sacred and secular blasphemies

SACRED AND SECULAR BLASPHEMIES

Qudsia Mirza *

Mass migration and other features of globalisation make easy distinctions between East and West difficult to maintain. Homi Bhabha views Western societies as incorporating increasing elements of hybridity in which the crossing of cultural frontiers and the creation of hybrid identities challenge the crude opposition between East and West. This analysis has its attractions, but becomes flawed when applied to law. When British Muslims sought to use the English law of blasphemy against the publication of The Satanic Verses, English legal discourse found recourse to representations of Islamic law that essentialised it. The English courts' reaction to the claims of Muslims, compounded by decisions of the European Court of Human Rights, exposes the polarisation of those antagonistic binarisms that Bhabha was so quick to jettison in his celebration of hybridity and also the sharpening of moral oppositions between Islam and the West. This interpretation reveals the limits of cultural hybridity and how essentialising discourses which emphasise cultural boundedness are produced in the name of a subversive aesthetic hybridity. In utilising Bhabha's notion of hybridity, this article focuses on the lack of hybridity in the interaction between English and Islamic law in the case of blasphemy and the limited extent of any legal pluralism. In addition, the analysis shows how English postcolonial legal discourse owes much to its colonial past in representing Islamic law as 'Other' and, in so doing, monopolises legal culture for itself.

Introduction The arrival of sizable numbers of migrants from the Islamic world has resulted in a significant and now well-established ~ u s l i m ' presence in many European states. For many Muslims, religion represents a stable and unchanging feature in a milieu of change marked by social and cultural difference, political disruption and economic globalisation. The willingness and capacity of European societies to accommodate the presence of Muslims on the basis of religious difference has become a particularly challenging issue in many states. As Appadurai asserts, the contemporary challenge involves 'squaring

School of Law, University of East London. Although the term 'Muslim' is used throughout this paper, this is not to deny the plurality of different types of Islam and the significant denominational and doctrinal differences that exist between categories of Islam and their adherents.

MIRZA: SACRED AND SECULAR BLASPHEMIES 337

Enlightenment universalism and diasporic pluralism'.2 Increasingly, it is the social and cultural inequality between the dominant secular culture and its minority counterpart that has largely characterised the nature and scale of Muslim integration.3 A key consequence of this is the emergence of a distinct European Islamic culture, which is undoubtedly predicated upon the established Islam of the 'homeland'. However, what is also clear is that through engagement - either forced or voluntary - with the external environment in the shape of European social structures, Islamic culture is undergoing a radical process of transformation and exhibits fundamental differences from that of the remainder of the day-al- slam.^ Although this new, revitalised form of Islam has been generically termed 'European Islam', Muslim practice in each European country can be further differentiated along ethnic, social and cultural lines, with the development of discrete and separate European Islams now becoming a well-documented phenomenon.5

The term 'Islam', with its unitary, homogenising ring, is misleading because it fails to reveal the paradox that lies at the heart of any definition of Islam and of the Muslim diaspora. Although, at one level, it can be argued that there is a common core of fundamental tenets which characterises Islamic doctrine, this universalist, globalising message, with its attendant imposition of a unified Islamic identity, is refracted through the prisms of cultural differentiation, of 'ethnicisation', of political differentiation - among and within nationalities - and through generational distinctions. The concept of the umma in Islamic doctrine neatly encapsulates this paradox as it recognises the diversity of Muslim peoples in respect of the categories outlined above, and also the multiple identities that such diversity gives rise to. However, also out of this recognition arises the overriding importance of the need to affirm an eternal, unifying and universal Muslim identity which transcends the 'ephemeral' differences of ethnicity, nationality, culture or age, and thus places the category of Islam at its apex. This raises a number of questions referred to above: the Muslim diaspora, like other diasporas, may be considered to be part of an emerging global civil society, yet how does this accord with the integrist

Appadurai (1996), p. 173. See also Ahmed and Donnan (1994). See, for instance, Al-Azmeh (1997); Khan (2000). Bhatt (1999, p 66) cogently summarises the dilemma thus: the current understanding of multiculturalism is predicated upon the feted notion of a cultural, ethnic and religious incommensurability and an acknowledgment of difference which relies on its reification, yet in practice fails to 'evaluate the political tendencies and material that constitute the basis of [that] claimed difference'.

4 This is by no means a new phenomenon. Throughout its history, Islam has transplanted itself in new locations and grafted on the cultural trappings of that particular environment. Furthermore, the idea of an undifferentiated, unchanging Islam practised in the 'homeland' is slightly misleading, as Islamic practices here are just as open to change and syncretism as new European strains of Islamic practice. Ferrari and Bradney (2000); Abedin and Sardar (1995); Hussain and O'Brien (2000); Nielsen (1993); Shahid and van Koningsveld (1996); Lewis and Schnapper (1 994); King (1 995).

claims of Islam? Does the continuing presence of Muslims in the West mean that Islam will become reconfigured and 'secularised' as it is subjected to 'Westem' influences which are part of the process of acculturation? Or will the Muslim diaspora merge with the host cultures and generate new, hybrid forms?6

As Cohen argues, diaspora is no longer 'a metaphoric statement about certain repeated patterns of migration and settlement, but has been inflated to a metaphysics of the 'transgressive subject" so that such subjects become agents of revolutionary change, of a new utopia. The term's association with marginality and displacement has played a key part in the development of the notion of dual-consciousness, a symbolic rupture in identity which has led to the divided, nomadic subject. Much of this is founded upon the idea that the concreteness of ethnic and national identity is dissolving because local and familial ties are perceived as having disintegrated into rootless or dispersed patterns of identification. In migrating from the ex-colonies to Britain, Muslims are viewed as conforming to this model. Their immediate sense of separation from their places of birth is allied to a deeper sense of historical loss or alienation from their cultural roots. The sense of displacement and exile also creates a stronger adherence to ideas of homeland that seem even more powerfully territorial than ever.' This sense of alienation is compounded by a host society which has disparaged or ignored this diasporic history. As a result, the rupture from both the immediate and the long-term past results in the intensification of a longing to be reunited with a real or imaginary homeland and all that that entails. The centrality of the notion of uprootedness and dislocation in diaspora has been used by postmodernist theorists in a more positive sense as dislocation is premised upon separating diasporicity from essentialised understandings of identity and belonging. In addition, the idea of exile is no longer viewed as a sign of constraint or self-alienation, but is recast as a sign of freedom and liminality. The 'outsider' status of the migrant and her or his feelings of displacement are thus a reason for celebration rather than lament as she or he represents the nomadic postmodem condition.

Homi Bhabha's view of the migrant fits neatly into this celebratory notion of the migrant as he considers The Satanic Verses, a paradigmatic example of diasporic writing. The 'Rushdie affair' involved a text, The Satanic Verses, catapulted outside the secure boundaries of Western norms about artistic freedom and aesthetic rights into the world of religious affront and wrath. Here, 'the transnational worlds of liberal aesthetics and radical Islam met head-on'.9 The Satanic Verses became the galvanising force for a number of protests over issues such as the politics of reading, the cultural relevance of censorship, the formalities of religion as well as state responses to such issues. Islam became characterised as resistance, as Muslims mobilised to protest

See the discussion by Pieterse (1997). See also Modood (1998) for an overview of the use of hybridity and 'new ethnicities' in relation to religious groups. Cohen (1999), p 10. Appadurai (1996), pp 176-77. Appadurai (1 996), pp 8-9.


against a cultural hegemony which allowed the publication of a text considered offensive by many and unquestionably blasphemous by a significant number of ~ u s l i m s . ' ~ In the British context, it was the legal reaction to claims of blasphemy by Muslim groups that highlighted issues such as the place of the Muslim diaspora in British society, the relationship between Shari'a and English law, and the somewhat limited extent to which the philosophy of a liberal cultural pluralism underpinned the state's response.

