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 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 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 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 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.