and theological issues. She has a strong commitment to social justice,
especially to reconciliation with Aboriginal Australians. Her most recent books
are Shall these Bones Live?, Caught in the Draught, and South of My Days. She is
currently writing on issues to do with ecology and the sacred.
Dr Elizabeth Burns Coleman
Elizabeth Coleman is Lecturer in Philosophy, La Trobe University. She has held
a post-doctoral fellowship in the Centre for Cross-Cultural Research, The
Australian National University, and lectured in the Department of Philosophy,
School of Humanities, The Australian National University. Her most recent
publication is Aboriginal Art, Identity and Appropriation (Ashgate Publishing,
2005).
Professor Riaz Hassan
Riaz Hassan is ARC Australian Professorial Fellow and Emeritus Professor in the
Department of Sociology, Flinders University. He has published extensively on
the sociology of religion, including Faithlines: Muslim Conceptions of Islam and
Society (Oxford University Press, 2002), ‘On being Religious: A Study of Christian
and Muslim Piety in Australia’, Australian Religious Studies Review, 2002, and
‘Imagining Religion: Self-Images of Islam’, Asian Studies Review, 2002.
Professor Ian Hunter
Ian Hunter is a Research Professor in the Centre for the History of European
Discourses at the University of Queensland. He specialises in the history of early
modern religious, political and philosophical thought. His most recent monograph
is Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern
Germany (Cambridge 2001). Together with Thomas Ahnert and Frank Grunert
he has just finished the first English translation of works by the early German
enlightenment thinker, Christian Thomasius, and he is currently completing a
book on Thomasius.
Mr Liam Dee
Liam Dee is a PhD student at the Department of Critical and Cultural Studies,
Macquarie University. Mr Dee’s current research is an examination of the
aesthetic, from its origins as an ancient Greek epistemological concept to

vii
 contemporary trends in the design of lifestyle commodities. Other research
interests include the imagination as social critique and the ‘culture industry’.
Dr Winifred Wing Han Lamb
Winifred Lamb teaches at Narrabundah College in the Australian Capital Territory
and is a visiting fellow in Philosophy at The Australian National University. She
has published in philosophy of education and religion. Her most recent book
Living Truth and Truthful Living: Christian Faith and the Scalpel of Suspicion,
2004 is published by ATF Press.
Ms Dianne McGowan
Dianne McGowan is a PhD candidate at the Centre for Cross-Cultural Research,
The Australian National University. Ms McGowan’s research project is tracing
the historical production, by the West, of the category ‘Tibetan Art’.
Mr Colin Noble
Colin Noble is Chaplain and teaches Studies of Religion at William Clarke College.
Prior to that he taught Japanese Studies at the University of Sydney for 14 years,
after studying and working in Japan for a number of years. He has postgraduate
qualifications in Japanese Studies, education and Christian Studies. His areas of
publication include church-state conflict in Japan, Japanese Christian thought,
and Buddhist-Christian parallels.
Dr Helen Pringle
Helen Pringle is a Senior Lecturer, School of Politics and International Relations,
University of New South Wales. Her research is in the areas of the history of
political thought, political and social theory, politics and literature, questions
of sex, gender and public policy, and in particular pornography and hate speech.
Ms Pauline Ridge
Pauline Ridge is a Senior Lecturer in the Faculty of Law at The Australian
National University. Her research interests are in equity and trusts, restitution,
and law and religion. In 2001 and 2002 she conducted an empirical study on the
receipt of financial benefits by Ministers within the NSW Synod of the Uniting
Church in Australia. She has written on the equitable and probate doctrines of
undue influence generally, and in the context of religious faith.
Associate Professor Suzanne D. Rutland
Suzanne Rutland is Associate Professor and Chair of the Department of Hebrew,
Biblical and Jewish Studies at the University of Sydney and Associate Professor
in Jewish Civilisation. Her major publications include Edge of the Diaspora: Two
Centuries of Jewish Settlement in Australia, Collins, 1988 (1997), and Pages of
History: A Century of the Australian Jewish Press, 1995. She has held numerous
leadership positions within the Jewish and academic communities, including

