Date: Jun 12, 2019
Category: Law Essay
Law and Religion

The relationship between religion and politics is obvious. Religion never amounted only to faith in God and the afterlife or the performance of religious rites. It is a social doctrine that allowed monotheistic religions to grip the masses and thus affect the balance of power in society. Religion can be explained by its own real-life world and it regulates real relationships between people. Religion cannot perform complex social functions, including integrating, and would lose its appeal and cease to exist without religious interpretation of earthly relationships between people.

As a rule, causes of the new religious movements were socio-political in nature. Such movements have appeared in response to the urgent needs of society. Virtually, every newly arisen religious sect is a socio-political cell, and the system of its beliefs is a new socio-political doctrine that takes a religious form. It essentially deals with the history of the rise of Christianity, Islam, Buddhism, and other religions.

Ultimately, the idea that religion is the basis of law and order is not new and is repeatedly expressed by the greatest thinkers in the field of philosophy and law. Especially, this idea belongs to thinkers who saw the foundation of all laws in public authorities. Thus, smart identified the state as a spiritual and moral idea that is manifested in the form of the human will and freedom, so that the historical process on the merits is made by means of the state. A generalization of such statements would give rise to the law identified with the government as a manifestation of pure power. The current paper shows the relationship between law and religion, based on the works of scholars and religious norms in different countries of the modern world.

A new stage in strengthening the social and political role of religion has been the emergence of the church - a religious organization, serving as a means of creating relations within the religious community and its relations with the secular communities and organizations. Note that the church as an organization is characterized by the entire major attributes that are inherent to social institutions. Its elements are the general doctrine (ideology), religious activities (cult and non-cult), the church structure (management system of life, activity, behavior of believers). The church operates a certain system of regulatory rules and regulations (religious morality, etc.).

As the church developed, its political functions were amplified too. The authority of the church partly acquired a political nature, since it claimed to be the supreme authority in strengthening not only the family union but also public morality in compliance with rules and regulations for people. The church began to play an important role in strengthening the credibility of the government. Many authors analyzed the current activities of the church and saw it as one of the most influential components of the political system of society. In pursuing these efforts, the church is based on the fact that people need not only spirituality and faith but also religious justification for their commitment to meet the normal and purely earthly needs.

Successful completion of the public functions is impossible without a corresponding ideology. Therefore, a significant place is given to the development of a socio-political doctrine in the activities of any church. It is especially characteristic of Catholicism.

Religious ideology is based on the scriptures and teachings of the Church Fathers and the possibility of triumph of social justice and harmony of life on earth. The social doctrine of every church formulates the final “earth” purpose for millions of believers, and this movement is the meaning of their daily lives. Thus, participation determines believers in all areas of secular society, including the sphere of politics.

The need for a comprehensive study of the interaction of law and religion is determined by the fact that religion and law act as regulatory systems in the management of public relationship despite the different goals of their existence.

Understanding of the law as a regulator of social relations in the science of law is traditional. Thus, Benditt stated: “If we have drawn the law from special content, we get the total valuation of the laws of every creature in a certain way of life of many joint”. In turn, Berman said, “the law has its general purpose regulation of human relations”. Modern jurisprudence accepts that the “special laws assignment is to be a powerful social and regulatory control and a possible determinant of compulsory behavior of individuals and collective entities.” Law, as a universal regulator of social relations, is one of the tools of the state. Regulatory appointment of law is determined by the need to make normativity in social life. Law appears in the form of the normative regulatory system when it is necessary to ensure regulatory principle in the life of society. In this way, regulatory of law reflects the interdependence of cause-and-effect relationships with the cause that corrects the investigation, its shape, and effect.

