1 Introduction

Religious hatred may cause great harm to individuals and communities, by creating or exacerbating social divisions, causing conflict, and even promoting physical violence. Hence the rationale and impetus for writing a chapter on protection against religious hatred. As well as addressing the issue, in legal terms, of what such protection against religious hatred looks like, we need to think more carefully about some questions: are we clear what ‘religion’ connotes; what may or may not be implied by ‘protection’; and, what may be meant by the phrase ‘religious hatred’ itself? We will address these as we proceed, helping to give some theoretical clarity and frame to what is being discussed, while remaining focused upon the practical implications.

Protection against religious hatred can be understood either narrowly as the legal regulation of the manifestations of religious hatred, usually focused on prohibiting speech inciting discrimination, hostility, or violence; or understood broadly as the full range of practices, legal and non-legal, that can be employed to protect against both the development of religiously hateful attitudes as well as the manifestation of those attitudes. Here, we will focus predominantly on the narrower interpretation, which is nevertheless a rather complicated picture, but will note how this fits within a wider socio-political and conceptual context.

To outline this chapter, after briefly considering the different possible meanings of religious hatred, we will focus on the international legal, or quasi-legal,¹ rights to religious freedom and protections against religious hatred, including Article 20 of the United Nations (UN) International Covenant on Civil and Political Rights (ICCPR).² We will illustrate that the efficacy of these international protections is often limited, with much depending on the manner in which they are incorporated – or not – within national legal frameworks. Next, we discuss the fact that much of the debate around the legal regulation of religious hatred across the globe focuses on the perceived conflict between freedom of expression on the one hand, and protection against ‘hate speech’ on the other hand. We discuss the way this balance has been struck differently in different jurisdictions. After that we will shift to a more conceptual tack to discuss the problem of defining ‘religion’, noting in particular the Western and colonial racialised framing often given to that term which has affected what is and is not protected. Finally, we will come on to explore the fact that while it makes good sense for legal regulation to focus on the limits of free expression, given that violent acts often follow from violent words, we must also face the inevitable inadequacy of legal limits on freedom of expression, noting a potentially broader understanding of protection against religious hatred.

2 What is ‘Religious Hatred’?

We will go on to scrutinise the meaning of ‘religion’ and what we mean by ‘protection’ in more depth as the chapter progresses, but let us begin by briefly considering the different ways ‘religious hatred’ can be understood.³ Perhaps the most obvious interpretation is the hatred of an individual or group on the basis of that individual or group’s religious identity. Another interpretation of religious hatred is hatred somehow arising out of, or fuelled by, an individual or group’s religious identity. So, for example, a group of Christians might locate within their Christian doctrine or practice a motivation to hate undocumented immigrants, Jews, Muslims, atheists, or even another group of Christians. There is obviously overlap between these two interpretations where the hatred emanates from an individual or group’s religious identity and is directed at another person or persons on the basis of the latter’s religious identity. Therefore, in practice, the distinction between these various forms of religious hatred may blur, but it is helpful to discuss them here so that we fully appreciate the wide range of phenomena possibly encompassed by ‘religious hatred’. A point to bear in mind is that, within this frame, non-religious individuals and groups may be targeted by religious hatred, if hatred is directed at them on the very basis of their non-religious identity. Implicit in what has been said above is that, of course, non-religious individuals and groups can also be the religious haters. For example, if a group of atheists target a religious individual or group on the basis of the latter’s religious identity.

Another point worth noting here concerns the word ‘hatred’ itself. Hatred, as commonly understood, is initially merely a feeling or emotional state. To the extent it remains as such, without somehow outwardly manifesting, it is not something that legal protections typically can or seek to address, and thus will not be the focus of the chapter. From a legal perspective, protections against religious hatred are more commonly focused on acts of discrimination or violence inspired by religious hatred, or to speech which would stir up religious hatred in or towards others. Of course, governments or civil society actors may use a range of other legislative and non-legislative measures, such as promotion of interreligious dialogue, to seek to protect against the development of religiously hateful attitudes within a society, which we will briefly note at the end of the chapter.

