law and religion essay

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Law and Religion

In our pluralistic world, a variety of oft-conflicting perspectives informs our understanding of moral and political ideas of justice. Additionally, legal cases increasingly span across borders and involve participants with no shared tradition, creating tensions that reflect fundamental moral conflicts. These resources explore how religion grounds, shapes, and conflicts with our legal systems.

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Religion Matters pp 231–243 Cite as

Law, Religion, and Theology: A Relationship That Matters

• Paul Babie 3  
• First Online: 03 March 2020

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This chapter examines why the relationship between law, religion, and theology matters. It contains four sections. The first explores why, in addition to sociology, we ought to be concerned to study the relationship between law and religion. If it is important, the second section suggests how we can go about studying this relationship. For that, we must make a distinction between ‘religion’ and ‘theology’. From that distinction, the third section suggests two methodological approaches for use in such study. And, finally, the chapter concludes with some brief reflections on the relationship between religion, theology, and law.

Earlier versions of parts of this chapter appeared as Babie ( 2007a , 2009 ). Sincere thanks to the publishers for permission to reproduce them here in this revised and updated form.

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The seminal works in this area, and those which masterfully summarise the historical evidence of this relationship, are those of Berman ( 1974 , 1983 , 1993 ). See also the stimulating collection of essays found in Pennock and Chapman ( 1988 ).

In relation to Judaic law: see, e.g., Litman ( 2005 ); in relation to Christian law, ZENIT ( 2005 ); in relation to Shari‘a law, Abou El Fadl ( 2001 , 2004) , Hussain ( 2011 ), Fyzee ( 1974 ), Rosen ( 2000 ), Rauf ( 2006 ), Emon ( 2005 : 20).

And see also Freeman ( 2001 : 120–3).

This is not an unknown approach in the American literature: see, e.g., Singer ( 2000 ).

This approach is known to the American academy through the integrative jurisprudence of scholars like Berman ( 1983 : Chap. 13).

Preece’s fifth approach falls into both theology and law, and law and religion, because it is possible that in some cases, ethics may be founded upon theological assumptions, while in others they may draw upon the dogmatic teachings of a particular religion.

See, e.g., Church of the New Faith v Commissioner of Pay - Roll Tax (Vic) (1983) 154 CLR 120, in which the High Court of Australia dealt with the meaning of religion for the purposes of taxation laws.

See also Babie ( 2007b ), Oliphant and Babie ( 2006 ), Babie ( 2002 , 2004 , 2006 ).

‘Unlike scavenging and foraging, which tend to be individual enterprises with commercial potential, gleaning has almost always been communal and charitable. Its roots lie in the allocation of fair shares between individuals. The leavings of prosperity, the unneeded or overlooked fragments, are made available to those who need help, whether in dole at the monastery gate or from a sacking bag filled in a harvested field (The Economist 2018 ).’

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Babie, P. (2020). Law, Religion, and Theology: A Relationship That Matters. In: Babie, P., Sarre, R. (eds) Religion Matters. Springer, Singapore. https://doi.org/10.1007/978-981-15-2489-9_14

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Relationship between Law and Religion Essay Example

The link between law and religion.

There exist an interesting relationship between law and religion especially concerning the correlation between the two notions. The relationship revolves around the legal understanding and judicial discourses on the variety of religious phenomena in addition to the strictly legal issues that relate to religious freedom. A number of higher learning institutions have incorporated the aspect of religion in the delivery of their law education around the world, such as the Brigham Young University. The school introduced the International Centre for Law and Religion Studies in early 2000. The creation of the law and religion department serves an essential role in uniting law scholars, human rights activists, Supreme Court judges and government ministers that deal with religious affairs. A number of scholarly articles have also been published covering the issue of the nexus between religion and law that indicates the existence of a unique link between the two disciplines. They include international journals, such as the Journal of Law and Religion and the Ecclesiastical Law Journal, which were founded in 1983 and 1999 respectively. In the United States, there exist many law and religion organizations comprised of professionals, including history and religious studies specialists, law professors and political scientists. Based on the above history and significance of the relationship between law and religion, the purpose of current paper, therefore, is to explain the links between the two disciplines. The paper will seek to examine how law can be influenced by religion with a view of identifying the links that exist between them.

How Law is Influenced by Religion

According to Chaplin (2012), the religious beliefs that are held by individuals are incommunicable by any form of evidence or proof except for the holder. Thus, the truth of the law lies with the hearts of the believers and neither the art nor the right of the ruling class will necessarily carry with them the actual knowledge of the real religion. In discussing the relationship between law and religion, Chaplin (2012) identifies the decision that was made by Judge Andrew Rutherford in the Cornish private hotel case. The merits of the court decision and the case highlight the extent to which law is significantly influenced by religion. In the Cornish private hotel case, a gay couple was denied a double-bedded room and the hotel owners relied on their right to run their hotel in accordance with their religious standards. They argue that housing the gay couple would be in contrary to their Christian moral values.

