1 Witte, J., “Introduction”, in Witte, J. and Vyver, Van der, eds., Religious Human Rights in Global Perspective – Legal Perspectives (1996) XX.Google Scholar

2 Abe, M., “Religious Tolerance and Human Rights: A Buddhist Perspective”, in Swidler, L.W., ed., Religious Liberty and Human Rights in Nations and in Religions (1986) 198.Google Scholar

3 To Buddha himself the following passage is ascribed: “If dissent denotes a fool and stupid dolt, then all are fools and dolts – since each has his own view …. I count not that as true which those affirm who call each other fools. They call each other so because each deems his own view truth”. Burtt, E.A., ed., The Teachings of the Compassionate Buddha (1955) 36.Google Scholar

4 The following passage is also ascribed to Buddha: “To one who constantly seeks your faults, you respond by seeking your virtues. Revilers you conquer by patience, plotters by blessings, slanderers by the truth, the malicious by friendliness”. Abe, supra n. 2, at 191.

5 Ibid., at 200; Burtt, supra n. 3, at 37.

6 Levy, L.W., Blasphemy — Verbal Offences against the Sacred. From Moses to Salman Rushdie (1993) 452, 570.Google Scholar

7 Lawton, D., Blasphemy (1993) 4.Google Scholar

8 Shorter Oxford English Dictionary, q.v. heresy.

9 Brown, H.O.J., Heresies (1984) 2.Google Scholar

10 A 6th century theologist, Isidora of Pavilla, wrote in his Etymologies that “schism” is derived from the Greek word for cutting: “they separate from the congregation and say, we alone are just and holy … ‘Sects’ are so called from following and holding: sequendo et tenendo: they are a habit of spirit formed around a discipline or proposal different from others in religious cult”. Quoted and translated by Peters, E., Heresy and Authority in Medieval Europe (1980) 49.Google Scholar

11 B Sanhedrin 44a. Not only a born Jew, but also a convert who returns to his old religion remains a Jew: B Yevamot 43 b, B Bekhorot 30 b. But we find also a provision to the effect that an alien (ger) who was converted to Judaism and returns to his old religion, refusing to stand by his Jewishness, may be liable to be killed: Maimonides, , Hilkot Melakhim 10:3.Google Scholar

12 For the distinction between these terms, see Zeitlin, S., “Mummar and Meshumad”, (1963–1964) 54 Jewish Q.R. 84–86.CrossRefGoogle Scholar

13 B Hullin 4b-5a; 8 Eruvin 69 b; Maimonides, , Hilkhot Teshuva 3:9.Google Scholar

14 Sifra, Vayikra 2:1.

15 T Horayot 1:5.

16 B Sanhedrin 27a, B Avoda Zara 26b, B Horayot Ila; B Chulin 3a–4a.

17 Petuchovsky, J.J., “The Mummar – A Study in Jewish Philosophy”, 30 Hebrew Union College Annual (1959) 180Google Scholar, writes that the mummar for pleasure “is apparently deemed a somewhat less evil type”; but see the discussion there at 184 ff.

18 Hilkhot Teshuva 3:9; Petuchovsky, ibid., at 179–90.

19 Kellner writes that he turned Judaism “from a unique phenomenon – a chosen people whose special relationship with God found expression in a body of practices – to an ecclesiastical community, a church of true believers”. Kellner, M., “Can Orthodoxy Share the Public Square?” (1999) 11 Jewish Political Studies R. 127, at 130.Google Scholar

20 B Rosh Hashana 17a. and cf. M Sanhedrin 10:1, B Sanhedrin 64 b, 99a.

21 The first of the great heretics, Elisha Ben Abuya, was called “cutter of the plants”, as if he had been cutting away the plants of the divine orchard: B Hagiga 14b; J Hagiga 2:1; T Hagiga 2:3.

22 Maimonides, Commentary to Mishna, Introduction to Chapter X of Sanhedrin; quoting Psalms 39:21. (Full English text in Twersky, I., ed., A Maimonides Reader (1972) 422Google Scholar.).

23 Hilkhot Teshuva 3:7. The talmudic definition of a Min is confined to idolaters (B Avoda Zara. 27b), but has been extended to Christians (e.g., B Shabbat 116 a), Sadducees (e.g., B Berakhot 29a) and others.

24 Hilkhot Teshuva 3:8. Talmudic definitions of Epikuros are variegated: one who denies the divinity of Oral Law (B Kiddushin 66a), or one who deliberately misinterprets the Law (B Sanhedrin 99b) or derides the Sages (ibid.). The term appears to have been used at various times in different meanings, and serves up to the present as general term for heretic (in its widest sense). See my Dinam shel epikursim, in Cohn, H.H., Mivhar Ketavim (1992) 127–152Google Scholar (in Hebrew), for further talmudic and Maimonidean definitions. Twersky, I., Introduction to the Code of Maimonides (1980) 430, n. 183Google Scholar, lists ten different applications by Maimonides, in his Code alone, of the term epikuros, and the list is not complete.

25 Hilkhot Teshuva, ibid. Talmudic instances of kofrim: B Sanhedrin 38b, 45b, 94b; B Sota 4b; et al.

26 See text at n. 13, supra.

27 Hilkhot Teshuva 3:9. A contrary view that the mummar with respect to a particular commandment was the appetitive and not the defiant transgressor (B Avoda Zara 26b, B Horayot 11a) was rejected by Maimonides.

28 B Eruvin 69 a-b; B Hullin 4b; B Horayot 11a; B Avoda Zara 26b; T Horayot 1:5. For further examples of transgressors labelled mummarim in the Talmud, see Petuchovsky, supra n. 17, at 182. On the question whether an idolater is to be classified as an apostate or a heretic, see id., at 187–188.