3 The Legal and Quasi-Legal Protections

Protecting a person against hatred on the basis of their religion can be understood as necessary in ensuring that person’s right to freedom of religion or belief (FoRB), including the right to manifest their religion or belief. After all, legal or quasi-legal provisions purporting to provide a person with FoRB may be undermined if a prevailing climate of hatred and discrimination means that the person is too intimidated to practise their religion freely. While, as noted above, hatred directed toward a person on the basis of that person’s religion is not the only possible manifestation of ‘religious hatred’, it is a common form and helps to provide context to legal protections against religious hatred by illustrating the connection between religious hatred and FoRB. Given this nexus, it will be useful to begin this section with a short introduction on FoRB. The right to FoRB is a feature of many international, regional, and national human rights regimes, indeed much more commonly so than are specific protections against religious hatred. FoRB rights aim to ensure the full flourishing of religious life, including such things as the right to worship, celebrate holidays, follow prescribed diets, wear specified clothing, carry out life cycle rituals, build seminaries, have schools, and distribute texts and publications for proselytisation.⁴ While, as a concept, FoRB is often traced back to European Enlightenment thinkers such as John Locke, who were inspired by what they saw as the freedom of religious practice and belief that existed in the Ottoman Empire in contradistinction to the framing of Europe’s ‘wars of religion’,⁵ as a contemporary legal construct the UN Universal Declaration on Human Rights (UDHR)⁶ is foundational. Adopted by the UN General Assembly (UNGA) on 10 December 1948, against the backdrop of the Second World War and the Holocaust, it sought to establish common standards with regard to the dignity of all individuals, protecting their fundamental rights and freedoms, with a particular concern with vulnerable minorities.

The right to FoRB is set out in Article 18 of the UDHR:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 18 of the UDHR has been highly influential globally, though it should be noted that, as an article of a UN declaration, it does not automatically place a legally binding obligation on states.⁷ A similarly worded right to FoRB is also found in Article 18 of the ICCPR, which, as a UN convention, is legally binding on signatory states that have ratified it, and which we will come on to discuss in more depth below. It is worth noting that Article 18 of the UDHR inspired similar FoRB provisions in regional human rights conventions, including Article 9 of the European Convention on Human Rights (ECHR),⁸ Article 12 of the American Convention on Human Rights,⁹ Article 8 of the African Charter on Human and Peoples’ Rights,¹⁰ and Article 30 of the Arab Charter on Human Rights.¹¹ Of course, while the language in each of these Articles is very similar, the way in which it is interpreted, and the extent to which it provides a strong guarantee of FoRB, varies across the globe and also within regions, with much depending on the national context, which will be a recurrent theme in this chapter.

While Article 18 of the UDHR (or a regional equivalent) is often cited on its own with regard to FoRB, it exists within a wider framework of rights pertaining to the treatment of religious groups and of relevance to protecting individuals against religious hatred. In the UDHR, this includes Article 2, which establishes that all people are entitled to the rights described in the UDHR, regardless of their race, religion or location, Article 3, which provides that everyone has the right to life, liberty, and the security of the person, and Article 7, which states that everyone is entitled, without any discrimination, to equal protection of the law and against any discrimination in violation of the UDHR.

It is worth mentioning two important themes of human rights protection that will be relevant when we come to discuss protection against religious hatred in more depth. Firstly, that those human rights which are not ‘absolute rights’ are subject to limitations,¹² which may be set out in the same article as the right itself, or in a separate article of general applicability to the relevant human rights document overall. For an example of the latter, Article 29(2) of the UDHR states:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

This means that it may be perfectly in line with the UDHR for a state to legislate to limit, for example, a person’s freedom of expression (UDHR Article 19) in the event that that person uses their right to free expression in order to stir up religious hatred, on the ground that such stirring up may threaten public order; alternatively, on the ground that incitement to violence against another person potentially violates the latter’s right to life, liberty and security (UDHR Article 3). This goes to our second theme, which is that given the co-existence of many different human rights, rights sometimes appear to be in competition with each other,¹³ and ultimately a court may need to balance one person’s right to X, against another person’s right to Y.

