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					Law and Religion

Between Law and Religion:
  Models of Interaction
         Learning Outcomes
• To identify how Law and Religion had interacted
  in history and can interact conceptually
• To develop models of interaction between Law
  and Religion
• To consider the possible trend of development in
  the interaction between Law and Religion
• To develop a theoretical framework to determine
  the proper model of interaction between Law
  and Religion
                   Topics
•   How Law may interact with Religion?
•   What is Interaction?
•   What is a model?
•   Models of Interaction
•   Evolution?
•   Secularization?
•   Further Questions
  + / neutral / -


Law        Religion

  + / neutral / -
              Law and Religion: 43 models
                   God as the
                    Centre
    Model 0:
    Law and
Religion both do
    not exist
 conceptually




                                                          Men as the
                                                           Centre

                                           Model 42
                                Law consecrates the ruler to be a
                                          god as in a
                                           Religion
Interaction:
   The relationship is mutual.
   The relationship is proximate.
   The relationship is interactive.
   The relationship is dynamic.
Models:
  conceptual
  historical?
  Not mutually exclusive
  exhaustive?
             Models of Interaction
I.   Before Law and Religion
II.  Various Forms of Theocracy
III. The Struggle between Law and Religion
IV.  Law and Religion in the Process of
       Secularization
V. Religion and Constitutionalism
VI. Church and State Relationship in Pluralistic
     Societies
VII. Regulation and Control of Religions in
     Modern States
    Before
Law and Religion
               Models of Interaction

Before Law and Religion
(0) Law and Religion
both do not exist conceptually
Model 0
Law and Religion both do
not exist conceptually
- Both the concepts of law and religion are
alien to the culture of that human group or that
law is totally absorbed by religion not as a set of
beliefs but as a way of life
Example:
Primitive societies like the natives in
America; Hinduism in India
Various Forms of
   Theocracy
             Models of Interaction
Various Forms of Theocracy
(1) Law equals Religion
(2) Law dominated by Religion
(3) Law utilizes by Religion
Model 1
Law equals Religion
-No separation between Law and Religion


Example:
Israelites under the leadership of Moses
Vatican City
Tibet
Religion




  Law
Model 2
Law dominated by Religion
-Law is a servant of Religion


Example:
Iran‟s constitution
      Religion
Law
Model 3
Law utilizes Religion
-Religion serves the secular ruler


Example:
Imperial Emperors in China
Religion   Law
The Struggle between Law
       and Religion

-development of Law and Religion
       in Western Europe
           Models of Interaction

The Struggle between Law and Religion
(4) Law sanctified by Religion
(5) Law secularizes Religion
(6) Law competes with Religion
(7) Law co-exists with Religion
(8) Law marginalizes Religion
Model 4
Law sanctified by Religion
-Religion serves the secular ruler but has a
separate source of authority

Example:
Christianity in the Roman Empire after the
famous conversion of the Roman Emperor,
Constantine
Model 5
Law secularizes Religion
-content of religion modified to suit the
need of the secular rule

Example:
Christianity in the Roman Empire after the
famous conversion of the Roman Emperor,
Constantine
Law secularizes/competes with/co-exist
with/marginalizes Religion
          Europe, 1000-1600 A.D.
        The Pope and the Kingdoms


        POPE                         KINGS

                            clergy
Model 6
Law competes with Religion
-religious institution struggles to free itself from
the secular rule and religion competes with law as
the binding and guiding norms of the behaviour
of the members of the human community at least
in certain spheres of their life.

Example:
The Papal Revolution and Pope Gregory VII
Model 7
Law co-exists with Religion
-each enjoys absolute authority within its own
jurisdiction and in some aspects both enjoy
concurrent jurisdictions.

Example:
Christian Church after the Papal Revolution
in the twelfth century
Law secularizes/competes with/co-exist
with/marginalizes Religion
           Europe, 1000-1600 A.D.
         The Pope and the Kingdoms


         POPE                 KINGS
     ecclesiastical              secular
        matters                  matters
Model 8
Law marginalizes Religion
-matters that are originally under the jurisdiction
of Religion are taken over by Law.

