Religious Law

Religious Law

In some religions, law can be thought of as the ordering principle of reality; knowledge as revealed by a God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by the God. Examples include customary Halakha (Jewish law) and Hindu law, and to an extent, Sharia (Islamic law) and Canon law (Christian law).

Sharia and Canon law differ from other religious laws in that Canon law is the codification of Catholic, Anglican and Orthodox law (like in a civil law tradition), while Sharia law derives many of its laws from juristic precedent and reasoning by analogy (like in a common law tradition).

Established religions and religious institutions

A state religion (or established church) is religious body or creed officially endorsed by the state. In some jurisdictions, this means that they operate legal systems of their own or play a part in the legal system of those governments. Canon law is one such sort of legal system; it was administered in ecclesiastical courts. A theocracy is a form of government in which a God or a deity is recognized as the supreme civil ruler.

The opposite are secular states, in which there is a separation of church and state

Judaism

The Torah (also called the Five Books of Moses or the Pentateuch) is the basis of God's covenant law, not oral tradition. According to rabbinic tradition there are 613 mitzvot in the Torah; mitzvot (singular mitzvah) means "commandment" or good deed. The mitzvot in the Torah (also called the Mosaic law after Moses) pertain to nearly every aspect of human life; some of these laws are directed only to men or to women, some only to the ancient priestly groups (the Kohanim and Leviyim, members of the tribe of Levi, some only to farmers within the Land of Israel. Some laws are only applicable when there is a Temple in Jerusalem (see Third Temple); after the destruction of the Second Temple by the Romans in the year 70 during the Great Jewish Revolt, Jewish oral law was developed through intensive and expansive interpretation of the written Torah, see School of Jamnia.

Halakha (Hebrew: הלכה‎; literally "walking"), the rabbinic Jewish way of life is based on a combined reading of the Torah, and the oral tradition, including the Mishnah, the halakhic Midrash, the Talmud, and its commentaries. The Halakhah has developed gradually through a variety of legal and quasi-legal mechanisms, including judicial decisions, legislative enactments, and customary law. The literature of questions to rabbis, and their considered answers, are referred to as responsa. Over time, as practices develop, codes of Jewish law were written based on Talmudic literature and responsa. The most important code, the Shulchan Aruch, guides the religious practice of most Orthodox and some Conservative Jews.

Christianity

Biblical/Mosaic law

Within the framework of Christianity, there are at least three possible definitions for law. One is the Torah/Mosaic Law (from what Christians consider to be the Old Testament) also called Divine Law or Biblical law, the most famous example being the Ten Commandments. Another is the instructions of Jesus of Nazareth in the Gospel (sometimes referred to as the Law of Christ or the New Commandment or the New Covenant). A third is canon law in the Catholic, Anglican, and Orthodox churches.

Canon law

Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was initially a rule adopted by a council (From Greek kanon / κανών, Hebrew kaneh / קנה, for rule, standard, or measure); these canons formed the foundation of canon law.

Canons of the Apostles

The Apostolic Canons or Ecclesiastical Canons of the Same Holy Apostles is a collection of ancient ecclesiastical decrees (eighty-five in the Eastern, fifty in the Western Church) concerning the government and discipline of the Early Christian Church, incorporated with the Apostolic Constitutions which are part of the Ante-Nicene Fathers.

Catholic Church

The Catholic Church has the oldest continuously functioning legal system in Western Europe, predating the common and European civil law traditions. What began with rules ("canons") adopted by the Apostles at the Council of Jerusalem in the 1st century has blossomed into a highly complex and original legal system encapsulating not just norms of the New Testament, but some elements of the Hebrew (Old Testament), Roman, Visigothic, Saxon, and Celtic legal traditions spanning thousands of years of human experience.

In the Roman Church, positive ecclesiastical laws, based upon either immutable divine and natural law, or changeable circumstantial and merely positive law, derive formal authority and promulgation from the pope, who as Supreme Pontiff possesses the totality of legislative, executive, and judicial power in his person. The actual subject material of the canons is not just doctrinal or moral in nature, but indeed all-encompassing of the human condition.

In the early Church, the first canons were decreed by bishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of the Bishop of Rome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented with decretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, case is closed").

Later, they were gathered together into collections, both unofficial and official. The first truly systematic collection was assembled by the Camaldolese monk Gratian in the 11th century, commonly known as the Decretum Gratiani ("Gratian's Decree"). Pope Gregory IX is credited with promulgating the first official collection of canons called the Decretalia Gregorii Noni or Liber Extra (1234). This was followed by the Liber Sextus (1298) of Boniface VIII, the Clementines (1317) of Clement V, the Extravagantes Joannis XXII and the Extravagantes Communes, all of which followed the same structure as the Liber Extra. All these collections, with the Decretum Gratiani, are together referred to as the Corpus Juris Canonici. After the completion of the Corpus Juris Canonici, subsequent papal legislation was published in periodic volumes called Bullaria.