Considering the law as a regulator, it must be admitted that its mission in society is an approval of the regulatory framework and regulatory legal effects to the public relations. Law regulates social relations in the interaction with other standards as part of the social regulatory function. One of these elements is a religion with a part of its value imposed on normative institutions. The most important problem of law is the social nature of religious law. In all the sacred books of the ancient and world religions, rules of behavior are formulated. These rules have all of the attributes of legal norms that are criminal law, civil law, and procedure. The social nature of such rules is explained by the fact that their performance is provided by the public coercion: violators of religious and legal regulations were subjected to the death penalty, corporal punishment, or bore a financial responsibility. These were the specific features of the religious law, distinguishing it from any other social regulation system, including systems of religious. On the other hand, the rules of any religious law are closely intertwined with religious rules and tenets of the holy books; in their social nature, they are legal, but not purely belong to the religious sphere.

As a rule, nowadays the foundations of the relationship between church and state in civil society are governed by rules of constitutional law, proclaiming the separation of church and state. It means that public authorities and officers will not interfere in the sphere of religious relations, including the activities of religious organizations, and will not charge them to perform different public functions. However, the state protects the lawful activities of religious organizations, taking a neutral position in terms of freedom of religion or belief.

Freedom of religion is a human right to choose the religious teachings meaning unhindered worship and ceremonies in accordance with this doctrine. In the subjective sense, as a human right, the concept of freedom of religion is equivalent, but it still means the right for the existence of all religions and enables each of them to freely preach the doctrine. However, often all of these terms are used as identical in common parlance.

According to International Covenant on Civil and Political Rights, freedom of conscience and religion is connected to the freedom of thought, including its freedom to have or to adopt a religion or belief of choice, and freedom to manifest one's religion or belief, either alone or in community with others and in public or private, in worship, observance, practice and observance and teachings. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

It is impossible to go along with those who do not see the inseparable connection of religious law and the state and consider it only one of the structural elements of religion. However, most scholars of religious law, as already mentioned, believe that it remains valid law until the execution of its provisions is ensured through state coercion. Considering the legal and religious systems, it should be noted that each of them is certain integrity, elements of which are interrelated and interdependent. The interaction between religion and right is highlighted in the following important relation:

  • The impact of each friend of homogeneous elements: religious ideology and sense of justice, religious and secular courts, religious and legal norms;
  • The combined effect of homogeneous elements of both systems on other social systems and social life, for example, the impact of religious and legal ideology on the moral concepts, the cumulative regulation of the legal and religious norms of social relations;
  • An impact of inhomogeneous elements of religious and legal systems that may be direct, such as the regulation of legal norms religious behavior and attitudes and internal church activities, and indirect meaning the influence of religious ideology on the formation of the rule of law through legal awareness as a result of the perception of justice religious ideas and concepts;
  • An interaction with the various branches of law in religion: the regulation of various aspects of church-state relations by legal and religious norms, property and other rights of religious organizations and clergy, legalization of ceremonies of worship in various areas of public life (for example, the coronation, United States Presidential Inauguration, the religious oath during the occupation of state positions, the religious oath in court and others);
  • The relationship with the various branches of law religion as a whole (for example, different degrees of secularization).

Legal and religious norms are the most active elements in the legal and religious system. Religious norms have all the necessary signs of social norms as shown in the following:

  • The religious norm serves as a model for the behavior of believers and a benchmark of specific relations;
  • Provisions of the religious norm do not apply to a particular individual, but a more or less wide range of people (for example, priests and laity).

The rules of law in the early stages of development were not separated from religious laws and were closely related to them. The oldest rules of law were the religious laws at the same time, and only then the legal norms were separated from the purely religious ones.

In early class states, religious norms were fixed in oral tradition, myths, customs, rituals, and ceremonies. Later, they became part of the law, decrees of political power and the theological writings of religious authors. For Jewish, Christian and Islamic religion it is characterized by written religious norms in the form of “scriptures” (for example, Old Testament, New Testament, the Koran, Sunna, and Talmud) and basic legal acts with the highest political force.

It is worth noting that religious norms often have an authoritarian nature as they are more pronounced in terms of compulsion and coercion. Religious norms differ from legal ones because they are based on religious ideas and concepts. So, speaking of the Jewish law, Professor E. Falk emphasizes that on the one hand, the norms that perpetuate a procedure of worship, religious faiths and religious rituals coexist and operate on the same basis. On the other hand, it also applies to religious norms that govern the behavior of the Jews in private and public life.

