Dec 11, 2018
From the geopolitical earthquake that was the response to Salman Rushdie’s The Satanic Verses to the recent case of Asia Bibi in Pakistan, conflict over blasphemous speech seems to be an intractable feature of the coexistence of Islamic and secular-liberal frames of value. Conflicts over speech and the sacred in some ways appear to embody not only the most frequent but also the most profound and complex clash of values between secular and Islamic frames of moral reference. The immediate juridical question of whether certain forms of speech that offend against the sacred ought to be permitted, tolerated, or punished obscures a series of deeper questions: What does speech do, and how? What kinds of entities have value? What kinds of entities have claims on the expressive behavior of humans? How can these claims and values be expressed across deep moral divides?
In the Islamic juridical tradition, speech is imbued with immense power. While propositional declarations of disbelief or rejection of basic aspects of Islamic creed might constitute apostasy in a straightforward sense, speech that takes the form of mockery (istihzā’), insult, or abuse of the Prophet (sabb al-nabī or shatm al-nabī) constituted a more grievous form of immediate and unrepentable apostasy.
Mockery or insult were described as a kind of “piercing attack” (ţa¢n) on or harm and injury (adhā) to the Prophet and Islam itself. Jurists in some of the legal schools (Mālikī and Ĥanbalī) treated this form of blasphemous speech as a kind of “strict liability” offense, in that the speaker’s state of mind or intent did not exonerate him. Ibn Ĥajar wrote in his Fatĥ al-bārī that “who blasphemes against the Prophet has committed clear slander against him and has thus become an infidel by the agreement of the jurists. Even if he repents, he does not escape the punishment of death, because the punishment for libel (qadhf) in this case is death and it is not avoided through repentance (tawbah).” Blasphemy is sometimes thus referred to as a graver form of apostasy: riddah mughallażah, a kind of “aggravated apostasy.” In some cases, jurists even held that an individual Muslim who killed a blasphemer was not legally liable for murder, because of the immediate harm to the honor of the Prophet and safety of the community (not entirely dissimilar from the “crime of passion” legal defenses common until recently in many Western jurisdictions).
Consider also the terms of the classical dhimmah contract, according to which non-Muslims enjoyed protection and limited religious freedom under Muslim political authority. When jurists considered what kinds of actions violated this covenant, essentially returning non-Muslims to a state of war with the Muslim community, speech-acts were among the most numerous. Ibn Qudāmah’s al-Mughnī lists the following acts as breaking the dhimmah contract: not paying jizyah; refusing to submit to a Muslim court; fighting Muslims; adultery with a Muslim woman; tempting a Muslim from his religion; brigandage; murder; spying; cooperating against Muslims; and saying something bad about God, His Book, His religion, or His Apostle (dhikr Allāh ta¢āla aw kitābih aw dīnih aw rasūlih bisū’). Al-Nawawī’s al-Majmū¢ lists six acts that violate the dhimmah contract: seducing Muslim women; tempting Muslims away from their religion and to another one; brigandage and murder; supporting the enemy; mentioning the book of God in a defamatory, hostile, or distorting way (ţa¢n wa ta¢rīf); and referring to the Prophet in an unfit manner, ascribing lies to him, or defaming him (bi mā lā yanbaghī wa takdhībuh wa shatmuh). According to al-Nawawī, some form of blasphemous speech constitutes one-third of the actions that negate the dhimmah contract.
Speech is quite literally the boundary between war and peace, the state of nature and civil society, ordinary and exceptional crime, and the sphere of law and the sphere of violence.
Speech is thus quite literally the boundary between war and peace, the state of nature and civil society, ordinary and exceptional crime, and the sphere of law and the sphere of violence. But why? Why is speech so dangerous that it amounts to a kind of war against Islam, thus warranting violence in return?
In the classical tradition, one of the densest treatments of the question of speech was Ibn Taymiyyah’s al-Śārim al-maslūl ¢alā shātim al-rasūl (The Unsheathed Sword against the Blasphemer of the Prophet). In addition to a lengthy discussion of proof-texts grounding the punishment for blasphemy, this text gives numerous explanations for treating speech as a mortal risk to religion and the Muslim community. It is helpful to distinguish between the ways in which speech violates the rights of the Prophet and the ways it violates the rights or interests of Muslims.
