Legal Right Versus Moral Duty: Deconstructing the Opposing Paradigms to Free Speech

© Melinda Fawver |


The deadly Paris shootings on the 7th of January this year, where two gunmen claiming to belong to the Al-Qaeda’s branch in Yemen targeted the satirical French weekly newspaper Charlie Hebdo and more recently the attack targeting a free speech debate being held in a cafe in Copenhagen that resulted in one loss of life, have brought questions of free speech in the realm of blasphemy to the forefront once again. The killings were reminiscent of the violent reactions across the Muslim-majority world that were sparked by the publication of the Danish cartoons in the Dutch newspaper Jyllands-Posten in 2006 and the anti-Islam video, titled the Innocence of Muslims, uploaded on YouTube in July 2012. These incidents and the extremist responses thereto have raised and continue to raise profoundly difficult questions – including, amongst others; whether, and if so to what extent, certain speech should be censored under law? Is blasphemy punishable by death under Islamic law? Does Islam condone the vigilantism that blasphemous caricatures of the Holy Prophetsa have sparked across the Muslim-majority world?

The following exposition will be an attempt to delineate some of these questions by rendering an analysis of the Qur’anic stance on how Muslims should respond to blasphemy and exploring the existing legal frameworks that safeguard freedom of expression under international law. It will be demonstrated that even liberal regimes of free speech have enacted laws that place reasonable restrictions on speech under certain conditions. In underscoring the complexity of language as both a positive and negative ideological force, it will be argued that freedom of speech commands the maintenance of a fine balance between safeguarding a legal right to speech on the one hand and the moral duty not to vilify holy personages on the other.

Language and Free Speech           

The use of language as an expressive tool may be analogised to the sculptor who carves complex and beautiful works of art. If the sculptor’s chisel and mallet are not utilised with careful precision, they will cause his work to lose its splendor. So too is the case with language. The speaker may be exemplary in his poetic, literary, political or legal speech but if the speaker’s words are chosen recklessly or maliciously, his utterances will be worthless and at times even hostile. This latter malleability of language as a tool with which pernicious ideologies may be espoused is epitomised by Thomas Paine’s prodigious words when he says “The greatest tyrannies are always perpretrated in the name of the noblest causes.”[1]

Language has routinely been recognised as a potent force with which competing ideologies may be expressed and has at times been responsible for generating global political turmoil. Friedrich Nietzsche writing in 1887 went so far as to say that:

“Governments that seek absolute power over the groups they control use language as a principal support, because they believe that by changing terminology and definitions they can alter the ways individuals and groups think and act.”[2]

The use of condemnatory words such as “inyenzi” (a slang epithet meaning cockroaches) to describe the Tutsis in Rwanda eventually led to the Rwandan genocide in 1994[3]. Today, hate speech geared towards the Ahmadiyya Muslim Community in the Pakistani media has been known to incite mob violence and targeted killings against the Community[4].

Therefore, while free speech is a sacred freedom in so far as it provides an indispensable bridge to a human being’s thoughts and as a powerful communicative force, the limitations of language must be appreciated as well. It is these limitations that the Islamic stance on free speech looks to recognise and accommodate.

Islam and Blasphemy

© nofilm2011 |

Notwithstanding the profanity of the caricatures of the Holy Prophetsa published in the French and Dutch papers, the violent and senseless reactions shown by some in the Muslim-majority world paradoxically make a travesty of the Islamic injunctions with respect to blasphemy. No textual evidence can be found in the Qur’an to support the contention that the punishment for blasphemy is death, as is claimed by a number of mainstream as well as extremist clerics. Far from relegating the blasphemer to death and ridicule, a practice customary to fatwa[5]-giving radicals today, the Qur’an ordains self restraint and patience when blasphemous words are being uttered, commanding the believers “…when you hear the Signs of Allah being denied and mocked at, sit not with them until they engage in a talk other than that…”[6] And reiterating this message two chapters later, “…when thou seest those who engage in vain discourse concerning Our Signs, then turn thou away from them until they engage in a discourse other than that.”[7] The essence of the Qur’anic message on the question of blasphemy is that of self-restraint, tolerance and justice even in the face of injustice, it provides “…and let not a people’s enmity incite you to act otherwise than with justice. Be always just, that is nearer to righteousness.”[8]In fact, the question of blasphemy is addressed in the Qur’an not only with respect to God, but also idols and imaginary objects of worship, commanding the believers – “And revile not those whom they call upon beside Allah…”[9]