However, the role of religious norms is not limited to the regulation of internal church and interfaith religious activities. In the early forms, religion regulated secular relations, and the law was expressed precisely in religious dogmas at certain stages of history and in some countries.

The close relationship of law and religion is typical for almost all legal systems of the world. There is not a single system of ancient written laws that would not include religious precepts and ritual laws. The religious legislation strongly influenced the ancient eastern countries: the Law of Moses, Laws Hammurabi, the Laws of Manu and others. Religious norms were legal in nature and adjusted to some of the political, public and civil law as well as procedural, marriage and family relations. The very legal norm had a religious justification with few exceptions. The offense is the simultaneous violation of the norms of religion and law. The interaction of religion and law is clearly expressed in the consecration of religion, sanctioned by the law of social institutions and the sanctification of authorities and personalities of kings and emperors.

The most powerful influence of religion on ancient legal systems is the case with Hindu law. Indian civilization is exclusively religious in its nature. According to the above examples, in countries where the influence of religion was especially strong, differentiation of social regulators took place too slowly. Every rule of law that is a characteristic of class society was closely woven into a single regulatory system prevailing in its religious postulates. The close relationship of religion and the law exists in the case when the church is a feudal structure and has the appropriate state basis.

In the middle ages, the law turned into a handmaiden of theology. Christianity, Judaism, and Islam towered over by the state law. During modern times, the law is permanently exempt from theology. It is worth noting that the trend in the relationship between law and religion was indicated in the feudal period and finds expression in the modern world. Hindu system and Islamic law are still imbued with religious principles. Legal systems of the countries of Western Europe are increasingly isolating themselves from religious dogma. However, law and religion are not completely opposed to each other, and some rules of law are still in support of religion in terms of morality.

The religious legal regulation of social relations retains great importance in Muslim states. The degree of its influence depends primarily on the level of social and political development of the country. Thus, it has the most influence where the level is low, and where operations are conducted according to the past policy of isolation from the outside world (for example, Yemen and Saudi Arabia). It should indicate a clear distinction between Islamic law and the law of Muslim countries.

The relationship between church and state is largely determined by the level of socio-economic development and historical traditions prevailing in society. There are several possible models of such relationships.

In a democratic state, the equality of all religions and churches and freedom of conscience and religion are generally recognized at the constitutional level in daily practice. Under these conditions, the church is separated from the state, and the school is separated from the church, while the discrimination on religious grounds is prohibited and there are no privileges associated with the religious profession. The church is the custodian of the cultural, and historical and moral traditions of the people.

There are three main models of relations between church and state in totalitarian and authoritarian regimes:

  • The state pursues believers on religious grounds as it was before 1967 in Albania, and prohibits all forms of religious expressions;
  • The state recognizes the religion and the church as the basis of state power (Saudi Arabia, Pakistan, and Iran). Islam is a state religion of these countries and the Sharia is used to control various aspects of social life;
  • The church is in direct confrontation with the state, holding anti-government campaign based on religious norms.

The status of religious associations is governed by constitutional and current legislation. Most constitutions capture the separation of church and state, and religion is recognized only as a private affair of man.

However, in some countries, such as Greece, Bulgaria, and Great Britain, there is a special situation with religion and the church. Anglican Church in England is led by the British monarch, who appoints the highest church positions and influences the church policy.

In terms of the special law of the separation of church and state, in France, the state does not recognize or subsidize any church and does not pay its ministers. In places that are intended for religious services, political meetings are prohibited.

There may be a contractual relationship between the state and the church, for example, in Italy. In this country, the relationship between the church and state is based on the law of the Constitution and special arrangements. In art.7 of the Constitution of Italy the independence and sovereignty of the state and the church are recognized, each in its own sphere and their relations are governed by the Lateran Pacts in 1929.

However, in some states, there is a practice of financial support of the church by means of the state budget, and religious associations have the status of public associations.

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