Having set out the international human rights context, let us now turn to the more specific rights protecting against religious hatred. Prominent among these is Article 20(2) of the ICCPR, which states:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

The target of Article 20 then is advocacy of one or more of three forms of hatred: national, racial, and religious. These could, of course, be covered by a single statement as national, racial and religious identities may overlap a great deal.¹⁴ The advocacy covered by Article 20 is that which incites discrimination, hostility, or violence. For convenience, we will sometimes refer to such advocacy in this chapter by the shorthand ‘hate speech’, and it is a phrase often used in legal instruments and scholarship dealing with protection against religious hatred, but it is important to note that outside of this context ‘hate speech’ is used variously and has a contested meaning. Definitions are not provided in the ICCPR, but according to the Office of the UN High Commissioner for Human Rights (OHCHR), ‘hatred’ and ‘hostility’ refer to “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”; ‘advocacy’ requires “an intention to promote hatred publicly towards the target group”; and ‘incitement’ “refers to statements about national, racial or religious groups, which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups”.¹⁵ We will not focus on discrimination (which is covered generally by ICCPR Article 26) because it is the focus of another chapter in the present volume, but it is clear that in the context of Article 20, discrimination refers to something worse than simply differentiation of treatment on the basis of religion, race, or nationality.

The rationale for ICCPR Article 20 was not to protect ‘religion’ itself, but to protect people from discrimination, hostility, or violence on the basis of religion. It was not intended, therefore, to protect religions themselves from criticism, even ridicule, nor indeed to prohibit blasphemy,¹⁶ though such expressions could be caught by Article 20 to the extent that they also constitute prohibited incitement. The UN Human Rights Committee (HRC) has gone as far as to say:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant… Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.¹⁷

ICCPR Article 20 provides a positive obligation on signatory states to ensure that their legal regimes include provisions prohibiting such advocacy of hatred, and if they do not, to legislate to introduce such provisions. The obligation to provide domestic legal protections is of paramount importance because, for a plethora of reasons, not least among them viability of enforcement and the expense of conducting legal proceedings, it is generally much more practicable for a person to avail themselves of domestic legal rights than rights that exist only at the international level. As noted above, unlike the UDHR, the ICCPR is binding on signatory states that have ratified it, and thus carries some legal weight in addition to the significant persuasive power that such a prominent UN human rights document necessarily exerts on national governments. However, in assessing the effectiveness of the ICCPR in protecting against religious hatred on a global scale, we must not forget that it is not binding on non-signatory states. Singapore,¹⁸ for example, is not a signatory to the convention and thus is not bound by it to prohibit such hateful advocacy. By way of contrast, the United Kingdom is a signatory to the ICCPR but it entered a reservation when it ratified the convention, which included the following statement:

The Government of the United Kingdom interpret article 20 consistently with the rights conferred by articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order (ordre public) reserve the right not to introduce any further legislation…¹⁹

We will come on to discuss the significance of the United Kingdom’s reference to ICCPR Article 19 below, but here we simply note that the ability of the United Kingdom to enter a reservation limiting its obligations under ICCPR Article 20 demonstrates a limitation of the effectiveness of the international legal regime. Indeed, the HRC, established by ICCPR Article 28 to monitor states parties’ implementation of the convention, has commented that “The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States parties”.²⁰

While the ICCPR is technically legally binding on signatory states, the viability of enforcing a state’s obligation to provide the legal protection required by Article 20 is a separate question. The possibility of uneven domestic implementation of the ICCPR was envisaged by the drafting of ICCPR Optional Protocol 1, which allows individuals in signatory states to appeal in communications directly to the HRC. However, a large number of states, including the United Kingdom, have not signed up to Optional Protocol 1. Moreover, the communications and final decisions of the HRC are not legally binding. While it may, in theory, be possible for the International Court of Justice (ICJ) to hear cases related to a state’s failure in its obligations under the ICCPR, a case would have to be brought by another state, as individuals do not have direct standing before the ICJ, and states can only be judged by the ICJ with their prior consent. So, to spell out one of the major limitations of the international human rights regime: the difficulty of enforcing human rights, and the lack of meaningful penalties on states for failing to guarantee rights, means that states are more likely to prioritise domestic political concerns, or geopolitically expedient actions, as the case may be, over the human rights of people in their territories.

Though it is the most prominent, the ICCPR is not the only significant UN document relevant to protection against religious hatred. The UNGA declared in the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief that it was concerned by “manifestations of intolerance and by the existence of discrimination in matters of religion or belief still in evidence in some areas of the world”. It resolved to adopt all necessary measures to eliminate such intolerance and discrimination.²¹ Unfortunately, unlike the 1963 Declaration on the Elimination of All Forms of Racial Discrimination,²² which was followed by the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),²³ the 1981 Declaration has not yet been followed up by any convention.