Moreover, Prophets have always had derogatory words used against them as evinced in many places in the Qur’an, for example, “Alas for My servants! There comes not a Messenger to them but they mock at him.”[10] The Prophet Muhammadsa, who brought monotheist Islam into the polytheist fabric of Arabian society was labelled a “madman,”[11] a “fabricator,”[12] and “a victim of deception”[13] by his opponents. Insults were also hurled at the Qur’an, with people referring to its teachings as “mere stories of the ancients.”[14] Yet, despite this onslaught of verbal abuse, the Holy Prophetsa remained exemplary in his decorum and tolerance towards those who derided him. For example, Dr. Khaled Abou El Fadl, Professor of Law at the University of California School of Law, narrates how on one occasion the Prophetsa was approached by a group of believers who expressed their deep sense of frustration over the self-restraint and tolerance the Prophetsa displayed towards his foes. The Prophetsa responded, reflecting “the general thrust of his revelation and message”[15] by stating, “But I have been charged with the obligation to forgive.”[16] The Prophet’ssa life therefore emulated the guidance furnished in the Qur’an with respect to the mockery levelled against him and Qur’anic teachings – for example, the Qur’an provides, “…follow not the disbelievers and hypocrites, and leave alone their annoyance, and put thy trust in Allah; for Allah is sufficient as a Guardian.”[17]

Therefore, the violence and destruction that blasphemous cartoons of the Prophetsa have spurred globally stand antithetical to the Prophet’ssa own example and the Qur’anic injunctions on blasphemy. Moreover, the Qur’an goes on to say that if discourse is to be undertaken on thorny issues, it must fulfill the requirements of morality, dignity and civic virtue. God states that, “Call…with wisdom and goodly exhortation, and argue with them in a way that is best.”[18]

The fact that no temporal punishment has been prescribed for blasphemy in the Qur’an, makes it clear that there exists no material jurisdiction for penalising irreverent statements or acts against the Prophetsa or God. The actions of vigilantes who seek to avenge blasphemous acts or words against the Prophetsa or God are thus utterly misguided and misplaced. By the same token, blasphemy laws adopted by some Muslim-majority states, notably Pakistan, where the Pakistani Penal Code prescribes the death penalty for using derogatory remarks against the Prophetsa,[19] are thus in complete contradiction to the teachings of Islam. In spirit and in letter, such laws obscure the dignity and magnanimity of a man whose reputation and reverential status they claim to protect.

Restrictions on Free Speech – Legal Right Versus Moral Duty Paradigm

© Symbiot |
© Symbiot |

Echoes of the line of reasoning adopted by the Islamic paradigm on free speech are also reflected in the legitimate restrictions placed on free speech by various international law instruments, including amongst others, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). Both the ICCPR and the ECHR contain qualifying clauses to the articles guaranteeing freedom of expression, stating that the right carries special “duties and responsibilities” and may thereby be subject to necessary restrictions. Thus, Article 19(3) of the ICCPR provides that:

“The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”[20]

Similarly, Article 10(2) of the ECHR states that:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”[21]

Pertinently, both these instruments are unanimous in their support for placing legitimate restrictions on the freedom of expression in order to respect or protect the rights and reputations of others. Interestingly, while the wording of these instruments would almost certainly encompass the caricatures of the Prophetsa within their ambit as being defamatory, yet these provisions seem not to have been invoked in order to show respect to or protect the personage of the Prophetsa of Islam. Quite the contrary, cartoons depicting the Holy Prophetsa in a derogatory manner have instead been hailed as merely an exercise of free speech that all liberal societies must uphold. This is ironic since such laws have been invoked in order to pass legislation, making holocaust denial a crime in certain European countries.[22]

