Law and Religion

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Law and Religion

• Religion as a/the
• source of Law

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Learning Outcomes

• Understand how Christianity, Islam, Hinduism and
  Buddhism sees Religion as a/the source of Law
• Analyze factors affecting how a religion sees the
  source of laws

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Issues

• Basics of Christianity, Islam, Hinduism and
  Buddhism
• Comparing the religions
• Christianity and Law
• Islam and Law
• Hinduism and Law
• Buddhism and Law
• Religion as a source of law

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Major Questions

• What are the possible relationships between
  religion and source of law?
• Whether Religion is a direct or the sole source
  of Law in different religious faiths including
  Christianity, Islam, Hinduism and Buddhism?
• What factors determine the relationship?

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Christianity

• Creation
• Sin and Fall
• Incarnation and Redemption
• Sanctification and Final Victory

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Christianity

• Unity and Diversity

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Christianity

• Roman Catholic Church
• Eastern Orthodox Church
• Protestant Churches
• Various denominations

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Christianity

• Different over
• -doctrines on icons, Mary, Determinism
• -Nature of the Church one, holy, catholic
  (universal) and apostolic
• -visible and institutional vs.
• invisible unity of the church
• -Forms of church of Government
• -episcopal (bishop-based) , presbyterian
  (elder-based) and congregational

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Islam

• There is no god but God, and Mohammad is the
  Messenger of God

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Islam

• Five Pillars
• one God
• Prayer
• Almsgiving
• Fasting
• Pilgrimage
• and possibly one more pillar Jihad

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Islam

• Sunni and Shiite
• -who should succeed Mohammad to exercise
  religious authority
• -schools within the two main sects
• -Sunni schools Hanafi, Maliki, Shafii,
  Hanbali
• -Shiite schools Jafari, Ismailis, Zaydis

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Islam

• Islam is a total way of life and does not merely
  regulate the individuals private relationship
  with God.

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Hinduism

• -Hinduism is difficult to define
• -Hinduism is the religion of the Hindus (people
  living in the Indian subcontinent)
• -A Hindu is a person who do not deny he/she is a
  Hindu

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Hinduism

• -religious life is a matter, not so much of
  philosophy, as of ordering one's life according
  to the principles and practices which will lead
  to a better rebirth or even to moksa (release or
  liberation)
• -no distinction between law and religion

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Hinduism

• -dharma the map of how to live appropriately
• -general as well as
• -specific
• -each person has his/her svadharma
  according to
• -four stages of life student,
  householder, retired person and
  renunciant)
• -four social classes Brahman (priests),
  Kshatriya (ruler, warrior, landowner),
  Vaishya (merchants), Shudra (artisans and
  farmers). Harijans are the outcastes or
  untouchables.

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Hinduism

• -karma
• -the process whereby the food and bad deeds
  performed by human beings in the present
  determine the quality of their lives both now
  and in future births

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Hinduism

• -Three major paths to liberation (moksa)
• -karmamarga (the way of works, following
  dharma)
• -jñamarga (the way of knowledge or of
  philosophical truth)
• -bhaktimarga (the way of devotion to God).
• -All three are united by being called yoga

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Buddhism

• Teaching of Buddha
• Four Noble Truths
• 1. All things are in a state of
  dissatisfaction, dukkha
• 2. Tanha (desire) is the cause of dukkha
• 3. To break this process, eliminate tanha
• 4. Path is the Noble Eightfold Path

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Buddhism

• Noble Eightfold Path
• Right Understanding
• Right Intention
• Right Speech
• Right Conduct
• Right Occupation
• Right Endeavor
• Right Contemplation
• Right Concentration

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Buddhism

• Nirvana a person rids himself or herself of
  tanha
• end of transitory states

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Buddhism

• Theravada Buddhism monastic discipline Buddha
  as an enlightened flesh-and-blood man
• Mahayana Buddhism Buddha as a living incarnation
  of the Buddhist spirit bodhisattvas
• Zen strict discipline and intuitive mediation a
  person awakens the Buddha that exist in everyone

