What can be an ideal relationship between religion and law?

 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