29 Hilkhot Teshuva 3:10.

30 M Avot 3:11; B Bava Metzia 58b; B Yoma 85b and Rashi ad loc.

31 Hilkhot Teshuva 3:11, and Moreh Nebukhim 3:41.

32 B Hagiga 3b et al.

33 There is a definition by Maimonides of the heretic (epikuros) in the same vein: one who stupidly goes after his own mind and ends up transgressing Torah commandments out of spite, saying there is no offence in doing so. Hilkhot Akkum 2:5.

34 Hilkhot Mamrim 3:3. For a fuller treatment see Moreli, S., “The Halakhic Status of Non-Halakhic Jews”, (1969) 18 Judaism 448, 451ff.Google Scholar

35 Hilkhot Akkum 2:5.

36 Hilkhot Teshuva 3:14.

37 Hasdai Crescas (14th century), quoted at length and commented upon by Keller, M., “What is Heresy?”, Samuelson, N., ed., Studies in Jewish Philosophy (1987) 55, 59 ff.Google Scholar

38 That Abraham believed in God was “counted for him as righteousness”: Gen. 15:6. Israel believed in God when they saw the miracles God had done for them: Ex. 4:31, 14:31, 19:9. (But they were reported also not to believe in God: Num. 20:12; Deut. 1:32). And see Kellner, M., Must a Jew Believe Anything (1999) passim.Google Scholar

39 Epicuros (ca. 300 B.C.) is generally known for his hedonism; but he also taught that the fear of the gods is at the root of all evil, and that no self-respecting human being should believe in the myths of the creation of the world or the divine government of the world, or any divine rewards or punishments, or any future life. For the teachings of Epicuros see Witt, N.W. de, Epicurus and his Philosophy (1954)Google Scholar and Baily, C., Epicurus (1962)Google Scholarpassim. There is an excellent treatise in Hebrew by Spiegel, N., Epicuros (1982).Google Scholar

40 Examples to be found in rabbinical literature are well nigh inexhaustible.

41 C. 1325 CJC.

42 C. 2195 CJC.

43 Eichmann-Mörsdorff, , Lehrbuch des Kirchenrechts (8th ed., 1954) III 415Google Scholar holds that it is not; Hagen, A., Die kirchliche Mitgliedschaft (1938) 56Google Scholar, holds that it is.

44 Eichmann-Mörsdorff, ibid., at I 194.

45 The Catholic Encyclopedia Dictionary (1929) 55. q. v. Apostasy.

46 “Interdictum”: cc. 2268–69, 2275, CJC.

47 Eichmann-Mörsdorff, supra n. 43, at 1190.

48 Ibid., at III 415.

49 C. 2335 CJC. And cf. text at n. 185 infra.

50 C. 2385 CJC.

51 Russell, J.B., Religious Dissent in the Middle Ages (1971) 1.Google Scholar

52 Tertullian went on to explain that “We do not need that kind of curiosity now that we have Jesus, or any inquiry now that we have the Gospel. If we believe this, we need believe nothing besides. For we believe first that we ought to believe nothing else”. Tertullian, Adversus Marcionem, quoted from Peters, supra n. 10, at 30–31. It is noteworthy that Tertullian himself became a heretic at the end of his life, following the teachings of Montanus as to dissolubility of marriages, obligatory fasting, and the legitimacy of collecting money and subsidizing adherents: Brown, supra n. 9, at 62–64, 78. For Montanism see Eusebius, , The History of the Church (English translation by Williamson, , 1965) V 16, 17.Google Scholar

53 A 5th century theologian, St. Vincent of Lorins, quoted by Peters, supra n. 10, at 13, observed that heretics were apt to go through each and every book of the Bible and base their teaching on passages from scripture.

54 Quoted from Castellio, Sebastian, Concerning Heresies (16th century), English translation and annotation by Bainton, R.H. (1965) 24–28.Google Scholar

55 De fide et ecclesia (1375), translated by Peters, supra n. 10, at 299ff. They were written and published – and generally acclaimed – at a time when ecclesiastical hysteria over heresies was at its worst.

56 This statement he ascribes to Gratian (1150).

57 “Whoever acquires ordination through money is elevated not so much to the rank of prelate as to that of heretic”. (It will be observed that the classification of heretics goes far beyond the definition of heresy: perhaps the former reflects the actual usage in ecclesiastical courts, while the latter is academic theory).

58 But no external act is required to prove heresy: Berman, H., Law and Revolution (1983) 188.Google Scholar

59 Russell, supra n. 51, at 11.

60 Castellio, supra n. 54, at 209, quoting Chrisostom. They cannot look into the sun because of their defective eyesight, and cannot touch even the most wholesome food because of the infirmity of their health.

61 They are “isolated, proud, restless, fickle”. Peters, supra n. 10, at 21, quoting St. Vincent of Lorins.

62 Russell, supra n. 51, at 84–85, quoting Paolini. (As a matter of fact, most heretics were better educated, more rational, more pious than their orthodox persecutors). Heretics are ravening wolves in sheep's clothing. From Matt. 7:15. “What are ravening wolves but treacherous spirits which hide to infect the flock of Christ?” Peters, supra n. 10, at 29, quoting Tertullian.

63 Ibid., at 153–154, quoting Passau Anonymous.

64 Other causes of heresy are more consistent: that they learn and teach without books; that however unlearned, they translate and teach scripture in the vernacular; or they follow the bad example of other people's lifestyle, “the false and frivolous preaching by pious ignoramuses”; the irreverence shown by some ministers of the Church to holy sacraments; and their hatred to the Church and her clerics. Ibid., at 150–152, quoting id.

65 Luther's, MartinWerke (ed. Knaacke, , 1883–1930) VII 317.Google Scholar

66 Ibid., at VII 645–646.

67 Ibid., at XXXI 207–209. In an earlier text, he had pronounced heresy to be “a spiritual thing which can be cut with no iron, burned with no fire, drowned with no water”, and he advocated the extermination of heresy in the way Isaiah had prophesied: “with the breath of his lips shall he slay the wicked”. Lamentations 11:5.