Scandalous speech about the Prophet is, in the first place, lying or slander about the Prophet. It thus ascribes shame, disgrace, or blemish to him. Such speech violates the Prophet’s own rights to dignity, honor, respect, and truthfulness. While it may have been his right or prerogative to forgive such insults and calumnies during his own lifetime (the Prophet’s treatment of mockery and slander against him was mixed), after his death, they become an absolute crime against him and religion. It is not the believers’ right to forgive but their obligation to punish.
But, since the religion of Islam rests quite literally on the esteem, honor, and dignity of the Prophet, and since the truth of Islam depends on belief in the Prophet’s truthfulness and trustworthiness (taśdīq), calumnious speech constitutes harm (đarar) to religion and corruption on Earth (fasād fī al-arđ). Islam, in this sense, is a kind of public good that all Muslims have an interest in preserving and magnifying. In addition, Muslims’ own religious feelings are also a kind of moral entity. Just as believing in and ascribing truth to the Prophet require a certain state of the heart—namely, aggrandizing (ta¢zīm), loving, honoring, and dignifying (ikrām) the Prophet—so do mockery of and injury to him necessarily produce anger, hurt, and injury in the hearts of believers. As with other violations of honor, such feelings require satisfaction and alleviation through punishment of the aggressor against the Prophet.
To summarize, classical Islamic approaches to speech imagine a number of distinct entities that are capable of being harmed by speech. The Prophet is presumed in Islam to have ongoing interests and rights (honor, respect, and attribution of truthfulness) that can be violated by speech. Religion itself is, if not an agent, a kind of public good on which all other goods and benefits depend. Muslims and the Muslim community have interests in preserving the esteem in which religion is held and also have feelings and affects related to their love for the Prophet and for Islam, all of which are entitled to protection.
Here we might also see why speech that mocks and ridicules (from The Satanic Verses to the Danish cartoons) often seems to provoke wider and more violent reaction than mere academic writing that argues against Islamic truth-claims. (Although many academics, novelists, and playwrights have also suffered consequences from publishing works deemed insulting to Islamic truth-claims. One need only recall the names Nasr Abu Zayd or Faraj Fūdah [Farag Foda]. Some of the most notorious Western “revisionist” historians of the Qur’an and early Islam have also, reportedly, received death threats.)1 Not only are insults, short quotes, or images easier to disseminate widely (think here also of things like flag burning or political gaffes), and not only do they inflame more easily a wider range of the public than a dense treatise on seventh-century Ĥijāzī linguistics, but there is an argument for the greater harm of mockery and insult. Arguably, symbols of power can survive criticism more easily than they can survive mockery, since mockery assaults the very notion that a figure or system of belief is worthy of respect, never mind deference or awe. Similarly, when a community is weak and vulnerable, arguably mockery and insult make it more vulnerable to assault, dehumanization, and intimidation. There may be some kind of rational basis for the observable phenomenon that insult and mockery (“trash talk”) often inflame the passions more than considered criticism.
Speech is thus not just propositional; rather, propositions asserted even in jest have a kind of immediate power to injure and a capacity to accumulate harmful effects. Just as accusations or lies can injure an innocent party even if they are later refuted (hence, punishment for slander [qadhf] is a ĥadd crime in Islam), lies against Islam or the Prophet are treated as a kind of “strict liability” offense2 because of the immediate harm to honor, prestige, and dignity. The social order relies both on certain shared beliefs and also on the esteem and majesty of its very foundation—Islam and its Prophet. Vituperative speech is not simply a violation of a taboo; left to spread unchecked, it has the power to do material damage to the greatest of social goods.
When we move to speech in a liberal, secular context, it is first important to note some possible shared understandings of what speech is and what it can do. Secular progressives have their own taboos—mostly obvious among them, racial epithets. The use of the N-word by non-blacks is, like slandering the Prophet, in effect, a kind of strict liability offense for which joking, irony, or even mere mention (as opposed to use) do not seem to provide an excuse or alibi. As with speech about the Prophet, this can sometimes be experienced as simply a taboo for which no reasons need be given. But these taboos rest on an awareness of the capacity of speech to injure, denigrate, and do actual harm, and on the difficulty of maintaining rules once they are systematically violated. The taboo nature of such words is evidenced by certain examples of controversy over the public use of words that merely sound like “that word.”3
After a long period of free speech fundamentalism among liberals, there is a reawakening of awareness about the material harm speech can cause.