viii  Negotiating the Sacred

being current president of the Australian Jewish Historical Society, Sydney,
and immediate past president of the Australian Association for Jewish Studies.
Mr Kuranda Seyit
Mr Seyit is currently Executive Director of the Forum on Islamic Relations and
chief editor of Australia FAIR, and is a former editor of Australian Muslim News.
He is also undertaking postgraduate research at the University of Sydney in
Peace and Conflict Studies.
Revd. Eilidh Campbell St John
Eilidh St John is the Unitarian Chaplain at the University of Tasmania. She
trained at Manchester College, Oxford, majoring in comparative religion and
community development. She served as a minister in England and Northern
Ireland where she was active in peace and reconciliation work. She teaches
courses on Ideas and Faiths and the Politics of Democratisation – East and West
– at the University of Tasmania. Her doctoral thesis on the epistemology of the
sacred and its political ramifications in a multifaith society is nearing completion.
She is Director of the International Institute for Social Change and Non-Violent
Action and is a Global Advisor to Generation Next, a UK Charity working to
educate disadvantaged South African children.
Professor Colin Tatz
Colin Tatz is a Visiting Professor of Political Science at The Australian National
University, Visiting Research Fellow at the Australian Institute for Aboriginal
and Torres Strait Islander Studies, and Director of the Australian Institute for
Holocaust and Genocide Research, Shalom Institute, Sydney.
Dr Kevin White
Kevin White is a Reader in the Sociology Department at The Australian National
University. He has held appointments at Flinders University in South Australia,
Wollongong University, and the Victoria University of Wellington. His most
recent publications include (with Frank Lewins and Alastair Greig) Inequality
in Australia, Cambridge University Press, 2004, and An Introduction to the
Sociology of Health and Illness, 2002.
Professor Hal Wootten AC, QC
Hal Wootten is a Visiting Professor, Law School, University of NSW. He has
been a QC, secretary-general of Lawasia, foundation dean and professor of law
at UNSW, foundation president of the first Aboriginal Legal Service, Supreme
Court judge, chairman of the Australian Press Council, president of the Australian
Conservation Foundation, royal commissioner into Aboriginal Deaths in Custody
and Deputy-President of the National Native Title Tribunal. In 1991 he was
made a Companion of the Order of Australia for services to human rights,
conservation, legal education and the law. He encountered sacrilege issues as

Contributors  ix
 Ministerial rapporteur/mediator on Aboriginal claims for protection of sacred
sites threatened by a dam at Alice Springs, mining in SA and Queensland, and
water-skiing and grazing in NSW.

x  Negotiating the Sacred

Acknowledgements
This book had its origins in a conference, Negotiating the Sacred: Blasphemy
and Sacrilege in a Multicultural Society, hosted by the Centre for Cross-Cultural
Research, The Australian National University, in May 2004. We are indebted to
the Director of the Centre, Professor Howard Morphy and to Ms Anne-Maree
O’Brien, Ms Suzanne Groves, Mr Alan Wyburn, and Ms Celia Bridgewater for
their assistance. In organising the conference and in selecting papers, the editors
were assisted by a planning committee. We are indebted to Mr Roger Garland,
National Museum of Australia, Dr Sarah Bachelard, Department of the Senate,
and Ms Elizabeth Kentwell, Department of Immigration and Multicultural Affairs.
We would also like to acknowledge the support of Professor Adam Shoemaker
in his role as Director of the National Institute of the Humanities and Creative
Arts, The Australian National University, for financial assistance and ANU E
Press for publishing this book.

xi
3. Are we capable of offending God?
Taking blasphemy seriously
Helen Pringle

Until quite recently there appeared to be a consensus in Western democracies

as to the desirability of abolishing the offence of blasphemy and blasphemous
libel. Indeed, in 1949, Lord Denning argued that ‘the offence of blasphemy is a
dead letter’. According to Lord Denning, the basis of the law against blasphemy
was the idea that ‘a denial of Christianity was liable to shake the fabric of society,
which was itself founded upon the Christian religion’, a danger that no longer
existed.1 A long series of judicial remarks and government reports, most recently
by the House of Lords Select Committee on Religious Offences in 2003,2 stressed
the archaism of the offence, and endorsed some form of proposal to abolish or
further confine it. However, in the 1990s, dissenting voices were raised against
the consensus, particularly from Muslims who argued that in fact the law should
be extended beyond Christianity. Misgivings about the effect of such an
extension on the freedom of speech have dogged such proposals, particularly
where they have found form in laws against religious vilification.
The offence of blasphemy is often treated as a question of freedom of speech. A
frequent argument against the continued vitality of the law of blasphemy is that
it is an outmoded imposition on the freedom of speech, as can be seen in the
public framing of the two most notorious modern cases: Gay News, which
concerned the publication of a poem by James Kirkup,3 and Choudhury,
concerning Salman Rushdie’s Satanic Verses.4
I do not hold to the position that freedom of speech is an absolute. Moreover, I
do not think that it is in general necessary or even useful to treat speech as a
class distinct from action, or that expression deserves some different protection
over and above other forms of action. Indeed, my argument in this chapter is
that the problem with the law of blasphemy has very little to do with the fact
that it (largely) targets speech. The central difficulty of the law of blasphemy is
not that it deals with speech and its freedom, but that it deals with the place
accorded to God, or to different Gods, in human society. The law of blasphemy
appears archaic and incoherent today not because it unfairly restricts speech,
although it might indeed do so in specific instances. My argument is that the
law of blasphemy is incoherent insofar as it has lost its central rationale, the
requiting of offence to God.
In making this argument, I draw on the story of Thomas Aikenhead, who was
the last person executed for blasphemy in Britain. Even in Aikenhead’s time, in

