Should “religious hatred” be illegal?

Julian Baggini Nick Cohen
4 August 2004

Philosopher or journalist: which side are you on? For Nick Cohen’s reply to Julian Baggini’s article, and replies by each writer to the other’s criticism, scroll down or click on the quick links above

Muslims, hate-speech, and the law: a need for protection

Julian Baggini

Julian Baggini offers cautious support to the British government’s desire to prosecute those who incite hatred of members of a faith community.

Like most reasonably intelligent secularists, you won’t find me petrol-bombing mosques, spitting at Muslim women, or threatening British Asians. However, you might find me expressing strongly held beliefs about the falsity of Islam, as well as other religions. I might even go so far as to call some beliefs backwards, ludicrous or downright immoral. If I do so, am I guilty of Islamophobia?

Religious hatred: a new British law?

Britain’s home secretary, David Blunkett, announced on 7 July 2004 that he plans to outlaw incitement to religious hatred in the United Kingdom. This law would follow others which regulate public behaviour - including the Race Relations Act (1976, amended 2000), which makes discrimination illegal on the basis of race, and which can protect those religious groups identified as a distinct ethnic minority; and the Public Order Act (1986), which makes incitement to racial hatred a criminal offence.

The proposed law would make it a criminal offence to incite hatred against groups or individuals on the grounds of religious belief, with a maximum penalty of seven years imprisonment. In a speech to the Institute of Public Policy Research (ippr), David Blunkett defended his plans as follows: “We have to face down extremism and racism in all its forms if we are to promote a positive, inclusive sense of British identity and citizenship which newcomers feel welcome to commit to and which established communities feel proud of be part of.”

The Anti-Terrorism, Crime and Security Act (ATCSA) passed in December 2001 permits courts to consider religion as an aggravating factor when dealing with crimes of violence or intimidation – but its proposed incitement to religious hatred offence was excluded at a late stage.

The earlier proposal was denounced as an attack on free speech and prompted fears from comedians like Rowan Atkinson that they could be prosecuted – or films like Monty Python’s The Life of Brian banned – for satirising religious leaders.

Many secularists oppose Britain’s proposed law against religious hatred from fear it might prohibit legitimate criticism of religions. We rightly maintain that there is an important difference between encouraging hatred against individuals and hatred of a belief system. As religious people themselves might put it: you can hate the sin and love the sinner. That is why the very phrase “Islamophobia” is misleading: to be against Islam is not a prejudice on a par with being against Muslims, gays or Roma, but a rationally defensible position.

Nevertheless, I have come around to the view that, if it is properly drafted, a law against incitement to religious hatred – such as that proposed by Britain’s home secretary, David Blunkett, on 7 July 2004 – should be supported. The problem is that discrimination against Muslims in Britain (and anyone else who looks Arabic or Asian) is on the rise. Meanwhile, white secularists like myself are not just failing to do enough to stop it, but our sins of omission may have helped contribute to creating a climate in which such prejudice thrives. Those of us who seek to defend the secular traditions of British civic life have not done enough to distinguish our legitimate objections to Islam from the kind of anti-Muslim prejudice which threatens to tear our communities apart.

A recent report by the Commission on British Muslims and Islamophobia (CBMI) detailed the extent of anti-Muslim prejudice. It showed that the number of Muslims being “stopped and searched” by police has risen from 3,000 to 35,00o in just three years. In 1991, only 731 Muslims were in prison; in 2001 there were 6,095.

These statistics prove nothing. But they do not stand alone. Reports of anti-Muslim violence, harassment and discrimination are just too common to be dismissed. The truth is that British Muslims are in a similar position today to black Britons in the 1970s.

The difference is that this time, the liberal political establishment is more muted in its defence of the persecuted minority. The reason for this is not, I think, racism pure and simple – though some racism may be involved. The difference is that matters are complicated by religion. Many left-liberals are hostile to Islam, in particular because Islam is often hostile to left-liberal values.