Similarly, after a long period of free speech fundamentalism among liberals, there is a reawakening of awareness about the material harm speech can cause. Feminists and critical race theorists have long pointed to the actual harm hate speech can do to esteem and to social standing, questioning the (“mere”) speech versus (“actual”) harm distinction made in some liberal jurisprudence. Liberals have increasingly given their own account of hate speech as a kind of harm—for example, pointing to the interest all persons have in a well-ordered society in which they are not only promised, but can rely on, the enjoyment of respect and dignity in public.4
More apt, perhaps, is the increasing fear about propaganda and “fake news” and about the way in which a shared understanding about what counts as a fact appears completely undone in a country such as the United States. Just as a well-ordered Muslim society is said to rely upon a shared belief in the truthfulness and honor of the Prophet, so does a well-ordered democracy rely upon shared beliefs about the sources of knowledge and facts. A systematic assault on this shared public good by decades of right-wing talk radio, cable news, and social media has done possibly irreparable harm and damage to the very possibility of democracy.
Conservatives, of course, may share some assumptions about speech with Muslims. For many of them, social order rests on esteem for certain shared symbols from the past. Hence, they not only harbor the desire to protect symbols such as the American flag (or poppies in the U.K.5) but also feel panic about how far attempts to delegitimize racist symbols in the public sphere might go. If racists and slave-holders are not fit for public honor, what would stop the overturning of the founders themselves—Washington, Jefferson, Madison, and others? National unity is built not only on institutions and norms but on the esteem and even the glory of certain symbolic figures.
So, perhaps we should be skeptical of claims that clashes between Islamic and secular norms are generated by a complete failure to understand what speech means for Muslims, or to understand what it means to esteem, love, and emulate the Prophet in a particular way.6 But when it comes not to a general approach to speech and what it can do, but to the particular idea that religious values, symbols, or feelings have a special claim to respect or protection, there are some undeniable tensions between Islamic and liberal-secular commitments.
In my view, most secular philosophical approaches to the morality of speech about the sacred have three starting points. First, human beings have very strong interests in being free to express themselves, and legitimate expression can take the form of everything from earnest propositional speech to creative, even transgressive, speech. Second, the sacred is an object of human construction, and thus the fact that something is called “sacred” is insufficient to explain why all humans ought to respect it. Too many things would be beyond the reach of critique and even mockery. And third, respect is owed to persons (individually and collectively) but not to everything they value or venerate, even if others do not always uphold such a difference between those persons and their attachments or beliefs.
These three premises make it hard for some common arguments about speech and the sacred to fully persuade. In my view, the most common arguments for designating “blasphemy” as particularly blameworthy are (1) blasphemy transgresses a sacred boundary, (2) blasphemy disrespects what people regard as sacred, (3) blasphemy causes pain to sincere religious believers, (4) blasphemy endangers social peace, (5) blasphemy is hate speech, and (6) blasphemy disrupts social harmony.
With all of these arguments there are two core problems.7 Either they assume that religious entities are real or have special value, which is far too general and subjective to be endorsed outside of a specific religious ethical system, or they treat religion as simply a problem of public order, which seems to take the feelings of the religious seriously but in fact runs the risk of reducing the morality of speech to considerations of fear and prudence.
The core dilemma is that a liberal-secular ethics of speech is the search for norms that can be proposed as reciprocal standards in a diverse society. If we propose as a norm that “we should also respect whatever others hold as sacred,” this just seems far too restrictive of an important human activity: expression on a shared social world. Moreover, it would simply incentivize people to declare anything they value to be “sacred.” If we propose another norm, such as “avoid causing pain or distress in speech,” this also seems to condemn many instances of valuable speech (including on the part of the religious) and makes the subjective sensitivity of different persons or groups the sole criterion for the general morality of speech. If we say “respect for persons requires respect for what they love or attach themselves to,” then once again this provides us no principle for evaluating when speech might be warranted in criticizing (even mocking) values or attachments.