The underpinning philosophy behind placing certain reasonable restrictions on free speech is outlined well in the words of Joseph Carens, Professor at the University of Toronto, who argues that, “The question is whether there is sometimes a moral duty not to say something that one has a legal right to say…”[23] The main debate as Carens goes on to explain is “not about legal limits on speech but about the moral constraints, if any, on how people exercise their rights.”[24] A similar approach has been outlined by David Novak, professor of religious studies and philosophy and author of the Jewish Social Contract, who refers to it as “retroactive consequentialist reasoning”[25]i.e. the process of questioning whether the intended speech is going to accomplish anything positive, and if not, it would be pragmatic to avoid it.

It is reported that H. G. Wells had written to Mahatma Gandhi seeking his comments on a document the former had co-authored entitled the “Rights of Man.” Gandhi, who disagreed with the document’s emphasis on rights, responded in the following words:

“Begin with a charter of Duties of Man and I promise the rights will follow as spring follows winter.”[26]

Thus, this rights versus duties approach is paradigmatic of the emphasis that Islam places on exercising freedoms with responsibility. A reflection of the Islamic framework of rights giving precedence to duties on moral grounds may be seen in the words of Benjamin Franklin who once proclaimed “Only a virtuous people are capable of freedom.”[27]

Countering Blasphemy – Jihad of the Pen

© Nejron Photo |
© Nejron Photo |

Writing in 1902, Hazrat Mirza Ghulam Ahmad, who claimed to be the Promised Messiahas for the latter days declared:

“There is a lesson […] for the pro-Jihad (Mullahs) […] The true religion is that which on account of its inherent property and power and its convincing arguments is more powerful than the keenest sword, not that which depends upon steel for its existence.”[28]

For an Ahmadi Muslim[29] , a Muslim who has accepted the claim of Hazrat Mirza Ghulam Ahmadas , the only meaningful manner in which blasphemous content against God or the Prophetsa may be responded to is by undertaking an active campaign to apprise the world about the true teachings of Islam and by celebrating the life and character of the Holy Prophetsa. As Hazrat Mirza Ghulam Ahmad, the Promised Messiahas once proclaimed:

“Think of the preparations that the opponents of Islam are now making. They are not lining up armies. They are publishing magazines and books. We also should, therefore, pick up our pen and answer their attacks with magazines and books. It is not expedient that the prescription [treatment] and the sickness should be at variance. If the treatment does not conform with the sickness, the consequence is bound to be unprofitable and harmful.”[30]

Thus, echoing these views in response to a question pertaining to the idea of Jihad from a group of Indonesian dignitaries during his tour of the Asia-Pacific in 2013, Hazrat Mirza Masroor Ahmad, Khalifatul Masih Vaba – the Fifth Successor to the Promised Messiahas and worldwide Head of the Ahmadiyya Muslim Community – stated that:

“We firmly believe in Jihad, however the type of Jihad required in the modern era has changed. At this time no Government or organisation is physically attacking Islam in the name of religion. If Islam is being attacked today it is not by the sword but through the press, through the media and through preaching. And so it is the need of the time that we respond using the very same means. That is what the Promised Messiahas taught – to fight with our pens and not with our swords.”[31]


While the debate surrounding the parameters of free speech is enduring as much as it is perplexing, Islam provides clear guidelines with respect to its limits – calling for the protection of free speech but within a moralistic framework that defers to the values of human dignity and civic virtue. In keeping within these prescribed limits, there still remains open the means to initiate and engage in enriching and meaningful discourse. Offending holy personages simply because there exists a legal right to do so is akin to an almost dogmatic adherence to liberty – causing it to turn on its head. Thus, liberty and freedom must be held up to some moral standards regardless of any corresponding legal rights, as Eleanor Roosevelt once proclaimed:

“Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry his own weight, this is a frightening prospect.”[32]

About the author: Ayesha Mahmood Malik is a Contributing Editor of “islawmix” – a project incubated at the Berkman Center for Internet and Society at Harvard University and aimed at bringing clarity to Islamic law in the news. She is also the Sub-Editor at the The Review of Religions. Her writings have appeared in the Oxford Human Rights Hub Blog, the Cambridge Review of International Affairs Blog and the Harvard Human Rights Journal Online. She holds an LLB (Hons) from the University of London and an LLM from Harvard Law School.