The Cornish private hotel case indicates the fight between religion and law that continues shaping the decisions made by the courts. As Chaplin (2012) indicates that the hotel owners were found to have illegally discriminated against the gay couple given that gay people had a right to equality, as well. Various law scholars and political scientists have argued that the state should maintain and observe the principle of state neutrality towards the topic of religion. In addition, various scholars have stated that public reasoning should be secular (Chaplin, 2012). Thus, states must always exercise restraint when dealing with religious matters given that religion is a sensitive matter that affects every member of the society. Additionally, religiously-based public reasoning advocates for the observance of the principle of general restraint on religious matters. The two principles of general constraint and state neutrality on religious matters indicate that religion significantly influences law.

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The religious beliefs held by various people in the community are very different from those that are held by other societal members. According to Chaplin (2012), the state laws cannot be asserted on the subjects solely on the basis of the authority of a particular belief and/or religious system. In addition, the particular source of the religious beliefs and opinions cannot be enforced barely in the fact that they originate from a particular source. The particular view of religious leaders and believers is that laws can be justified if they objectively and rationally advance the general good of the nation (Chaplin, 2012). The impact of religion on the legislations of a given country cannot, therefore, be underestimated as it is evident in the religiously-inspired political views and movements in the United States during the 1960s. The civil rights movements in the US were inspired by the participants’ religious views that were aimed at changing the laws existing at that time. The evidence indicates that law can be significantly and legitimately influenced by religion.

General Aspects that Contribute to the Existence of the Relationship between Law, Morality and Religion Recently, there has been a contentious issue concerning the interaction between law and religion. It has been necessitated by the essential role that religion plays in the contemporary socio-political and legal systems. According to Doe (2011), religion influences a number of societal factors and each individual in the community holds a particular set of beliefs that are unique to him/her. There have been debates regarding the future of Islamic Law in the contemporary environment where there exists much interaction amongst different people. For instance, the Islamic Centre that is located in Ground Zero, New York, has banned wearing of burqas and headscarves within its precincts (Doe, 2011). Such police has caused a great public discontent amongst individuals that do not subscribe to this particular religion. The conflict between law and religion has made people focus on the place of religion in Hindi civilization movements and ancient Roman law jurisdictions.

The general aspects contributing to the relationship between religion and law include morals and religion as key elements of the law, the conservatism of law and religion and legal institutions in religion (Morden, 1984). Other general factors that contribute to the relationship include love in the secular law that is evident with the Old Testament of the Bible. In the contemporary society, the legal structures of a particular state are used primarily as instruments of controlling the subjects. According to Anca (2011), there exists an interesting correlation between morality, religion and law that significantly influences the level of conformity that individuals will experience in the state. Law, religion and morals are regarded as the primary agencies of social control, especially given that the state uses such elements to intervene in private citizens’ lives.

Morality is an essential aspect of religion that is used by religious bodies to enforce the expected standards of conduct and interaction with other members of the society. In most instances, the state leaves the matter of morality to schools and religious institutions that play an essential role in bringing up children with some form of moral decency. Consequently, the morality influences the laws, given that it is highly important for ensuring that there is decency within the community. In addition, morality is useful in the community given that it enormously contributes to preserving public order (Morden, 1984). The primary purpose of the law in the society is to ensure that there is order and harmony amongst different people. Morality and religion play a crucial role in ensuring that private citizens are protected from injurious and offensive circumstances.

Morality and religion are essential in preventing the corruption and exploitation of other people in the society, thus, positively contributing to law enforcement. In addition to this, morality and religion contribute to the jurisprudence of a particular state. It assists a state to formulate policies that are aimed at preventing the exploitation of the vulnerable individuals in the society. Religion and morality achieve it by protecting the marginalized people, minors, the inexperienced individuals, the physically disabled and mentally incapacitated individuals from undue exploitation. According to Anca (2011), the connecting element between law and religion is the human being. Morality generates a set of precepts, rules and ideas regarding a particular right or wrong, good or evil and right or unjust (Anca, 2011). Morality and law are similar because they both originate from God as evident in the Bible. In addition, they both involve a given higher authority and demand strict obedience to them. Furthermore, law and morality are related in that they both require a set of rules and punishments that are administered to the people who violate them. Morality is a key teaching that is thought in a number of religious institutions, especially in the context of Christianity.

Relationship between Law and Religion

Both law and religion are considered essential elements of the society, given that they are the basis of social equity and justice. Law plays an essential role in creating social organization, as it uses the technique for ensuring that there exists a coercive social order (Anca, 2011). The social norms that relate to religion are heavily applied in law especially when formulating the rules and standards to be complied by the state subjects. In addition, particular legal matters are addressed in religion concerning murder, rape, crime and other capital offences that are punishable by law (Anca, 2011). Crime is prohibited under the religious teachings and within the legal structures of a given nation. In addition, the issue of murder is extensively addressed in religion, especially in the Bible, where a punishment is applicable to individuals who commit murder as stated in one of the Ten Commandments.