It has been argued that ICERD provides some protection against religious hatred by analogy, and we have already noted that racial and religious hatreds can overlap. ICERD Article 1 defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”, which would appear not to clearly cover religion, though the argument has been made that “in the case of race and religion as grounds of hostility or hatred, the parallelism seems reasonable”.²⁴ In any case, the language of ICERD Article 4 helps to illustrate the limited scope of ICCPR Article 20. ICERD Article 4 obliges signatory states to outlaw “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race” (our emphasis). By contrast, ICCPR Article 20 does not mandate the prohibition of merely exclusivist, intolerant, or supremacist statements unless they can be shown to be statements of hatred that incite further hostility, discrimination, or violence.

There have been various other UNGA resolutions seeking to strengthen the norm against advocacy of religious hatred. Human Rights Council (distinct from the HRC) Resolution 16/18, adopted on 24 March 2011, expressed concern that:

incidents of religious intolerance, discrimination and related violence, as well as of negative stereotyping of individuals on the basis of religion or belief, continue to rise around the world, and condemns, in this context, any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence, and urges states to take effective measures…to address and combat such incidents.²⁵

UNGA Resolution 66/168, adopted on 19 December 2011, specifically noted deep concern about “the overall rise in instances of intolerance and violence, including cases motivated by Islamophobia, anti-Semitism and Christianophobia”.²⁶ As recently as January 2022, in a resolution on Holocaust denial, the UNGA expressed that it is:

Deeply concerned about the prevalence of impunity in some instances, and the lack of accountability in some cases, in addressing violence against persons on the basis of religion or belief in public and private spheres, and stressing the importance of making the necessary efforts to raise awareness to address the spread of hate speech against persons on the basis of religion or belief.²⁷

4 The ‘Conflict’ between Prohibitions on Hate Speech and Freedom of Expression

As foreshadowed by the reference to Article 19 of the ICCPR in the United Kingdom’s Article 20 reservation discussed above, the perceived conflict between the Article 19 right to freedom of expression and the Article 20 mandate to prohibit incitement has been a major theme of legal debates surrounding the implementation and enforcement of hate speech laws in states bound by the ICCPR.²⁸ Article 19(2) states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Policy makers and courts are obliged to ensure that limitations on freedom are exceptional, but most experts do not see a conflict between Articles 19 and 20 and identify them as interdependent.²⁹ Article 19(3) permits restrictions to freedom of expression which are provided by law, and necessary, for the respect of the rights or reputations of others; or for the protection of national security, public order, public health, or morals. Therefore, it is possible to see Article 20(2) prohibitions as complementing Article 19(3).

The balance between freedom of expression and protections against hate speech has been struck differently in different national jurisdictions. At one end of the spectrum we may place the United States, where, to protect freedom of speech, courts are likely to strike down any restrictions on hate speech unless the hate speech is an incitement to violence that is likely to occur imminently.³⁰ Towards the opposite end of the spectrum are European states such as France and Germany where restrictions on hate speech are relatively stronger. These differing approaches likely reflect the historical contexts of these jurisdictions. Continental Europe witnessed large scale conflict and the Holocaust in the twentieth century. Hate speech, then predominantly towards Jews, was seen as the precursor to horrific physical violence. The lesson that has been learned in much of Europe therefore is to robustly clamp down on hate speech before it progresses to something even worse. As mentioned above, there are regional human rights regimes which echo many of the rights in the UDHR and ICCPR, with one notable example being the ECHR. While the ECHR does not contain an equivalent provision to Article 20 of the ICCPR, the European Court of Human Rights (Strasbourg Court) has on numerous occasions been asked to balance the right to freedom of expression in ECHR Article 10 with the right to religious freedom in ECHR Article 9. It has been argued before the court, with some success, that certain speech hostile to a particular religion has infringed the religious freedom of adherents of that religion.³¹ Again, it is likely the European historical context that explains the Strasbourg Court’s relative willingness to restrict expression. Indeed, the Strasbourg Court has been criticised for developing notions of ‘respect for religions’ or ‘respect for people’s religious feelings’ as grounds for limiting free expression or even as rights in themselves. These criticisms note that the HRC, in hate speech cases that have been referred to it, has identified no such grounds. Critics have pointed out that “too broad a right to freedom of religion or belief as a right to respect for one’s religion also jeopardises the right to freedom of religion or belief itself (as the very exercise of one’s religion in a certain fashion might be considered heretical in the eyes of another person – something that clearly is not a valid reason for limiting the forum externum of the former)”.³²