Homi Bhabha views Western societies as increasingly containing elements of hybridity. Such hybridity is created in the domain of the beyond, an intervening space in which the crossing of cultural borders creates new identities beyond binary opposites. This analysis has its attractions but becomes flawed when applied to certain areas of law, as this revisit to the Rushdie affair in Britain and the legal issues around the affair will demonstrate. Far from providing an 'in-between' space for the forging of new hybrid identities, English law insists on its capacity to construct the Other. When British Muslims sought to use the English law of blasphemy against The Satanic Verses, English legal discourse found recourse to representations of Islamic law and Muslims in terms that essentialised it." It is now possible to track the legal and jurisprudential debates of this affair as an example of the resistance of Western legal systems to any new relationship with the Other, especially Islam. In addition, English postcolonial legal discourse owes much to its colonial past in representing Islamic law as 'Other', and in so doing, monopolises legal culture for itself." The reaction of the British courts and also of the European Court of Human Rights to claims brought by Muslims under the law of blasphemy exposes the further sharpening of moral oppositions between Islam and the West. Bhabha's interpretation of the 'blasphemy' of The Satanic Verses reveals the limits of cultural hybridity and how essentialising discourses which emphasise cultural boundedness are produced in the name of a subversive aesthetic hybridity.

lo For a selection of differing perspectives on the 'Rushdie Affair', see Modood (1990); Akhtar (1989); Appignanesi and Maitland (1989); Webster (1990); Commission for Racial Equality (l990a, 1990b, 1990~); Rushdie (1991); Ruthven (1990); Spivak (1993); Asad (1993); Modood and Werbner (1997); Sahgal and Yuval-Davis (1992); Slaughter (1993).

l1 The Muslim Council of Great Britain's submission to the House of Lords Select Committee on Religious Offences in England and Wales reiterated its desire to see laws against sacrilege and abuse of religious sanctities strengthened by extending the ambit of blasphemy laws to include protection for Islam. The Council also advocated the establishment of a new offence of religious hatred, citing the fact that, although the incorporation of the European Convention on Human Rights was welcome, the Human Rights Act 1998 was inadequate in protecting Muslim sensibilities 'against having their faith reviled and ridiculed in a scurrilous and contemptuous fashion': w.mcb.org.uk/MCB%Submission%20to%20Select%20Committee.pdf

l2 For seminal work in this area, see Strawson (1995).

340 GRIFFITH LAW REVIEW (2003) VOL 12 NO 2

Minority AssimilationlCulturaI Pluralism To some extent, the secularisation of Islam through liberal state institutions is essential for the incorporation of minority religious groups into the polity and for the creation of socially diverse societies. Law is one of the primary means by which such a religious reconstruction takes place.13 Western law effects this reconstruction by dividing Islam into concepts that exist in the modern world. Thus Islam is classified as religion, morality and law, categories which are 'separated in order to make them amenable to ordering by and within the modern legal system'.14 However, this classification conflicts with the fundamental nature of Islamic law, which does not necessarily mark out a strict delineation between these three categories. In addition, the notion of a clearly identifiable, bounded, homogenous 'Islamic law' is deeply problematic in the light of the complex differences that exist between the main schools of jurispmdence and the profoundly different historical and interpretive contexts within which these schools operate. However, by projecting Islamic law as a 'legal system' which functions side by side with other legal systems similarly conceived, Islamic law is endowed with a meaning which corresponds to a Western conception of legality.15

This has two significant results. First, a distortion occurs in that certain matters of Muslim etiquette, personal behaviour, morals and religious requirements, which are deemed to be concerns purely of individual conscience, become reformulated as inflexible rules under the rubric of a uniform Islamic law. These matters thus become the legitimate focus of state intervention and the possible enforcement of that rule by the state. Second, the legal ordering of religion is difficult if religion is not rendered into a form recognisable and amenable to the language of law. Thus law 'translates' religion16 from a matrix of practices, rituals and obligations - the public manifestations of private belief - into an array of specific rights which guarantee aspects of that religious belief. Consequently, each religion occupies a position in the legal domain where its constituent rights, claims and requirements are assessed and evaluated in relation to other rights, claims and obligations and a decision made as to whether to afford greater weight or priority to that right above other religious or secular rights. Therefore, law recognises Islam as 'a legal construction, an artefact of law',17 with the differences that characterise Muslim adherents accommodated within the legal domain and in this way brought within the scope of the liberal state. The notion of what constitutes an acceptable difference, of a core of universally 'shared values', is utilised to filter out those elements of religious practice deemed unworthy of legal protection. The key issue for Muslims in European

l3 Although, of course, law is not the only method by which such a reconstruction takes place.

j4 King (1995), p 108.

I I

l5 King (1985), p 108. 16 For a succinct summary of the 'translation' of religious rights into legal and

political discourse, see Schmidt (1999). l7 King (1995), p 11 1.

MIRZA: SACRED AND SECULAR BLASPHEMIES 34 1

societies is ascertaining which aspects of religious practice (difference) will be tolerated by the liberal state and which will be rejected. Interestingly, it is this exclusion which has created a particularly stimulating environment for Islam to effect internal change while still retaining its essentially religious identity and authority.

A number of different public policy approaches have been adopted over the years in response to ethnic minority migration to ~ritain." From 'absorption' and 'assimilation' at one end of the spectrum to 'pluralism', 'multiculturalism' and 'cultural diversity' at the other, there has been an increasingly diverse panoply of state initiatives introduced to address the general question of ethnic diversity and, specifically, religious pluralism. Broadly speaking, the British state has moved away from purely assimilationist policies propounded during the first stages of immigration,19 whereby the absorption of ethnic minority groups into mainstream culture - in which they surrendered the distinctive features of their own cultures and merged with mainstream society - was the main policy objective.*' The rationale behind the policy was to ensure a unified society in which cultural difference was eliminated so that ethnic minority groups were able to participate properly and effectively in all aspects of British life. It was clear, however, by the time of the advent of large groups of migrants from South Asia in the 1960s, that the assimilation approach was becoming untenable. At a practical level, policy- makers soon began to grasp the difficulties involved with the integration of groups of people who exhibited such profound differences from the majority population. The incoming Asian population exhibited differences on a far greater scale than previous Caribbean immigrants, with diversity in language, religious affiliation and cultural backgrounds making assimilation an unrealistic goal. At an ethical level, advocates of a liberal cultural pluralism argued that societal unity would be promoted by the formal recognition and facilitation of ethnic minority difference, and that 'unity through diversity' should be the ultimate aim of a formal policy of multiculturalism.

The conte~nporary attitude incorporates elements of both the assimilationist and the multicultural approach. There is also acknowledgment that, whilst the encouragement of cultural diversity - and religious pluralism

- -

18 For a comprehensive summary of the historical development of different policy approaches of the British government over ethnic minority participation, see Poulter (1998), Ch 1 generally. See also Modood et a1 (1997); Modood et a1 (1994); Modood (1994); Hiro (1991); Brown and Gay (1985); Brown (1984).

l9 The first post-1945 stage of immigration involved people originating mainly from the Caribbean. It was felt that assimilation was the most suitable policy for their successful absorption into mainstream British society, given that there were a number of common factors that united the migrant community with British society: their cultures were already substantially Anglicised; they spoke English; and they were, in the main, adherents of Christianity. It was felt that any cultural differences were minimal and that assimilation would quickly eliminate such minor differences: Poulter (1998), pp 14-15.

20 See Ballard (1994); Clarke et a1 (1990); Israel and Wagle (1993); Pearl and Menski (1998).

under the rubric of such diversity - is the express objective of contemporary state initiatives, the pluralist approach must operate within certain limits in order to 'maintain a cohesive society founded on shared fundamental value^'.^' Thus exceptions are established in cases where the majority's social values and norms take precedence and minority groups are expected to abandon their culturally different practices and conform (assimilate) to the 'shared' standards of society. The central issue, of course, is what constitutes these shared values and minimum standards, and to what extent - if priority is to be given to these standards - will the state allow exceptions to this overarching philosophy of cultural pluralism.22

Poulter addresses this problematic issue by drawing up a wide-ranging list of 'shared values'23 which includes democracy, the rule of law, natural justice, freedom of expression, religious toleration and the English language. However, Poulter also acknowledges that there is often a disparity between the acceptance of the abstract principle of a shared value and its practical manifestation and acceptance by individuals or groups. This necessarily militates against the notion of a societal consensus over a cogent set of shared values. In addition, Poulter contends that these values are by no means immutable and that they must remain open to change by the traditions and values of ethnic minority groups.24 Pearl and Menski critique this position as they ask 'who determines the criteria for what is acceptable and what is not?' and come to the inevitable conclusion that: 'Muslims would appear to have to renounce or modify certain beliefs and practices which are perceived to be contrary to the limits of acceptability as defined by the modern state.'25 In addition, the legal recognition of cultural and religious diversity has developed in an ad hoc and partial way, and this has led to a number of inconsistencies and contradictions -both in terms of approach and in results. Specifically, the courts have adopted divergent approaches when faced by legal claims for recognition by different ethnic minority groups, resulting in conflicting and incongruous decisions. Indeed, the law's response to Muslim demands demonstrates a particularly disjointed and confused approach to the issue of equal treatment towards ethnic minority communities. The explicit non- recognition of Muslims as a 'racial group' under the provisions of the Race Relations Act 1976 is the most striking instance of the exclusion of Muslims from official legal recognition.26 This has left Muslim communities feeling excluded and 'even victimised'" by the English legal system.