1. Thomas Paine, “Quotes by This Author”, Our Republic,

2. Friedrich Nietzsche (2005), 1887 Genealogy of Morals, in Genocide and Crimes Against Humanity (Ed. Dinah L. Shelton and Gale Cengage).

3. Seee.g. Ishani Maitra and Mary Kate McGowan, Speech & Harm: Controversies Over Free Speech, (Oxford, UK: Oxford University Press, 2012), 197.

See, also, Jolyon Mitchell, “Remembering the Rwandan Genocide: Reconsidering the role of Local and Global Media,” Global Media Journal 6,

and Human Rights Watch, “Propaganda and Practice,”last modified August 8th 2014,

4. Seee.g. “Geo Apologises for Hate Speech Against the Ahmadis in Amir Liaquat’s Show,”, updated December 30th 2014,

5. A ruling on a point of Islamic law given by a recognised authority – for more, see,

6. Holy Qur’an, Surah Al-Nisa, Verse 141.

7. Holy Qur’an, Surah Al-An’am, Verse 69.

8. Holy Qur’an, Surah Al-Ma’idah, Verse 9.

9. Holy Qur’an, Surah Al-An’am, Verse 109.

10. Holy Qur’an, Surah Ya Sin, Verse 31. Other examples include Surah Al-Zukhruf, Verse 8 and Surah Al-Mu’minun, Verse 45.

11. Holy Qur’an, Surah Al-Hur, Verse 7.

12. Holy Qur’an, Surah Al-Nahl, Verse 102.

13. Holy Qur’an, Surah Bani Isra’il, Verse 48.

14. Holy Qur’an, Surah Al-Nahl, Verse 25.

15. Khaled Abou El Fadl, “The Death Penalty, Mercy and Islam: A Call for Retrospection”, Scholar of the House,

16. Id.

17. Holy Qur’an, Surah Al-Ahzab, Verse 49.

18. Holy Qur’an, Surah Al-Nahl, Verse 126.

19. “Pakistan Penal Code”, Financial Monitoring Unit, October 6th, 1860,

20. International Covenant on Civil and Political Rights”, Office of the High Commissioner for Human Rights,

21. “European Convention on Human Rights”, ECHR,

22. Dan Bilefsky, “EU Adopts Measure Outlawing Holocaust Denial”, The New York Times, April 19, 2007,

23. Joseph Carens, An Ethics Forum on Free Speech, Faculty of Arts & Sciences, University of Toronto, 15.

24. Id.

25. David Novak, An Ethics Forum on Free Speech, Faculty of Arts & Sciences, University of Toronto, 13.

26. Keshavan Nair, “Civil Rights and Responsibilities – A Clue From Gandhi”, Collaboration,

27. Benjamin Franklin, “Great Quotes By: Benjamin Franklin”, Pondering Principles,

28. “Jihad with Sword”, Al Islam, 1902,

29. Mirza Ghulam Ahmadas claimed to be the Promised Messiah for the latter days as prophesised by the Holy Prophetsa.He founded the Ahmadiyya Muslim Community – a revivalist movement in Islam that rejects extremism and stands for peace, justice and loyalty to one’s nation. The Ahmadiyya Muslim Community has now spread to more than 206 countries globally and is involved in various charitable and philanthropic pursuits.

30. Hazrat Mirza Ghulam Ahmadas, Malfoozat, Vol. 8, p. 20.

31. Press Desk – Ahmadiyya Muslim Jamaat International, “World Head of Ahmadiyya Muslim Jamaat Delivers Concluding Address at Annual Convention in Australia”, Al Islam,

32. Eleanor Roosevelt, “You Learn by Living: Eleven Keys for a More Fulfilling Life,” Good Reads,

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