Chapter 10 Obliged to Be Good

As the state turned its sights to human interiority, probing thoughts to punish the offending kind, new vistas opened up. Being good presupposed a congruence between inner inclination and outer act.

Apart from habit, custom, and informal sanction, at least three kinds of rules have enforced behavior: religious precepts, moral exhor­tations, and laws. Each was transgressed in its own way. Sin scoffed at divine edicts or the church's will. Immorality transgressed ethical or moral codes. Crimes violated laws—rules that, neither divinely enjoined nor necessarily ethically informed, had been issued by rec­ognized authority. Religion, morality, and law have often reinforced each other. Once the gods stopped enforcing and the church gave up its temporal power, the law commanded the largest battalions. Nonetheless, religion and morality still undergird the law. Religion, morality, and law today steer in different directions on only a few issues: abortion, euthanasia, homosexuality, and polygamy. Despite increasing secularization, the law continues to enforce morality. "Besides interfering with people who wish to have abortions, com­mit homosexual acts, visit prostitutes, take drugs, get drunk,” as one scholar listed the still controversial instances in 1976, “it also interferes with people who wish to steal, rob, evade income taxes, assault, and murder.”¹

Ideological regimes, religious or political, have punished wrong thoughts for at least two reasons. First, the thinkers needed to be saved from themselves.

Western societies no longer consider thought crimes a commu­nal danger. As the distinction between sin and crime was elabo­rated, and as religious and eventually political beliefs were moved from the state's auspices into the private sphere, what individuals thought or believed became a matter largely for them alone. The same held, but to a lesser extent, for the collective danger posed by wrong thinking. If some thoughts motivated wrong action, they undermined society. The individual adulterer might not harm any­one, but widespread philandering threatened to hollow out the family as an institution. Perjury, contempt of court, and tax evasion did not necessarily cause immediate widespread harm but under­mined the penal code's deterrent effect.³ The state might no longer enforce religion, but it did police morality. In much the same way, though the authorities did not suppress political criticism, they did insist on maintaining order. Treason, as we have seen, has been nar­rowed to the point where only actual attempts to destroy the state are punished. Most opinions may be freely expressed. The concern with speech has shifted from its content—now only rarely action- able—to the circumstances and form of its expression: whether it threatens unrest or disorder. Around the time of the Peterloo massa­cre in 1819, the English authorities began paying less attention to whether public statements were libelous and treasonous and more to whether the assemblies where they were uttered were riotous.⁴ Contemporary debates over hate speech focus less on the precise— usually risible—claims advanced in that speech and more on the circumstances of their utterance and their consequences in acts.

Does the modern state legislate morality? Founded contractu­ally for its citizens' common good, the state, many think, pursues order, not virtue. Society has therefore banned only those actions that harm it, undermining public tranquility. Sacrilege, even unbe­lief, are no longer its concern, though blasphemy may disturb the public peace and can be prosecuted on that basis, not as an offense to God or religion.⁵ Nor are many behaviors pursued that harm no one, or even those that affect only the person doing them: adultery, sloth, fornication, gluttony, inebriation, masturbation, and other acts that once called down the law's wrath. The private realm of permissible behavior and cogitation has undeniably expanded. Yet what that realm includes and what remains regulated depend on how order and harm are defined. As some behaviors became pri­vate, others were recognized as of public concern.

By themselves, religion and later morality lacked strong means of secular enforcement. Big gods enforced sanctions and encour­aged prosocial behavior.⁶ But on earth law played little role in vol­untary communities of the likeminded, bound together by belief but with no official ability to coerce. Among the early Christians, mor­als and faith guided believers without legal sanctions. As a gather­ing of the likeminded with no tools of compulsion, the early church could enforce its precepts only through private punishments (pen­ance, fasting, pilgrimages, sartorial markings) that believers agreed to submit to, along with whatever psychic toll was imposed by the conviction that they had fallen from God's favor. Mennonites, the Amish, Mormons, Orthodox Jews, and other religious communities that enforce behavioral norms not enshrined in statute continue like this today.

Convinced of their own virtue and ability to guide behavior by example rather than by precept, political ideologies, too, have suc­cumbed to the illusion that they could do without the law.