Even among the 47 states subject to the ECHR, there are great divergences as to the relative weight given to restrictions on hate speech and freedom of speech. In the United Kingdom, the courts have been less ready to restrict speech than in France or Germany. Among other groups in the United Kingdom, Christian campaigners sought to oppose the introduction of the Racial and Religious Hatred Act 2006, which created a group of criminal offences of stirring up religious hatred, and argued, controversially, that the proposed legislation would make it unlawful to criticise other religions and to evangelise their own faith. Ultimately, a “Protection of freedom of expression” clause was included in the Act, which states:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.³³

The relatively permissive approach in the United Kingdom contrasts greatly with the approach, for example, in Singapore. Amongst other domestic legislation limiting expression likely to be religiously sensitive, the Singaporean Penal Code makes the following offences:

298: Whoever, with deliberate intention of wounding the religious or racial feelings of any person, utters any word or makes any sound in the hearing of that person…

298A: Whoever —

(a) by words, either spoken or written…knowingly promotes or attempts to promote, on grounds of religion or race, disharmony or feelings of enmity, hatred or ill will between different religious or racial groups; or

(b) commits any act which he knows is prejudicial to the maintenance of harmony between different religious or racial groups and which disturbs or is likely to disturb the public tranquillity.³⁴

This restrictive approach reflects a strong desire in Singapore to maintain racial and religious harmony in, arguably, the most religiously diverse state in the world, and to avoid a repeat of the riots that took place there in the middle decades of the twentieth century, including on 21 July 1964, when Chinese and Malay groups clashed during a celebration of the birthday of the Prophet Muhammad.

In 2011 and 2012, the OHCHR organised a series of expert workshops to examine “legislation, jurisprudence, and national policies with regard to the prohibition of national, racial, or religious hatred as reflected in international human rights law”.³⁵ This culminated in the Rabat Plan of Action which suggested that, in order to ensure that restrictions on freedom of expression remain exceptional, a six part threshold test would need to be fulfilled in order for a statement of incitement to amount to a criminal offence. Firstly, context needs to be taken into account; secondly, the speaker’s position in society should be considered; thirdly, intent, rather than mere negligence or recklessness, of the speaker must be shown; fourthly, the content and form of the speech must be analysed; fifthly, the reach of the speech act is relevant; finally, the likelihood, including imminence, of harmful action flowing from the incitement is important. This high threshold supports the arguments of scholars such as Nazila Ghanea, who has argued that for Article 20 of the ICCPR to override Article 19, it will generally require “a pattern, if not long history, of gross human rights violations against a particular minority group.”³⁶

5 A Socio-Political Decolonial Conceptual Frame

As American criminologist Biko Agozino, amongst others, has noted, legal and criminal justice schemes are often embedded in racist and colonial regimes of power that uphold what may be termed epistemic injustice.³⁷ That the law is not a neutral tool and may privilege certain elites has, of course, long been a critique going back to at least the time of Karl Marx. However, our concern here is not to question the legal system itself, but rather the socio-cultural frames in which we think about ‘religious hatred’. Back in the early 1960s, scholar of religion Wilfred Cantwell Smith noted that the English language nomenclature ‘religion’ had no natural equivalence in most languages (outside of modern European ones), and that the term itself had very different meanings even in English before around the eighteenth century.³⁸ Taking on board further scholarship since then, which has importantly thrown light on how a Western Protestant Christian conception of ‘proper’ religion has been spread globally by colonialism,³⁹ the significance of this for our purposes is at least threefold. Firstly, most cultures have not had the language to name and define a discrete and particular aspect of their forms of behaviour and ideology as ‘religion’ as distinct from other areas of life. As such, defining and naming certain aspects of the world as being ‘religion’ enforces a modern, Western, and distinctly Protestant Christian worldview and division onto various traditions which may not fit their own ways of seeing the world. Secondly, and following from the first, the modern, Western, and again Protestant, binary of ‘religion’ and ‘secularism’ is only the way one part of the world makes sense of the boundaries and divisions between these two spheres, rather than being a natural breakage between two distinct realms of culture. Thirdly, those things which we may define as ‘religious’ but which do not, for various reasons, fit closely enough with how modern, Western, Protestant men have typically understood ‘religion’ will typically be defined via other nomenclature, which may include such terms as ‘superstition’, ‘magic’, and ‘cult’. It has certainly been argued that scholars and students of interreligious studies who seek to understand the dynamic encounters of traditions in society need to understand the legal implications of what religion means,⁴⁰ but equally students and scholars of law need to understand the religious studies scholarship behind this.