By the 19th Century, this body of legislation included some 10,000 norms. Many these were difficult to reconcile with one another due to changes in circumstances and practice. This situation impelled Pope St. Pius X to order the creation of the first Code of Canon Law, a single volume of clearly stated laws. Under the aegis of the Cardinal Pietro Gasparri, the Commission for the Codification of Canon Law was completed under Benedict XV, who promulgated the Code, effective in 1918. The work having been begun by Pius X, it was sometimes called the "Pio-Benedictine Code" but more often the 1917 Code. In its preparation, centuries of material was examined, scrutinized for authenticity by leading experts, and harmonized as much as possible with opposing canons and even other Codes, from the Codex of Justinian to the Napoleonic Code. Pope John XXIII initially called for a Synod of the Diocese of Rome, an Ecumenical Council, and an updating to the 1917 Code. After the Second Ecumenical Council of the Vatican (Vatican II) closed in 1965, it became apparent that the Code would need to be revised in light of the documents and theology of Vatican II. After multiple drafts and many years of discussion, Pope John Paul II promulgated the revised Code of Canon Law (CIC) in 1983. Containing 1752 canons, it is the law currently binding on the Latin (western) Roman Church.

The canon law of the Eastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process of codification, resulting in the Code of Canons of the Eastern Churches promulgated in 1990 by Pope John Paul II. The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern Civil law and Common law bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society.

Currently, all Latin-Rite Catholic seminary students are expected to take courses in canon law (c. 252.3). Some ecclesiastical officials are required to have the doctorate (JCD) or at least the licentiate (JCL) in canon law in order to fulfill their functions: Judicial Vicars (c. 1419.1), Judges (c. 1421.3), Promoters of Justice (c. 1435), Defenders of the Bond (c. 1435). In addition, Vicars General and Episcopal Vicars are to be doctors or at least licensed in canon law or theology (c. 478.1), and canonical advocates must either have the doctorate or be truly expert in canon law (c. 1483). Ordinarily, Bishops are to have advanced degrees in sacred scripture, theology, or canon law (c. 378.1.5). St. Raymond of Penyafort (1175–1275), a Spanish Dominican priest, is the patron saint of canonists, due to his important contributions to the science of Canon Law.

Orthodox Churches

The Greek-speaking Orthodox have collected canons and commentaries upon them in a work known as the Pēdálion (Greek: Πηδάλιον, "Rudder"), so named because it is meant to "steer" the Church. The Orthodox Christian tradition in general treats its canons more as guidelines than as laws, the bishops adjusting them to cultural and other local circumstances. Some Orthodox canon scholars point out that, had the Ecumenical Councils (which deliberated in Greek) meant for the canons to be used as laws, they would have called them nómoi/νόμοι (laws) rather than kanónes/κανόνες (rules), but almost all Orthodox conform to them. The dogmatic decisions of the Councils, though, are to be obeyed rather than to be treated as guidelines, since they are essential for the Church's unity.

Anglican Communion

In the Church of England, the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage, divorce, wills, and defamation, still have jurisdiction of certain church-related matters (e.g., discipline of clergy, alteration of church property, and issues related to churchyards). Their separate status dates back to the 12th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons. In contrast to the other courts of England the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily governed by parliamentary statutes. Since the Reformation, ecclesiastical courts in England have been royal courts. The teaching of canon law at the Universities of Oxford and Cambridge was abrogated by Henry VIII; thereafter practitioners in the ecclesiastical courts were trained in civil law, receiving a Doctor of Civil Law (D.C.L.) degree from Oxford, or an LL.D. from Cambridge. Such lawyers (called "doctors" and "civilians") were centred at "Doctors Commons", a few streets south of St Paul's Cathedral in London, where they monopolized probate, matrimonial, and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century. (Admiralty law was also based on civil law instead of common law, thus was handled by the civilians too.) Charles I repealed Canon Law in 1638 after uprisings of Covenanters confronting the Bishops of Aberdeen following the convention at Muchalls Castle and other revolts across Scotland earlier that year.

Other churches in the Anglican Communion around the world (e.g., the Episcopal Church in the United States, and the Anglican Church of Canada) still function under their own private systems of canon law.