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Christianity and Law

• St. Augustine Two Cities
• City of God and City of Man
• Church as the holder of the divine principles of
  the City of God is called to stand above the City
  of Man
• Church is not to rule the earthly kingdoms
  directly but to bring the world as close as
  possible to Gods justice

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Christianity and Law

• Aquinas
• Eternal law Divine Wisdom as directing all
  actions and movements
• Natural Law rational creatures discovery of the
  eternal law through his/her ability to reason
• Human Law laws made by human
• Divine Law words of divine revelation and the
  pronouncements of the Pope

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Christianity and Law

• Aquinas
• -a law that is not just is not law at all
• -unjust law
• -contrary to human good end, author, form
• -contrary to divine good

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Christianity and Law

• Aquinas
• -the state remains separate but subordinate to
  the Church

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Christianity and Law

• Martin Luther Two Kingdoms
• -Kingdom of God and Kingdom of the World two
  kinds of laws
• -the Church is subject to secular government,
  not independent from or superior to it

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Christianity and Law

• John Calvin
• -Church and State are at equal levels
• -the Church has a duty to make the State
  religious

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Christianity and Law

• Religion above Law
• (Augustine and Aquinas)
• Religion inferior to Law
• (Luther)
• Religion parallel to and is to influence Law
  (Calvin and Christian Right and modern Catholic
  thinking after the Second Vatican Council
  (1962-1965))

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Christianity and Law One Modern Understanding

• Christianity does not offer a corpus of law
• Christians want to live their life in accordance
  with the very high moral standards
• Christians advocate ideas about the sort of laws
  that will make the state a better place to live
• Christians wish to respect the freedom of
  conscience of non-Christians
• The balance is not easy to strike
• Middle way leaves as much room as possible for
  Christians to live distinctive Christian lives in
  accordance with the law and allows non-Christians
  to live lives following many different value
  systems in accordance with the law

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Islam and Law

• Sharia laws
• Quran
• sunna (or hadith, words or acts of Prophet
  Mohammad
• ijma (scholarly consensus)
• qiyas (legal analogy)

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Islam and Law

• -A total way of life
• -The legal dimension of sharia gives Islam its
  form while the spiritual dimension is its
  substance
• -Fusion of law and religion is complete in Sharia
  

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Islam and Law

• -sharia law co-exist with non-sharia law
• -both components still Islamic
• -from divinely ordained law to divinely guided
  law

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Islam and Law

• -Islamic law as a set of inflexible code of
  religious rules?
• -Islamic law as subject to different
  interpretations by applying different
  interpretation theory and juristic analysis
• -has jurisprudential diversity based on
  geographic, ethnic, and racial as well as
  philosophical grounds
• -influence of contextual factors like history,
  culture and institutions
• -Islamic law as political ideologies of identity

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Hinduism and Law

• No conception of law in Hinduism
• No distinction between Law and religion

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Hinduism and Law

• -Hindu laws
• -Veda
• -Dharmasutras teachings of sages
• -Dharmasastra teachings of sages
• -Commentaries interpretations
• -Digests
• -local customs

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Hinduism and Law

• -The purpose of the entire legal system was not
  so much to deliver justice as it was to ensure
  that the entire populace adhere to the duties and
  obligations of dharma.

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Hinduism and Law

• Dharma
• - a system of natural laws in which specific
  rules are derived from an ideal, moral, and
  eternal order of the universe
• - The fact that laws based on this eternal order
  is their source of validation and authority

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Hinduism and Law

• The administration of law courts and the
  enforcement of law was not a purely political
  matter (although it had a political dimension)
  it is a religious concern.