21 Poulter (1998), p 20. 22 For further analyses, see Poulter (1992); Montgomery (1992); Modood (1992). 2' Citing favourably Bhikhu Parekh's 'civil liberties' list in Parekh (1984), p 23. See

I

also Hervey (1993), p 123. 24 Poulter (1998), pp 22-26. 25 Pearl and Menski (1998), p 68; see also Murphy (2000). 26 Contrast this with the position of Sikhs and Jews who have been afforded

protection by the statute as members of a 'racial group': hfaudla v Dowell Lee [I9831 IRLR 209, HL; Siede v Gillette [I9801 IRLR 427. For the exclusion of Muslims under the Race Relatior~s Act 1976, see Ahmad v ILEA [I9781 1 All ER


Pearl and Menski are unequivocal in their critique of the 'shared values' approach: the arbitrary acceptance or rejection of ethnic minority legal claims by the state is 'for the sake of demonstrating and asserting political and legal power'.28 This approach is predicated upon an Orientalist relegation of Islamic law to the margins and the realm of 'customs' and 'exotic practices'. In a further Orientalist echo, the value system under Islamic law is viewed as deficient in effective human rights protection, particularly in areas such as gender equality. Thus the imposition of English law in these areas is characterised as necessary in order to 'protect' Muslims from their own inequitable rule systems. This argument is based upon the assumption that it is only ethnic minority customs that contravene shared values and that official English law is incapable of infringing such values. As Pearl and Menski contend, the reality of the differential treatment that ethnic minority communities are subjected to, either directly or indirectly sanctioned by English law, does not accord with this benign view of English law. The general thrust against official recognition of Islamic law is also due to a further factor. Pearl and Menski refer to the fact that colonial history continues to play a part in the marginalisation of Islamic law in Britain. They argue that contemporary debates about Islamic law in Europe are still underpinned by the colonial encounter and the 'persistent view that overseas concepts and values are inferior'.29 Thus, whilst it was legitimate to respect and uphold Islamic law for subjects under colonial rule, limitations on the application of such laws in contemporary British society are justified by invoking a false notion of the unity and uniformity of English law.30

The 'pluralism within limits' philosophy underpinning current state initiatives has led to a reconstruction of certain elements of Islamic law and practice. This 'secularisation' of Shari 'a also has its corollary in the manner in which English law has adapted its provisions to accommodate Muslim difference. It has been suggested that the English legal system is reasonably flexible in accommodating Muslim needs and that there is widespread parliamentary and judicial acceptance of the requirements of Muslim communities. In support of the latter part of this proposition, the decisions of courts in areas such as criminal law, the law of slander and tort law have been cited to illustrate judicial adaptability.31 Thus, in all these legal cases, it is clear that judges have explicitly taken into account the Muslim background of the parties involved and tailored their decisions accordingly. Pluralist tendencies can also be found in areas such as family law and employment law, and in the form of specific exemptions such as the slaughter of animals.32 On the other -- --

I 574, a case that progressed to the European Court of Human Rights: Ahmed v UK [I9821 4 EHRR 126.

27 Pearl and Menski (1998), p 71. 28 Pearl and Menslu (1998), p 68. 29 Pearl and Menski (1998), p 66. 30 Pearl and Menski (1998), p 66. 31 Poulter (1995), p 82. 32 Poulter (1997), p 49.


hand, the prohibition of child marriage, of polygamy33 and unilateral divorce, are some of the areas specifically affecting Muslims where the legal response evinces an assimilationist approach. In addition, there are other assimilationist legal provisions, most notably in the areas of immigration law and marriage and divorce procedures, that affect ethnic minority groups generally, and therefore encompass Muslim communities.

As mentioned above, the critical question for law is the extent to which the system of recognition of ethnic, cultural and religious diversity should extend to the legal sphere. Pearl and Menski outline two substantive approaches, both defined by differing degrees of hybridity. The first is the positivist approach, which has at its core the need to offer definitions of what constitutes law and what is not considered official law. This approach ignores what it terms as 'cultural practices' and relegates them to the sphere of the extra-legal. However, this attitude does provide space for the establishment of new hybrid rules, albeit at the unofficial level. In this way, official state law institutes a hierarchy with it at its apex and in a position to determine when and to what extent legal recognition is to be given to Muslim demands. The second approach is one whereby British Muslims have developed means by which official laws can be legitimately avoided.34 It appears that Muslims are following those aspects of English law they consider appropriate or not in direct conflict with Islamic precepts. Bracketing together Islamic obligations with those aspects of English law, a hybrid form of Shari'a is thus developed , which avoids breaching official law. This hybridised 'Angrezi Shari'at' remains unrecognised by official law, but is a potent and dominant force in many British Muslim c~mrnuni t ies .~~

Mapping these substantive approaches on to the assimilation/cultural pluralism matrix, it is clear that the form of legal hybridity that Pearl and

I Menski are describing is formed at the points where Muslim difference is denied by official state laws. Here, Muslim demands under the cultural pluralism framework are rejected and it is the limits or exceptions to this policy, in the form of assimilationist tendencies, that come into play. The recent failure of British Muslims to utilise the English law of blasphemy over The Satanic Verses appears to fall clearly into the assimilationist model outlined above. The attempts by Muslims to deploy the English law of blasphemy in order to suppress the publication of the book was characterised as a conflict with one of society's most inviolable 'shared' values: freedom of expression. The rejection by the courts to countenance granting Muslims

33 For a comprehensive survey of polygamy cases in the English courts, see Shah (2003).

34 In some cases, Muslims have developed regulatory obligations systems which are mechanisms internal to the community itself. The development of Shari'a courts applying Muslim law is the main means by which Muslims have managed to avoid official legal processes. This is particularly so in the areas of mamage, divorce, dowry, gift-giving, parental discipline, the transfer of property and childcare: see Yilmaz (nd).

35 This is a term coined by Pearl and Menski (1998). For an analysis of this form of legal hybridity in the context of marriage laws, see Mirza (2000).


protection in respect of the perceived blasphemy of The Satanic Verses appears to endorse an approach where there is no legal acceptance of Muslim difference. Thus Muslims are expected to assimilate unquestioningly to the notion of freedom of expression, and in challenging The Satanic Verses have been characterised as antagonistic to this core 'shared value'. The failure of English law to encompass a number of key Islamic values and principles delineates an increasing polarisation between the two legal cultures of English law and Shari 'a, leading to Muslims experiencing a greater sense of alienation within British society.36

The Concept of Hybridity The idea of cultures as fixed and unchanging is one that has little credibility in contemporary times. The concept of hybridity has thus been utilised to critique the notion of culture as bounded, homogenous and whole,37 and places the emphasis upon an internal heterogeneity of cultural mixtures and of new positions of identification. Hybridity refers to a process in which elements from disparate cultural origins are synthesised without the contradictions and differences between them being fully eradicated. The relationship between cultures is conceptualised as one that destabilises and subverts the hierarchies imposed on the differences between them. As such, hybridity is viewed as a revolutionary antidote to essentialist constructions of culture, identity and ethnicity. Marked as forcefully interruptive in its power to transform, it is also routine and unobtrusive, its occurrence inconspicuously quotidian. Contemporary discourses of cultural theory have asserted a number of paradigms capable of expressing the 'newness' of postmodern identity: from cyborg fusions to the organic creations of interstitial, 'in-between' spaces, with such spaces celebrated, rather than viewed as signs of failure. Hybridity's potential for inclusivity, particularly in the work of Homi Bhabha, is premised upon the existence of fissures, clefts and discontinuities which form the basis for the negotiation of difference. In this schema, hybridity is not merely an

3"ecent British studies substantiate the claim that Muslims feel increasingly alienated from mainstream British culture - see, for instance, Runnymede Trust (1997), p 1, which acknowledged that 'it is not always easy for Muslim citizens . .. to participate freely and fully in the economic, social and public life of the nation, while still being able to maintain their own culture, traditions, language and values'. Furthermore, it states (p 6) that there is a public perception that Islam does not measure up to the liberal values and expectations of the West and that Muslims are generally viewed as 'unenlightened and unsophisticated'.

