¹ SirDenning, Alfred, Freedom under the Law (London: Stevens and Sons, 1949), p. 46.Google Scholar

² The Times, 3 09 1976, p. 2.Google ScholarThe Times itself suggested that if Thorsen made his film, he should be confronted by ‘the ancient, but comprehensive and still capable of pouncing, common law offence of blasphemy’; 4 09 1976, p. 13.Google Scholar

³ Hansard, 5th series, House of Commons, vol. 925, col. 1438.Google Scholar

⁴ R. v. Lemon [1979] 2 W.L.R. 281 at 283.Google Scholar

⁵ [1979] 2 W.L.R. 281.

⁶ [1978] 3 W.L.R. 404.

⁷ [1979] 2 W.L.R. 281.

⁸ R. v. Gathercole (1838) 2 Lewin 237 at 254.Google Scholar

⁹ In giving his judgement on the Gay News appeal, Lord Scarman proposed that the law of blasphemy should be made more comprehensive; [1979] 2 W.L.R. 281 at 308–9. An attempt was made to reform the law in this way as long ago as 1885; see Kenny, Courtney, ‘The Evolution of the Law of Blasphemy’, Cambridge Law Journal, 1 (1922), 127–42, p. 138.CrossRefGoogle Scholar

¹⁰ In 1787 a ‘Proclamation for the Encouragement of Piety and Virtue’ was issued calling for the suppression of impiety, licentiousness, profaneness and other evils ‘fearing lest that they should provoke God's wrath and indignation against us’. Reprinted in Blom-Cooper, Louis and Drewry, Gavin, Law and Morality (London: Duckworth, 1976), pp. 239–41.Google Scholar

¹¹ See Nokes, G. D., A History of the Crime of Blasphemy (London: Sweet and Maxwell, 1928), pp. 64–5.Google Scholar

¹² Although Taylor's case was the first in which blasphemy was named as an offence, it has been argued that it represented an extension of the existing law rather than a genuine innovation. See Nokes, , A History of the Crime of Blasphemy, pp. 52–61.Google Scholar

¹³ I Ventris 293; also reported in 3 Keble 607, 621. It is unclear from either report whether Hale thought his famous dictum that ‘Christianity is parcel of the laws of England’ simply followed from his argument about the relation between religion and obligation or whether he asserted it upon other grounds.

¹⁴ See, for example, the remarks of Raymond C. J. in R. v. Woolston (1729) Fitz-G. 64 at 65Google Scholar, of Ashhurst J. in R. v. Williams (1798) 26 St. Tr. 653 at 715–9Google Scholar, and of Abbott C. J. in R. v. Carlile (Richard) (1819)Google Scholar 4 St. Tr. N.S. 1423 at 1423–4. Even Locke was sufficiently persuaded by this argument to exclude atheists from toleration. Locke, John, A Letter on Toleration, Klibansky, Raymond, ed. (Oxford: Clarendon Press, 1968), p. 135.Google Scholar

¹⁵ See, for example, the remarks of Best J. in R. v. Carlile (Richard) (1819)Google Scholar 3 B. and Ald. 161 at 167, and in R. v. Carlile (Mary) (1821) 1 St.Tr. N.S. 1033at 1045–6Google Scholar, and the argument of the Attorney General (Sir John Campbell) in R. v. Hetherington (1840) 4 St. Tr. N.S. 563 at 568.Google Scholar

¹⁶ Devlin, Patrick, The Enforcement of Morals (London: Oxford University Press, 1965), pp. 23, 25.Google Scholar

¹⁷ Hansard, 5th series, House of Lords, vol. 389, cols. 302, 316, 321, 335.Google Scholar

¹⁸ Mill, John Stuart, On Liberty, Himmelfarb, G., ed. (London: Penguin, 1974), p. 119.Google Scholar

¹⁹ Rawls, John, A Theory of Justice (London: Oxford University Press, 1972), pp. 212–13.Google Scholar

²⁰ See, for example, the remarks of Lord Gardiner in the debate on bill, Lord Willis's; Hansard, vol. 389, cols. 313–15.Google Scholar

²¹ In R. v. Carlile (Richard) (1819)Google Scholar, Abbott C. J. told Carlile ‘you are not here called in question for having published any work containing a calm, serious, and dispassionate inquiry into the truth, or the evidence of the truth, of our religion; you are called in question for the publication of a work which reviles and calumniates it’. Yet he also stated categorically that ‘the law says no man shall deny the truth of the Christian religion, or deny that the scriptures of the Old and New Testament are of Divine authority’ (4 St. Tr. N.S. 1423–4).