This is not a slur on Islam but a simple fact. For instance, it is not in dispute that western notions of female and sexual liberation are anathema to Islam. Of course, Islam is not monolithic and so there are currents within it which are more liberal than others. But in broad terms there is clear blue water between western liberal values and Islamic ones.

These are legitimate grounds for disagreement in a democratic state. It is just a mistake to confuse disagreeing with Islam, perhaps very strongly, and advocating discrimination against Muslims. But while all this is true, the fact is that on the streets such subtle distinctions are missed. A criticism of Islam is seen as a criticism of Muslims. A failure to endorse the wishy-washy ecumenical calls for respect for all faiths is taken as showing great disrespect to Muslims. Also in openDemocracy, Geoffrey Bindman examines the impact of post-9/11 legislation on civil rights in Britain; see “Civil liberties and the ‘war on terror’” (May 2004)

If people are to be critical of religions such as Islam, which they surely have a right to be, then in the current climate it is irresponsible to do so without taking great pains to distinguish this from the kind of nasty racism that is corroding relations between British Muslims and the rest of the country. Sadly, we secularists have not thus far been taking these pains. Instead, we have been passive in the face of increasing tensions, and we should not be surprised if this quietude is taken as an endorsement of anti-Muslim sentiments.

What we now need are public symbols that secular critics of Islam are not enemies of Muslims. Secularist support for a law against religious hatred – as long as it is careful to distinguish between criticism of religion and hatred of its adherents – would be one such symbol. In theory, a law specific to religion should not be necessary. But the law must respond to the contingencies of the times, and the prejudice British Muslims are facing today demands a response.

The law is only the start. We need other visible signs that, independently of any disagreements about religion in society, Muslims are equal citizens. For example, the major humanist and secularist organisations must publicly offer the hand of friendship to British Muslims – and not just have, but be seen to have, an ongoing dialogue with moderate bodies such as the Muslim Council of Britain. We secularists need loudly to communicate the message: we disagree, sometimes fundamentally. But we will resolve our disagreements democratically and will not tolerate British Muslims being treated as second-class citizens.

A clash of incivilities: Julian Baggini’s dreamworld

Nick Cohen

A law against “religious hatred” in Britain would divide society, empower extremists, harm democracy – and jail Richard Dawkins. Nick Cohen tells its proponents: rethink.

Julian Baggini, the eminent philosopher, settled back in his chair and contemplated his part in the passing of the Incitement to Religious Hatred Act (2005).

Also in openDemocracy, Geoffrey Bindman examines the impact of post-9/11 legislation on civil rights in Britain; see “Civil liberties and the ‘war on terror’” (May 2004)

In retrospect he could see there was a logical flaw in the arguments for censorship he had advanced, only a year earlier, with equal measures of liberal guilt and noble compassion. In an influential article for openDemocracy in July 2004, he had written that “discrimination against Muslims in Britain (and anyone else who looks Arabic or Asian) is on the rise”. So it was. But if “Muslim” was being used as a synonym for those other words of racial insult, “Paki” and “wog”, British neo-fascists could be taken to court under the existing and uncontroversial laws against the incitement of racial hatred.

Using the race relations laws as a guide, any half-decent prosecutor should have been able to reveal the clumsy strategies of the British National Party and others to deliver coded racist propaganda – and thus maintain the vital distinction between inciting hatred against a race (which couldn’t be right or wrong) and against ideas, including religious ideas (which could).

Too late for that now, thought Baggini. He clicked on his piece again and wondered if he was entirely happy with the sharp practice of the opening line, which implied (without quite saying so) that “petrol-bombing mosques, spitting at Muslim women, or threatening British Asians” were not already crimes in Britain.

The practical difficulties brought by his legislative triumph had caused Baggini the odd moment of self-reflection. He’d assumed it would be simple to draft a law that distinguished between “criticism of religion and hatred of its adherents”.The attempt by evangelical churches to prosecute his fellow academic, Richard Dawkins, was the first sign that it was not.