37 However, in one important respect the idea of an abiding, immutable culture does have a particular contemporary resonance in that the recovery or regaining of such a culture is equated with the recovery of a lost authenticity - culture as a reservoir of 'purity'. Both migrant and host cultures tend to be represented with a peculiar emphasis on their allegedly uniform and unchanging cultural characteristics. This is surprising as far as the migrant culture is concerned Pieterse (1997), p 178 asserts that this is 'because migration is a travel experience and in most cultures travel is one of the central metaphors of change'. Or may migration also be viewed as a process of cultural conservation and reconstruction?

indexing of difference or a synthesis or fusion of a number of parts, but a matrix which contains the intersection or play of a number of different potent impulses. The concern of much contemporary theoretical discourse with the progressive potential of hybridity illustrates how little the stains of the past disturb present theorisations: hybridity's historical association with colonial ideologies and its deep inscription in the nineteenth century discourse of scientific racism38 illustrates the extent to which current celebrations conceal this contradictory past.

For Bakhtin, the encounter between two different linguistic consciousnesses within a text is one of the means by which the 'image of a language'" is created. By formulating the linguistic notion of 'hybridisation', Bakhtin develops an innovative nexus between the concept of hybridity and the politics of representation. Here, the dexterity of language is highlighted: language possesses a dialectical quality, an adroit capacity to be simultaneously the same and different and thus to produce utterances which are 'double-voiced'. This intentional conscious hybridity, the first of Bakhtin's models, is premised upon the notion of language as internally dialogic, and demonstrates the subversive nature of language. Linguistic hybridity, in this register, becomes a device of resistance and critique by ironising and unmasking the 'monological language of a~thority'.~' Unintentional, 'organic' hybridity, the second of Bakhtin's models, is the primary method by which language evolves. This demonstrates how the mixing and fusion of language are the result not of contestation but of an imperceptible amalgamation in which 'the mixture remains mute and opaque, never making use of conscious contrasts and oppositions'.41 In this model, language evolves through unreflective borrowings, and the incorporation of new words and images occurs unconsciously, without interrupting the sense of order and continuity within a language. The application of this model to culture, for Young, embodies the notion of 'creolisation [or] metissage, the imperceptible process whereby two or more cultures merge into a new mode'.42

The Bakhtinian models, characterised chiefly by a powerful dialectical movement, provide an important model for cultural interaction. Intentional hybridity gives rise to the dialogic contestation of two points of view, a conflictual structure which preserves an element of openness, whilst organic hybridity involves a melding or fusion, which in turn creates a new language. Thus, in its concrete social dimension, organic hybridity provides the historical foundation upon which aesthetic hybrids are created and which disrupts, challenges or subverts by the calculated and intentional merging of dissimilar languages and images. Such aesthetic hybrids correspond to intentional rather than organic hybridity and, because they are powered by an inner dialogical

38 For a stimulating survey of the history of hybridity, see Young (1995). 39 Bakhtin (1981), p 358. 40 Papastergiadis (1997), p 267. 41 Bakhtin (1981), p 360. 42 Young (1 995), p 2 1.


movement, result in a 'fusing [of] the u n f ~ s a b l e ' . ~ ~ It is 'intentional hybridity' which, Young claims, Homi Bhabha favours in his analysis of subversive aesthetic forms and casts as the 'blasphemy' of The Satanic Verses.

Bhabha transmutes Bakhtin's intentional hybrid into a powerful instant of defiance and opposition against a presiding cultural force. His concept of the 'Third Space', which is the precondition for the expression of cultural difference, is 'unrepresentable in itself, [and] constitutes the discursive conditions of enunciation that ensure that the meaning and symbols of culture have no primordial unity or fixity; that even the same signs can be appropriated, translated, rehistoricized and read anew'.44 Thus the 'Third Space' 'opens up a cultural space ... where the negotiation of incommensurable differences creates a tension peculiar to borderline existence^'.^^ Hybrid identity is not created in a cumulative manner in which different 'totalizing, transcendental ident i t [ ie~] '~~ combine to create an amalgam, but rather by displaying the paradoxical elements of separateness and of unity, 'hybrid hyphenations emphasise the incommensurable elements - the stubborn chunks - as the basis of cultural identification^'.^' Consequently, hybridity is generated from the double movement of displacement and congruity in the performance of translation and the hybrid is formed not out of excavation and transferral of foreignness into the familiar, but out of this awareness of the untranslatable bits that linger on in t r an~la t ion .~~

Hybridity and The Satanic Verses In The Location of Culture, Bhabha uses this framework to address the question of blasphemy that was levelled at The Satanic Verses. In his detailed analysis, Bhabha elevates the role of art to a new level. He claims that the creation of The Satanic Verses:

creates a sense of the new as an insurgent act of cultural translation. Such art does not merely recall the past as social cause or aesthetic precedent; it renews the past, refiguring it as a contingent 'in-between' space, that 'innovates and interrupts the performance' of the present. 49

In invokih the romantic trope of the self-made individual, Bhabha stresses the potential of migrants to repeatedly reinvent themselves in the postcolonial situation of cultural hybridity as a positive development. However, in basing the survival of the migrant on the process of cultural translation, thereby celebrating what he sees as the inherently beneficial power of hybridity,

43 Werbner (1997), p 5. 44 Bhabha (1994), p 37, my emphasis. 45 Bhabha (1994), p 218. 4Qhabha (1994), p 219. 47 Bhabha (1994), p 219. 48 Papastergiadis (1997), p 279. 49 Bhabha (1994), p 6.

Bhabha misrepresents the notion of blasphemy contained in the book. For him, the 'blasphemy' of The Satanic Verses is embodied in its representation of the indeterminacy of diasporic identity and the social and expressly non-religious causes of this indeterminacy. Thus the 'blasphemy' of the text is contained in its depiction of hybridity: 'blasphemy . . . is a moment when the subject matter or the content of a cultural tradition is being overwhelmed, or alienated'.50

However, this act of translation, and the concomitant 'newness' that it creates in the form of cultural hybridity, is premised not only upon a particular, non-religious understanding of blasphemy but, more importantly, upon a notion of the Muslim migrant as one who belongs to a 'pure', 'fundamentalist' Islamic cultural tradition which abhors and rejects hybridity. As such, this is predicated upon an essentialised interpretation of Islam as a 'backward', homogeneous entity, reactionary and conservative in its reliance upon sacred tradition. That this is a gross misrepresentation of the Muslim migrant, who belongs to a religious tradition which can boast as much syncretism and hybridity as Bhabha affords to the migrant characters created in The Satanic Verses, reveals the narrow focus of Bhabha's analysis. By honouring individual creativity and invention in the hybridity created only in such literary texts and other creative works of high culture:' his analysis fails to address the question of 'how the novel and the novelist are socially situated vis-a-vis the constituencies they supposedly represent or write for'.52

In such cultural transmigrations, the border-crossers appear to be intellectuals, writers or artists who are involved in the project of displacement and disjuncture, of transition and transcendence. But, as Friedman asks, 'who reads the poetry, and what are the other kinds of identification occurring in the lower reaches of social reality?'53 If the scope of his analysis was broadened to encompass this wider perspective - a which goes beyond literary representations to the social, political and economic contexts in which they are embedded - the hybridity that Bhabha identified in the text would be distllaced bv the reaction of certain South Asian Muslims in British societv and the opposiig reactions of the cultural elites who read and celebratzd the contents of The Satanic Verses. In identifying hybridity in artistic forms such as The Satanic Verses. I would contend that Bhabha's identification of instances of 'newness' is located in the production of literary characters who bear no resemblance to, and have no resonance for, the vast numbers of Muslim migrants that Bhabha connects them to. As such, Bhabha completely disregards the primary, the most fundamental manner in which many Muslim migrants identify themselves: at the apex of their identity is their self- definition as ~ u s l i m s . ~ ~

50 Bhabha (1994), p 225. 51 Hanif Kureishi's (1995) The Black Album is also an example of a text which

attempts to grapple with the same problems. 52 van der Veer (1997), p 103. 53 Friedman (1997), p 79. 54 This is certainly true of the vocal minority of British Muslims who launched the

protests against The Satanic Verses and characterised themselves (and were, in


A study of these reactions exposes the further entrenchment and polarisation of those antagonistic binarisms that Bhabha was so quick to jettison in his call to hybridity: the sharpening of moral oppositions between Islam and the West. This interpretation reveals the limits of cultural hybridity and how anti-hybrid, essentialising discourses which emphasise cultural boundedness, ethnicity, and even racism and xenophobia, are produced in the name of a subversive aesthetic hybridity.55 As mentioned above, this is compounded by the reactions of the British courts and the European Court of Human Rights to claims brought by Muslims under the law of blasphemy. The decisions of the courts demonstrate a distinct polarisation between English law and Muslim conceptions of blasphemy - Islamic conceptions of blasphemy are viewed as deeply antithetical to the state legal formulation. They also demonstrate how the assimilationist approach by the courts to the question of Islamic blasphemy, based as it is on a contrived set of 'shared values', has led to the failure of the creation of any form of legal hybridity in this area.

