The 16th century King of England, Henry VIII, usurped the power of the Catholic Church when it refused to approve his desire to annul his marriage to the queen, so he could marry another woman who he thought was ‘more worthy of the throne.’ According to the American professor of law, G. Marcus Cole, this is when the state took over the roles that were once the exclusive domains of the Church i.e. defining morality and/or judging immorality. In a 2008 essay for the Journal of the University of Notre Dame, Cole writes that, since the king’s authority did not extend to marital issues, Henry simply assumed by force the Church’s responsibilities and powers. 

Despite the fact that in Europe, politically, the church and the state began to be separated from the 18th century, there was always a separation between the two, regarding social and religious matters. For example, issues such as homosexuality, divorce, adultery, etc., were hardly ever put before a monarch to decide on because these were matters of morality and thus the domain of the church to judge.

But when the political separation of the church and the state was complete, citizens expected the state and government to define morality and legislate laws to punish immorality.

This was easier said than done, because this meant assuming a role that was once the domain of the church, which had been sidelined because it was thought to be against the principles of enlightenment, such as reason, science and modernity. Nevertheless, according to Cole, ever since Henry’s move, the state has increasingly occupied and further assumed the traditional functions of the church. 

The same was the case in Muslim empires, where the monarchs initially let Islamic scholars and judges define, resolve and judge matters of morality and piety. But increasingly, because of issues of morality overlapping political matters, Muslim monarchs began to trespass the domains of the ulema, often leaving them fuming. The ulema believed that the monarchs were interpreting and defining religious laws because of pragmatic reasons, more than their desire to create a morally correct society. 

Populist legislation based on subjective concepts of virtue often does little or nothing to address the crimes it pretends to combat

It is this approach that still drives the dynamics of the modern state and governments and their legislative relationship with morality. Whereas legislating or enacting laws against crimes such as theft, murder or rape have a tangible necessity to maintain a moral order in society, the problem arises when a state or government tries to formulate laws against what they believe causes such crimes.

In Pakistan, for example, over the years, governments have often enacted legislation and issued ordinances to deal with what they assume causes crimes such as rape and child abuse. During the Zia-ul-Haq dictatorship in the 1980s, decrees and ‘advisories’ were issued about how men and women (especially the latter) should dress on TV and in public. Zia’s ‘chaadar aur chaardewari’ (veil and four walls) motto, encouraged women to stay indoors and only venture out in a veil, to avoid sexual harassment or rape. This line of thinking was vehemently opposed by various women’s organisations. They saw it as an idea emitting from the psyche of a male dictator who was putting the blame on women for being abused by men. 

No serious discussion was ever attempted by the state and government to understand the causes behind rape and harassment, beyond that unidimensional rhetorical solution to keep women inside the four walls of her house and in a veil. Of course, the issue of young boys being raped, many of them in madressahs, was conveniently ignored, and so were incidents in which women, who regularly covered themselves in burqa, could not escape harassment.

Secondly, on September 20, this year, the Pakistani lawmaker Shandana Gulzar Khan quoted figures by the rights group War on Rape in which it was disclosed that, on many occasions, rapists are known to the victims and include family members. So this means a large number of rapes are taking place inside the chaardewari.

Recently, the Imran Khan government, echoing the famous Islamic evangelist, Tariq Jameel, has come up with similar rationales behind the frightening increase in rape cases of women and of children, both male and female. According to Jameel, co-education is one reason, whereas to PM Khan, the reasons range from Hollywood and Bollywood films and the Chinese mobile phone app Tik-Tok! In Europe and the US, psychologists and psychiatrists have, for decades, been conducting studies whether ‘obscenity’ in cultural products generates actual deviant behaviour. The results have been entirely inconclusive. 

This is what courts in Europe and the US have been struggling with. In an essay for the summer 2012 edition of the Penn State Law Review, professor of law Daniel F. Piar writes that, from the mid-20th century, courts in the US began to discourage legislation on the basis of morality. Those who support this position give the example of the 1920 prohibition imposed on alcoholic beverages in the US.

It was a decision by the government based on decades of lobbying by puritanical Christian groups, who often provided ‘proofs’ of how alcohol was ravaging the moral fabric of American society. Yet, 13 years later, in 1933, the government had to repeal the law. In a January 2020 article for The Atlantic, Annika Neklason writes that prohibition caused twice the amount of corruption and violence that the prohibitionists claimed consuming liquor did. 

Enacting laws to curb an activity because that activity is defined as being immoral and the cause behind tangible disruption in society, is a complicated exercise. For example, rape or child abuse are clearly tangible misdeeds. The procedure to determine their cause, however, is the domain of psychologists and sociologists, who must weigh in before the government can legislate laws to address the causes.

But this hardly ever happens in Pakistan, where governments and the state often take unilateral action to determine and then define causes in this context and impose curbs against them. The most they do is ‘confer with ulema.’ Therefore, the determined causes of rape and child abuse draw some entirely knee-jerk rationales that do not go beyond pleas to put women behind four walls, or wrap them in a veil, or ban ‘obscene’ cultural products. 

There’s another reason why this happens. According to the American scholar of law, Louis Henkin (in the 1963 edition of the Journal of Columbia Law Review), since it is problematic to substantiate that an activity defined as being ‘obscene’ causes certain criminal offences, courts and governments forbid these activities, not because there is proof that they lead to crimes, but because they are deemed offensive to large sections of the society.  

This is common in polities that define themselves as being morally correct. When recently, PTV aired a segment in which a woman was shown exercising with a male fitness coach, a conservative journalist tweeted, ‘is this [the] Islamic Republic of Pakistan?’ Of course, he couldn’t claim that the segment would lead to any heinous crime, it was just him being offended by it because, in his mind, an ‘Islamic Republic’ should behave in a particular manner. Anything contradicting this manner needs to be banned because it is ‘offensive.’ 

The American legal philosopher Lon Fuller describes this as ‘morality of aspiration’ or a conception of moral principles to which humans ought to aspire. He discouraged legislation based on morality of aspiration because it often ends up enshrining flawed and populist concepts of virtue that do little to nothing to address the larger crimes that these ideas of virtue are pretending to combat.

Published in Dawn, EOS, October 4th, 2020