²² See, for example, the concern expressed for the poor and ignorant in R. v. Williams (1797), 26 St. Tr. 653 at 664Google Scholar, and in R. v. Carlile (Mary) (1821), 1 St. Tr. N.S. 1033 at 1048, 1054.Google Scholar

²³ R. v. Ramsey and Foote (1883), 15 Cox C.C. 231 at 238.Google Scholar

²⁴ R. v. Bradlaugh (1883), 15 Cox C.C. 217 at 230–1.Google Scholar Lord Denman had already moved the law very much in this direction in his summing up in R. v. Hetherington (1840), 4 St. Tr. N.S. 563 at 590.Google Scholar In R. v. Moxon (1840)Google Scholar, he put the question to the jury, ‘are the lines in question calculated to shock the feelings of any Christian reader?’, 4 St. Tr. N.S. 693 at 721.

²⁵ Stephen, J. F., ‘Blasphemy and Blasphemous Libel’, The Fortnightly Review, N.S., XXXV (1884), 289–318.Google Scholar See also Pankhurst v. Thompson (1886), 3 T.L.R. 199.Google Scholar To those who know Stephen only as the opponent of Mill it may be a surprise to learn that he opposed a blasphemy law of any kind and drafted a bill abolishing the offence of blasphemy. See Bonner, Hypatia Bradlaugh, Penalties upon Opinion (London: Watts, 1934), p. 141.Google Scholar

²⁶ Bowman v. Secular Society [1917], A.C. 406.Google Scholar

²⁷ R. v. Lemon [1978], 3 W.L.R. 404Google Scholar; [1979] 2 W.L.R. 282.

²⁸ See ‘Who the Hell Does She Think She Is?’ (an interview with Mrs Whitehouse), Poly Law Review, 111 (1978), 13–18, p. 13.Google Scholar

²⁹ Hereafter, to avoid confusion, I shall use the word ‘offence’ to refer only to the condition of being offended and not to that which is unlawful.

³⁰ Mill, , On Liberty, p. 68.Google Scholar

³¹ Feinberg, Joel, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973), p. 26.Google Scholar

³² Lucas, J. R., The Principles of Politics (Oxford: Clarendon Press, 1966), p. 172.Google Scholar

³³ For an attempt to restructure Mill's utilitarianism so that no account need be taken of offence caused to people in virtue of their beliefs, see Wollheim, Richard. ‘John Stuart Mill and The Limits of State Action’, Social Research, XL (1973), 1–30.Google Scholar Wollheim's argument is criticized by Ten, C. L., ‘Self-Regarding Conduct and Utilitarianism’, Australasian Journal of Philosophy, LV (1977), 105–13.CrossRefGoogle Scholar

³⁴ Feinberg, , Social Philosophy, p. 29.Google Scholar

³⁵ ‘The purpose of blasphemy is to wound and hurt other people in areas of the mind which are, to them, sacred. This is violence, likely to prove more painful to many than physical violence. Therefore, while violence remains a crime, so should blasphemy.’ Richard Adams, letter to The Times, 23 07 1977, p. 13.Google Scholar

³⁶ ‘All exhibitions, which, being to the minds of individuals taken in any considerable number, productive of uneasiness on a religious account, are offered to their senses in such manner as that the unpleasant sensation produced by them, whatever it be, is unavoidable – all such acts are, in my view of the matter, objects calling for prevention by means of punishment.’ Jeremy Bentham, ‘Letters to Toreno’; see Bowring, John, ed., The Works of Jeremy Bentham, Vol. VIII (New York: Russell and Russell, 1962), p. 546.Google Scholar On ‘simple mental injuries’ in relation to law, see III (‘Principles of Morals and Legislation’), p. 225 and note.Google Scholar

³⁷ Bentham, , Works, Vol. VIII, p. 547.Google Scholar

³⁹ Cmnd. 247 (1957), para 13.

