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On Religion and the Law

by Lynch Fri Aug 20th, 2010 at 03:33:32 PM EST

This is a follow-up to an exchange with ceebs and Colman in the diary "Obama Waffles on the Ground Zero Mosque" regarding a disagreement on three points.

Lynch's point 1: In a theocracy, the concept of law and religion are one and the same

Ceebs response: this is a narrow view of what a theocracy is and no government in the world would qualify as one using this definition.

My answer: Wrong. Socio-political systems which put Sharia Law above all other laws, or otherwise, orders which refer civil/penal disputes to religious courts, can clearly be said to derive law from religion - therefore treating both as being one and the same. This is the case in countries such as Iran and Saudi Arabia (among others) - and both of these qualify as theocracies.

Lynch's point 2: In ancient Greece (and in modern Western society) the law was construed on the basis of philosophical thought.

Ceebs response: Greece would qualify as a theocracy more than Iran would today. The Western legal system is not based on secular thought - it's only influenced by it.

My answer: You are just plain wrong. Although the Greek city states had their Gods, these Gods inspired thoughts on the organization of society and the laws that govern it only in a tangential manner, when at all. There is just NO WAY Greek city states would qualify as being theocracies. Their laws weren't divinely inspired, their governments weren't appointed by Zeus (or his representatives) and the courts were run by arkhons and later, dikastai (civil magistrates)... not clergy. In fact, laws emanated from the City's Assembly, which in Athens, for example, required the presence of 6 000 members prior to holding meetings and voting on laws.

From Homer, Draco and Solon, Attic Law, Plato and Socrates (Athenian Law), Theophrastus... and ultimately to Rome: the law was centered on issues such as tort, property, family relations, marriage, inheritance, the accumulation and transmission of property and wealth, contracts and commerce, slaves, and of course... public order and governance. To put it very simply: deity is almost inexistent on issues such as tort, property and slaves... and is completely peripheral on issues such as public order and governance. If deity is absent, then what else is there to guide human thought in its quest to understand and codify right from wrong and separate good from evil, if not pure philosophy?

As for the influence of this Greek, philosophical thought on larger Western civilization... I would say that it's profound, fundamental and at the core. Period. Christianity was an add-on to the Greek and then Roman concepts of socio-political order, not the other way around, and both of these were secular in their nature.

Just across the pond, Ancient Egypt could clearly qualify as a theocracy. But that's another story.

Lynch's point 3: Religious interpretations of law are immutable whereas Western civilization's interpretations of law adapt to social priorities.

Ceebs response: Immutability is impossible even in the most severe of theocracies, which change and adapt to evolving social environments.

My answer: You're interpreting to the letter. And conceptually, you're totally wrong.

In Islam: Muslims accept the Koran and the Hadith as being THE ONLY sources of the law. Not accepting this is tantamount to questioning one's Muslim faith. The reason why the Koran and the Hadith are THE ONLY sources of the law is because of the imperfection of human reasoning. Only God can know of absolute good and evil and only Prophets can reveal and interpret this knowledge, which is "mutable" only in so far as successive Prophets have spoken... up until the completion of the Koran, the final revelation, containing the most perfect solutions for all questions and answers pertaining to social order: THE Law. The very foundation of this system implies that it is immutable and indeed, Sharia has essentially remained unchanged since it was first formulated. In fact, its immutable nature is what gives Sharia its legitimacy!

In Christianity: The Conciliums and Synods are the bodies which define dogma. This dogma is translated in Acts (Latin: Acta) which defines what we would refer to as religious law. In the Catholic Church, the Pope has ultimate authority to define religious dogma - and since Vatican I is infallible when doing so (point disputed by the Orthodox Church - and a major source of friction between the two till this day). The first Concilium took place in 325 AD. Since that date, ONLY 7 Conciliums have been recognized universally by both the Catholic and Orthodox Churches, dealing with what are considered major interpretations of the Bible and the Christian faith (on issues such as Gnosis, Immaculate Conception, the Filioque, etc). Between 325 AD and the Schism of 1054, there were less than 100 Regional Conciliums. It's important noting that most of these dealt with administrative and territorial issues - NOT with religious dogma. From the Schism to our times, the Catholic Church has held about 40 Conciliums, including Vatican I (1870) and Vatican II (1965) which dealt both with issues relating to religious dogma as well as more general administrative and internal governance issues.

Strictly speaking, we have 7 Conciliums which amended the credo since 325 AD plus another 2 of importance which are purely of Catholic origin. That's 9 constitutional amendments in 1 700 years.

But OK. For the sake of argument, let's say that we have circa 120 Conciliums which modified the "Christian Constitution" over that same period. That's one set of modifications every 15 years on average, bearing in mind that the large majority of these Conciliums dealt with temporal issues of power and politics more than with fundamental issues of faith. Now, compare that to the number of changes in the legal frameworks governing what was once referred to as Christendom and is today known as Western Civilization (including Central & Western Europe, Russia, Belarus, Ukraine, Georgia, Armenia, North & South America and Australia - each with its own specific sets of laws) and you're likely to get a ratio of something like 1:1000. I'd say that pretty damn immutable.

To conclude

Looping back to the exchange between Melanchton and Migeru - which started this whole debate... I believe that the role religion plays in shaping the socio-political and legal orders of our communities is not a benign question. Indeed, the question is of extreme importance in that it's one of the core issues contributing to the discord between Western and Islamic civilizations today. The incompatibility between two visions of society - one secular, the other theo-centric (to avoid the term theocratic), and treating all that is Christian, Jewish or atheist as second rate... is probably fueling as much animosity and distrust between these two civilizations, as are other more material considerations.

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