Blasphemy and the Law Even the most cursory examination of blasphemy in Islamic law and in English law reveals that the conceptions of blasphemy embodied in these two categories of law are very different and distinct. Writing about blasphemy in Islamic law, Al-Azmeh begins by striking a cautionary note. There are two main problems associated with defining a precise notion of blasphemy in Islamic law. First, it is not possible to speak of a coherently whole and uniform corpus of Islamic law, universally applicable to all Muslims. The multiplicity of Islamic cultures - not least of all the fundamental schism that exists between Sunni and Shi'a Islam - and the attendant diverse forms of Islamic law make it difficult to define Shari'a as an homogenous and clearly delineated code. Thus, as Al-Azmeh asserts, 'the frequently heard call for its "application" is meaningless'.56 Second, Islamic law is predominately private in nature and consists largely of huquq al- 'ibad, the rights of persons. In contrast, the smaller category of public law consists of huquq Allah, those

some instances, characterised by the media) as representing all Muslims. Those who identify themselves as 'Muslims' are a diverse and heterogeneous group and include not only those who are practising, but also those who are non-practising and non-observant.

55 Spivak (1997), p 258 also comments on how the preoccupation with hybridity has tended to overlook constant social divisions of both gender and class.

56 Al-Azmeh (1993) is highly critical of the manner in which blasphemy has been appropriated by certain section of the Muslim community in its pursuit of Salman Rushdie. Thus, he argues, 'any consideration of the question of blasphemy or of heresy, be it that of Mr Rushdie or of others, must first face the historical irrelevance of this task, and must also be cognizant of its technical impossibility in the very terms of the Islamic legal corpus' (p. 14). See also An-Na'im (1986). For an alternative view, see Akhtar (1989). However, as Al-Azmeh (1993), p 13 concedes, 'there does exist a hard core of dogmas which are universally held and which have 'solidified' and found expression in the main schools of Islamic jurisprudence.

duties and obligations that are incumbent upon Islamic states but have no 'extraterritorial competence' - that is, do not have application outside the parameters of Muslim societies. Under the rubric of public law, the state has a duty to maintain the Muslim body politic through internal scrutiny and the quashing of 'ideological sedition', which includes such matters as unbelief, apostasy and blasphemy. In addition, the concept of blasphemy has also had different meanings in differing historical contexts.

Ayatollah Khomeini's fatwa against Salman Rushdie, issued in 1989, was founded on his belief that The Satanic Verses was blasphemous and that Rushdie was guilty of apostasy. Basing his edict on Sura 5, verse 34 of the ~ u r ' a n , ' ~ Khomeini opined that, as the violent protests against the publication of the book had caused the death of Muslims across the world. The Satanic Verses also constituted aggression against Islam, the Prophet Muhammad and the Qur'an. This offence, which is viewed as challenging the roots of Muslim existence, was punishable by death. The fatwa also denied Rushdie the opportunity of repenting or the of the death sentence being repealed. Although Khomeini's fatwa was accepted by many Muslims as an authoritative statement of law, there were others who declined to accept the content and validity of the opinion. Fundamental differences of opinion arose5* around such issues as whether the death penalty was the correct sanction to impose; whether a Muslim could be sentenced without the due process of a full and fair trial; and whether Rushdie's subsequent repentance sanctioned the annulment of the fatwa. Serious differences over jurisdictional issues were also raised as, for most Sunni Muslims, Islamic law is applicable only within Islamic states and has no application in non-Muslim societies. In contrast, Shi'a Islam extends the application of Islamic law to non-Muslim states. It is important to note that, although there are fundamental differences between Islamic and English legal conceptions of blasphemy, in the cases brought by Muslims in the British courts, there was little detailed discussion of Muslim notions of blasphemy. As there is no official recognition of Islamic law in this area, Muslims were forced to utilise the English law of blasphemy.59

Historically, the offence of blasphemy in English law constituted one of the four branches of criminal libel, along with obscenity, sedition and defamation. According to Blackstone, blasphemy was defined as being disrespectful to God and could be manifested by 'denying His being or

57 'The appropriate penalty for those who wage war against Allah and his Messenger and run about in the land creating disorder is that they be slain or crucified or their hands and their feet be cut off on alternate sides, or they be expelled from the land. That would be a disgrace for them in this world, and in the Hereafter they shall have a great punishment ...' The Quu'an Sura 5: 34-35, translation by Khan (1981).

58 Particularly from Sunni dissenters such as the Grand Sheikh of Al-Azhar University: see Slaughter (1993), p 175.

59 See also Jones (1980); Poulter (1991); Ghandi and James (1998); Law Commission (1985); Pannick (1995); Bryan (1 999).


providence; or by contumelious reproaches of our Saviour ~ h r i s t ' . ~ ' Initially, the crime was associated with sedition, as attacks on God were viewed as attacks on the state and the established social order and jurisdiction for such cases was transferred from the ecclesiastical courts to the common law courts in the seventeenth century. The first reported prosecution for blasphemy was in the 1676 case of R v Taylor, in which Chief Justice Hale set the foundation for the offence by pronouncing that 'Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law'.61 The offence remained largely unchanged until the nineteenth century, when it began a process of transformation which has defined blasphemy to the present day. In a line of cases, a clear distinction was made between the substance of the utterance and the style in which it was uttered. Crudely, a fondcontent split was established which allowed dissent and the denial of Christian doctrine, so long as it was expressed in temperate and decent tones that would not 'insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live'.62 As Post argues, the former definition of blasphemy was a paradigmatic example of assimilationalist law in that it was an attempt by the dominant Christian majority to extend or impose its values upon society, regardless of marginal or subordinate groups.63

Following the restrictions imposed on the concept of blasphemy in the above cases, the twentieth century saw a significant decrease in the number of prosecutions brought. The most noteworthy case to appear before the courts was the successful prosecution of Gay News in the late 1970s, which involved the publication of an illustrated poem depicting Christ indulging in homosexual acts.64 The case had a protracted history, progressing through the appeal courts and was finally heard in the House of Lords which, by a narrow majority (three to two), upheld the conviction for blasphemy. The most interesting judgment was delivered by Lord Scarman, who advanced an argument for the development of blasphemy law to take into account the cultural and religious diversity of British society. Although he accepted the constitutional limitation that the judiciary could not expand the common law crime of blasphemy, he urged parliament to introduce legislation to extend the common law and protect the feelings of non-Christians. In a strongly worded judgment, he argued that 'in an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing beliefs, feelings

" Blackstone (1859). The statutory offence of blasphemy under the Blasphemy Act 1697 was repealed by section 13 and Schedule 4 Part 1 of the Cviminal Law Act 1967.

61 23 (1676) 1 Vent 293 at 293. 62 Regina v Bradlaugh 15 Cox CC 23 1,236 (1 883), following after R v Hetherington

(1840) 4 St TR (NS) 563. This position became entrenched in the later case of R v Ramsay and Foote (1883) 15 Cox CC 231.

63 Post (1988), p 308. 64 R v Lemon; R v Gay News Ltd [I9781 3 WLR 404 (CA); Whitehouse v Lemon

[I9791 2 WLR 281 (HL); Gay News Ltd v UK (1982) 5 Eur. Comm. H.R. 123.