68 Luther, ibid., at XI 161–171.

69 Ibid., at VIII 125–127.

70 Jakob Bochme claimed to be inspired by the Holy Spirit and was burned in 1625. His disciple Quirinus Kuhlmann proclaimed Bochme the last prophet and was burned in 1684: Brown, supra n. 9, at 383–384.

71 Brown, ibid., at 385, 393.

72 Ibid.

73 Russell, supra n. 51, at 5.

74 Mansour, A., “Huddud Crimes”, in Bassiouni, M. Ch., ed., The Islam Criminal Justice System (1982) 197Google Scholar; Zwemer, S.M., The Law of Apostasy in Islam (1975) 47.Google Scholar

75 Zwemer ibid., at 47–48: and cf. Murtadd, HWI 544.

76 An-Naim, A.A., “The Islamic Law of Apostasy and its Modern Applicability” (1986) 16 Religion 197, at 212–13.CrossRefGoogle Scholar

77 A.A. An-Naim, “Islamic Foundations of Religious Human Rights”, Witte and van der Vyver, supra n. 1, at 353.

78 Rahman, S.A., Punishment of Apostasy in Islam (2nd ed., 1978) 157Google Scholar and passim. (See An-Naim, supra n. 76, at 208: apprehension of “upheaval”).

79 D. Arzt, “The Treatment of Religious Dissidents under Islamic Law”, in Witte and van der Vyver, supra n. 1, at 387, 408, 436.

80 “Kafir”, HWI 253. And cf. Rahman, supra n. 78, at 7.

81 Ibid., quoting Lisan al Arab VI 459.

82 Rahman, supra n. 78, at 125.

83 Coulson, N., A History of Islamic Law (1964) 102.Google Scholar And cf. n. 139, infra.

84 Goldziher, I.J., Hartsaot al Halslam (1951) 136.Google Scholar (English translation by A., and Hamori, R., Introduction to Islam Theology and Law (1981) IV 18).Google Scholar

85 Ex. 22:28. The King James translation has it, “Thou shalt not revile the gods” – a misinterpretation due to the pluralistic form of the name of God, Elohim, first traceable in the Septuaginta.

86 Traditional commentators explain the mention of his Egyptian descent by suggesting that the father was the son of the Egyptian whom Moses had slain (Ex. 2:12) – and therefore must have nourished a deep rancor against the God of Israel.

87 Lev. 24: 10–11: The Septuaginta translates both naqab and kallel as blasphemy.

88 Ibid., at 15–16; M Sanhedrin 7:5, B Sanhedrin 56a. The common allegation that Jesus was put to death for blasphemy is untenable, since he did not pronounce the Name: see my The Trial and Death of Jesus (1971) 101–102, 129–134.

89 E.g., Ps. 10:3; I Kings 21:10; Job 1:5, 2:9. And see Weinfeld, M., Kelalah, , in Encyclopedia Mikrait VII 188Google Scholar (in Hebrew).

90 E.g., na'atz: Is. 1:4, 52:5; 60:14; Ps. 74:14; Deut. 31:20; Num. 14:11. Haref and gadef: Is. 37:17; Ps. 69:10–11, 74:10, 14; Ezek. 20:27.

91 They are not listed by Maimonides in his catalogue of prohibitions, Sefer Ha Mitzvot (cf. Lavin 60), but heretical thoughts are expressly exempted by him from punishment: Hilkhot Akkum 2:3.

92 Ex. 22:22, 26.

93 Baentsch, B., “Exodus”, in: Novak, W., ed., Handkommentar zum Alten Testament (1903) II 203.Google Scholar

94 Num. 14:11.

95 Num. 15:30–31.

96 B Sanhedrin 99a.

97 Num. 15:39. (Translation of the Jewish Publication Society of America, p. 277).

98 Minut: B Berakhot 12b and Rashi ad loc.: “those who pervert the reasonings of the Torah into wrong exegesis”. Sifrei, Bamidbar 115.

99 Ps. 14:1. And cf. Ps. 10:4: “The wicked thinks in the arrogance of his ire, there is no God: these are all his devices”.

100 Hilkhot Akkum 2:3. Cf. Sefer Hamitzvot, lavin 47.

101 Matt. 7:15. And, in the language of Tertullian: “What is sheep's clothing but the outward appearance of the name of Christian? What are ravening wolves but treacherous spirits which hide to infect the flock of Christ? Who are false prophets but false preachers?” Tertullian, supra n. 52, 29.

102 2 Peter 2:1.

103 Deut. 18:20. But we find “false prophets” also as invective: e.g., Jer. 23:25–26; 28:15.

104 I John 4: 1–3.

105 Matt. 13:24–30.

106 Ibid., at 36–42.

107 Fastenpostille (1525), in Werke, supra n. 65, VIII 125–127.

108 Matt. 12:31; Mark 3: 28–29; Luke 12:10.

109 Galatians 5:19–21.

110 Titus 5:9–11. And see text at n. 9, supra.

111 I Corinthians 11:19.

112 In contradistinction to “believing masters” who are “faithful and beloved”, unbelieving teachers deny the true words of Jesus Christ: they are proud, know nothing, quarrel about words, and cause envy, strife, dissensions and insults, and perverse argumentations – their minds are corrupt and destitute of truth. 1 Timothy 6:3–5.

113 “They follow their own desires and will follow more and more teachers who will teach them what they are itching to learn: they turn away from listening to the truth and indulge in legendary phantasms”. 2 Timothy 4:3–4.

114 2 Peter 2: 2–3.

115 Ibid., at 5–7.

116 Ibid., at 12–19 (abbreviated).

117 Matt. 9:3, Mark 2:7, Luke 5:21, John 10:33.

118 Sura 109:1–6. Translations of Quran texts are taken from Pickthall, M.M., The Golden Koran (Mentor Books, 1953)Google Scholar, unless otherwise stated.