Example:
Western Europe after Reformation
Law secularizes/competes with/co-exist
with/marginalizes Religion
          Europe, 1000-1600 A.D.
        The Pope and the Kingdoms

        CHURCH
                                Nation-
                                states
Law and Religion in the
Process of Secularization
             Models of Interaction
Law and Religion in the Process of Secularization
(9) Law endorses Religion
(10) Law excludes other Religion
(11) Law defends Religion
(12) Law incorporates certain beliefs from
Religion
(13) Law coincides with Religion
(14) Law enforces/deviates from moral standards
endorsed by Religion
              Models of Interaction
Law and Religion in the Process of Secularization
(15) Law’s ethos provided by Religion
(16) Law legitimized by Religion
(17) Law inspired by Religion
(18) Law tolerates/recognizes other Religion
(19) Law validity judged by Religion
(20) Law redefines Religion
(21) Law reifes Religion
(22) Law inherited but breaks from the traditions
of Religion
(23) Law breaks from but returns back to the
traditions of Religion
Model 9
Law endorses Religion
- A religion is recognized as the state
religion

Example:
The Church of England of England
Model 10
Law excludes other Religion
Other religions are prohibited to protect
the state religion

Example:
Apostasy offence in some Islamic states
Model 11
Law defends Religion
-defend the state religion by prohibiting certain
activities against the endorsed Religion

Example:
The common law offence of blasphemy
Model 12
Law incorporates certain
beliefs of Religion
-certain religious principles are
incorporated into the Law

Example:
-anti-divorce provision (section 41(3) in the
Irish Constitution
Model 13
Law coincides with Religion
-same standard but different rationales


Example:
Murder and “thou shalt not kill”
Model 14
Law enforces/deviates from moral
standards endorsed by Religion
-religion is not found directly in law but
indirectly through influencing the moral
standard enforced by law
Example:
-Prof. Hart and Lord Devlin Debate: Law vs.
Morality (or Secular vs. Religion?)
 Law enforces/deviates from moral standards
 endorsed by Religion

          Religion                Secular grounds
          endorse           endorse


        Moral                   Moral
      Standards               Standards

                                               enforce
enforce

                  enforce
                    Law
Model 15
Law„s ethos provided by
Religion
-Religion cut deep into Law and provides the
original ideas, underlying beliefs, ways of
interpretation and meaning to Law
Example:
the concept of civil religion as suggested by
Robert Bellah in describing the role of
Christianity in United States
Model 16
Law legitimized by Religions
-Religion gives a justification for people
(especially the followers of that religion) to
accept the binding effect of Law upon
themselves even if the content of the laws is not
directly related with their religion
Example:
Civil religion in US
Model 17
Law inspired by Religion
-religion provides the background justification
for a specific legal principle

Example:
The neighbourhood principle in Donoghue v
Stevenson
           The law on negligence: duty of care

Mrs. Donoghue on one Sunday evening in
August 1928 went to a cafe & ordered an ice
cream float, i.e. ice cream and ginger beer. The
proprietor brought over the ice cream in a
tumbler & poured some ginger beer over it
from a opaque bottle bearing the name of D.
Stevenson. Mrs. Donoghue took a drink and
when her glass was refilled with ginger beer, in there was the
mingled decomposed remains of a snail. Mrs. D. suffered from
shock & severe gastro-enteritis which landed her in hospital for
several days. She sued D. Stevenson, claiming 500 UK pounds
in damages & costs. David Stevenson had a prosperous
lemonade & ginger beer factory.
Lord Atkin:
   There must be, and is, some general conception of relations
   giving rise to a duty of care, of which the particular cases found
   in the books are but instances. ... The rule that you are to love
   your neighbour becomes in law you must not injure your
   neighbour; and the lawyer's question: Who is my neighbour?
   receives a restricted reply. You must take reasonable care to
   avoid acts or omissions which you can reasonably foresee
   would be likely to injure your neighbour. Who, then, in law, is
   my neighbour? The answer seems to be — persons who are so
   closely and directly affected by my act that I ought reasonably to
   have them in contemplation as long as so affected when I am
   directing my mind to the acts or omissions that are called in
   question.