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Hinduism and Law

• -The king is semi-divine
• -The King is ultimately responsible for the
  adherence to dharma
• -enforcement of law is the responsibility of the
  king

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Hinduism and Law

• -Any violation of dharma means that the violator
  incurred sin.
• -To expunge this sin, it is necessary to undergo
  some penance. The punishment meted out for a
  crime is thus viewed as purifying.
• -Neither punishment nor penance is described as a
  deterrent or as a way of compensating for injury
  or tort, but they are ways of compensating for
  the violation of the natural and moral order of
  dharma.

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Hinduism and Law

• -modern development
• -hybrid system of law
• -Religion is redefined reduced, distorted,
  modified
• -this secular development is accepted by
  Religion

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Buddhism and Law

• -provide notions of cosmogony and cosmology that
  legitimize social and political order
• -Righteous king
• -monks serve as adviser to the king
• -mixed with local customs and traditions

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Buddhism and Law

• -may support radical and revolutionary movements

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Buddhism and Law

• Buddhism in Tibet
• Dalai lama Union of religious and political
  leader
• king as bodhisattva

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• Religion as a source of Law
• different modes
• 1. Religion incorporates Law
• 2. Religion is the sole and direct source of law
• 3. Religion is one of the direct sources of Law
• Law is treated as a part of Religion
• Religion is separated from Law and is not the
  direct source of Law
• Religion is re-defined by Law

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• Religion is separated from Law and is not the
  direct source of Law
• 5.1. Religion can be used to judge the validity
  of Law.
• 5.2. Religion can indirectly determine the
  content of Law by exerting influence in the
  law-making process.
• 5.3. Religion may provide the content which is
  incorporated into Law but it is not the sole
  source. After the incorporation, Religion no
  longer has any direct authority as Law.
• 5.4 Religion provides the background to assist
  the interpretation and application of Law,
  including the part originated from Religion and
  the part originated from nonreligious sources.
• 5.5. Religion is subject to the regulation of Law.

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 1. Religion is not static. In all the major
  religious traditions, various variations within
  the tradition were developed. There may be
  theological, historical, political, and cultural
  causes for the development of variations within
  each religious tradition.

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 2. Each religious tradition has its
  presuppositions, cosmogony, cosmology and
  worldview.

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 3. Internal factors (factors originated from the
  beliefs, practices and structures of the
  religious faith

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 3.1. Salvation
• If the religious faith emphasizes more on the
  individual salvation of a human being or his/her
  individual relationship with the Divine or
  Ultimate, the relationship between Law and
  Religion will be more separated. If the religious
  faith sees individual salvation as closely linked
  with the salvation of the whole human community
  or concerns more with the relationship between
  the whole human community as one entity and the
  Divine or Ultimate, the relationship between
  Religion and Law will be more intertwined.

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 3.2. Is there a distinction between heavenly and
  earthly (or spiritual and temporal) matters in
  the present reality and the aspects of
  life/religious experience of a person in the
  present reality?
• 3.3. How comprehensive is the moral code endorsed
  by the religious faith?
• 3.4. How much authority is given to the literal
  understanding of the sacred text?

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 3.5. How much diversity within the religious
  faith can be recognized?
• 3.6. What is the status given to people of other
  faiths? How much toleration will be allowed for
  other faiths? 4.6. Is it possible for a believer
  to give up his/her faith?
• 3.7. Is there a centralized organ
  representing/administering the religion?

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 4. External factors (social, political and
  cultural environments in which the religious
  believers or religious organizations situate)

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 4.1. Is the religious community rather homogenous
  on the basis of race, culture or nationality?
• 4.2. Is the religious community a dominant human
  group in the political community?

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Factors that may affect the actual choice of
Religion as a source of Law relationship

• 4.3. Whether Religion can cope with the demands
  and changes in the social, economic and political
  environments at the national and global levels?
• 4.4. Is the religious community under the
  influence, threat or domination of another
  religious, cultural or political community?
• 4.5. Can the religious authority maintain its
  authority in the governance of the society?