119 See text at nn. 74–82, supra. And cf. Arzt, supra n. 79, at 436.

120 E.g., Sura 3:90; 16:84–85; 4:137.

121 Sura 4:89: “take them and kill them wherever you find them”.

122 Sura 3:177, 47:32.

123 “Let there be disbelievers — we are prepared for them with the Fire of Hell”. Sura 18:30. And cf. Sura 3:106: “their faces will be blackened”.

124 Sura 66:9.

125 Sura 18:52–57; 16:105; 67:10–11. Though they are stupid, they are not ignorant: a man who prefers other gods to Allah out of sheer ignorance, will not revile Allah unless his own gods are reviled. Sura 6:109.

126 Sura 22:8–9.

127 Ibid., at 11.

128 E.g., Sura 16:45; 45:21.

129 E.g., Sura 45:7, 16:105, 116.

130 Sura 16:108.

131 Ibid., at 112.

132 Sura 16:108.

133 Sura 16:106. And cf. Sura 4:89: he whom Allah sends astray.

134 Or it is Allah who “gave you being and ears and eyes and hearts” – and that is how you reward and thank him! Sura 47:23.

135 Sura 16:84 et al., but cf. Sura 5:39, 16:119.

136 Sura 47:11.

137 Ibid., at 13 and Sura 16:125.

138 Sura 30:31.

139 See text at n. 83, supra. And see Coulson, n. 83, at 86, quoting a dictum of Mohammad, that there are 360 pathways to eternal truth.

140 Sura 2:256. And cf. Rahman, supra n. 78, at 16, who extols this dictum as “the charter of freedom of conscience unparalleled in the religious annals of mankind”.

141 Ibid., at 256–57. And cf. Zwemer, supra a. 74, at 95.

142 See text at nn. 19, 20, supra.

143 Num. 15: 31. And see text at nn. 95, 96, supra.

144 M Makkot 3:15. Cf. Maimonides, , Sefer Hamitzvot, Lavin 63Google Scholar, to the effect that whoever sins from motives of rebellion against God, is desecrating his Name and shall be flogged. Cf. Assaf, S., HaOnshim Aharei Hatimat HaTalmud (1922) 48.Google Scholar

145 M Sanhedrin 9:5, T Sanhedrin 12:8 B Sanhedrin 81b; Maimonides, Hilkhot Sanhedrin 18:4; Elon, M., “HaMa'assar ba-Mishpat Haivri”, in Cohn, H., ed., Jubilee Volume for Pinhas Rosen (1962, in Hebrew) 171–72Google Scholar, expresses doubts whether this kind of imprisonment was ever carried into effect; but Schreiber, A.M., Jewish Law and Decision-Making (1979) 401Google Scholar, holds that “talmudic language implies that this was the actual practice, not just theory”. There is, at any rate, no recorded instance of any case of this kind of incarceration of heretics.

146 He went on, “for instance, if he sees one of them fall into a pit and there is a ladder in the pit, he should remove the ladder on the pretext that he needs it to bring his child down from the roof, and things of that sort”. Hilkhot Rotzei'ah 4:10. To the same effect: Hilkhot Akkum 10:1; Moreh Nebukhim 3:41, 51. The Maimonidean rule was restated in the Codex of Joseph Caro (16th century): Yoreh Dei'ah 158:1, Hoshen Mishpat 425:5.

147 Moreh Nebukhim 3:24.

148 Supra n. 91.

149 M Sanhedrin 9:6.

150 Maimonides, , Hilkhot Akkum 2:9.Google Scholar

151 B Sanhedrin 82a.

152 B Avoda Zara 26b.

153 Supra n. 146.

154 Ibid.

155 Hilkhot Mamrim 3:2

156 See text at n. 34, supra.

157 Zimra, R. David Ibn (Radbaz, 16th century) Responsa 796.Google Scholar

158 Furthermore, he intimated that this would be an adequate talionic punishment and is “a famous retribution practiced every day”. Yehiel, R. Asher ben (Rosh), Responso 17:8.Google Scholar And see Assaf, supra n. 144, at 75. In one reported case such mutilation proved futile: the man whose tongue had been cut off found a Muslim woman, converted to Islam, and he and his sons became arch-enemies who brought disaster upon the Jewish community: Assaf 123.

159 By “proscription” I mean the Herem, which in talmudic law is preceded by a preliminary ban, the Niddui: B Mo'ed Kattan 16a. The Niddui is now imposed for minor offences; for heresy (afkiruta) no preliminary warnings are required before the Herem is pronounced: ibid. For full particulars see “Herem”, Encyclopedia Talmudit (Hebrew) XVII 325–378; and Cohn, H.H., “Herem”, Elon, , ed., The Principles of Jewish Law (1975) 539–544.Google Scholar Among the many minor offences for which Niddui is indicated, we find “equalizing light and severe commandments, or arguing to uproot anything of the Torah, or contempt of the words of Sages or, so much the more, of the Torah”: B Berakhot 19a, Maimonides, Hilkhot Talmud Torah 7:14; Shulhan Arukh Yoreh Dei'ah 334.

160 B Mo'ed Kattan 15a-b; Semahot 5:10–13; Piskei Ha Rosh Mo'ed Kattan 3:4; Yoreh Dei'ah, ibid.

161 Yoreh Dei'ah, ibid., at 10; R. Moshe Isseries (Rema) ad loc. 6, Gulak, A., Otzar HaShtarot (1926) 302–04.Google Scholar

162 Encyclopedia Talmudit, supra n. 159, at 535ff.; Rema, ibid.

163 The Aramaic word for proscription, Shamta, was interpreted as Sham meetah, “there is death”: B Mo'ed Kattan 17a.

164 Sheshet, R. Yitzhak ben (Ribash, 14th century), Responsa 173, 185Google Scholar; R. Shlomo Luria (Maharshal, 16th century) Yam shel Shlomo on Bava Kamma 10:13; Rosh, supra n. 161, 43:9; R. Yaacov Molin (Maharil, 15th century) quoted by Assaf, supra n. 149, at 34; R. Yisrael Bruno (15th century) Responsa 189.