Early on, religion regulated even behaviors that would later be treated as ethical or legal concerns. Thus, theocracies policed a wider range of conduct than we now recognize as pertaining to either moral­ity or the law. The Old Testament decreed death for encroachment on the tabernacle, idolatry, blasphemy, Sabbath breaking, assault on par­ents, contumacy, murder, manslaughter, negligent killing, adultery, concealed unchastity, rape, homosexual acts, bestiality, prostitution, incest, stealing from God, kidnapping, and serious perjury.¹² Religion sought to control personal conduct (diet, hygiene, dress, groom­ing, and other ways of combatting uncleanliness) as well as beliefs (apostasy, sacrilege, heresy, blasphemy), economic and legal relations (usury, perjury, breach of contract, forgery of documents), supernat­ural and semireligious behaviors (sorcery, witchcraft, magic), moral­ity (adultery, incest), quasi-emotions (greed, pride, envy), and family relations, including women's rights.¹³ As if that were not enough, reli­gion also claimed to govern belief, sin, grace, and other inner states.

Polytheistic religions were not very good at setting consistent ethical precepts. Gods disported themselves with little coherence and even less willingness to set a good example. Among the Aztecs, as the four sons of Ometeotl fought each other for control of the universe, Huitzilopochtli beheaded his sister when she tried to mur­der their mother, who had become pregnant out of wedlock. The Egyptian god Seth killed his older brother, Osiris, to become king of Egypt and then had to fight his nephew, Horns, to retain power. Deities raped, seduced, and cheated. Osiris sired the god Anubis by the wife of his brother, Seth, and Seth in revenge raped his young nephew, Horns.¹⁴ The monotheistic religions were practically prim in comparison, issuing universalist law codes and punishing a wide variety of behaviors—drinking and gambling in Islam, for example.

Whether mono- or polytheistic, divine precepts were often ethi­cally indifferent, even immoral. Gods were spiteful, vengeful, petty, peevish, and cruel. They were often envious of humans—when mortals were too happy, for example.¹⁵ What they commanded was not always ethical, and far from all sins were immoral.¹⁶ Why gods were not more moral has long been a puzzle. The concept of an “act of God,” describing the unpredictable, overpowering forces insur­ance companies refuse to reimburse for, hints at the dilemma. Job tries our understanding as he endures God's injustice. Accustomed to mercurial divinities, even the Greeks were often stumped by how unjust the gods could be. In the Theognidean sylloge, Zeus is asked the question we pose of Job: Faced with a just person suffering undeservedly, can we still worship the immortals?¹⁷

It may be sinful not to pray or worship, but it is hardly immoral. Nor was Jonah being immoral when he disobeyed God by tak­ing a ship in the opposite direction instead of going to Nineveh to preach.¹⁸ Dietary injunctions and other rituals were morally indifferent.

Religion at times contradicted morality outright. The elect saw their behavior as inherently virtuous, regardless of how immoral. Subjects who claim direct access to the divine are the state's worst nightmare: unruly, supremely self-assured antinomian anarchists, irrepressible in their mischief. In the twelfth and thirteenth centu­ries, the Free Spirits of northern France and the Rhine Valley were convinced that, thanks to their immediate relation to a pantheistic god, they had no need of the church and its sacraments. Sinless and thus unbound by conventional morality, they allegedly indulged in spectac­ular feats of sexual promiscuity, even incest. Intercourse with the illu­minated, they cunningly claimed, restored a woman's virginity.²⁰ The

Ranters of seventeenth-century England believed they were incapa­ble of sin and so welcome to indulge in fornication, incest, adultery, orgies, cursing, whoring, drunkenness, and blasphemy.²¹ The Jewish messianic rabbi Sabbatai Zevi made similar claims to direct connec­tion with the divine. Claiming to be the messiah, he married a former prostitute and radically reformed rituals. In 1666, he ordered follow­ers to celebrate his birthday rather than fast on the Ninth of Ab, com­memorating the Temple's destruction. Sexual extravagances were also reported among later Sabbatian heretics.²²

