Systems of Religious Laws

SYSTEMS OF RELIGIOUS LAWS
 Example of systems of religious laws include:

a. Islamic law
b. Judaism
c. Hindu Law
 Following the September 11, 2001, incident,

there is growing academic interest in Islamic
law and their countries.
1.The Notion of a “Religious Legal System” is

not given in nature, but is a product of
reflection
 Characterization of a legal system as
religious is always based on assessing
whether it fulfils conditions we ourselves
have stipulated.
2. Religiosity is a relative concept: whether a
system is religious is a matter of degree, as
opposed to an either-or determination
3. There are three parameters salient to the

determination that a legal system is a religious
legal system:
3.1 The alleged source of the system
3.2 The areas covered by the system’s rules and
3.3 The system’s mode of operation
3.1 The alleged source/origins of the system
 When a system claims to be of divine origin, it

can be regarded as a religious system
 Islamic law – prophet Muhammad
 Jewish law - is the legal system of the Jewish
people as it has developed from Biblical times
to the present.
 The Bible claims that Jewish law was initiated
by God at Sinai amidst thunder and lightning,
and it speaks of Moses and other prophets who
added to that law by speaking to God, often in
rather eerie circumstances.
 2 Its source/origin is the first five books of what
came to be the Bible (Pentateuch).
 Hindu law - It is believed that Hindu law is a
divine law. It was revealed to the people by God
through Vedas. Various sages and ascetics
have elaborated and refined the abstract
concepts of life explained in the Vedas.
 Its sources of law that it recognises are also
divine or divine inspired.
System Source of law
Islamic i. Quran
ii. Sunnah (traditions of
Muhammad ibn
Abdullah),which means
the things he said, i.e. hadith, the
way he lived his life, his conduct.
Jewish law Written and Oral Law
Written Law - Torah
Oral Law –
i. Mishna (self-contained
rules and laws)
ii. halakhic midrashim are
compilations of laws that
correspond directly to
Written Laws from the
Torah.
Hindu law Ancient and modern sources
i. Shruti means "what is
heard"
ii. Smrit means "what is
remembered", etc
iii. Legislation – modern
source
iv. Precedent – modern source
3.2 The Areas Covered by the System’s Rules
 In most cases, it purports to cover all aspects of
life : namely 3
a) interpersonal relations - the system may
attempt to ensure that goals set by individuals
will not be achieved at the cost of harm to
others – contemporary covered under criminal
law
b) Relationship between the individual and society
- such regulation is reflected in tax law and
laws governing military service and loyalty to
the state
c) Laws intended to prevent individuals from self-
harm, such as laws against suicide, or laws
against certain kinds of sexual relations
between consenting adults, even in private.
Such laws are sometimes referred to as
paternalistic laws.
 A system that does not content itself with
regulating the first two spheres, but spills over
into the third, can be said to have a religious
dimension.
 A system that refers to the individual’s internal
mental and emotional world has a religious
quality to it. E.g. “thou shalt not covet”
QUESTION: WHAT IS THE JUSTIFICATION OF
STATES LEGISLATING ON PATERNALISTIC
ISSUES?
3.3 The System’s Mode of Operation
 The tools that legal systems employ to advance
their agenda – namely, legislation, adjudication
and interpretation
a) Law is eternal and immutable – can’t be
changed by human beings to suit human
conveniences.
 Torah amendments - The Bible does, however,
provide two ways to amend Biblical law. One is
prophecy. God can and does continue to speak
to human beings, and His words must be
heeded. The other is judicial interpretation; in
chapter 17 of Deuteronomy, God requires that
each generation address its questions about the
law to the judges of that generation, and
whatever the judges decide is conclusive.
Rabbis
b) Access to sanctified texts is restricted to a
limited circle (either officials or those with
special attributes)
 E.g. Jewish laws (Torah) : Some laws are not
made public (bShabat 153b); some passages of
the Bible are not read publicly and others are
not translated into the vernacular (bMegila
25a–b; bHagiga 13a); certain laws are
vouchsafed only to the pious, others are not
implemented (bShabat 12b; bBaba Kama 30b;
bAvoda Zara 37b); the reasons for new
legislation (gzeirot) are kept hidden from the
public for one year, lest they be criticized
(bAvoda Zara 35a).
c) Officials are selected on the basis of
lineage rather than acquired skills
d) Judges are infallible- The notion that judges
never err is rooted in the view that judges
operate under divine providence, which
protects them from any possible mistake
e) Modes of punishment – often seen as harsh,
eg. Stoning and lashing. Also, in Biblical law,
some offenses fall under the jurisdiction of
the heavenly court alone. For example, the
punishment of divine extirpation (karet) is not
administered by human courts, and offenses
incurring this punishment are relegated to
divine justice.
f) Laws have both personal and territorial
application - the law applies to every
member of a given group, wherever they
might be.
g) Studying the law as a religious precept -
Another consequence of the alleged divine
origin of the law is the obligation imposed
upon every individual, young or old, learned
or not, to study the law on a regular basis.
Torah keeps repeating variants of the precept
“you shall speak of [the Torah …] when you
lie down and when you rise up” (Deuteronomy
6:7; 11:19), or “you shall contemplate it day
and night” (Joshua 1:8).
 In Western culture, knowledge of the law is the
business of legal experts. Yet, secular legal
systems, such as American law, while not
upholding an obligation to study the law, do
uphold the fiction that everyone is aware of the
law and ignorance of the law is no excuse.

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SYSTEMS OF RELIGIOUS LAWS

 Example of systems of religious laws include:

 Following the September 11, 2001, incident,

1.The Notion of a “Religious Legal System” is

3. There are three parameters salient to the

 When a system claims to be of divine origin, it

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