The liberal press had asked Dawkins to comment on the case of Cristina Hitchens, a biology mistress and born-again Christian, who taught pupils at an inner-London comprehensive that the book of Genesis was infallible. At first her claim that Dawkins had incited religious hatred against her appeared ludicrous. But when he told the BBC that “he would rather have a monkey for a grandmother than a dangerous dunderheaded dolt who corrupted our children with her Bronze Age superstitions”, prosecutors had to admit that he had made no attempt to distinguish between Hitchens and her beliefs.

Cristina went on to provide incontrovertible evidence that the verbal assault by Dawkins had made her an object of ridicule and contempt in the school, blighted her chances of promotion. The word was that Dawkins was going to prison.

Who needs it?

Julian Baggini moved in a world where hardly anyone believed in god. He wished he had realised then what he knew now: that reactionaries from all religions had taken the language of victimhood from the left and enlisted it in the cause of the counter-Enlightenment. There were Jews who used the slogans of anti-fascism and claimed that critics of Israel were anti-semites; born-again Christians who described their opponents as “virulent bigots” and “hate-speak-mongers”; Hindu nationalists who said they merely wanted to end the “special privileges” of India’s Muslim minority; and Muslims who ignored the slaughter in Sudan, as they had in Saddam’s Iraq, so that they could concentrate their indignation on Palestine, Chechnya and Kashmir, in order to feed the fantasy that only unbelievers oppressed Muslims.

Persecution manias had infected all religions and a law against incitement to religious hatred was what all religions wanted.

Baggini accepted that he probably made a mistake in talking only of Islam. The crime of inciting religious hatred had to cover each and every religion – Britain wasn’t Saudi Arabia, after all. The demands of Scientologists and Satanists for their faiths to receive official recognition were more comic than sinister, although the butchery of a goat in Parliament Square by angry devil-worshippers had offended animal rights activists. But these antics couldn’t disguise the fact that his modest proposal had extended Britain’s archaic and discredited laws on blaspheming against Christianity to all the major creeds.

At the time, his 2004 proposal had seemed a playfully postmodern combination of medieval obscurantism and 21st century ecumenicism. It was only when the measure became law that Baggini learned that the pious hated most of all those “false prophets” who tried to divert the faithful from the straight and righteous path.

Christians who tried to convert Muslims were accused of inciting hatred, as were Muslims who tried to convert Christians; and the hatreds of each for the other were surpassed only by the hatreds of both for the “heretics” and “apostates” in their midst. When feminists established a refuge for battered Pakistani wives, they were accused of inciting hatred against Islam, as were gays when they began a noisy campaign to stamp out homophobia in inner-city slum estates.

On one point all sides agreed: it was impossible to make a distinction between fighting an idea and fighting the people who put an idea into practice. Baggini had written that “you can hate the sin and love the sinner”. Gay friends told him he had unconsciously repeated a mendacious slogan used for decades by the Christian far-right. They assured him they hadn’t been comforted to learn that fundamentalists would love them in return for them agreeing to the recriminalisation of homosexual love.

But Baggini’s worst moment came when the “moderate” Muslim leader Yusuf al-Qaradawi returned to Britain from his Egyptian base. His July 2004 visit had provoked an outraged reaction to the discovery that on the IslamOnline website he had published material endorsing the killing of Jewish civilians in Israel and homosexuals everywhere; told wives that their husbands had the right to beat them, providing the beating was done “lightly”; and warned all women that they couldn’t complain too vigorously if they were raped after failing “to maintain their modesty”.

As he flew in again to be greeted by London’s mayor, Ken Livingstone, Christians and Hindus discovered that his website also authorised Muslims to treat people of other faiths as second-class citizens.

There was pandemonium. An unlikely combination of Christians and Hindus, joined by feminists, secularists and homosexual activists, demanded that al-Qaradawi be prosecuted for religious hatred. They were resisted by Muslim fundamentalists and an anti-American left which had given up on universal principles years ago.

The Director of Public Prosecution was sick of them all. He just wanted al-Qaradawi to go home. He had spent an unconscionable amount of time intervening to stop incitement cases reaching court and bitterly regretted his failure to tell Tony Blair to stop being silly when the wretched proposal was first mooted.