But as religious and secular administration grew separate, so did law and religion and later morality as well. Morality increasingly crystallized out the ethical components of religion, leaving behind the sectarian and ritualistic aspects. Eventually it too was statutorily enforced. Compared to what would have been the Jews' theocratic commandment of religious injunctions if they had had a state, the Romans scarcely enforced religious matters. They did forbid violat­ing the chastity of the Vestal Virgins, who stood in constant con­tact with the gods if they remained pure.²³ But it was still long before religion and morality were clearly distinguished. The scholastics of the twelfth and thirteenth centuries recognized natural law, but not morality, as something separate from religion.²⁴ In the sixteenth and seventeenth centuries, natural law, in all its variations, supplemented or replaced the divine as the ultimate authority. By the Enlighten­ment and especially with Kant, a secular morality had developed with little connection to organized religion, indeed often opposed to it. Voltaire's philosopher Zadig claimed that all religions aimed at a lowest common denominator of ethics. At the same time, sin also came to approximate immorality as religious teachings became more generally ethical and less concerned with theological doctrines.

For Hobbes in 1651, crime was still a subspecies of sin, “consist­ing in the Committing (by Deed, or Word) of that which the law forbiddeth, or the Omission of what it hath commanded.” Every crime was a sin, but not every sin a crime.²⁵ In the early seventeenth century, Hugo Grotius, too, hardly distinguished between law and morality. Sin and crime remained conflated. Laws in the eighteenth century still prohibited what were regarded as sins or moral failings: committing adultery, having sex outside of wedlock, working on the Sabbath or not working at all, begging, bear baiting, and cock fighting.²⁶ But in 1689 Locke separated the two. The magistrate's mandate was the public good. Being covetous, uncharitable, or idle: though possibly sins, these were not crimes. No harm ensued, nor was society's peace disturbed.²⁷ Law's concern was only with actions that hurt others. The Enlightenment philosophes, such as Beccaria, distinguished between secular punishment in this world and divine justice in the afterlife.²⁸ The French Constituent Assembly's Law of 8-9 October 1789 declared that the law should prohibit only actions harmful to society.²⁹ The Bavarian penal code of 1813 distinguished rigorously between law and morality. Law should not deal with acts that violated people's moral obligations to themselves. Masturba­tion, sodomy, bestiality, and fornication were immoral, but laws punished such sins only if they violated others' rights.³⁰ Adultery was treated as a breach of contract and dealt with in the code's arti­cle following that on attorneys who failed to pursue their clients' interests. It was punished with a maximum of three months' jail.³¹ In France half a century after Locke, however, Montesquieu still counted offenses against religion and morality as two out of four forms that crime took, alongside actions against public tranquility and individual security.³²

Enforcing religion long remained the law's task. The church developed its own courts whose remit included blasphemy and her­esy. By 1500, such courts were found throughout Western Christen­dom.³³ Technically a royal institution, the Inquisition pursued the church's enemies until 1834.³⁴ Secular authorities eventually entered the field, too. Early in the thirteenth century, several European states instituted death against heresy, which they treated as a secular crime.³⁵ In seventeenth-century England, blasphemy was a common law offense and in 1697 also began violating statute. Christians who denied the Trinity, claimed there was more than one God, or rejected the Bible as divine authority could not hold office and suffered other legal disabilities and jail if they repeated any of these offenses.³⁶ Yet the state cared for public order more than for theological purity. Cromwell's mid-seventeenth-century Puritan republic faced even more extreme nonconformists. Reformers themselves, the Puritans could have enforced orthodoxy only hypocritically. But dissenters such as the Ranters, who believed that God was everywhere and that no authority deserved obedience, gnawed at society's moorings.

In 1650, the House of Commons took aim at Ranters with an act punishing those who believed that, thanks to their immediate rela­tionship to God, moral distinctions no longer applied to them, sal­vation and damnation were irrelevant, and they were incapable of sin. A month later, another act ended all requirements of uniform religious belief and practice. A variety of Christian practices was now tolerated, but extreme dissenters were still beyond the pale— Ranters and Socinians (who rejected Christ's divinity and original sin). In effect, forms of Christianity that were both religious and moral were accepted, but those sects that refused to toe the line of morality and social order were not. This distinction held even after the monarchy was restored in 1660. Christians sects that did not threaten the social order were tolerated. Only those who refused to swear oaths (Quakers) or considered themselves the sinless elect were not. They were punished not for theological deviations but for threatening stability. When John Taylor was convicted of blas­phemy in 1676 for calling Christ a bastard, a cheat, and an impos­ter, he was put in the pillory with a sign saying “for blasphemous words, tending to the subversion of all government.”³⁷ Blasphemy was now punishable in common law because Christianity was part of the social order. But it became enforced by law less as a religious doctrine than as a set of behavioral precepts—more morality than theology.