The important takeaway is that only certain types of things get to be classified as ‘religion’ and protected against ‘religious hatred’. A good case in point are Native American traditions,⁴¹ which were typically framed within the United States as ‘superstition’ and therefore practices such as ritualised dances were not protected, but instead demeaned and even met with hostility. It took until 1978 for the United States courts to widely recognise Native American practices and ideological frames as religion and protected by longstanding FoRB provisions. However, to recognise certain practices as examples of ‘religion’ may be problematic for a different reason. To demarcate an aspect of a people’s culture as being ‘religion’ may do conceptual violence to the indigenous lifeworld of those people because such practices may cross over with their other socio-political practices and areas of life. Placing certain practices within the religion box creates an unnatural fissure within the worldview and understanding of those groups. In truth, there is not simply a natural and universal sphere or realm of ‘religion’ waiting out there to be recognised and located; rather it is only an aspect of a particular form of socio-political discourse.

We must, however, be careful not to overstate this. While some radical deconstructionist framings of the scholarship suggest that the definition of ‘religion’ is merely an ‘arbitrary’ pairing off of certain parts of human culture, making the word inherently unstable, politically suspect, and meaningless (in part because it can be filled with an excess of meaning), we must not forget that all words exist within socio-political contexts. As such, a usage of ‘religion’ as an ‘essentially contested concept’ has been advanced, arguing that various human traditions exist which have interacted as somewhat equivalent spheres over time and space (including outside of Western colonial spheres of influence), and that also relate conceptually in certain ways, including in an orientation to what may broadly be termed ‘transcendence’. Thus, we do not argue that speaking of ‘religious hatred’ is inherently meaningless because ‘religion’ is an inherently meaningless term. Despite the conceptual issues raised herein, we must deal with the social reality of what ‘religion’ means and is defined as within legal systems. Yet, even as we do, so we must be aware that it is a usage that is racialised, gendered, class-centric, and colonial.⁴²

We cannot enter into the background here, but in short in both historical and contemporary context, very often religion (or, rather, ‘protected religion’) is what white bodies do (rather than brown or black bodies) what men do (rather than women), what elites and middle-class people do (rather than working-class or subaltern groups), and, is defined from Western, Protestant centres of power rather than understood from the margins or periphery. We may usefully see the problem encapsulated in what is termed the World Religions Paradigm (WRP), which defines how ‘proper’ religion is often perceived. While variously defined,⁴³ in general the WRP delimits religion as: textual, that is originating from and centred upon a particular text, or texts, that define correct belief and practice; belief-centric, so religion is about what people think, or creedal statements, rather than what they do or how they behave; inward focused, so about personal rather than communal commitment, and may be focused especially on ethics, without straying into matters of the public sphere; bounded, so each religion has clear markers that define the ‘believers’ of one religion against the ‘believers’ of another, which may be through texts, creeds, and so on. In scholarly terms, this is wrong on so many levels that it is difficult to unpack the issues here, but in brief: texts are often not central to religions and their practice, and some do not have texts; in many religions, practice and community belonging matters far more than correct beliefs, while doctrines or concepts may be flexible or varied; religion often focuses on outer manifestations and community rather than the inner, and may regulate many areas of life; every religion is syncretic to its core, and forms of multiple identity or belonging are common or normative in various contexts. All of this is of legal consequence as it affects the determination by legislators and policy makers of what gets protected as religion. Implicit in what has been noted above, and may be drawn out explicitly here is what Silvio Ferrari notes as a distinction between understanding religion as internal form (forum internum) which tends to be favoured in secular governance, and as external form (forum externum).⁴⁴ The latter is less likely to benefit from protections against religious hatred.