31
 the late seventeenth century, the law of blasphemy had largely lost its coherence
as punishment of affront to God, and had largely been reconstituted in terms of
punishment of offence to believers. This shift in the focus of the law destabilised
the category of blasphemy, long before widespread liberalisation of views on
free speech. A final implication of my chapter is that attempts to recover some
of the ground of the law of blasphemy through religious vilification laws are
misguided. Religious vilification laws can be defended on other grounds, for
example as measures against discrimination, but not as a practical reclamation
and extension of the object of the law of blasphemy.
Before I begin, I want to caution that in the course of the chapter I shall be
repeating claims that have been prosecuted in law and culture as blasphemous,
and my repetition of those claims might be counted as a further transgression,
traditionally requiring the tearing of garments. This practice is portrayed in
cultural artefacts, from Giotto’s Christ before Caiaphas through to Mel Gibson’s
The Passion of the Christ, that represent the moment when Jesus is brought
before the Sanhedrin and is asked whether he is the Christ (Matthew 25). On
Jesus’ allegedly blasphemous reply, the high priest Caiaphas tears his robes.
Such rending of garments was required even in the presentation of evidence in
ancient blasphemy prosecutions. However, I shall take my lead from Rabbi
Hiyya, who said that after the destruction of the Second Temple, such rending
is no longer required, otherwise we would all be walking around in tatters.5

L’affaire Aikenhead
An important milestone in the history of blasphemy concerns a young medical
student at the University of Edinburgh in the 1690s called Thomas Aikenhead.6
Aikenhead engaged in spirited conversations with his friends and fellow students
on matters of religion. Accounts by at least five of those friends formed the basis
for his indictment before the Scottish Privy Council which alleged that
Aikenhead,
shakeing off all fear of God and regaird to his majesties lawes, have now
for more than a twelvemoneth by past...[vented] your wicked blasphemies
against God and our Saviour Jesus Christ, and against the holy Scriptures,
and all revealled religione...you said and affirmed, that divinity or the
doctrine of theologie was a rapsidie of faigned and ill-invented nonsense,
patched up partly of the morall doctrine of philosophers, and pairtly of
poeticall fictions and extravagant chimeras,...
According to the evidence of his friends, Aikenhead called the Old Testament
‘Ezra’s fables’, and the New Testament ‘the History of the Imposter Christ’.
Aikenhead had affirmed that Jesus ‘learned magick in Egypt, and that coming
from Egypt into Judea, he picked up a few ignorant blockish fisher fellows,

32  Negotiating the Sacred

whom he knew by his skill and [sic] phisognomie, had strong imaginations, and
that by the help of exalted imaginatione he play’d his pranks’, that is, miracles.
The indictment and evidence in the case present for the most part a consistent
account of what Aikenhead had said, and Aikenhead and his counsel seem not
to have disputed the reports offered as evidence. The summation of the
indictment noted that Aikenhead claimed that he ‘preferred Mahomet to the
blessed Jesus’, and continued with a recital of claims:
and that you have said that you hoped to see Christianity greatly
weakened, and that you are confident that in a short tyme it will be
utterly extirpat, and you have been so bold in your forsaid blasphemies,
that when you have found yourself cold, you have wished to be in the
place that Ezra calls Hell, to warme yourself there’.
This latter remark was made outside the Tron kirk, apparently in August.7
The mention of the Prophet is of course a very interesting aspect of Aikenhead’s
case to us today. I think that too often we assume that multiculturalism and the
problems it raises are something new to modernity, and that older societies were
more homogeneous in action and belief than was actually the case. Aikenhead
was tried at the end of a century of civil conflict and war in England, a conflict
which concerned the place of God in civil and political matters and which
revolved in part over who wore what on their heads. Aikenhead was allegedly
more loyal to the Prophet than to any of the warring Christian dispositions.
Patrick Midletoune, a fellow student, testified that Aikenhead had told him that
‘Mahomet was both the better airtist and polititian than Jesus’.8 Although some
of the sources of Aikenhead’s ideas are clear, it is possible that Aikenhead knew
of the extraordinary work by Henry Stubbe, An Account of the Rise and Progress
of Mahometanism.9 As Abdal Hakim-Murad notes, the vehemence of some
seventeenth century polemics against Islam also suggests that there was more
sympathy for Islam within English Dissenter circles at that time than is commonly
acknowledged.10 The minister Robert Wylie hushed the critics of the action
against Aikenhead by arguing that ‘no man shuld in the face of a people spitefully
revile & insult the object of their adoration,’ adding that, after all, ‘a Christian
could not be innocent who should rail at or curse Mahomet at Constantinople’.11
Aikenhead was charged under Scotland’s two blasphemy acts. The 1661 Act
passed by the first Scottish Parliament under Charles II mandated death for one
who ‘not being distracted in his wits shall rail upon or curse God, or any of the
persons of the blessed Trinity’. The 1695 post-Settlement Act upheld the 1661
Act and set out a graduated scale of penalties depending on the obstinacy of the
offence by ‘whosoever shall in their wryteing or discourse denye, impugne or
quarrell, or argue, or reason against the being of God, or any of the persons of