- pp - - - -


and practices of all but also to protect them from scurrility, vilification, ridicule and contempt'.65 Drawing upon history, Scarman cited approvingly Lord ~ a c a u l e ~ ' s ~ ~ comments in the nineteenth century that as India was a pluralist society, the law of blasphemy should apply to all religious groups ('If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque').67 Consequently, Scarman argued: 'In those days India was a plural society; today the United Kingdom is also ... My criticism of the common law of blasphemy is not that it exists but that it is not sufficiently comprehensive. It is shackled by the chains of history.'6*

Scarman's efforts to extend blasphemy law in this manner were predicated upon a pluralist rather than an assimilationist basis. However, as Post argues, there is a substantial flaw in this contention as Scarman's opinion assumes that all religious groups retain a common understanding of 'outrage and insult' against their religious beliefs. This understanding itself reflects , particular cultural values, and does not contain a mechanism to determine how different religious groups may experience such outrage and insult. Scarman's opinion therefore implicitly presupposes that religious groups should tolerate disagreement if conducted in a temperate and sober style and, as Post argues: 'Despite the purity of Scarman's pluralist intentions, his effort paradoxically rests on a quintessentially assimilationist value.'69 Thus the pluralist objective of creating a legal framework which is based upon the value of tolerance may result in the imposition of this value on those religious groups who do not share it. Even if other groups share a basic level of understanding over notions such as respect and tolerance, definitive and authoritative meaning will be given to these terms by legal institutions, who will not necessarily understand the nuanced and variable interpretations that different religious groups attribute to such values.

The law of blasphemy again fell into disuse until the advent of the 'Rushdie affair' and the ensuing cases in the early 1990s.~' The controversy over the publication of The Satanic Verses gave rise to considerable debate over the nature, scope and application of the law of blasphemy. The question of whether blasphemy applied to religions other than Christianity - a question that could only be alluded to by Lord Scarman in the Gay News case as a secondary issue - finally received direct judicial consideration. The first of the two cases brought after the publication was an application brought on behalf of the Muslim Action Front for summonses for the private prosecution of Rushdie and the publishers, Viking Penguin, on the two grounds of blasphemous libel and seditious libel. The Magistrates Court rehsed the

65 R v Lemon (1979) AC 617 at 658. 66 Legal Adviser to the Supreme Council of India 1834-38. 67 Quoted in Post (1988), p 3 12. 68 R v Lemon (1979) AC 617 at 658. 69 Post(1988),p313. 70 The substantive judicial review cases were heard in 1990 after the refusal of the

Magistrates Court, on 13 March 1989, to refuse to issue the summons. Leave to apply for judicial review against this decision was granted on 19 June 1989.

MIRZA: SACRED AND SECULAR ~ L A S P H E M ~ E S 353

I application, after which a claim for judicial review of the decision was instigated.71 The main ground relied upon, blasphemous libel, revolved around

! two principal arguments. First, the applicant tried to establish that the law of blasphemy covered all the three major religions of Islam, Christianity and I Judaism, and that the publication of the book was a blasphemous libel against

I Allah, Islam, Abraham, the Prophet Muhammad and his wives and I companions. The main thrust of the argument was that the court should

interpret the offences in light of the religiously diverse nature of British society. Thus an indecent and offensive attack on scriptures, sacred persons or objects, coupled with the effect of injuring the feelings of the general community, constitutes blasphemy. The word 'scriptures' was to be interpreted to include not only Christianity, but also Islam and Judaism. After reviewing a number of key cases, Watkins LJ stated categorically that such an interpretation was incorrect and that the law of blasphemy clearly only protected Christianity.

In addition, the applicant cited judicial data that the law of blasphemy should be extended to cover other religions. In support of this, he cited Lord Scarman's favourable comments in the Gay News case, supporting the extension of the law of blasphemy. In fbrther support of this contention, the applicant cited Judge King-Hamilton, the trial judge in the case, who asserted that he would be 'prepared to extend the definition to cover similar attacks on some other religion, as we have now become a multi-religion state'.72 However, Watkins LJ again rejected this argument as he asserted that the

- - - - -

'I R v Chief Metropolitan Stipendiary Magistrate exparte Choudhury [I9901 3 WLR 986. See Tregilgas-Davey (1991) for a commentary on this case. The second case brought by Muslims was a judicial review of the Magistrates Court's refusal to issue a summons for the prosecution of the publishers under the Public Order Act 1986. The case revolved around whether the publication and distribution of The Satanic Verses would result in 'immediate violence' within the meaning of s 4(1) of the Public Order Act 1986, with the magistrates refusing the summons on the basis that, as the applicant has not alleged 'immediate unlawful violence', the claim would be unsuccessful. In the Divisional Court, the applicant harnessed s 6(3) as well as s 4(1) of the Public Order Act 1986 in order to argue that Rushdie had intentionally or maliciously published the book with the knowledge that it would provoke or cause violence. The fact that the violence would not necessarily be immediate was not a sufficient reason to allow Rushdie to escape liability under s 4(1). Any narrower interpretation of s 4(1) would defeat one of the main purposes of the public order legislation, namely, to protect groups from racially motivated attack or publication of materials which insult racial groups or invite violence against such groups. Consequently, the right to freedom of expression is not limitless and is restricted to the extent that insulting or abusive material that may provoke violence should be prohibited. Watkins LJ, who had delivered the main judgment in the case of R v Chief Metvopolitan Stipendiary Magistrate ex parte Choudhury, decided to uphold the decision of the magistrate on the ground that no 'immediate violence' was alleged: R v Horseferry Road Metropolitan Stipendiary Magistrate, exparte Siadatan [I9911 1 All ER 324.

72 Quoted in R v Chief Metropolitan Stipendiary Magistrate ex parte Choudhury [I9911 1 All ER 306 at 315.

I 354 GRIFFITH LAW REVIEW (2003) VOL 12 NO 2

comments were not repeated in the judge's summing up and received no support in the Court of Appeal or the majority decision of the House of Lords. He also cited favourably the majority recommendation of the Law Commission to abolish the offence of blasphemy because of the difficulties and problems that any extension of the law would give rise to. The main problems the Law Commission envisaged were that it would be difficult for the judiciary to set the parameters of any offence of blasphemy if it were to be extended. Second, there are definitional problems as it would be difficult to determine whether certain beliefs should be sanctioned as religions and protected from unacceptable attack.

The second main argument advanced by the applicant was that, if no remedy was available to religious groups outside Anglican Christianity, this anomalous position should be rectified by the courts by extending the law of blasphemy to include other religions. The applicant utilised Article 9, freedom of religion,73 and Article 14, freedom from dis~rimination,~~ of the European 1 Convention on Human Rights and contended that, if the right to freedom of religion for Muslims was not protected from sacrilegious attack and blasphemous libel, the state would be in breach of both Articles 9 and 14. The applicant relied on the grounds of religion and race in Article 14 to assert that the lack of a remedy available to Muslims for blasphemy constituted differential treatment and thus religious and racial discrimination. Viking Penguin counter-argued by asserting that Rushdie's rights under Article 7, which prohibits the imposition of retrospective offences, and Article 10, freedom of expression, would be breached if future publication of The Satanic Verses was suppressed.

Two main contentions constituted Viking Penguin's argument under Article The first was that the freedom of expression guaranteed by Article 10 prevented the court from restricting Rushdie's right to hold opinions and to

73 '1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.'

74 'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.' Article 14 can only be used in tandem with another, substantive Article of the Convention.

75 'The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.'

L


impart those opinions in the form of the book he published. Turning to the restrictions imposed under Article 10(2), it was argued that none of these limitations justified the restriction of Rushdie's and Viking Penguin's right to publish The Satanic Verses. Furthermore, freedom of expression was an integral aspect of any democratic society and any interference with this well- founded right would deliver a fatal blow to the structure of free democratic societies and the value system upon which they were founded. The court accepted these arguments and stated unequivocally that: 'We have no doubt that as the law now stands it does not extend to religions other than ~hr i s t i an i ty . '~~ The assertion that the law of blasphemy should be extended to cover Islam on the basis that it was currently discriminatory was rejected by the court on the ground that, where the law is clear and certain, the courts have no jurisdiction to expand the law. This is particularly so in criminal cases where there is a prohibition against the creation of retrospective offences. The Court decided that any extension of the law, if applicable, should be introduced by parliament alone.