165 Ardrat, R. Shlomo ben (Rashba, 13th century) Responsa 5:238Google Scholar; Asher, R. Yehuda ben (14th century), Zikhron Yehuda 63Google Scholar; et al.

166 Asher, R. Yaacov ben (14th century), Tur Yoresh Dei'ah 334.Google Scholar

167 The most renowned Jewish proscript of all times was Baruch Spinoza (17th century), whose writings were (rightly) held to be incompatible with orthodox tenets, and who had at the time of his proscription already alienated himself from the community. The proscription of Spinoza's writings is regarded by Jewish orthodoxy as binding and prohibitive until the present day.

168 For another view, see M.J. Broyde, “Forming Religious Communities and Respecting Dissenters Rights: A Jewish Tradition for a Modern Society”, in Witte and van der Vyver, supra n. 1, at 203–33.

169 Maimonides, , Hilkhot GeZeilah 11:2Google Scholar; Shulhan Arukh Hoshen Mishpat 266:2. The reason is said to be that by returning his property to the heretic owner, you “strengthen the hands of the wicked”.

170 Any book that might rouse “thoughts which could bring a man to uprooting any of the principles of the Torah”. Man is of limited mental capacity: “not all winds are capable to reach the whole truth; and if all men were to be drawn after the thoughts of their hearts, the world would go to ruins”. Maimonides, Hilkhot Akkum 2:3. And see text at n. 100, supra.

171 B. Gittin 45b; Maimonides, , Hilkhot Tefillin 1:13Google Scholar; Shulhan Arukh Yoreh Dei'ah 281:1.

172 Hilkhot Yessodei Hatorah 6:8. A talmudic scholar held that heretical books must be destroyed because they stir enmity, jealousy and mistrust between Israel and their Father in Heaven. B Shabbat 116a; T Shabbat 13:5.

173 R. Yeheskel Landau, quoted by Altmann, A., Moses Mendelsohn (1973) 486.Google Scholar

174 Proclamation Eile Divrei Habrit signed by forty rabbis in 1819; Sofer, R. Moshe, Responso Hatam Sofer 6:94.Google Scholar For modern instances, see Zamer, M., Evolving Halakha (1999) 301–12.Google Scholar

175 E.g., the philosophical works of Maimonides; much of the early Hassidic literature; the writings of Rabbis Yonathan Eybeschutz and Yaacov Ettlinger (mutually); the books of R. Moshe Haim Luzatto (Ramhal); and many kabbalistic books and pamphlets. See my “Sefarim Assurim”, Mivhar Ketavim (1992) 171, 190–92.

176 Cc 2314, 1325 CJC.

177 Cc 2317, 1324 CJC.

178 C 2319 CJC.

179 C 2335 CJC. And cf., text at n. 49, supra.

180 C 2318 CJC.

181 C 2323 CJC.

182 Eichmann-Mörsdorff, supra n. 43, at III 426, 448.

183 Papal “bulls” are public epistles of the Pope, addressed to the faithful public at large, or to the colleges of cardinals or bishops, or to individual bishops. Canonizing bulls are known as litterae decretales or constitutiones apostolicae. See Eichman-Mörsdorff, supra n. 43, at 145–47. The Pope is the source of all canon law: Stutz, U., “Kirchenrecht”, in von Holtzendorf, , ed., Encyclopedia der Rechtswissenschaft (1871) I 811, at 849.Google Scholar

184 Peters, supra n. 10, at 168.

185 Ad abolandum, by Lucius III, 1184 (Peters, ibid., at 170–173).

186 Coulton, G.G., Inquisition and Liberty (1959) 155, at 168.Google Scholar

187 Lea, H.C., The Inquisition of the Middle Ages (ed. Nicholson, , 1961) 250Google Scholar; Coulton, ibid. 65: Animadversio means capital punishment.

188 Coulton, supra n. 186, ibid., quoting a contemporary account by Vidal, who suggests that instead of calling this hypocrisy or cunning, “let us call it simply a legal fiction”.

189 Supra n. 185.

190 Excommunicamus et Damnamus, by Gregory IX, 1231: Brown, supra n. 9, at 276; Peters, supra n. 10, at 190.

191 Lea, supra n. 187, at 232; Coulton, supra n. 186, at 111.

192 Cum ex officii nostri, by Innocent III, 1207. Translation by Lea, supra n. 187, at 242.

193 2 Corinthians 3:17.

194 Ad nostrum, by Clement V, 1317. Translation by Lerner, R.E., The Heresy of the Free Spirit (1972) 82.Google Scholar

195 Gloriam ecclesiam, by John XXII, 1318. Peters, supra n. 10, at 245–247.

196 Quorandum, by John XXII, 1317. See Lea, supra n. 187, at 604.

197 Unam Sanctum, by Bonafacius VIII, 1300. See Lea, supra n. 187, at 661–662.: These and similar heresies (like reading or possessing the Bible in vernacular) were called “constructive” heresies: Coulton, supra n. 186, at 123–124.

198 Lea, supra n. 187, at 149. The Inquisition was described as “the capitulation of the moral authority of the Church in face of heresy … Heretics were more dangerous than murderers who could only kill the body – but heretics destroy body and soul in hell. Its outrageous procedures horrified even the none too tender secular authorities”: Brown, supra n. 9, at 277.

199 Coulton, supra n. 186, at 138–139; Lea, supra n. 187, at 220–239.

200 Coulton, ibid., at 134. “Magnum emolumentum est justicia (justice is a very profitable undertaking) became a legal proverb”: ibid. 132.