Are we capable of offending God? Taking blasphemy seriously  33

 the blessed Trinity, or the authority of the holy Scriptures, of the Old and New
Testaments, or the Providence of God in the government of the world’.12
In November 1696, Aikenhead was summoned to the Scottish Privy Council to
be charged, and was sent ‘to be tryed for his life’ to the courts. Five of the jurors
summoned had refused to attend and were fined; while these refusals are seen
by some writers as a protest against the action, I am not so sure given the
assiduousness with which many people avoid jury duty. Aikenhead was found
guilty of cursing and railing against God the Father and the Son, denying the
incarnation and the Trinity, and scoffing at the Scriptures. He submitted a
petition for leniency at the end of December and again on 7 January, although
it has been suggested by Michael Hunter that the ‘gushing profession of faith’
in these petitions might have been written on Aikenhead’s behalf by others.13
On 8 January 1697, at the age of 20, Thomas was hanged and buried on the road
to Leith.
This was the last recorded execution for blasphemy in Britain. Soon after, the
Scottish Privy Council began what was to be the last major witch-hunt in
Scotland, the affair of the Renfrewshire witches.14 Macaulay’s history later
linked the Aikenhead and Renfrewshire prosecutions as actions ‘worthy of the
tenth century’, conducted by men whose ‘own understandings were as dark
and their own hearts as obdurate as those of the Familiars of the Inquisition at
Lisbon’. These men, Macaulay says, ‘perpetrated a crime such as has never since
polluted the island’, executing Aikenhead for nothing more than ‘the prate of
a forward boy’.15 The cruelty of the prosecution and sentence certainly did not
go unremarked or unprotested at the time either.

Offending the Ens entrum…or the beliefs of believers?

I am fascinated by the story of Aikenhead for a number of reasons. An extremely
vivid picture of the intellectual life of a young man in late seventeenth century
Edinburgh is painted in the documents, particularly in Aikenhead’s parting
speech and a letter to his friends. In his parting speech, noted on one copy as
his ‘Cygnea Cantio’, or swan song, Aikenhead attributes his heterodoxy to an
‘insatiable inclination to truth’ which led him from an early age to search for a
grounding of his faith. Aikenhead says that his doubt led him to the question,
‘whether or not man was capable of offending Ens entrum’.16 Aikenhead
concludes that we are not capable of such offence, for reasons that I do not
explore here. What interests me in Aikenhead’s question has more to do with
the definition and understanding of blasphemy: what exactly does blasphemy
perform, and in particular, whom or what does blasphemy wrong?
Modern answers to these questions are fairly clear on two main counts. First, a
long tradition of judicial and political commentary understands blasphemy as
an attack of some sort on social or civil order, that is, as closely allied to incivility

34  Negotiating the Sacred

at one end of the scale, and sedition at the other. The emergence of blasphemy
as an offence of civil order can be pegged to around the time of Taylor’s Case in
1676. John Taylor was accused of uttering ‘divers blasphemous expressions,
horrible to hear, (viz.) that Jesus Christ was a bastard, a whoremaster, religion
was a cheat; and that he neither feared God, the devil, or man.’ Sir Matthew
Hale held in this case
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.17
The terms of Hale’s judgment on Taylor also restricted the scope of blasphemy
law to the protection of Christianity, a restriction recently reiterated in
Choudhury, although it had been questioned by Lord Scarman in Gay News.18
John Taylor’s offence was understood as akin to sedition. Understandings of
the wrong of blasphemy as a fomenting of civil disorder underlie much of modern
blasphemy law. For example, in the ‘Piss Christ’ case in Australia, the definition
of blasphemy was said to hinge on the risk of such disorder. In 1998, the then
Archbishop of Melbourne, George Pell, had sought an injunction to restrain the
National Gallery of Victoria from showing a photograph by Andres Serrano. The
photograph depicted the crucified Christ immersed in urine. Justice Harper
remarked that if the offence of blasphemous libel did exist, it would be necessary
to show that the exhibition of the photograph would cause unrest of some
sort—and in the absence of that showing, no injunction could be granted. Justice
Harper’s refusal to grant an injunction in this case was however made on other
grounds.19
The second important characteristic of modern understandings of the wrong of
blasphemy is that it involves an offence to the beliefs of believers. As Lord
Scarman noted in the Gay News case, the ‘true test’ of blasphemy is ‘whether
the words are calculated to outrage and insult the Christian’s religious feelings’.20
At issue in the case was the publication by the magazine Gay News of James
Kirkup’s poem entitled ‘The Love that Dares to Speak Its Name’, alongside a
somewhat lurid illustration by Tony Reeves. Prior to this case, blasphemy seems
not to have been successfully prosecuted in the United Kingdom since 1921,
when John William Gott was sentenced to nine months in prison for publishing
pamphlets that suggested that Christ looked like a clown as he entered Jerusalem
on a donkey.21
The action against Gay News was a private prosecution by Mrs Mary Whitehouse,
the Secretary of the National Viewers and Listeners Association. She explained