Muslims were also unable to gain any substantive relief in the European arena, as the case of Choudhury v U K ~ ~ demonstrates. The applicant petitioned the European Commission of Human Rights that Islam and the Prophet Muhammad had been subjected to abuse and scurrilous attack. As such, the limited application of the law of blasphemy had resulted in the failure of the United Kingdom to protect British Muslims against such attack, thereby restricting their right to freedom of religion under Article 9, which also amounted to discrimination under Article 14 of the European Convention on Human Rights. The Commission was unwilling to entertain the claim and found that legal remedies are not guaranteed by Article 9 in respect of any scurrilous abuse against Islam. The Commission held that the fact that The Satanic Verses was an attack upon the applicant's faith did not impose a positive obligation upon the state to provide a remedy against either the author or the publishers of the book. In a detailed critique of this decision, Jones and Welhengama assert that the European Commission was mistaken in its judgment and that Article 9 impliedly contains an instruction on all to refrain from insulting or abusing the religious feelings of others. Therefore, if an individual should indulge in such conduct, and others suffer as a consequence, a legal remedy should be available to those who have been subjected to this b e h a v i ~ u r . ~ ~ Furthermore, they contend that Convention rights are to be afforded without discrimination on the grounds contained in Article 14. Thus the combined effect of Articles 9 and 14 is to remove differential treatment between religious groups so that all groups may enjoy the right to religious

76 R v Chief Metropolitan Stipendiary Magistrate ex parte Choudhury [I9911 1 All ER 306 at 318.

77 (1991) 12 HRLJ 172. For comprehensive analyses of cases decided by the European Court of Human Rights, see Evans (2001).

7 8 Jones and Welhengama (2000), p 209. See also Taylor (2001), who argues that the European Court of Human Rights has generally allowed states a wide margin of appreciation under Article 9 for interference in religious expression.

freedom in an equal manner and without discrimination. The failure of the judiciary to extend the law of blasphemy to Muslims contravenes this obligation. As Poulter argues, it is difficult to see how Muslims are able to enjoy the right to freedom of religion 'if the state allows religious beliefs to be vilified and insulted in a gratuitous manner'.79

The consensus of opinion in the courts over the lack of protection for Muslim claims of blasphemy was further compounded in the European Court of Human Rights case of Wingrove v UK.~' The applicant was the director of a film, Visions of Ecstasy, which was refused a classification by the British Board of Film Classification (thus prohibiting public distribution of the film) on the ground that it infringed the English law of blasphemy. The Court accepted that the Board's decision to ban the film on the basis that it contained images, particularly those depicting the crucified figure of Christ, which could fall within the scope of the offence of blasphemy, was justified. The applicant's main argument hinged on his right to freedom of expression contained in Article lox1 of the European Convention on Human Rights. It was claimed that, by failing to grant a certificate for the distribution of the film, the United Kingdom had breached the applicant's right under Article 10. The United Kingdom argued that this limitation was justified under Article lO(2) as necessary to 'protect the rights of others' in relation to indecent and provocative material, deemed to be an attack on sacred Christian traditions. This argument was accepted in its entirety by the Court, which decided in favour of the United Kingdom. A subsidiary argument deployed by the applicant was that the law of blasphemy was a discriminatory law, limited to the protection of Christians, and specifically those of the Anglican faith. In considering the ambit of this area of the law, the Court stated that:

the English law of blasphemy only extends to the Christian faith. Despite the anomaly of this state of affairs in a multidenominational society, it is not for the European Court to rule in abstract0 as to the compatibility of the domestic law with the Convention ... The uncontested fact that the law of blasphemy does not treat on an equal

- --

79 Poulter (1991) p 376. 80 (1997) 24 EHRR 1. See also the earlier employment case ofAhmed v UK (1981) 4

EHRR 126. '1. Everyone has the right to freedom of expression . . . This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of those freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.'


footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context.''

Thus, although there was limited judicial understanding of the wide gap between the multi-faith nature of British society and the discriminatory application of the law of blasphemy, the Court granted the United Kingdom a wide margin of appreciation in sanctioning the continued use of such law.

Conclusion The relationship between English law and Islamic law can be categorised in terms of three models, all of which can be located on a spectrum which posits assimilationlabsorption at one end and pluralism/multiculturalism at the other. The first model consists of cases where the accommodation of Muslim difference is incorporated into the fabric of official law. An example of this is the religious slaughter of animals, where a pluralistic view has been taken in sanctioning this Islamic dictate. The second depicts the creation of hybridity, where there is no official recognition of Muslim conduct or behaviour, but there is some form of synthesis between the two legal cultures. Pearl and Menksi's description of an emerging Angrezi Shari'at, identifiable in such areas as marriage, clearly falls into this area. This has elements of both the pluralist and assimilationist models in that there is no formal recognition of Muslim difference (assimilation), but Muslim behaviour is tolerated at the margins of state law (a form of legal pluralism). Finally, the third model consists of the rejection of Muslim difference by the state; it is this assimilationist rationale which underpins the state's refusal of Muslim claims under the law of blasphemy. Such rejections are based upon an understanding of Muslim demands as not according with one of society's 'shared values'. This is itself based upon an essentialised view of Muslims similar to the portrayal of Muslims by Bhabha in his celebration of the cultural hybridity of The Satanic Verses. Bhabha's characterisation of Muslims as unable to understand and accept the concept of cultural hybridity is based upon a view of Islam as reactionary, bounded and 'backward', a colonial depiction that has a strong resonance in contemporary times. The blasphemy cases outlined above demonstrate the discriminatory nature of the state's refusal of Muslim demands for legal recognition, and the extent to which Orientalist depictions of Islam continue to underpin that response.

References

Secondary Sources Syed Abedin and Zia Sardar (1995) Muslim Minorities in the West, Grey Seal. Akbar Ahmed and Hastings Donnan (eds) (1994) Islam, Globalization and

Postmodernity Routledge. Shabir Akhtar (1989) Be Careful With Muhammad, Bellew.

82 Wingrove v UK (1997) 24 EHRR 1 at 28, my emphasis.


Aziz Al-Azmeh (1997) 'Muslim "Culture" and the European Tribe' 19 Women Living Under Muslim Laws Dossier 7.

Aziz Al-Azmeh (1 993) Islams and Modernities, Verso. Abdullahi A An-Na'im (1986) 'The Islamic Law of Apostasy and its Modem

Applicability' 16 Religion 197. Lisa Appignanesi and Sara Maitland (eds) (1989) The Rushdie File, Fourth Estate. Arjun Appadurai (1996) Modernity at Large: Cultural Dimensions of Globalization,

University of Minnesota Press. Tala1 Asad (1993) Genealogies of Religion, John Hopkins University Press. Mikhail Bakhtin (1981) The Dialogic Imagination, University of Texas Press. Roger Ballard (1994) Desh Pradesh: The South Aslan Experience in Britain, Hurst. Homi K Bhabha (1994) The Location of Culture, Routledge. Chetan Bhatt (1999) 'Ethnic Absolutism and the Authoritarian Spirit' 16 Theovy,

Culture and Society 65. William Blackstone (1859) Commentaries on the Laws of England, JB Lippincott. Colin Brown (1984) Black and White Britain: The Third PSI Study, Heinemann. Colin Brown and Pat Gay (1985) Racial Discrimination: 1 7 Years After the Act, Policy

Studies Institute. Ian Bryan (1999) 'Suffering Offence: The Place, Function and Future of the Blasphemy

Laws Revisited' 4 Journal of Civil Liberties 332. Gayatri Chakravorty Spivak Outside in the Teaching Machine, Routledge. Colin Clarke et a1 (eds) (1990) South Asians Overseas Migration and Ethnicity,

Cambridge University Press. Phil Cohen (1999) 'Rethinking the Diasporama' 33 Patterns of Prejudice 3. Commission for Racial Equality (1990a) Law, Blasphemy and the Multi-Faith Society,

CRE. Commission for Racial Equality (1990b) Free Speech, CRE. Commission for Racial Equality (1990~) Britain: A Plural Society, CRE. Carolyn Evans (2001) Freedom ofReligion Under the European Convention on Human

Rights, Oxford University Press. Silvio Ferrari and Anthony Bradney (eds) (2000) Islam and European Legal Systems,

Ashgate. Jonathan Friedman (1997) 'Global Crises, The Struggle for Cultural Identity and '

Intellectual Porkbarrelling: Cosmopolitans Versus Locals, Ethnics and Nationals in an Era of De-Hegemonisation' in Pnina Werbner and Tariq Modood (eds) Debating Cultural Hybridity, Zed Books.

Sandy Ghandi and Jennifer James (1998) 'The English Law of Blasphemy and the European Court of Human Rights' EHRLR 430.