201 Lea, supra n. 187, at 228.

202 Coulton, supra n. 186, at 132; Lea, ibid., at 230.

203 Lea ibid., at 233.

204 Ibid., at 232. And see text at n. 191, supra.

205 I elaborated on this subject in my paper, “Tortures and Confessions – Historical Sidelights on the Psychology of Law” (1969) 21 Scripta Hierosolymitana 3–27, reprinted in Cohn, H.H., Selected Essays (1992) 72–98.Google Scholar

206 Coulton, supra n. 186, at 156, quoting “Tanon, the juristic historian”. As a matter of historical fact, wherever men were persecuted or tormented because of their religious views or their race or their political association, their official dossiers contain (mostly sworn) statements to the effect that they had not been subjected to any torture and that they made their confessions freely and voluntarily and had let their property be taken away from them of their own accord.

207 Hudson, A., “Laicus Litteratus”, in Biller, P. and Hudson, A., eds., Heresy and Literacy 1000–1530 (1994) 293.Google Scholar R.N. Swanson, “Literacy, Heresy, History and Orthodoxy”, ibid., at 284, speaks of “deliteralisation” of heresy.

208 P. Biller, “Heresy and Literacy — Earlier History”, ibid., at 8.

209 Gratianus, , Decretum Dist. 37.Google Scholar Translation by Berman, supra n. 58, at 141.

210 Cc 1399, 2318 CJC. And see Eichman-Mörsdorf, supra n. 43, at II 422, III 411–412, and n. 180, supra.

211 Lea, supra n. 187, at 186.

212 Ibid., at 239. The same may be said of rabbinical bans: see text at n. 167, supra.

213 C 1060, CJC. And see Eichman-Mörsdorff, supra n. 43, at II 171–172.

214 Berman, supra n. 47, at 232.

215 C 1207, CJC.

216 Lea, supra n. 187, at 236, 262.

217 Anonymous (13th century) quoted by Lea, supra n. 187, at 251.

218 S.A. Rahman, supra n. 78, passim. On Rahman, see Arjomand, S.A., “Religious Human Rights and the Principle of Legal Pluralism”, in Witte, and van der Vyver, , eds., Religious Human Rights in Global Perspective – Legal Perspectives (1996) 345.Google Scholar

219 M. Talbi, “Religious Liberty: A Muslim Perspective”, Swidler, supra n. 2, at 187. To the same effect: Khan, Mohammad Zafrulla, Islam and Human Rights (1967) 112–20Google Scholar; Siddiq, N.A., “Enforced Apostasy” (1995) 14 Law and Inequality 275, at 321.Google Scholar

220 Supra n. 121.

221 Sura 5:33. And cf. Sura 2: 217.

222 Rahman, supra n. 78, at 68, 143.

223 We shall find similar arguments as to Jewish medieval laws.

224 Zwemer, supra n. 74, at 50, quoting “the famous book “of Abdari ibn Hadjar” (16th century).

225 Mohamed himself is reported to have taught, “the blood of a fellow Muslim should never be shed, except that of the adulterer, the murderer, and whoever forsakes the religion of Islam”. An-Naim, supra n. 79, at 209; Mansour, supra n. 74, at 195, 197; Arzt, supra n. 79, at 406–07.

226 Rahman, supra n. 78, at 63.

227 An-Naim, supra n. 76, at 211; Murtadd HWI 544–45.

228 Laoust, H., Le Précis de Droit d'Ibn Qudama (1950) Cap. 149 p. 269–70.Google Scholar

229 Murtadd HWI 545, with bibliographical references.

230 Ibid; Zwemer, supra n. 74, at 42; Mayer, A.E., Islam and Human Rights – Tradition and Politics (1991) 163Google Scholar; Tabandeh, S., A Muslim Commentary on the Universal Declaration of Human Rights (1970) 59.Google Scholar

237 Rahman, supra n. 78, at 66–69; Talbi, supra n. 219, 183 (according to Hanafites).

238 An-Naim, supra n. 76, at 211.

239 Zwemer, supra n. 74, at 50.

240 Talbi, supra n. 219, at 182; Rahman, supra n. 78, at 135; Ali, S. Ameer, Mahommedan Law (5th ed., 1929) II 388.Google Scholar

241 Rahman, ibid., at 157; Arzt, supra n. 79, at 405, 407 speaks of “the Quranic tension between religion and politics”. And see text at n. 323, infra.

242 Supra n. 228.

243 Murtadd, HWI 23–25, 545.

244 Tabandeh, supra n. 230, at 72–73; Mansour, supra n. 74, at 197.

239 Murtadd, HWI 545.

240 Ibid.

241 Rahman, supra n. 78, at 127.

242 An-Naim, supra n. 76, at 208. And see text at n. 337, infra.

243 Ameer Ali, supra n. 234, at 88–90, 126, 241, 259, 383–394; Fyzee, A.A.A., Outlines of Muhammadan Law (3rd ed., 1964) 169ff.Google Scholar; Murtadd, HWI 546; Mayer, supra n. 230, at 163.

244 Zwemer, supra n. 74, at 43, 50. And cf. Sura 4:89: “Choose no friends from disbelievers”.

245 Sura 4:89. See text at n. 121, supra.

246 Zwemer, supra n. 74, at 41.

247 Biblical references to quasi-legislative acts of kings and judges show that they were all divinely inspired.

248 See my “Religious Freedom and Religious Coercion in the State of Israel”, Kellerman, , et al. , eds., Israel Among the Nations (1998) 79–110.Google Scholar

249 See text at n. 303, infra.

250 Arzt, supra n. 79, at 423.

251 E.g., Yemen (1990), Sudan (1991): Arzt, ibid., at 427–28. For Sudanese legislation see in extenso An-Naim, supra n. 76, passim. For Pakistani legislation and bibliography see Siddiq, supra n. 219, passim, and Amnesty International Report on Pakistan, Use and Abuse of Blasphemy Laws (1994) 3–6.