³⁹ Hart, H. L. A., Law, Liberty and Morality (London: Oxford University Press, 1963), pp. 38–48.Google Scholar

⁴⁰ Hart, , Law, Liberty and Morality, p. 41.Google Scholar

⁴¹ Mill, , On Liberty, p. 168.Google Scholar This passage has often been regarded as a momentary aberration, but it may reveal just how much Mill was taking for granted. See Letwin, Shirley Robin, ‘Law and Morality’, Encounter, XLIII (11, 1974), 35–43, p. 38.Google Scholar

⁴² Nozick, Robert, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974), p. 323.Google Scholar

⁴³ Scanlon, T., ‘A Theory of Freedom of Expression’, Philosophy and Public Affairs, 1 (1972), 204–26Google Scholar

⁴⁴ E.g. people may object to public nudity or to public sexual acts only because these cause them embarrassment.

⁴⁵ Mrs Mary Whitehouse would seem to be a case in point. While she accepts that the law of blasphemy is and ought to be concerned with the prevention of offence, her own reason for taking action against Gay News was rather different: ‘I simply had to protect Our Lord.’ New Statesman, 15 07 1977, p. 74.Google Scholar See also ‘Who the Hell Does She Think She Is?’, p. 15.Google Scholar

⁴⁶ For a discussion of this issue see Buxton, Richard, ‘The Case of Blasphemous Libel’, Criminal Law Review, (1978), 673–82.Google Scholar

⁴⁷ For an answer to this question, see Hart, , Law, Liberty and Morality, pp. 45–8Google Scholar, and for a critique of that answer and of the public-private principle in general, see Conway, David A., ‘Law, Liberty and Indecency’, Philosophy, XLIX (1974), 135–47.CrossRefGoogle Scholar

⁴⁸ 72 J.P. 188 at 189.

⁴⁹ E.g. Feinberg, Joel, ‘“Harmless Immoralities” and Offensive Nuisances: Reply’, in Care, Norman S. and Trelogan, Thomas K., eds., Issues in Law and Morality (Cleveland and London: Case Western Reserve University Press, 1973), pp. 131–3.Google Scholar

⁵⁰ E.g. Lord Sumner in Bowman v. Secular Society [1917], A.C. 406 at 466.Google Scholar

⁵¹ R. v. Hetherington (1840), 4 St. Tr. N. S. 563 at 590.Google Scholar

⁵² R. v. Ramsey and Foote (1883), 15 Cox C.C. 231 at 238.Google Scholar Coleridge made explicit use of the manner-matter distinction.

⁵³ R. v. Bradlaugh (1883), 15 Cox C.C. 217 at 219.Google Scholar

⁵⁴ R. v. Hetherington (1840), 4 St. Tr. N.S. 563 at 565–6.Google Scholar

⁵⁵ In R. v. Boulter (1908)Google Scholar, Phillimore J. remarked that Boulter's words might have led to a breach of the peace, but it is unclear whether he thought that tendency to cause a breach of the peace could affect the question of law as to whether words constituted a blasphemous libel (72 J.P. 188 at 189). In Bowman v. Secular Society, Lord Parker offered the opinion that ‘to constitute a blasphemy at common law there must be such an element of vilification, ridicule or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace’ ([1917] A.C. 406 at 446). This view of the law was clearly followed in R. v. Gott (1922) 16 Cr. App. R. 87.Google Scholar

⁵⁶ R. v. Gott (1922), 16 Cr. App. R. 87 at 89.Google Scholar

⁵⁷ [1979] 2 W.L.R. 281 at 312. Lord Edmund-Davis (at 307) simply rejected the suggestion that ‘in order to justify a conviction for blasphemous libel, the publication, when objectively considered, must tend to lead to a breach of the peace’.

⁵⁸ R. v. Gott (1922), 16 Cr. App. R. 87 at 90.Google Scholar

⁵⁹ R. v. Gott (1922), 16 Cr. App. R. 89Google Scholar; R. v. Bradlaugh (1883) 15 Cox C.C. 217 at 230.Google Scholar

⁶⁰ Mrs Whitehouse has claimed this as a ‘basic human right’, Daily Telegraph, 22 01 1979, p. 3.Google Scholar

⁶¹ On the strong and weak senses of a ‘right’, see Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977), pp. 188–9.Google Scholar