   Donoghue v Stevenson [1932] AC 562
…a certain lawyer stood up and put Him [Jesus] to the test,
saying, "Teacher, what shall I do to inherit eternal life?“
And He said to him, "What is written in the Law? How
does it read to you?“
And he answered and said, "You shall love the Lord your
God with all your heart, and with all your soul, and with
all your strength, and with all your mind; and your
neighbor as yourself.“
And He said to him, "You have answered correctly; do
this, and you will live.“
But wishing to justify himself, he said to Jesus, "And who
is my neighbor?“
Gospel of Luke 10:25-29
Model 18
Law tolerates/recognizes other
Religions
-other religions are tolerated or recognized

Example:
Thailand‟s Constitution (1997)
Model 19
Law‟s validity judged by Religion
-state law can be invalidated on the basis
of some higher laws

Example:
Nazi laws
Model 20
Law redefines Religions
-in recognizing the role of religion in guiding
people‟s inter-relationship at least in personal
matters, religious laws are codified; however, out
of ignorance, convenience, or their own notion of
legal justice, the secular government reduced,
distorted and modified religious laws
Example:
British common law on shar‟ia law and hindu laws
Model 21
Law reifies Religion
-in response to the threat of the secular
West, some countries on the one hand
adopt law codes in western style, and on
the other hand incorporate religious
precepts in the codes but the result is that
religion is de-linked from the historical
context and traditions
Example:
Law reforms in Egypt, Ottoman Empire
Model 22
Law inherits but breaks from the
traditions of Religion
-law originated from religion but the
rationale justifying it has changed
Example:
Human rights laws
                Secular
                grounds



Religion                    Law


           The Development of Law
Model 23
Law breaks from but returns back
to the traditions of Religion
-law is secularized but religion revives and
re-dominates law through fundamentalist
religious movements
Example:
Islamization in Iran
                Secular
                grounds



Religion                    Law


           The Development of Law
  Religion and
Constitutionalism
              Models of Interaction
Religion and Constitutionalism
(24) Law consolidated by Religion
(25) Law revolutionized by Religion
(26) Law protects people’s freedom to practise
Religion
(27) Law empowers the poor through the work of
Religion
(28) Law‘s decadence guarded against by Religion
Model 24
Law consolidated by Religion
-religion supports the system of law


Example:
-the Rule of Law and Constitutionalism
Model 25
Law revolutionized by Religion
-religion helps change the state system but
without establishing a dominant position
for itself
 Example:
The role of the Catholic Church in the Third
wave of democratization
Model 26
Law protects people freedom to
practise Religion
-law protects people‟s freedom of religion

Example:
Article 18, ICCPR
Model 27
Law empowers the poor through the
work of Religion
-religion usually has a special concern on
poor people and through the work of
religion, law further ensure that poor
people can enjoy a minimum level of
living
Example:
Jubilee 2000
Model 28
Law „s decadence guarded against
by Religion
-religion plays a prophetic function for the
society to guard against abuse of powers
by officials enjoying legal authority

Example:
Buddhist monks in Myanmar
 Church and State
  Relationship in
Pluralistic Societies
              Models of Interaction
Church and State Relationship in Pluralistic
Societies
(29) Law accommodates Religion
(30) Law remains neutral to Religion
(31) Law separates from Religion
(32) Law ignores Religion
(33) Law removes from its content any trace of
Religion
(34) Law dialogue with Religion
(35) Law ‘s making process provides for the
participation of Religion
(36) Law reserves room for Religion
Model 29
Law accommodates Religion
-whether a person can rely on his/her religious
freedom to adhere to his/her religious
convictions even in face of contrary laws ?
Example:
First Amendment, US Constitution
Sherbert v. Verner 374 U.S. 398 (1963)
-compelling state interest test
Accommodation
                Applicability of
                    Laws

                    Persons or
                    religious
                    organizations
                    acting
                    according to
                    Religion
Model 30
Law remains neutral to Religion
-how far should law prevent aid be provided to
religious institutions for complying with their
religious laws while at the same time fulfilling
secular requirements?
Example:
First Amendment, US Constitution
Employment Division v. Smith overruled Sherbert
Everson v. Board of Education 330 U.S. 1 (1947)
Neutrality
             Applicability of
                  Law