252 E.g., Arabia, Saudi. See Amnesty International Report on Saudi Arabia, Religious Intolerance (1993)Google Scholar, passim.

253 An-Naim, supra n. 76, passim; Siddiq, supra n. 219, passim.

254 Coulson, supra n. 83, at 6–7.

255 CTh 16:5:5, CJ 1:5:2. (381). All translations are by Pharr, C., The Theodosian Code (1952).Google Scholar One of the earliest laws describes heretics as “profane men who by their punishable teachings should weaken the concept of God” and both divine and imperial laws forbid all such heresies.

256 CTh 16:1:2, CJ 1:1:1. First they shall be “smitten by divine vengeance”, and second “by retribution of Our own initiative”.

257 CTh 16:5:28; CJ 1:5:2 (395).

258 CTh 16:1:4 (386).

259 CTh 16:5:34 (398); CTh 16:5:6 (381); CJ 1:1:2. And see Th. Mommsen, Römisches Strafrecht (1899, reprint 1955) 604–05.

260 CTh 16:5:54 (414).

261 CTh 16:5:53 (412).

262 CTh 16:5:1 (326), CJ 1:5:1.

263 Novellae Valentinianae 18 (445).

264 CTh 16:5:65 (435): CJ 1:5:5, 1:6:3.

265 CTh 16:5:41 (407).

266 CTh 16:5:62, 64 (425).

267 CTh 16:5:66 (435); CJ 1:5:6.

268 “We should have ordered them to be expelled and removed to distance, if it had not appeared to be a greater punishment to dwell upon men and lack their approval”. CTh 16:7:4 (391); CJ 1:7:3.

269 CTh 16:8:1 (339); CJ 1:9:3.

270 Novellae Theodosianae 3:4 (438); CJ 1:5:7.

271 CTh 16:4:3 (392).

272 Opera X 1630. Translation by Bainton, supra n. 54, at 36.

273 Berman, supra n. 58, at 186, 588; Russell, supra n. 51, at 4.

274 Lea, supra n. 187, at 36.

275 Peters, supra n. 10, 207–09, quoting Powell, J.M., The Liber Augustalis (1971)Google Scholar; Lea, supra n. 187, at 149. The law further provides that any of their sons who exposes someone whose perfidy is proved openly, will be rewarded with the “benefit of full restitution of his original reputation from imperial clemency” – otherwise sons of heretics and their supporters “shall labour under the disgrace of perpetual infamy”, may not be presented for any honor and are disqualified from testifying in court.

276 Sachsenspiegel (1235) was enacted first in Saxonia, but was gradually adopted in most of the North German states, to spread also, in the enlarged form of Schwabenspiegel, to the Southern states. See Brunner, H., Grundzüge der deutschen Rechtsgeschichte (4th ed., 1910) 106ff.Google Scholar

277 However, “if the judge protects them or makes any illegal concessions and does not sentence them … he shall be judged by his superior temporal, judge, as he himself should have judged the heretic”. Translation by Peters, supra n. 10, at 209. And see Lea, supra n. 187, at 429.

278 Peters ibid., at 211.

279 Ibid.

280 Ibid., at 214–15. And see Lea, supra n. 187, at 165.

281 Stephen, J. Fitzjames, “The Laws of England as to the Expression of Religious Opinion” (1875) 25 Contemporary Review 446, at 449–50.Google Scholar

282 Ibid., at 452. These last Acts were repealed already in 1547.

283 Ibid., at 453. The Court of High Commission was abolished already in 1640: ibid. 459.

284 Meanwhile several executions had taken place in England: ibid. 454–55.

285 Ibid., at 460, 466.

286 Ibid., at 463. Hobbes then published a pamphlet called “An Historical Narrative Concerning Heresy and the Punishment Thereof.

287 Ibid., at 465–66. Stephen maintains that these punishments were obligatory and not discretionary.

288 Ibid., at 463, 466–67. In R. v. Lemon, R. v. Gay News Ltd. (1979) I All ER 898 at 923, Lord Scarman said that “in the 17th century words challenging or questioning the doctrines of the established church were regarded as blasphemy: for Christianity is parcel of the laws of England, and to reproach the Christian religion is to speak in subversion of the law” (per Hale C.J.). And see Blackstone's, Commentaries on the Laws of England (1756) IV 59.Google Scholar

289 See text at nn. 6–9, supra.

290 Lawton, supra n. 7, at 2–3 calls it “a form of religious vituperation against transgressors of timeless truths cherished by society”.

291 See text at nn. 85–95, supra.

292 Levy, supra n. 6, at 3.

293 In Massachusetts (1783): ibid., at 414.

294 Lord Erskine, quoted by Lawton, supra n. 7, at 10.

295 Law Commission Working Paper on Offences Against Religion and Public Worship (No. 79 of 1981) 50.

296 Section 166, Strafgesetzbuch; Law Commission, ibid., at 51.

297 Articles 198–199, Penal Code; Law Commission, ibid.

298 Article 173, Penal Code, Law Commission, ibid.

299 Artucle 193, Penal Code; Law Commission, ibid.

300 See text at n. 181, supra.

301 Lord Coleridge CJ (1883), approved by Lord Scarman in R. v. Lemon, supra n. 288, at 924.

302 Stephen, supra n. 281, at 464.

303 Section 173, Penal Code, 1971.

304 It may be noteworthy that the Indian Penal Code contains two distinct offences, one relating to outraging the religious feelings “of any class of citizens of India” by insulting religious beliefs of that class (section 295 A), and another prohibiting the “wounding of religious feelings of any person” (section 298). The former is punishable with three years', the latter with one year's imprisonment. The former appears to aim at the protection of each of the various religions represented in India, whereas the latter is designed to protect individuals.

