The troubling consequences of the ECHR affirming sharia blasphemy laws

If you haven’t yet seen it, it is worth reading the judgement from the European Court of Human Rights in the case of E.S. v. Austria – 38450/12. It is worth reading because the court have unanimously decreed that it is entirely legitimate for nation states to fine or imprison their citizens for daring to defame the Muslim prophet Mohammad.

According to the ECHR ruling, here are the facts of the case:

The applicant held seminars with the title “Basic information on Islam” at the right-wing Freedom Party Education Institute. At one such seminar, referring to a marriage which Muhammad had concluded with Aisha, a six-year old, and consummated when she had been nine, she stated inter alia “[Muhammad] liked to do it with children”, “the thing with Aisha and child sex” and “a 56-year-old and a six-year-old? What do you call that? Give me an example? What do we call it, if it is not paedophilia?”

In 2011, as a result of these statements,the applicant was convicted of disparagement of religious precepts pursuant to Article 188 of the Criminal Code. She was sentenced to pay a fine of EUR 480, or serve 60 days of imprisonment in the event of default. The domestic courts made a distinction between child marriages and paedophilia. In their opinion, by accusing Muhammad of paedophilia, the applicant had merely sought to defame him, without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty or that his other wives or concubines had been similarly young. In particular, the applicant had disregarded the fact that the marriage with Aisha had continued until the Prophet’s death, when she had already turned eighteen and had therefore passed the age of puberty.

The ECHR unanimously upheld the original conviction in the case.

Several troubling things result from this ruling. First, and most concerningly, is the effect of this ruling on freedom of speech. For one, the court took issue with the title of the seminar in question which, they argued, was misleading and gave the impression ‘that it would include objective information on Islam.’ But how objective is any discussion? We all bring to the table our biases. Muslims are not neutral in these matters but their lack of objectivity doesn’t seem to trouble the judges in nearly the same way. Just how objective does something have to be because, in truth, it will never be entirely without bias.

The court was also concerned that:

The applicant’s statements had been capable of arousing justified indignation given that they had not been made in an objective manner aimed at contributing to a debate of public interest, but could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship.

But the arguments made repeatedly in the successful Reform Section 5 campaign in the UK was that there is no right against being offended in a free and democratic society. The ECHR historically defended that understanding. It is also interesting that they have not, for example, determined that blasphemy against the Christian God – or seminars designed to defame Jesus Christ that have a reasonable chance of offending adherents of that faith – has not been similarly protected. Apparently, only Mohammad receives such protections.

Further, as the Archbishop Cranmer blog notes:

Whatever level of non-expertise in Islamic theology or history the Austrian national known as ‘Mrs. S.’ possessed, by this bizarre judgment the ECHR eschews foundational values of the Enlightenment by facilitating the spread of a sharia blasphemy code in Europe. It appears henceforth that only academic experts in seventh-century Arabian history or law may comment on the fact (and for many Muslims it is a fact) that the 56-year-old Mohammed married a six-year-old girl called Aisha (and consummated the marriage when she was nine). It isn’t clear what level of academic certification the ECHR judges require in order to establish adequate learning and knowledge (PhD? A-level Religious Studies?), but it is certain that if, like ‘Mrs. S.’, you offer seminars on Islam which do not provide information in an “objective manner”, you may now be fined (or imprisoned) for imparting your prejudice or ignorance.

Second, this judgement has the rather unfortunate inference that it is unacceptable to use the label paedophile if, indeed, the one who has sex with minors also happens to enjoy sex with adults too. According to the judgement, Mrs S was defaming Mohammad because – despite her claim that Mohammad had married a girl of 6 named Aisha and consummated the marriage when she was 9 – she did so, ‘without providing evidence that his primary sexual interest in Aisha had been her not yet having reached puberty or that his other wives or concubines had been similarly young.’ So that’s alright then. If he had sex with a 9-year-old, he’s not a paedophile if he was interested in her for other reasons beyond her being prepubescent and had sex with people who were older. I’m sure that will come as a great relief to many of the paedophiles currently incarcerated in British prisons who can now reasonably claim not to be paedophiles at all.

Now, as somebody who spends a lot of time with Muslims, be sure that calling the principal prophet of Islam a paedo is not missionally sensitive and will not win those you are seeking to reach to Christ. There isn’t a vast amount of evangelistic merit in it. As Cranmer aptly put it:

In the matter of Aisha’s betrothal to Mohammed there is cultural context and religious history to consider (as there is in all of Mohammed’s war-mongering and barbarism (may one say that?), and all of this contested history, contentious theology and murky religious sociology is rather more interesting and ethically nuanced than crassly hurling ‘paedo’ allegations at Mohammed.

But, of course, I strongly suspect Mrs S of the Freedom Party was not seeking to win many Muslims to Christ by her contextualised, missionally sensitive approach to evangelism.

But the question here is not whether it is efficacious in ministry to call Mohammad a paedo, it’s whether it is permissible to utter the accusation at all. It is not whether, after contextualised and considered debate one can have misgivings about his marriage to Aisha, it is whether anybody – regardless of training or qualification – is permitted to offer an interpretation of historical facts (as they judge them) and to critique a religion despite the sensibilities of its adherents or their proneness to retributive acts of justice to satisfy their particular understanding of honour.

Here is the ancient historian, Tom Holland, offering his take on the judgement:

And herein lies the major point. Whether you believe that Mohammad married a 6-year-old and had sex with her when she was 9 (which many Muslims do take as a fact), or you believe it can be contextualised in some way or you deny the authority on which it is founded (which some Muslims also do), it surely cannot be right that a court upholding Western Liberal values can conclude that statements about a religion which are ‘capable of arousing justified indignation’ constitute a ‘malicious violation of the spirit of tolerance’, and so must be censored and criminalised. It is particularly egregious that – bad enough as that conclusion on the face of it is – as Cranmer points out, it is ‘specifically those who defame Mohammed from a point of historical ignorance or religious prejudice may now be fined or imprisoned.’

How can Islam ever be critiqued by anyone? How can it be right that the only people permitted to rule on the reliability and legitimacy of Islamic mores or the historical facts and context that led to them are Muslim scholars themselves? As Cramner rightly asks, ‘if the ECHR now affirms this, in what sense is this not a violation of the freedom of expression of both non-Muslims and all those enlightened Muslims who wish to carry out a bit of quranic or hadithic form criticism and develop a reason-based prophetology?’