In any case, the mere suggestion that Yusuf al-Qaradawi could end up in the dock had a predictable consequence. Rioters took to the streets of Birmingham after hearing clerics declare that the doctor was being persecuted by a conspiracy of “Zionists, crusaders, prostitutes and perverts”. As so often, the poor were the victims of the poor and a Kashmiri sub-postmistress and her husband were burned alive when rioters stormed through the Sparkbrook area of Birmingham.

“Discrimination…is on the rise”. Julian Baggini pondered his words of a year earlier. If anything, prejudice had exploded since his prohibition became law. Neo-fascists were winning an ever-greater share of the white vote as their demagogues convinced waverers that the “liberal elite” in London was stopping them speaking their minds. Everywhere Baggini looked, the forces of secularism and tolerance were under strain.

Why stop there?

After all this reflection, Baggini rejected the notion that by making a person’s religion a vital attribute he had turned his back on British Asians who shared his secular values and played into the hands of the very fundamentalists he deplored.

Instead, he decided that his true fault was not going far enough. If Britain was to become a nice little home for the appropriately behaved, surely the incitement of all ideas that produced hate should be banned?

What, for example, about incitement to political hatred? Who could deny that political hatreds had produced the catastrophes of the 20th century – the first world war, communism and fascism. Even today, the far left was telling people to “smash capitalism”, conservatives of all stripes were inciting hatred of the idle, criminal poor and socialists were inciting the hatred of fat cat bosses.

Something told Baggini that after the Iraq war of 2003, Tony Blair would give his proposal to ban the incitement to political hatred a fair hearing, while the despised members of the Conservative party would fall over their feet in their rush to get it through parliament.

Satisfied that he had done his duty as a philosopher and pushed his theory to its logical conclusion, Baggini leant forward and clicked on openDemocracy.

There he found that a contributor was accusing him of producing work filled with humiliating errors and howling contradictions. “The battle of ideas can’t be won by lawyers”, his critic had written. “Baggini can’t fight oppression by betraying the very principles which have guaranteed his freedom. His problem is that he has fallen for the oldest postmodern delusion of them all: that you can change the world by changing language. Why is this claptrap still being parroted after all these years?”

“What a hateful thing to write”, Baggini muttered. “I’ll see him in court.”

Logic or practicality? A reply to Nick Cohen

Julian Baggini

Nick Cohen’s alarmist fantasy is an exercise in unreliable logic, responds Julian Baggini. The real argument for a law against religious hatred relate to the actual experience of Muslims.

Nick Cohen’s response to my openDemocracy article on the British government’s proposed law against “religious hatred” contains elements of pure fantasy. I do not think I am an “eminent philosopher” and I doubt very much that the piece will be “influential”. The contents of his explicit fantasy are more interesting, but ultimately no more accurate.

There is an ironic difference between Cohen’s understanding of David Blunkett’s law and mine: he, the journalist, demands that rigorous logic should govern lawmaking while I, the philosopher, am more persuaded by considerations of social and political contingency.

But Cohen is wrong to suggest that I might in retrospect recognise the illogicality of my position. I already know about that. There is no logical reason why we should have a law on religious hatred and not one on hatred based on politics or hair-colour. But the law has to respond to historical contingencies, not pure logic. The fact is that there is no need to protect politicians or people of particular hair-colour from hatred. There is, however, a need to protect Muslims in particular against the kind of hatred being spread by the British National Party.

One reason for introducing such a law is to actually make legitimate criticism of religion easier. At the moment, Muslims across Europe feel under attack and are thus very sensitive to criticism. If, however, they are protected against incitement to hatred by a law, they might feel more secure and thus less threatened by criticism of their religion not aimed at inciting hatred of its adherents. Again, it is not abstract principle driving this, but the recognition that a community exists that feels itself to be under siege and which needs reassurances and protection.

Cohen seems unduly pessimistic about the ability to distinguish between criticism of a religion and hatred of its adherents. On this I think he is just wrong. Conceptually, the difference is crystal-clear; in practice, moreover, plenty of laws have to deal with hard cases and grey areas.