305 Law Commission Report on Offence against Religion and Public Worship (1985) 20, quoting Lord Halsbury.

306 Ibid., at 20–21.

307 Lawton, supra n. 7, at 9, quoting R.G. Ingersoll. The fact that the common law offence related only to the Anglican brand of Christianity has been one of the strongest arguments for its abolition – much stronger than that for its extension to all religions. “Muslims deny Jesus divinity, Jews deny Muslim and Christian revelation. If religions find each other's beliefs blasphemous and blaspheme each other, how can a statute of blasphemy be framed that will protect all religions equally?” Lawton, ibid.

308 Per Lord Scarman in R. v. Lemon, supra n. 288, at 925.

309 Per Lord Parker in Bowman v. Secular Society (1917) AC 406, at 445.

310 The Irish Constitution provides: “The publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law” (Article 40.6.1.1.) And see O'Higgins, , “Blasphemy in Irish Law” (1960) 23 Modern Law Review 151.CrossRefGoogle Scholar

311 Stair's, Institutions of the Law of Scotland (1693, reprinted 1981) at 100Google Scholar rely on the biblical command for the necessity of prosecuting (Ex. 22, 27): it amounts to vindicating the honour of God by his “vicegerent”, the magistrate. The latest conviction for blasphemy dating from 1840, it has been said that blasphemy is no longer a crime in Scotland: Gordon, , Criminal Law (2nd ed., 1998)Google Scholar, quoted by Law Commission, supra n. 295, at 40–41.

312 By Section 160 of the Criminal Code, blasphemy is an indictable offence punishable with two years imprisonment. Whether any matter is blasphemous is a question of fact to be decided in each particular case, but it is no offence “to express in good faith and decent language an opinion upon a religious subject”. See Law Commission, supra n. 295, at 44–46.

313 E.g., by a Virginia statute of 1611, Massachusetts 1644, Connecticut 1642, Maryland 1639; Levy, supra n. 6, at 238–52.

314 E.g., by New Haven 1662, Connecticut 1744, Maryland 1649, New Hampshire 1679; Levy, ibid.

315 Levy, ibid., at 642. And see text at n. 227, supra, for a similar punishment in Jewish law.

316 Levy, ibid., at 414.

317 Ibid., at 571.

318 Ibid., at 667. In the State of New York, blasphemy was and remained a common law offence punishable by virtue of the Constitution of 1777: ibid., at 401.

319 In 1839, as American judge denned blasphemy as “speaking evil of the Deity with an impious purpose to derogate from the divine majesty and to alienate the love and reverence of God; or purposely using words concerning God which are calculated and designed to impair and destroy the reverence, respect and confidence due to him”. Ibid., at 419, per Chief Justice Shaw of Massachusetts.

320 Lawton, supra n. 7, at 16.

321 Ibid., at 45.

322 See text at n. 235, supra.

323 Mayer, supra n. 230, at 170; Arzt, supra n. 79, at 434.

324 An-Naim, supra n. 76, at 210.

325 Arzt, supra n. 79, at 427.

326 Arzt, supra n. 79, at 440–41 (Ahmadis), 448–49 (Bahai); Mayer, supra n. 230, at 165 ff; An-Naim, supra n. 76. On legal process against Ahmadis in Pakistan see in extenso Siddiq, supra n. 219, passim. For the treatment of Bahais in Egypt, see A.A. An-Naim, “Religious Freedom in Egypt: Under the Shadow of the Islamic Dhimma System”, Swidler, supra n. 2, at 43.

327 See n. 121, supra.

328 An-Naim, supra n. 76, at 205.

329 Ibid., at 206.

330 Ibid., at 208. “This is the rationale for punishing religious and ideological dissent in traditional Islamic Skaria”; the judge “was in fact convicting the accused of apostasy while citing provisions of the Penal Code to make it appear as if the convictions were regular offences against the State”.

331 Ibid., at 207. And see Khalid Duran, “Religious Liberty and Human Rights in the Sudan”, Swidler, supra n. 2, at 75.

332 Lawton, supra n. 7, at 183.

333 Fatwa is an authoritative responsum binding on sharia courts and all Muslim believers: see “Fatwa”, HWI 130.

334 Arzt, supra n. 79, at 432.

335 “Lest it be thought that the threat of Rushdie's murder is merely idle, the assassination of 59 exiled Iranian dissidents between 1979 and 1993 constitute rebuttal testimony”. Ibid., at 433.

336 Amnesty International Report on Saudi Arabia, supra n. 252, at 16.

337 Ibid., at 17.

338 Ibid., at 18–21.

339 Arzt, supra n. 79, at 439.

340 Ibid., at 429.

341 Ibid. On killings by Egyptian Islamites of Copts, see ibid., at 445.

342 “In the climate of intolerance fostered by official Islamization, even if Muslim minorities are not executed for beliefs officially deemed heretical, they have to contend with discrimination, harassment and jailing where they followed disapproved theological doctrine”. Mayer, supra n. 230, at 165–66.

343 An-Naim, supra n. 76, at 56.

344 See text at nn. 149–50, supra.

345 There is scriptural authority for this proposition: “While a tenth part yet remains in it, … it shall be ravaged like the terebinth and the dark, of which stumps are left even when they are felled: its stump shall be a holy seed”: Is. 6:13 (translation of the Jewish Publication Society, 1975). And Rabban Gamliel is reported to have said, in a trial against a heretic: “If this counsel is the work of man, it will come to nought; but if it be of God, you cannot overthrow it”: Acts of the Apostles 5:38–39.

346 Shorter Oxford English Dictionary, q.v. panic.

347 E.g., the “oxymoronic” Universal Islamic Declaration of Human Rights: Arzt, supra n. 79, at 426.