In recent times the few existing blasphemy laws in countries such as Pakistan have come under crticism. This criticism has followed events that have turned bloody because of the existence of such laws.
On this issue I find it interesting to provide arguments as provided for by H.L.A Hart in Law Liberty and Morality.
Hart starts his argument by asking four questions that I find of critical importance when looking at the issue of blasphemy laws.
- Has the development of laws been influenced by morals and vice versa, has the development of moral been influenced by laws. The answer to the first part of the question is “Yes”.
- Must some reference to morality enter into an adequate definition of law and legal system.? This question brings us to as Hart says the grand banner of Positivism and Nautral Law.
- Natural Law: any attempt to cement the moral and legal order together with the nature of the cosmos or the nature of human beings. Hence, Law stands above and apart from the activities of human law-makers. (Oxford Reference)
- Positivism: The denial of natural law theory in favor of the down-to-earth view that laws are made and enforced by human beings. ” (Oxford Reference).
- Is law open to moral criticism ? or does a the admission that a rule is valid or legal rule preclude moral criticism or condemnation of it by reference moral standards or principles.?
- Is the fact that certain conduct is by common standards immoral suffecient to justify making that conduct punishable by law ? Is it morally permissible to enforce morality as such ? Ought morality as such be a crime. ?
If we look at history we shall find that there are countless laws that have been exposed to moral criticism. Slavery for example although legal was abolished because it violated certain principles of humanity. I will use Hart’s arguments to show that certain values are lost when legal moralism is enforced.
|§ 298||Uttering of any word or making any sound or making any gesture or placing of any object in the sight with the deliberate intention of wounding the religious feelings of any person.||1 years imprisonment, or fine, or both|
|§ 298A||Use of derogatory remarks etc., in respect of holy personages. 1980||3 years imprisonment, or fine, or both|
|§ 298B||(Ahmadi blasphemy law) Misuse of epithets, descriptions and titles etc., reserved for certain holy personages or places, by Ahmadis. 26 April 1984||3 years imprisonment and fine|
|§ 298C||(Ahmadi blasphemy law) Aka Ordinance XX: f a Muslim, or preaching or propagating his faith, or “in any manner whatsoever” outraging the religious feelings of Muslims, or posing himself as a Muslim. 26 April 1984||3 years imprisonment and fine|
|§ 295||Injuring or defiling places of worship, with intent to insult the religion of any class||Up to 2 years imprisonment or fine, or both|
|§ 295A||Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. 1927||Up to 10 years imprisonment, or fine, or both|
|§ 295B||Defiling, etc., of Quran. 1982||Imprisonment for life|
|§ 295C||Use of derogatory remarks, spoken, written, directly or indirectly, etc. defiles the name of Muhammad 1986||Mandatory Death and fine (Feb. 1990)Trial must take place in a Court of Session with a Muslim judge presiding.|
Interestingly 295C was etablished in the same year I was born.
The Blasphemy laws in Pakistan in many ways mirror the thinking of the English Legal system and the idea that the courts should function as the custos morum or “the general censor and guardian of the public manners”.
In the same way as the english courts gave up certain value so do the courts in Pakistan. The principle that is sacrificed here is the “Principle of Legality” which requires the criminal offences to be as precisely defined as possible so that it can be known with reasonable certainity what is criminal and what is not.
Furthermore, this practice also brings into light Mill’s principle of Harm.
“The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.”2 And to identify the many different things which he intended to exclude, he added, “His own good either physical or moral is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right.”
According to Hart this principle when under criticism does not hold as there are many other reasons for legal coercion. Although Hart does concede that when it comes to the narrower question of the enforcement of legal morality, Mill is indeed right.
As we have seen in the cases of blaphemy laws that have occured in Pakistan, there have indeed been cases where the law has been used to exploit. Furthermore, the law does not allow any realm of privacy.
Hence, these are the reasons why the Wolfden Report called for the suppression of the offensive public manifestation of prostitution rather then making it illegal.
[The] function [of the criminal law], as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind or inexperienced .
Furthermore, there is a private realm in a citizens life which is not part of law’s business as long as no harm occurs.
Every citizen is then entitled against state interference to his affairs as long as he is not harming other.
In case of blashemy laws in Pakistan the State fails to give protection to people of different races and religion. Instead these people are often subject to misprosecution and discrimination.
Furthermore, when it comes to ratifying the laws to correct for errors we see that there is a fierce opposition to the thought. These opposition comes from the fear of losing the power that this law allows to certain religious factions. Most of the populace that opposes the change are not literate enough to understand the implications and the logical inconsistencies that this law exposes in the countries legal system. Many of these citizens are treated as a mere herd controlled by a few in power who although aware of the fallacies seek to oppose any changes in fear of losing their hold and power in the country. Hence, in the end the situation is not one in which Prophet(PBUH) is being revered but one in which political power structures are dependent on the existence of such laws.
Here I think it prudent also to not be hasty in the change of law and I quote Aristotle,
For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law.
Aristotle, 384-322 BCE (2002-07-14T14:30:00+00:00). Politics (Kindle Locations 749-750). The University of Adelaide Library. Kindle Edition.
(Additional thoughts forthcoming.)