Presbyterian and Reformed Churches

In Presbyterian and Reformed Churches, canon law is known as "practice and procedure" or "church order," and includes the church's laws respecting its government, discipline, legal practice and worship.

Lutheranism

The Book of Concord is the historic doctrinal statement of the Lutheran Church, consisting of ten credal documents recognized as authoritative in Lutheranism since the 16th century. However, the Book of Concord is a confessional document (stating orthodox belief) rather than a book of ecclesiastical rules or discipline, like canon law. Each Lutheran national church establishes its own system of church order and discipline, though these are referred to as "canons."

The United Methodist Church

The Book of Discipline contains the laws, rules, policies and guidelines for The United Methodist Church. Its last edition was published in 2008.

In some Christian denominations, law is often contrasted with grace (see also Law and Gospel and Antithesis of the Law): the contrast here speaks to attempts to gain salvation by obedience to a code of laws as opposed to seeking salvation through faith in the atonement made by Jesus on the cross. Compare legalism and antinomianism.

Islam

Muslims in Islamic societies have traditionally viewed Islamic law as essential. Islamic law is called Sharia (Arabic: شريعة, "the street/way") and Islamic jurisprudence is called Fiqh.

In Sunni Islam, the work of the imam Ahmad ibn Hanbal (780-855 CE) has been very influential. Ibn Hanbal developed his "Five Basic Juristic Principles," a sort of hierarchy of authoritative sources of Islamic law:

  • According to ibn Hanbal, the Qur'an (القرآن, "recitation") should be the foremost source of all fiqh (فقه; Islamic jurisprudence). The Qur'an is the Islamic holy book. It is regarded by Muslims as the divine guidance and direction and the final revelation to humanity from God (الله), as revealed to the prophet Muhammad by Gabriel over a period of 23 years.
  • The Sunnah (سنة, "trodden path" or "the way of the Prophet") is the second-most authoritative source. It is the practices of the Muhammad as narrated in reports of his life, extracted by analysis of the hadith (الحديث), which contain narrations of the Muhammad's sayings, deeds, and the actions of his companions.
  • Verdicts issued by Sahaba (الصحابة, "companions") are to be resorted to when no textual evidence was found in the Qur'an or the Sunnah. The Sahaba were the companions of Muhammad. The Sahaba are less important than the Qur'an and the Sunnah, but ibn Hanbal believed that in cases of doubt the Sahaba—who witnessed the revelation of the Qur'an and its implementation by Muhammad—would have a better understanding than latter generations.
  • In instances where neither Qur'an nor the Sunnah or the Sahaba were applicable, Ahmad would resort to the mursal hadith ("hurried"), which are hadith with a weak or missing link between the Tabi'in (التابعين, "followers/successors," those who were born after the death of Muhammad but who were contemporary of the Sahaba) and Muhammad.
  • According to ibn Hanbal only after having exhausted all of these sources should scholars employ qiyas (قياس), or analogical deduction. Even when this is undertaken, it must be done with utmost care.

The Hanbali madh'hab (school) alone maintained its own theological view, unlike the Hanafi (which adopted the Maturidi doctrine) or the Shafi`i and Maliki (which adopted the Ash'ari doctrine). The copious volume of narrations from Imam Ahmad dealing with specific issues of doctrine made it extremely difficult for his followers to adhere to any other, yet still remain faithful followers.

In recent times, among the liberal movements within Islam, some have questioned the need for Sharia law.

Bahá'í Faith

The laws of the Bahá'í Faith primarily come from the Kitáb-i-Aqdas (The Most Holy Book). In Bahá'í scripture the laws are not seen as a constricting code, or a ritual, but are described by Bahá'u'lláh as the "choice wine," and a means to happiness. The laws are seen as the foundation of a just society and facilitate the spiritual development of the planet for the next thousand years. They are not considered as binding to anyone until they become a Bahá'í, and becoming a Bahá'í is not conditional on a person's level of adherence. An individual is expected to gradually apply laws on a personal basis.

A few examples of laws and basic religious observances of the Kitáb-i-Aqdas which are considered obligatory for Bahá'ís include:

  • Recite an obligatory prayer each day. There are three such prayers among which one can be chosen each day.
  • Observe a Nineteen Day Fast from sunrise to sunset from March 2 through March 20. During this time Bahá'ís in good health between the ages of 15 and 70 abstain from eating and drinking.
  • Gossip and backbiting are prohibited and viewed as particularly damaging to the individual and their relationships.

Hinduism

Hindu law is largely based on the Manu Smriti (smriti of Manu). It was recognized by the British after their rule of India but its influenced largely waned after the establishment of the Republic of India, which is secular.

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