But my main disagreement with Cohen’s fantasy is that it falls prey to classic slippery-slope alarmism. “Where will it all end?” is the question lurking in the background. The answer is that it will end where we as a society agree it will end; there is no inevitability that a law against religious hatred will lead to other unnecessary or harmful laws banning other sorts of incitement to hatred.

Public life in Britain is filled with alarmist arguments of this kind. If we allow abortion, we’ll end up sanctioning infanticide; if we permit cannabis, we’ll end up legalising heroin; if we pass any powers to Brussels, we’ll end up as part of a European superstate. These are all spurious, “inevitabilist” claims based on the false premise that once you start moving in one legislative direction you won’t be able to stop.

I would also reject the various claims made that my argument is somehow postmodern, counter-enlightenment and full of “humiliating errors and howling contradictions”. As a champion of rather old-fashioned notions of objectivity, truth and reason (see “The Philosophy of Journalism”) I find this a little odd. I don’t think that anyone who reads the piece fairly would find these claims sustainable.

Nick Cohen’s main points are worth noting, however. They are, in fact, just the kind of considerations I and my fellow humanist philosophers have pondered. Someone still needs to make them, to ensure that the nightmare scenario Cohen portrays is avoided. An awareness of the danger will enable us to make sure we have a law that works. It does not provide a reason to reject the law altogether.

Tests of practice and principle

Nick Cohen

The key arguments against a law prohibiting public expressions of religious hatred are both realistic and reasonable. Nick Cohen has the last word.

My response to Julian Baggini’s response to my response to his article advocating censorship must begin with an unreserved apology for describing him as “eminent”. I withdraw the slur at once and promise never to repeat it.

With the ground cleared we can go to work. There are four points.

First, Baggini says he’s a practical philosopher “persuaded of the case for an offence by considerations of ‘social and political contingency’”. He thinks that framing a law prohibiting incitement of religious hatred will be easy. The practical peers of Britain’s upper house of parliament examined the issue in 2003 and threw up their hands in despair.

They concluded: “The threshold [before a prosecution was allowed] would have to be quite high, so as to allow for critical-even hostile-opposition. But the ceiling would need to be low enough to ensure that those who abide by the beliefs under attack are not discouraged from exercising their freedom to hold and express them. We find this a difficult issue.” (Click here for the full report)

Second, everyone who has studied the issue has said that in practical terms the attorney-general – the British government’s chief legal adviser – would have to authorise prosecutions to stop the absurdity of fundamentalists from one religion demanding the prosecution of fundamentalists from another for seeking to convert their flock. But the law officers’ involvement would mean that every trial would be a political trial and a refusal to prosecute would be as political as a decision to do so.

Consider the practical implications. Suppose a novelist is accused of writing a novel that defiles a religion, as Salman Rushdie was over The Satanic Verses in 1989. I assume the law officers would resist demands to prosecute a novelist – although you can never be sure with New Labour. If they did refuse, wouldn’t Muslim fundamentalists feel discriminated against? In the Rushdie case, the fact that Britain’s blasphemy laws (still extant) covered Christianity but not Islam only made the trouble worse.

Third, Baggini persists in viewing British Islam as a monolithic “community” which is oppressed and under siege, a view which plays into the hands of its most reactionary elements. Obviously it’s easier to feel sympathy for a religion when it is the faith of people who are generally at the bottom of the pile. But if you’re an Asian woman or gay or a freethinker you may find that not all the oppression you experience comes from the nasty white folks.

Bertrand Russell condemned the perennial fallacy of the “superior virtue of the oppressed”. It works like this. Well-meaning people sympathise with the victimised, as they should. But then they start to praise the oppressed’s poetry, elevate the oppressed’s writers and give the oppressed’s ideas an uncritical and unwarranted respect. The unstated assumption is that oppression is good for people and the more oppression there is the better it is for the human race.

Just because an oppressed group shares a religion doesn’t mean that their religion deserves legal protection.

Fourth, wouldn’t it be nice if liberals could stand by liberal principles for once?

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