Are we capable of offending God? Taking blasphemy seriously  35

 the grounds of her case in the course of an interview by saying, ‘The blasphemy
law is to protect the feelings of people rather than Christianity. Its purpose is to
implement one of the three basic civil rights set out by the Geneva Convention
that people shall not be offended on the grounds of race, class or religion.’
However, it had not in fact been the claim of the prosecution deposition that
Kirkup’s poem offended the feelings of Christians, but rather that the poem
‘vilified Christ in His death, His life and his Crucifixion’.22
In the same interview, Mrs Whitehouse noted that, ‘When the poem arrived on
my desk and I read it, I had one overwhelming feeling that this was the
recrucifixion of Christ with 20th century weapons—with words, with obscenities,
and if I sat there and did nothing I would be a traitor. It was just as simple as
that’.23 As many people at the time of the trial reminded Mrs Whitehouse, in
principle it would have been quite possible for her to bring an action for obscene
libel, rather than for blasphemy, given the character of the poem and illustration
at issue. What is striking however is the notion of traitor that Mrs Whitehouse
invokes. There is nothing to suggest that Mrs Whitehouse has in mind being a
traitor to herself if she ‘did nothing’. She uses the word ‘traitor’ with its
connotations of betrayal of trust, falsity, and failure in allegiance in such a way
that indicates that she is thinking about being a traitor to God by not avenging
his honour. So while Mrs Whitehouse certainly thinks, like Lord Scarman, that
blasphemy is an attack on the sincere religious beliefs of believers, she also voices
a sense of blasphemy as violence to God. That is, Mrs Whitehouse thinks that
we are entirely capable of offending God—and, I think, that God is entirely
capable of being offended by us. But she has not quite settled on one of these
alternatives—offence to beliefs of believers, or to God—as constituting the
central wrong of blasphemy.
The confusion of Mrs Whitehouse about what blasphemy performs is more
general, and it is not confined only to the modern world. In Aikenhead’s time,
there was a similar lack of clarity as to what blasphemy does and to whom it
does it. While it would be tempting to see Aikenhead’s trial and execution as
the last gasp of older ways of understanding and of addressing blasphemy, I do
not think it is quite that simple. Blasphemy has been a difficult thing to define
at least since it was set loose from enforcement by the ecclesiastical courts. In
regard to Aikenhead’s prosecution, many of his contemporaries thought that he
had done something wrong, but that it wasn’t blasphemy. For example, James
Johnstoun wrote to the philosopher John Locke,
It’s plain Aikenhead must have died by the first Act of 1661, since it
was his first fault as he himself pleads in his petition, and that he did
retract, which delivers him from the second article of the first act. Now
the words of the first article being railing and cursing, no evidence except
that of Mr Mungo Craigs (in which he is said to have called Christ an