I Bob Hepple and Erika Szyszczak (eds) (1992) Discrimination: The Limits of Law,

Mansell. Tamara Hervey (1993) 'Which Rights? Whose Rights? The Identification and

Protection of Minorities in British Law' in John Packer and Kristian Myntti (eds) The Protection of Ethnic and Linguistic Minorities in Europe, Abo Akademi University Institute for Human Rights.

Dilip Hiro (1991) Black British, White British, Grafton Books. Fatima Hussain and Margaret O'Brien (2000) 'Muslim Communities in Europe:

Reconstruction and Transformation' 48 Current Sociology. Milton Israel and Narendra Wagle (eds) (1993) Ethnicity, Identity, Migration: The

South Asian Context University of Toronto Press. Peter Jones (1980) 'Blasphemy, Offensiveness and Law' 10 British Journal of Political

Science.


Richard Jones and Gnanapala Welhengama (2000) Ethnic Minorities in English Law, Trentham Books.

Zafar Khan (2000) 'Muslim Presence in Europe: The British Dimension - Identity, Integration and Community Activism' 48 Current Sociology 29.

Muhammad Zafrullah Khan (trans) (1981) The Qurhn, Curzon Press. Michael King (ed) (1995) God's Law Versus State Law: The Construction of an Islamic

Identity in Western Europe, Grey Seal. Hanif Kureishi (1995) The Black Album, Faber and Faber. Law Commission (1985) Ofences Against Religion and Public Worship, Law

Commission, No 145, HMSO. Bernard Lewis and Dominique Schnapper (eds) (1994) Muslims in Europe, Pinter. Qudsia Mirza (2000) 'Islam, Hybridity and the Laws of Marriage' 14 Australian

Feminist Law Journal 1. Tariq Modood (1990) 'British Asian Muslims and the Rushdie Affair' 61 Political

Quarterly 143. Tariq Modood (1992) 'Cultural Diversity and Racial Discrimination in Employment' in

Bob Hepple and Erika Szyszczak (eds) Discrimination: The Limits of Law, Mansell.

Tariq Modood et a1 (1994) Changing Ethnic Identities, Policy Studies Institute. Tariq Modood (1994) Racial Equality: Colour, Culture and Justice, Institute for Public

Policy Research. Tariq Modood et a1 (1997) Ethnic Minorities in Britain: Diversity and Disadvantage,

Policy Studies Institute. Tariq Modood (1998) 'Anti-Essentialism, Multiculturalism and the "Recognition" of

Religious Groups' 6 The Journal ofPolitica1 Philosophy 376. Tariq Modood and Pnina Werbner (eds) (1997) The Politics of Multiculturalism in the

New Europe: Racism, Identity and Community, Zed Books. Jonathan Montgomery (1992) 'Legislating for a Multi-Faith Society: Some Problems of

Special Treatment' in Bob Hepple and Erika Szyszczak (eds) Discrimination: The Limits of Law, Mansell.

John Murphy (ed) (2000) Ethnic Minorities, Their Families and the Law, Hart. Jorgen Nielsen (1993) Emerging Claims of Muslim Populations in Matters o f Family

Law in Europe, Centre for the Study of Islam and Christian-Muslim Relations. Ayse Oncii and Petra Weyland (eds) (1997) Space, Culture and Power, Zed Books. John Packer and Kristian Myntti (eds) (1993) The Protection of Ethnic and Linguistic

Minorities in Europe, Abo Akademi University Institute for Human Rights. David Pannick (1995) 'Religious Feelings and the European Court' Public Law 7. Nikos Papastergiadis (1997) 'Tracing Hybridity in Theory' in Pnina Werbner and Tariq

Modood (eds) Debating Cultural Hybridity, Zed Books. Bhikhu Parekh (ed) (1984) Colour, Culture and Consciousness, Allen & Unwin. David Pearl and Werner Menski (1998) Muslim Family Law, Sweet & Maxwell. Jan Nederveen Pieterse (1997)'Travelling Islam: Mosques Without Minarets' in Ayse

Oncii and Petra Weyland (eds) Space, Culture and Power, Zed Books. Robert C Post (1988) 'Cultural Heterogeneity and Law: Pornography, Blasphemy, and

the First Amendment' 76 California Law Review 297. Sebastian Poulter (1998) Ethnicity, Law and Human Rights, Clarendon Press. Sebastian Poulter (1997) 'Muslim Headscarves in School: Contrasting Legal

Approaches in England and France' OJLS 43. Sebastian Poulter (1995) 'Multiculturalism and Human Rights for Muslim Families in

English Law' in Michael King (ed) God's Law Versus State Law: The Construction of an Islamic Identity in Western Europe, Grey Seal.

Sebastian Poulter (1992) 'The Limits of Legal, Cultural and Religious Pluralism' in Bob Hepple and Erika Szyszczak (eds) Discrimination: The Limits of Law, Mansell.

Sebastian Poulter (1991) 'Towards Legislative Reform of the Blasphemy and Racial Hatred Laws' Public Law 37 1.

Runnymede Trust (1997) Islamaphobia: A Challenge for Us AN, Runnymede Trust. Salman Rushdie (1991) Imaginary Homelands, Granta Books. Salman Rushdie (1989) The Satanic Verses, Viking. Malise Ruthven (1990) A Satanic Affair, Chatto and Windus. Gita Sahgal and Nira Yuval-Davis (eds) (1992) Refusing Holy Orders Women and

Fundamentalism in Britain, Virago Press. Thomas Schmidt (1999) 'Religious Pluralism and Democratic Society' 25 Philosophy

and Social Criticism 43. Prakash Shah (2003) 'Attitudes to Polygamy in English Law' 52 ICLQ 369. Wasif Shahid and Sjoerd van Koningsveld (1996) Political Participation and Identities

of Muslims in non-Muslim States, Kok Pharo. Marty Slaughter (1993) 'The Salman Rushdie Affair: Apostasy, Honor, and Freedom of

Speech' 79 Virginia Law Review 153. John Strawson (1995) 'Islamic Law and English Texts' 6 Law and Critique 21. Paul Taylor (2001) 'The Basis for Departure of European Standards Under Article 9 of

the European Convention on Human Rights from Equivalent Universal Standards' 5 Web JCLI at http://webjcli.ncl.ac.uk/2001/issue5/taylor5.html

Marcus Tregilgas-Davey (1991) 'Case Commentary on R v Chief Metropolitan Stipendiary Magistrate exparte Choudhury' MLR 294.

Peter van der Veer (1997) 'the Enigma of Arrival: Hybridity and Authenticity in the Global Space' in Pnina Werbner and Tariq Modood (eds) Debating Cultural Hybridity, Zed Books.

Richard Webster (1990) A BriefHistory ofBlasphemy, Orwell Press. Pnina Werbner (1997) 'Introduction: The Dialectics of Cultural Hybridity' in Pnina

Werbner and Tariq Modood (eds) Debating Cultural Hybridity, Zed Books. Pnina Werbner and Tariq Modood (eds) (1997) Debating Cultural Hybridity, Zed

Books. Ihsan Yilmaz (nd) 'Muslim Alternatives to Dispute Resolution and Neo-Ijtihad in

England' at www.alternativesjoumal.net/yilmaz.htm Robert Young (1995) Colonial Desire Hybridity in Theory Culture and Race,

Routledge.

Cases Ahmad v ILEA [I9781 1 All ER 574. Ahmed v UK [I9821 4 EHRR 126. Choudhury v UK (1991) 12 HRLJ 172 Gay News Ltd v UK (1982) 5 Eur Comm HR 123. Mandla v Dowel1 Lee [I9831 IRLR 209. Regina v Bradlaugh 15 Cox CC 23 1,236 (1883). R v Chief Metropolitan Stipendialy Magistrate ex parte Choudhury [I9911 1 All ER

306. R v Hetherington (1840) 4 St TR (NS) 563. R v Horseferry Road Metropolitan Stipendiary Magistrate, ex parte Siadatan [I9911 1

All ER 324. R v Lemon; R v Gay News Ltd [I9781 3 WLR 404; (1979) AC 617. R v Ramsay and Foote (1 883) 15 Cox CC 23 1.

R v Taylor (1676) 1 Vent 293. Siede v Gillette [I9801 IRLR 427. Whitehouse v Lemon [I9791 2 WLR 28 1. Wingrove v UK (1997) 24 EHRR 1.

Legislation Blasphemy Act 1697 Criminal Law Act 1967 Public Order Act 1986

sacred and secular blasphemies

Documents