Morality and religion were conflated. Resting on both, the social order would be undermined if either were violated. In 1675, Chief Justice Hale warned that to deny religion was “to dissolve all those obligations whereby civil society is preserved.” A century later, in 1797, Justice William Henry Ashurst said of blasphemy that it was not just an offense against God but against “all law and government from its tendency to dissolve all the bonds and obligations of civil soci­ety.” Another century on, in 1908, Justice Walter Phillimore allowed that humans were free to think, speak, and teach as they pleased in religious terms but not in moral ones.³⁸ Purely theological issues had now been left to God, but beliefs with this-worldly consequences— morality—remained the law's concern. That is broadly where the issue has remained ever since. Some still think that morality cannot be taught without religion.³⁹ But in the main, doctrinal matters have been shifted to the private sphere, out of the state's purview. Out­side the world's remaining theocracies, religious practices concern the law only if nonreligious norms have also been violated: bigamy among Mormons, animal cruelty in Santeria sacrifices, child neglect by Christian Scientists shunning medicine, truancy among home­schooling Seventh-Day Adventists, infibulation of Muslim women.

Blasphemy, however, has remained on the books in many coun­tries. Thirty-two nations (eight in Europe) still retain antiblasphemy laws. Another twenty punish apostasy.⁴⁰ France abolished blasphemy in 1791, and the US never instituted it as a federal crime.⁴¹ Yet it remained in place as a state-level offense. Even colonial Pennsyl­vania, otherwise religiously ecumenical, outlawed blasphemy. Mas­sachusetts prosecuted it as a capital crime until 1692.⁴2 By 1951, federal law and First Amendment rights together made prosecutions for blasphemy unconstitutional. And yet as of 2009 it remained law in Massachusetts, Michigan, Oklahoma, Pennsylvania, South Caro­lina, and Wyoming. On this basis, in 2007 Pennsylvania rejected a bid to name a company “I Choose Hell Productions.”⁴³ Until 2008, blasphemy remained a crime in Britain, but only against Christian­ity. This helped the authorities in 1989 when they were pressured to join the fatwa issued by Iran's Ayatollah Khomeini against Salman Rushdie for his treatment of Muhammad in his novel The Satanic Verses.⁴⁴

Blasphemy obviously remained a religious issue in theocracies. But to secular societies, blasphemy marked the boundary between free speech and civility, a matter of order and propriety, not theo­logical doctrine.⁴⁵ Modern blasphemy laws no longer protect specific doctrines but prohibit the insulting of religious feelings or the incit­ing of hatred against religious groups.⁴⁶ They have become a form of collective libel legislation, protecting minority communities from attack.⁴⁷ In 1922, an Australian judge found that while respectful denial of God's existence was not blasphemous, scurrilous and offen­sive attacks intended to outrage Christians were. In 1978, a British court convicted of blasphemy the publisher of James Kirkup's poem about homosexual sex between Christ and a centurion.⁴⁸

Muslims, whose religion—like some variants of Protestantism— forbids depictions of God as idolatrous, have especially policed blas­phemy. Cartoons depicting Muhammad in Jyllands Posten in 2005 cast the complacently tolerant Danes as the new Satans of interna­tional politics.⁴⁹ With the slaughter in 2015 of twelve journalists by Islamist gunmen at the offices of the Parisian satirical magazine Charlie Hebdo, free-speech fundamentalism found itself unexpect­edly on the defensive against a more cautious consideration of reli­gious sensibilities. Muslims in Europe—however quick to anger and kill—were also downtrodden minorities. Did that give them claim to deference for their cultural singularities? Mormons endured a whirlwind of blasphemy in the wildly popular musical the Book of Mormon in 2011.⁵⁰ Their official response was commendably restrained. “You've seen the play,” the billboards proclaimed, “now read the book.”