36  Negotiating the Sacred

 imposture) seems to answer the meaning of those words, and as to this
Craig Aikenhead in his speech in which he owns other things, denies
his evidence and no doubt he is the decoy who gave him the books and
made him speak as he did, and whose name is not put in the copy of the
petition to the Justiciary sent to you, because the writer would spare
Craig.
The age of the witnesses is observable and that none of them pretend,
nor is it laid in the Indictment that Aikenhead made it his bussines to
seduce any man. Laws long in dessuetude should be gently put in
Execution and the first example made of one in circumstances that
deserve no compassion, whereas here there is youth, Levity, docility,
and no designe upon others.24
In other words, Aikenhead was simply speculating and bantering, and lacked
intention either to outrage the feelings of believers or to incite disorder.
The perspective taken by Johnstoun and others on Aikenhead’s case came to
flower in 1883, when Lord Coleridge argued that ‘if the decencies of controversy
are observed, even the fundamentals of religion may be attacked without the
writer being guilty of blasphemy’.25 Lord Coleridge was echoing Lord Denman’s
remark in the 1841 case of Hetherington, that blasphemy lies not merely in what
is said, but in how it is said. Lord Denman had argued that, even in regard to
the fundamentals of Christian religion,
If they be carried on in a sober and temperate and decent style, even
those discussions may be tolerated, and may take place without
criminality attaching to them; but that, if the tone and spirit is that of
offence, and insult, and ridicule, which leaves the judgment really not
free to act, and, therefore, cannot be truly called an appeal to the
judgment, but an appeal to the wild and improper feelings of the human
mind, more particularly in the younger part of the community, in that
case the jury will hardly feel it possible to say that such opinions so
expressed, do not deserve the character [of blasphemy] affixed to
them…26
Again, this approach to blasphemy as necessarily including incitement to wildness
or impropriety has received wide and continuing legal approval.
However, if the ‘decencies of controversy’, and not the particular content of the
utterance, is what counts in defining the width of the offence of blasphemy,
then it becomes difficult to argue that religious utterances should have any
particular protection over and above any other utterance. Blasphemy is not a
facially neutral category in a way that, say, the category of obscenity is.
Whatever else they do, laws against blasphemy do not protect the beliefs and/or
feelings of unbelievers. As Mary Whitehouse noted in answer to the question
Are we capable of offending God? Taking blasphemy seriously  37
 of why the beliefs of humanists are not protected by laws against blasphemy:
‘Well, if they are non-religious, they can’t be offended in their religious feelings,
can they?’.27 In Gay News, however, Lord Diplock voiced the rather cryptic
note on this point that ‘the poem and accompanying drawing were likely to
shock and arouse resentment among believing Christians and indeed many
unbelievers’, which echoed Lord Trevethin’s remarks in Gott that the libel then
at issue was ‘offensive to anyone in sympathy with the Christian religion, whether
he be a strong Christian or a lukewarm Christian, or merely a person sympathising
with their ideals’.28
To use the language of Cass Sunstein, why maintain the asymmetry of a special
category for blasphemy, if it is possible to address its performances and effects
in terms of such neighbouring categories as sedition, obscenity, or defamation?
The distinctiveness of blasphemy as an offence is difficult to uphold if its focus
is offence to the beliefs of believers. Even in Aikenhead’s time, it was not clear
to many people what constituted the exact difference between blasphemy and
atheism, apostasy, idolatry, irreligion, etc. Aikenhead himself felt impelled to
say that while he might have blasphemed, he certainly did not practise magic
or converse with devils.
When the Privy Council said that they would grant Aikenhead a reprieve, the
Church of Scotland refused, on the basis that it was necessary to put an end to
‘the abounding of impiety and profanity in this land’.29 In 1696, the Scottish
Privy Council had ordered that search be made of Edinburgh booksellers for
‘atheistical, erroneous or profane or vicious’ works, and John Frazer was gaoled
and put in sackcloth for reading deist works. Tacked on at the end of the State
Trials report on Aikenhead is the story of Francis Borthwick, a convert to
Judaism, who was declared ‘outlaw and fugitive, and all his goods and gear to
be brought in for his majesty’s use, for his contemption and disobedience; which
was pronounced for doom’. At this time too, University of Edinburgh students
were in the habit of pelting Catholics coming out of Mass.30 Blasphemy was not
the only available category into which religious offences could fall, and other
forms of religious insult to the beliefs of believers were matters of lively
controversy. But what was becoming ambiguous was the sense of blasphemy as
a specific wrong entitled to a specific remedy.

Conclusion
Some, perhaps even many, people in Thomas Aikenhead’s time held the view
that it is possible to offend God, and that dire consequences would follow from
such offence. For example, the informer Mungo Craig argued in his first pamphlet
against Aikenhead that the magistrates should ‘attone with Blood, th’affronts
of heav’n’s offended throne’.31 Although the category into which a particular
form of speech or action fell might be unclear, God in the view of Craig and

38  Negotiating the Sacred

others was certainly capable of being offended, and (civil) persons were capable
of avenging the affront and restoring divine order. Moreover, they had a duty
to respond on God’s behalf. In concluding, I want to suggest that understandings
of blasphemy changed decisively not when we became secular, and devoted to
free speech, but at some point much earlier, when understandings of God began
to shift radically, such that God was understood as incapable of being offended.
Some fragments of the earlier understandings can still be glimpsed in other than
Christian religious traditions. For example, in a remarkable reflection on Rabbi
Hayim Volozhiner’s Nefesh ha’Hayyim, Emmanuel Levinas argues that our acts,
words and thoughts condition the association of God with the world(s). Levinas
quotes Volozhiner:
Let nobody in Israel—God forbid! ask himself, ‘what am I, and what can
my humble acts achieve in the world?’. Let him rather understand this,
that he may know it and fix it in his thoughts: not one detail of his acts,
of his words, and of his thoughts is ever lost. Each one leads back to its
origin, where it takes effect in the height of heights, in the worlds…The
man of intelligence who understands this in its truth will be fearful at
heart and will tremble as he thinks how far his bad acts reach and what
corruption and destruction even a small misdeed may cause.32
In this view of God and his demands, blasphemy is perhaps best understood as
the opposite of prayer, or rather of the moment of offering and grace in the
benediction. Levinas argues that in prayer we make possible the association of
God with the worlds in a creating and sustaining association. In contrast,
blasphemy is something like a violent infidelity to God which shakes the
foundations of the world by destroying its ethical intelligibility, not just by
disturbing the social or political order by insulting believers. What flows on
from blasphemy in this view is the malediction, not of God’s punishment, but
simply of the breach between God and the world.
According to such older views, few remnants of which survive today, the verb
‘to blaspheme’ is transitive, and the object of the verb is God. Hence it was
possible to claim that someone had ‘blasphemed God’, or to claim like St Paul
to have been ‘blasphemed’. In older understandings of blasphemy, there was
still the difficulty of whether we as citizens are capable of repairing the violence
to God accomplished by the blasphemer, that is, whether the faithful have
standing to apply for a civil remedy of wrong to the deity. Such a difficulty aside,
the coherence of the position rests centrally on acceptance of blasphemy as
constituted by affront to God, not to fellow believers.
One of the more interesting recent developments in regard to the offence of
blasphemy are attempts to salvage what is still alive in the offence by substituting
the category of religious vilification for that of blasphemy. For example, the