                 Persons or
                 religious
                 organizations
                 acting
                 according to
                 Religion
Model 31
Law separates from Religion
-strict separation
Example:
First Amendment, US Constitution
Lemon v. Kurtzman, 403 U.S. 602 (1971) three parts
test: (1) the statute must have a secular legislative
purpose; (2) its principal or primary effect must be
one that neither advances nor inhibits religion; (3)
the statute must not foster an excessive government
entanglement with religion.
Separation
             Applicability of
                  Law

                  Persons or
                  religious
                  organizations
                  acting
                  according to
                  Religion
Model 32
Law ignores Religion
-law turns a blind eye to religion without
giving any distinction between conduct
regulated in secular settings and regulating
similar conduct in religious settings
Example:
Schools run by religious organizations in Hong Kong
and the legal requirement of Hong Kong laws for every
school to set up school boards according to the same
legally prescribed method
Model 33
Law removes from its content
any trace of Religion
-Religion is removed from public square


Example:
Laws prohibiting the display of religious
symbols from public places
Model 34
Law dialogue with Religion
-how far public officials and citizens with
religious faith can be religiously motivated
and use religious justifications and
religious language in public discourse on
public policy
Example:
Public reason advocated by John Rawls
Model 35
Law „s making process
provides for the participation
of Religion
-whether religion is given meaningful
opportunity to participate in the law
making process
Example:
The role of religion in a deliberation process
Model 36
Law reserves room for
Religion
-though the society is in general ruled by
secular law, religious courts are allowed to
be set up to deal with personal laws
between sharing the religious faith
Example:
Religious courts in Israel
Regulation and Control
     of Religions
  in Modern States
              Models of Interaction
Regulation and Control of Religions in Modern
States
(37) Law conflicts with Religion
(38) Law restricts Religion
(39) Law controls Religion
(40) Law prohibits Religion
(41) Law deified as Religion
(42) Law consecrates the ruler to be a god as in a
Religion
Model 37
Law conflicts with Religion
-how should a person with religious faith
respond to a law that contradicts his/her
faith?
 Example:
Martin Luther King and the Civil Rights
Movement
Model 38
Law restricts Religion
-religious activities are restricted on
secular grounds

Example:
Hate Propaganda offence, Canadian Criminal
Code
section 8 Maintenances of Religious Harmony
Act , Singapore
Model 39
Law controls Religion
-religious bodies are subject to total state
control

Example:
-religious bodies in China
Model 40
Law prohibits Religion
-certain religious activities are prohibited


Example:
French anti-cult law
Model 41
Law deified as Religion
-In a highly secularized and pluralistic society,
there is no universally acceptable meaning
system but people still need some kind of
universal principles to guide social interaction
and integration. Law may become such a
universally acceptable substitute

Example:
Law becomes a civil religion
Model 42
Law consecrates the legal ruler
to be a god as in a Religion
-a secular human ruler can be consecrated by
law as if a god having the same kind of status
and authority as the divinity in a religion



Example:
Mao Tse-tung during the Cultural Revolution
   Evolution
-Is there an evolutionary path of the
relationship between Law and Religion?
   Law evolves?
   Religion evolves?
   Law and Religion interaction model
   evolves?
   If yes, what is the force behind the
   evolution and the direction of evolution?
    A possible model of Evolution
Law as commands of God

       Law as the rational order of nature created by God
                discoverable by human reason

                  Law as the rational order of nature
                    discoverable by human reason

                  Law as the rational order of nature
             considered to be reasonable by human reason

                            Law is what considered
                       to be reasonable by human reason
  A possible force behind the Evolution


Pre-modern society         Religious Authority

                              Secular-rational
      Industrial society
                                 Authority

              Knowledge society         Individualized
                                          Religiosity
   Secularization
-diminishing social significance of religion
and structural differentiation of religious
and secular spheres
BUT
-religion will not disappear
-people are not less religious
-religion still has a public role to play in
modern society
   Further Questions
(1) How far is the content of Law influenced by Religion
    and vice versa?
(2) How far is the form, structure and actual governance
    of the State influenced by Religion and vice versa?
(3) How far individual rights of every human being is
    recognized by Religion and protected by Law
    especially the right to freedom of religion?
(4) How religious people can live in harmony with
    religious people of another religious faith and non-
    religious people in a pluralistic society?
(5) Which is the proper model for a pluralistic society?
       -What is the criteria for the properness?

				
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posted:10/15/2011
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