Introduction
Religion
and law can be related to each other in different forms. It can be the main
source where rules and regulations emanate. Religion can be a sub – but
still, a major - source of legislation, or the legal system of a country can be
completely independent of religion. We might be able to identify other forms of
relations, too. But, for our purpose, the above categorization suffices. And
what one might define as an ideal relationship between the two can vary
based on his/her general world view. One can view the world from the lens of
religion, secularism, or any other lens that he or she might deem appropriate.
In this writing, I want to base my analysis of the ideal relationship between
religion and law on ethical grounds. In other words, I want to use some tools of
ethics to reach some conclusions: I assume that “violation of the rights of
minorities or the minorities being deprived of their basic human rights is
ethically unjustified”. By making this assumption, I am clarifying what the
word ideal means to me: ethically justified.
Base
on the above assumption and with the help of examples from South Asian legal
systems, as well as examples from legal systems in some of the middle east
states, I want to I argue that complete independence of the legal system from
religion is what I see as an ideal relationship between the two. In order for me
to reach such a conclusion, I should first be able to show that any other
possible relationship between religion and law can be deemed not ideal on ethical
grounds.
Religion
as the main and only source of legislation
Religion
can be the main source of rules and regulations. An extreme example of this
sort of relationship between law and religion can be found in Afghanistan if we
go back two decades in history. The Islamic Emirate of the Taliban implemented its
own fundamental interpretation of Sharia and it was the only and the main
source of any rules and regulations. Under the Sharia rule of the Taliban regime, no
kind of rights was reserved for other minority groups. Basic freedoms, such as
freedom of thought, freedom of speech, and freedom of religion did not exist as
they were thought to be non-religious or anti-religion. Even Muslim minorities
such as Shia Muslims were deprived of their basic religious rights. If we move
out of the South Asian context, we can find Saudi Arabia where the legal system is
tightly married to religion, and again minorities are deprived of their various
rights. The state is accused of violation of human rights that it carries out
on the basis of religion. Using a political interpretation of Sharia, the Saudi
government is oppressing its political opponents and dissidents. From these two
examples, we see that once religion dominates legal systems, then there will be
violations of human rights for groups that are considered as minorities, and
people will be deprived of some rights they would otherwise have. On this
basis, I reject such systems as unethical.
Religion
as one – but influential - asource of legislation
A
second form of the relation between religion and law can be that religion is
considered one of the several sources of legislation. In Islamic countries
where there is some form of democracy and where a functioning parliament
exists, religion is not the sole source of legislation. A big portion of rules
come from parliament that is not religious in nature, although they are not
and cannot be against religious principles, either. The current legal systems
installed in Afghanistan, Pakistan, Iran and Iraq are of this nature. This form
of the relationship once again is problematic when it comes to the issue of human
rights and the rights of the minority groups. Freedom of thought, freedom of speech
and freedom of religion are clearly violated in such systems, as thoughts that
are thought to be against principles of religion cannot be expressed and groups
that are religious minorities are facing bulks of discriminations which are
legal. In March 2006, an Afghan citizen who converted into Christianity was
facing death penalty under the legal system of Afghanistan, but with the
pressure of international donors on the government of Kabul, he was released.
He had to leave Afghanistan and reside in a European country because of the lack of
freedom of religion under Afghanistan’s legal system. In Iran the followers of
Baháʼí Faith are facing huge legal discriminations. The Iranian regime does not
show any mercy against its dissidents and beside national security, religious
rules are exploited to sue its opponents. Hence, this type of relationship
between the two produces unethical results and therefore cannot be deemed
ideal.
Legal
Systems Independent of Religion
Legal
systems can be independent of religion. We may not be wrong if we call such
systems secular legal systems. In political setups where the religious sphere is
distinguished from the government sphere, and where state does not intervene in
religious affairs, following state’s footsteps, rules and regulations take a
secular form. In South Asian, the legal system of India, Sri Lanka, Nepal and
Bhutan are deemed to be secular. It is no doubt that some influence of Hindu
Law is traceable in all these systems. But, as far as this influence does not
result in discrimination on the basis of religious believes and identities, we
cannot conclude that they are unethical and therefore non-ideal. Under legal
systems that are independent of religion, many rights such as freedom of
thought, freedom of religion and freedom of speech can be guaranteed. In
addition, such systems can be more effective in preventing discriminations that
occur on the basis of gender, sex, race, color and religious identity. This is
while in almost all religious systems of law, some form of discrimination on
the basis of the above-mentioned factors is traceable.
Conclusion
On the basis of the above
discussions, we can conclude that it is ideal if the legal system of a country
is completely independent of religion. This way, religion and religious rules
will not be exploited by authorities in power to justify injustice against
certain groups of people. With religion effectively out of the realm of
legislation, many basic freedoms will be guaranteed for a given society, and
many forms of discrimination that can take place on the basis of religious
identity or any other basis but motivated by religion, can be prevented. The
intervention of religion in legislation can cause various violations of rights
and liberties. Thus, on ethical grounds, we cannot accept the dependence of
legal systems on religion as a source of legislation as ideal. However, it
should be noted here at the conclusion that by no means I am saying that
religion in itself is unethical. What I want to be clear about is that when
religion is formally brought into the realm of legislation and when religious
sources are formally accepted as the sources for legislation, it becomes prone
to misuses that produce unethical results. Once the legal system is laid down
on religion, it is very difficult to avoid misuses that produce ethically
unjustified results. Hence, it is optimal and ideal to keep legal systems
secular and independent of religion