Are we capable of offending God? Taking blasphemy seriously  39

 Victorian Racial and Religious Tolerance Act of 2001 makes unlawful the
incitement of hatred, contempt, revulsion or severe ridicule on the grounds of
religious belief or activity.33 Rather than being explicitly targeted against
discrimination, the Act is linked to the promotion of tolerance. In this way, I
would argue, the Act understands vilification as akin to blasphemy, by
construing the issue as involving offence to believers and as a matter of public
order. Hence, I would argue, the Act does not avoid the problems of modern
blasphemy law, and still does not grapple with the problem of offence to God.

ENDNOTES
1 Lord Denning, Freedom Under the Law, Hamlyn Lectures 1st series, London, 1949, p. 46.
2 House of Lords Select Committee on Religious Offences, Religious Offences in England and Wales –
First Report [HL Paper 95-I, Session 2002-03], <http:www.parliament.the-stationery-of-
fice.co.uk/pa/ld200203/ldselect/ldrelof/95/9501.htm>, viewed 11 August 2005. In Australia, see esp.
New South Wales Law Reform Commission 1992, Discussion Paper: Blasphemy. <ht-
tp://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP24TOC>, and 1994, Report: Blasphemy, <ht-
tp://www.lawlink.nsw.gov.au/lrc.nsf/pages/r74toc>, viewed 11 August 2005.
3 Whitehouse v Gay News, Whitehouse v Lemon [1979] AC 617; [1979] 2 WLR 281; [1979] 1 All ER 898
(HL), and Gay News Ltd. and Lemon v United Kingdom [Eur Comm HR] 5 EHRR 123 (1982).
4 R v Chief Metropolitan Magistrate, ex parte Choudhury [1991] 1 QB 429.
5 Sanhedrin 60a. I use the Soncino edition of the Talmud.
6 The primary documents on Aikenhead are printed in ‘Proceedings against Thomas Aikenhead, for
Blasphemy, 8 William III. A.D. 1696’, in Cobbett W. and T. B. Howell et al. (eds), A Complete Collection
of State Trials, 34 vols., London, 1809-1828, [State Trials], vol. 13, cols. 917-940, and Hugo Arnot
(ed.),1785, A Collection and Abridgement of Celebrated Criminal Trials in Scotland, Edinburgh, pp. 324-
7. The documents printed in State Trials are from the records of the Justiciary in Edinburgh, and from
a collection of manuscripts in the property of Lord King, now kept in the Lovelace Collection of Locke’s
papers in the Bodleian Library at MS Locke b.4, ff 86-106. Michael Hunter notes that ‘an early 19th-
century commentator on Locke’s Aikenhead material described it as being ‘In a bundle of MSS. On the
subject of Toleration’: Francis Horner, 1843, Memoirs and Correspondence, Leonard Horner (ed.), 2 vols,
London, i. 487’; see Hunter, Michael 1992, ‘“Aikenhead the Atheist”: The Context and Consequences
of Articulate Irreligion in the Late Seventeenth Century’, in Michael Hunter and David Wootton,(eds),
Atheism from the Reformation to the Enlightenment, Oxford, Clarendon Press, p. 231, fn. 27.
7 State Trials, vol. 13, p. 919.
8 State Trials, vol. 13, p. 925.
9 E. Hafiz Mahmud Khan Shairani (ed.) 1954, An Account of the Rise and Progress of Mahometanism,
with the Life of Mahomet, And a Vindication of him and his Religion from the Calumnies of the Christians,
Lahore, Orientalia. I was led to Stubbe by a passing reference in a talk by Sheikh Hamza Yusuf, and
found that no library in Australia holds a copy of the work.
10 Hakim-Murad acknowledges Stubbe and his influence in ‘British and Muslim?’, lecture given to a
conference of British converts to Islam, 17 September 1997, <http://www.masud.co.uk/ISLAM/ahm/brit-
ish.htm>, viewed 11 August 2005.
11 Hunter, ‘“Aikenhead the Atheist”’, p. 238, quoting letter from Wylie to William Hamilton, 16 June
1697.
12 Printed in Thomson, T. and C. Innes (eds), The Acts of the Parliament of Scotland, 12 vols, Edinburgh,
1814-1975, vol. 7, pp. 202-3 and vol. 9, pp. 386-7.
13 Hunter, 1992, p. 228.
14 See especially Larner, Christina 1981, Enemies of God: The Witch-hunt in Scotland, London, Chatto
& Windus, and Larner, Christina 1984, ‘The Crime of Witchcraft in Scotland’ in Alan Macfarlane Larner
(ed.) Witchcraft and Religion: The Politics of Popular Belief, New York, Blackwell. The bundle of docu-
ments on Aikenhead in Locke’s manuscripts also includes material relating to the Renfrewshire incident.
15 Macaulay, T. B. Firth, 1915, Charles Harding (ed.) The History of England, from the Accession of James
the Second, 6 vols, London, Macmillan, vol. 6, pp. 2698-9. In the context of blasphemy, recall that Ma-

