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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.