1 What is law and why do we have it? 1 What is law and why do we have it?
1.1 The Relationship Between Religion and the Law 1.1 The Relationship Between Religion and the Law
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Copyright Information non religion and the law
december 2005/january 2006
This article is copyright @ 2005 by LawNow, Legal Sudies Program, Faculty of Extension,
University of Alberta. Permission to reproduce material from LawNow may be granted on request.
on religion and the law
Sometimes the legal system is a tool of the political system and sometimes the
religious system is a tool of the political system or vice versa, but in whatevw
form the relationship takes, there is always a relationship between the legal
system and the religious system. Over centuries, the legal system and the religious
system have clashed, cooperated, and persecuted one another.
There are four types of relationships between religious systems and legal systems.
At one end of the spectrum is the religious system predominating over the
legal system, called a theocracy At the other end of the spectrum is the legal
system dominating over the religious system, behaviour typical of communist
regimes, for example. In between these two ends of the spectrum of relationshiptypes,
there are many different coexistence relationships between the two
systems, which involve constitutional separation of the two coexisting systems or
voluntary separation of the two coexisting systems.
Theocracies are a society where the religious system predominates over the
legal systems and in many cases predetermines some of the nature of the legal
system. For example in pre-1949 Tibet, before the Chinese invasion and
takeover, the Tibetan Buddhist tradition co-mingled with the traditional Bon
indigenous tradition to compose the religious system which predominated over
the legal system. The Dalai Lama, when of age, was considered to be the temporal
and spiritual leader of the Tibetan people. In Italy, in Michelangelo's time,
Pope Julius ruled Italy and was constantly warring over Italy with France's Louis
XII, and the legal system was considered a part of the larger theocratic system.
In the early colonization of America, in 1620, the Puritans led by John
Winthrop attempted to create a theocracy in their Massachusetts Bay Colony
where they would become "a city on the hill", and set an example for their homeland,
England, of how a Christian community should exist. A current example of
the legal system being one part of a larger religious system exist in the Vatican,
which is a city-state based on Roman Catholicism and ruled by the Pope. Other
current examples are Saudi Arabia and Iran, both having the religious system predominating
over the legal system. In the countries of Saudi Arabia and Iran, the
religious system is dominated by the Islamic tradition.
In Communist states, the legal system predominates over the religious system,
the other end of the spectrum of the relationship between the religious system
and the legal system. From 1917 to 1989 in the Soviet Union, the legal system,
as dictated by the political system, predominated over the religious system. The
religious system included the traditions of Russian Orthodox Christianity,
Eastern Orthodox Christianity, Roman Catholicism, Judaism, and Islam,
amongst others. The original ideology from Karl Marx had reflected his own
atheism. He stated that "Religion is the sigh of the oppressed creature, the heart
of a heartless world, the spirit of soulless stagnation. It is the opium of the
people." This was turned into a hardened reality in the words of Lenin that
"Every religious idea, every idea of God, even flirting with the idea of God, is
unutterable vileness." Therefore, the communist society was built around supdecember
2005/january 2006
This article is copyright @ 2005 by LawNow, Legal Sudies Program, Faculty of Extension,
University of Alberta. Permission to reproduce material from LawNow may be granted on request.
on religion and the law
pression of religion. Despite this antagonistic view toward the religious system,
the various traditions went underground or maintained themselves in a def ve
stance and held on until the grips of Communism loosened in 1989.
In Communist China, in 1949, the religious system, composed of Christians,
Buddhists, Taoists, Confucianists and many other traditions was not tolerated by the
Communist regime, which used the legal system to repress all religion. Mao stated
that "religion is poison." Again, the suppression of the religious system led to some of
the traditions taking a defensive stance, but even this went underground by the time
of 1957-58, and again during the Cultural Revolution of 1966-76. However, since
1987, the religious system has been tolerated more in Communist China.
In between the two polarities is the relationship between the legal system and the
religious system where the two systems coexist either constitutionally or voluntarily
The United States of America provides a good example of a state where the legal
system and the religious system coexist and their coexistence is constitutionally
entrenched. In 1791, The Constitution of the newly formed United States of America
was amended by a proposal to congress, and ratified by several states, under the Fifth
Article of the Original Constitution. This amendment states that "Congress dall make
no law respectingan establidment of religion or prohibiting the free exercise thereof ... "
The first part of this clause is called the "establishment clause" and it prohibits the
government from choosing one religion to be a State religion, thereby constitutionally
separating the legal system and the religious system. Further, the next part of the
clause of the amendment is the "free exercise" part of the clause which prohibits the
state from preventing the free exercise of any religious tradition.