40  Negotiating the Sacred

caulay had sponsored the Indian Criminal Code, which penalised religious incitement, though not in
quite those terms—and which has sometimes been put forward as a model for addressing religious af-
fronts. See Lord Scarman’s mention of Macaulay’s reform in R v Lemon [1979] 2 WLR 281 (HL), at 308.
16 ‘Thomas Aikenhead’s Paper’, in State Trials, vol. 13, p. 931. Also ‘Thomas Aikenhead his Cygnea
Cantio’, Harleian MS 6846, ff 400-101, as noted in Hunter, 1992, p. 229, fn. 25.
17 Taylor’s Case (1676) 1 Vent. 293 (KB), 86 ER 189.
18 R v Chief Metropolitan Magistrate, ex parte Choudhury [1991] 1 QB 429.
19 Pell v National Gallery of Victoria [1998] 2 VR 391.
20 R v Lemon [1979] 2 WLR 281, at 312 per Lord Scarman.
21 R v Gott (1922) 16 Cr App R 86.
22 See Anderson, Ingrid and Pamela Rose, 1978, ‘“Who the Hell Does She Think She Is?”’, interview
with Mary Whitehouse, Poly Law Review, vol. 3, no. 2, p. 13.
23 Anderson and Rose, 1978, p. 15. The interviewers present the interview in order ‘to demonstrate
that the watchdog of this country’s moral welfare appears to have no coherent philosophy of law or
morality’.
24 [James Johnstoun?] to [Locke?], 27 February 1697, BL MS Locke b4 ff 86-87, enclosures 92-7, reprinted
in de Beer, E. S. (ed.), 1981, The Correspondence of John Locke, 8 vols, Oxford, Clarendon Press, vol. 6,
19. No record remains of a reply by Locke to Johnstoun on this matter.
25 R v Regina and Foote 15 Cox CC 231 (1883), 238.
26 R v Hetherington (1841) 4, State Trials ns. 563, at 590-1.
27 Anderson and Rose, 1978, p. 13.
28 R v Gott (1922) 16 Cr App R 86, 89-90 per Trevethin LCJ.
29 See Macaulay’s accounts of the period, and Hunter, 1992, p. 239-41.
30 Case of David Mowbray, ‘Of Tumult within Burgh’, in Hugo Arnot (ed.), 1785, A Collection and
Abridgement of Celebrated Criminal Trials in Scotland, p. 270.
31 Craig, Mungo 1696, A Satyr against Atheistical Deism, Edinburgh, quoted in Hunter, 1992, p. 233.
32 Levinas, Emmanuel 1984, ‘Prayer without Demand’, trans. Sarah Richmond, in Seán Hand (ed.) 1989,
The Levinas Reader, Oxford, Basil Blackwell, p. 230.
33 See Racial and Religious Tolerance Act 2001 (Victoria), <http://www.austlii.edu.au/au/legis/vic/con-
sol_act/rarta2001265/>. The act was tested in the Catch the Fire case: see Islamic Council of Victoria Inc.
v Catch the Fire Ministries Inc [2003] VCAT 1753 (21 October 2003), <http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/vic/VCAT/2003/1753.html>, Islamic Council of Victoria v Catch the Fire Ministries
Inc (Final) [2004] VCAT 2510 (22 December 2004), <http://www.aust-
lii.edu.au/au/cases/vic/VCAT/2004/2510.html>, and Islamic Council of Victoria v Catch the Fire Ministries
Inc (Anti Discrimination – Remedy) [2005] VCAT 1159 (22 June 2005), <http://www.austlii.edu.au/cgi-
bin/disp.pl/au/cases/vic/VCAT/2005/1159.html>, all viewed 11 August 2005.

Are we capable of offending God? Taking blasphemy seriously  41