The determination of what counts as religion has been relatively straightforward in some cases, for instance relating to mainstream Christian practice. The case of Judaism and protection against antisemitism has been more complicated. Historically, and still today, representations of Judaism as such things as religion, ethnicity, nationality, and culture give rise to the potential for certain forms of antisemitism to not register as ‘religious hatred’ per se.⁴⁵ In today’s context, despite being the tradition of around one billion of the world’s population, and the second largest religion after Christianity, it is Islam which most often becomes problematised, especially as it has become increasingly securitised post 9/11. Indeed, what we may term devotional practices such as growing beards, mosque attendance, and Quran reading have been seen as signs of radicalisation in an atmosphere of Islamophobic religious hatred which has threatened the way Muslims may freely practice their faith. Who gets to decide what religion is and what counts as religion is therefore not just a conceptual issue for scholars to debate but a wider socio-political issue with definite legal consequences.

6 The Limits of Law

In 2019, the UN launched its Strategy and Plan of Action on Hate Speech, which aimed to “address root causes and drivers of hate speech” and “enable effective UN responses to the impact of hate speech on societies”. In it, the UN Secretary-General states “the UN supports more speech, not less, as the key means to address hate speech” and also that “tackling hate speech is the responsibility of all – governments, societies, the private sector, starting with individual women and men”.⁴⁶ This helps us to see the limitations of using legal regulations of hate speech as a means to protect against religious hatred. There are many limitations but we will focus on just a few of them here.

There is the danger identified by Deborah Lipstadt when she noted that legal restraints imposed on Holocaust deniers may transform them into martyrs on the altar of free speech.⁴⁷ The perception of overzealous restrictions on speech can, paradoxically, increase the attention given to those who would incite hatred. Sometimes it may better to allow fringe viewpoints to be aired in order that they are ‘defeated’ in a ‘competition of ideas’. However, we must acknowledge that this runs the risk of allowing hateful rhetoric an opportunity to take hold in a society, especially if the consumers of such rhetoric are not well equipped to critically scrutinise it.

Crucially, apart from the conceptual issues raised as to how to decide on what traditions constitute ‘religions’ and are to be protected, and leaving aside the difficulty for individuals of enforcing their legal rights, we see that legal regulations are inherently limited in a broader sense. Laws can be effective mainly at targeting the significant manifestations of hateful attitudes, often once they are already well entrenched. Laws can of course help to punish and disincentivise people from making statements of incitement but, realistically, they can do little more broadly to prevent the development of exclusivist, intolerant, and hateful attitudes that might be encouraged in families, schools, or in workplaces. The situation is made worse by the fact that certain contemporary political movements and their leaders appear to be working to erode norms of tolerance and indeed to capitalise on hatred towards minority groups for their own gain. Therefore, non-legal means of protecting against religious hatred are of great importance. Education initiatives, interreligious, or inter-worldview, dialogues and, more broadly, efforts to bring people of different backgrounds into regular contact with one another in settings conducive to community building are valuable.⁴⁸ Arguably, promoting interreligious dialogue has become the default position of secular societies in relation to religious diversity, though how far this may promote social cohesion is a question itself, as is the wider issue of how best to build towards cohesion in a globalised and religiously diverse world.⁴⁹ Such efforts form part of the soft upstream management seeking to counter or prevent religious hatred.

7 Conclusion

In this chapter, we have endeavoured to show that despite clear and seemingly strong international regulations providing protection against religious hatred, these protections are not as strong as they may seem. Reasons for this include the fact that international legal and quasi-legal protections against hate speech have not been implemented by all nation states and even in those where they have, individuals may be unable to enforce their rights domestically. Furthermore, protections against religious hatred are interpreted differently across jurisdictions according to the priority that is given to protecting freedom of speech. We have also undertaken a deeper conceptual analysis to highlight that the determination of what properly constitutes religion, and thus religious hatred, often rests on problematic assumptions. Finally, we argued that, apart from definitional issues and the difficulty of enforcing rights, legal protections are an inherently limited means of combatting hatred. While enumerated as distinct points, each of these overlaps with the others.