There also exists a link between the social norms and the jurisdiction of a particular state. Even though law and religion have a number of differences, the imposition of rules and punishments created a link between them, which is represented by the human being (Anca, 2011). Religion is concerned with the adherence to a supreme being, God, and it emphasizes the moral relationship that man has with God. In addition, religion is concerned with the management of spiritual intimacy between man and God. Furthermore, morality focuses on resolving societal conflicts rather than allowing the use of physical force contrary to the principle of law that states the following: “praetor of internis non judicata” (Ancas, 2011). According to Morden (1984), religious institutions are the primary factors of the linkages between law and religion. There exist contractual relations between religious institutions and the state’s legal structures. The law of contracts is useful in sanctioning private arrangements between various societal members, thus, preventing the imposition of an individual’s rights and obligations on the basis of one’s societal status.

In the context of Islam, there exists a direct link between Islamic law and the Islam religion given that the religious beliefs of Islam are enforced to those who subscribe to the religion. According to Ancas (2011), there is much interdependence between the societal norms and justice. In legal terms, offences are classified as crimes. In the religious context, the criminal offences are classified as sins that are punishable under the biblical or Quran meaning. According to Esposito (2010), the Islamic religion faces significant challenges as it tries to fit into the dynamic modern environment. Islam is the source of the Sharia Law that is enforced by a number of countries within the Middle East, West Africa and parts of Asia. Islam faces a number of issues that have the potential of affecting global politics in the 21st century (Esposito, 2010). Such questions have been raised due to the changes that are evident in the society and the increased interdependence between law, morality and religion.

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Esposito (2011) poses a number of questions that must be adequately addressed in order to comprehend the necessity of law on religion. The specific issues that arise relate to whether the Islamic faith compatible with the modern democracy notions or not. In addition, there exist issues concerning the gender equality, the rule of law, human rights and observance of individual’s rights to freedom (Esposito, 2011). In a number of Islamic countries, such as the Islamic State of Iraq & Syria, people constantly face grave violations of human rights and restriction to the free movement and interaction amongst people. As an example, in the United Arab Emirates, the problem of gender equality results in the fact that women are oppressed using religiously-backed laws. In addition, Esposito (2011) argues that the issue of widespread Islamic fundamentalism poses a significant threat to world peace through terrorism. In the past, there has been the emergence of Islamophobia that significantly affects world politics and further creates a threat to peace and stability.

The recent developments in the Muslim world have impacted the Islam and the imposition of Sharia Law. It can be seen that Islamic fundamentalism has become widespread and representative throughout the world, thus, creating a challenge of imposing Sharia Law on a mixed populace. There also exist a number of Islamic minorities, particularly in Europe and North America, whose citizenship loyalty is questionable (Esposito, 2011). Given that Islamophobia poses a threat of global terrorism, it has necessitated the enactment of several laws meant to reduce the radicalization of individuals on the basis of religion. Focusing on the Sharia Law, the particular faith in Islam is used to resolve conflicts through the application of procedural law. In the Sharia Law, the Inquisitorial procedural law is adopted, whereby the Imams question to truth in order to reach a verdict.

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Islamic people believe that Sharia is a living system with a particular set of elements that set out the criteria of Muslim identity. The criteria include the Shahabada, Salat, ZAKAT, Sawm and Hajj components (Esposito, 2011). The Shahabada element relates to the profession of faith that views God as an absolute authority. The Salat refers to the weekly Friday sermon and the five daily prayers that enable the individuals to be dependent on the Quran. In addition, the Friday sermon creates a link between the religion and the political aspects of the society. According to Esposito (2011), the Friday sermon provides an interaction between political factors and religion, given that it addresses issues directly. ZAKAT relates to five elements of charity, redistribution to those in need and alms. Such elements are essential as they influence legislations regarding labor and property. Moreover, they directly impact on a state’s labor and property laws.

The other components of the Sharia Law that influences legislation include the Sawm and the Hajj. The two elements represent fasting and the annual pilgrimage to Mecca. In addition to the significant contribution of the five fundamental elements of the Sharia Law, the provisions that are contained in the Quran contribute significantly to the law. Specifically, the provisions relating to substantial claims to social justice and secure property rights are all applicable in national law. Esposito (2011) states that the Supreme Islam Law can function independently of the state law or in parallel with the secular law. Thus, the litigants under the Sharia Law are not restricted to the Islamic laws but can also file their disputes under the secular state laws. The flexibility of the law indicates that the two sets of rules can work concurrently in ensuring that there is a social equity and justice.

The Islamic religion provides a set of beliefs that govern how one is supposed to live as a Muslim. In addition, they provide a particular way of reasoning and adherence to appropriate moral values. Moreover, the law constrains the power of secular rulers and religious power by governing the actions of the leaders on the subjects and providing a self-enforcing mechanism, ensuring that it is independent. The Sharia Law acts as a source of moral reasoning that is crucial in revitalizing movements in society regarding charity work, religious teachings, political reforms and personal changes. The correlation between religion and law as evidenced above indicates that state law borrows many elements from religion. In addition, the judicial decisions take into account a number of factors so that the courts cannot be regarded as philosophically neutral establishments (Brown, 2013).

There exist a strong link between law and religion, given that the religious beliefs and values of the people are the foundation of the society. The spiritual values are incorporated into the secular law in respect that they are integral to creating societal values that shape the principles, rules and institutions that govern the society.

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