Many of the foundingfathers of the United States were very clear that it was
necessary for the two systems of law and religion to be separated in the
Constitution so that this separation would be difficult to alter legislatively; i.e.,
the Constitution would have to be re-amended to have this separation changed.
Thomas Jefferson stated in 1802 "I contemplate with solemn reverence that act
of the whole American people which declared that their legislature should make
no law respecting religion, or prohibiting the free exercise thereof, thus building a
wall of separation between church and state."
In India, in 1947, the newly independent state had great concerns about the
possibility of religious strife between the Muslims and the Hindu traditions that
made up the majority of the religious system. Later, this concern was to include
the Sikh-Hindu strife during the time of Indira Gandhi. The Indian Constitution
which came into effect in 1950 provides for the fundamental rights embedded in
the Constitution for freedom of religion and religious expression and does not
acclaim any religious tradition as the "national" religious tradition. So the legal
system and the religious system are constitutionally separated, with one exception.
This exception is a direct interference with the religious system in the
Constitution, one that was strongly advocated by Mahatma Gandhi, himself a
Hindu-tradition practitioner. The Indian Constitution bans the Hindu religious
tradition of having the "untouchables" or shudra caste where the persons in this
december 2005/january 2006
This article is copyright @ 2005 by LawNow, Legal Sudies Program, Faculty of Extension,
University of Alberta. Permission to reproduce material from LawNow may be granted on request.
on religion and the law
class are prohibited from participating in many of the Hindu religious and social
practices due to their birth into this rigid caste system. In Gandhi's view th
constitutional imperative was necessary to prevent the continuation of the complete
marginalization of the shudra caste which he said was unacceptable in any
religious tradition, even his own. This religious prohibition, however, in many
ways has become a social prohibition and it has actually done little to lessen the
brutal burdens of life for these caste members.
The other type of coexistence relationship between the two systems is that of
voluntary separation of the two systems. In Sweden, the Church of Sweden was
previously the only state church, and now other churches are allowed to have
status, but the separation between the religious system and the legal system is
voluntary and the two systems coexist. In England, the Church of England is the
state church and in Scotland, the Church of Scotland is the state church, the
Queen is the head of the Church of England and the head of the Monarchy,
however, the relationship is one of voluntary coexistence where as a non-constitutional
democracy, there is no formal document separating the two systems.
In Canada, the Constitution Act authorizes the funding of a public school system
and a separate school system for Roman Catholic education. The religious traditions
are far more varied now than at the time of the drafting of the Constitution's founding
act, The Britid North America Act, when Protestantism and Catholicism, both
Christian traditions, were the religious traditions that made up the religious system.
Now, the religious system is comprised of many different types of traditions, some
theistic and some non-theistic, yet it states in the preamble of the Constitution that
Canada "is founded upon principles that recognize the supremacy of God and the
rule of law " The Charter of Rights constitutionally recognizes freedom of religion.
Therefore, the religious system and the legal system have a relationship of coexistence
that is partially constitutionally separated, and partially voluntarily separated.
All societies have a religious system and a legal system. Sometimes these systems
are effective in society and sometimes they are not. The need for both is
apparent to members of the society and the relationship between the two systems
can take various forms. In some societies, the religious system predominates over
the legal system and this is referred to as a theocracy At the other end of the
spectrum some societies have a relationship between the two systems where one
system tries to completely suppress the other system, such as communism. In the
middle of these two polarities, are the coexistence relationships between the two
systems. This coexistence may be a constitutional coexistence or a voluntary
coexistence, or a mixture of the two. So while all societies have a religious system
and a legal system, the relationship between these systems can vary widely from
predomination over each other, to coexistence.
Andrea Fugeman-Millar is a lawyer, presiding Justice of the Peace, and a
Religious Studies student at the University of Calgary in Calgary, Alberta.
december 2005/january 2006
This article is copyright @ 2005 by LawNow, Legal Sudies Program, Faculty of Extension,
University of Alberta. Permission to reproduce material from LawNow may be granted on request.