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Religion and Law: Some Thoughts on Their Intersections*

Published online by Cambridge University Press:  03 February 2016

Mulford Q. Siblef
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Extract

In this paper, I seek to draw out the meanings of both law and religion and to reflect on their relationship to each other. Both law and religion belong to the humanities, and an examination of a few of the ways in which they cut across each other might conceivably contribute to a better understanding of the human predicament in general.

I shall begin by inquiring into the historical roots and development of law and religion. I shall then examine analytically some important issues involving their intersections—questions which cut across history and seem perennial. Obviously, given space limitations, much of the discussion can only suggest.

Type
Articles
Information
Journal of Law and Religion , Volume 2 , Issue 1 , 1984 , pp. 41 - 67
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1984

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Footnotes

*

This is a revised version of a lecture composed for the Minnesota Humanities Commission Lecture Award. The lecture was delivered March 1, 1984, in the Landmark Center, St. Paul, Minnesota, and was second in the series of Humanities Award Lectures.

References

1. See Freud, S., The Future of an Illusion (Strackey, J. ed. 1975)Google Scholar.

2. For an account of Spencer's theory of ghosts and religion, see Herbert Spencer on Social Evolution 206–16 (Peel, J. ed. 1972)Google Scholar.

3. Malinowski, B., Magic, Science, and Religion, in Science, Religion and Reality (Neeham, J. ed. 1925)Google Scholar.

4. See Seagle, W., History of Law (1946)Google Scholar.

5. Hart, H., The Concept of Law (1981)Google Scholar.

6. See Seagle, supra note 4.

7. See Budge, E., Osiris: The Egyptian Religion of Resurrection (1961)Google Scholar.

8. See Voeoelin, E., Order and History: Israel and Revelation (1965)Google Scholar.

9. Exodus 19:16-25.

10. See Leviticus 19:9, 10, 33-37 and Deuteronomy 15.

11. Socrates at some points as, for example, in Plato's, Crito in The Collected Dialogues of Plato 33–37 (trans. Tredennick, H. 1963)Google Scholar, seems to advocate a kind of contract and tacit consent theory: there is an implicit agreement between the citizen and the polis. Yet even the polis, in convicting Socrates, says that he had violated his obligation by “corrupting the young.” He states that if he is released, he will continue to speak frankly. See, e.g., Plato, , Apology, in The Collected Dialogues of Plato 15–16 (trans. Tredennick, H. 1963)Google Scholar.

12. Plato, , Statesman, in The Collected Dialogues of Plato 1063 (Skemp, J. trans. 1963)Google Scholar.

13. Id. “The differences of human personality,” Socrates says at another point, “the variety of men's activities, and the inevitable unsettlement attending all human experience make it impossible for any art whatsoever to issue unqualified rules holding good on all questions at all times. …” Id.

14. This content of Plato's creed must have been worked out in response to some of the vigorous debates of Plato's time. Specialists in Plato's Laws have speculated about the identity of the particular philosophers to whom he may have been referring. But at a minimum we can infer from his discussion that there must have been a school of atheists and one of what the eighteenth century would have called “deists,” whatever the Greek designation may have been.

15. Jolowicz, H., Historical Introduction to the Study of Roman Law 88, 89, 92 (1932)Google Scholar.

16. The learned Origen recognized the value of Roman civilization even while he promoted Christianity, as his Contra Celsum suggests. But while he valued Roman culture, he thought that military service was incompatible with Christian teaching.

17. Philippians 3:20.

18. Yet some must have used the Roman courts, for Paul admonishes them not to do so, observing that it is unfitting to have unbelievers settle disputes among believers. See I Corinthians 6:1-6.

19. While Romans 13—Paul's chapter admonishing the believer to “obey the powers that be”—when read in the context of the body of Pauline teaching, was not a doctrine of “passive obedience,” neither could it be called a theory of civil disobedience. It has been suggested that the famous passage was colored by Paul's relatively benign experience of the state up to that point.

20. See E. Gibbon, The Decline and Fall of the Roman Empire, Ch. 20.

21. The first recognition of the existence and doctrine of the dualistic ethic is sometimes attributed to Eusebius, the ecclesiastical historian, in the fourth century.

22. See R., & Carlyle, A., I a History of Political Theory in the West 130 (1930)Google Scholar.

23. Ullmann, W., Medieval Papalism; The Political Theories of the Medieval Canonists 30–31 (1949)Google Scholar. Theology, he affirms, is represented by the horse while civil knowledge is analogous to the donkey.

24. Seel. Aquinas, Summa Theologica, 1st pt. of the 2nd pt., Question 91.

25. See Lea, H., 1 A History of the Inquisition of the Middle Ages 223–225 (1955)Google Scholar.

26. United States v. Ballard, 322 U.S. 78 (1944)Google Scholar.

27. Wisconsin v. Yoder, 406 U.S. 205 (1972)Google Scholar.

28. United States v. Seeger, 380 U.S. 163 (1965)Google Scholar.

29. Aquinas, supra note 24, Question 96. Senator Edward Kennedy, speaking against the background of the abortion controversy and obviously agreeing with St. Thomas, rejects the notion “that every moral command should be written into law—that Catholics in American should seek to make birth control illegal; that orthodox Jews should seek to ban business on the Sabbath. …” N.Y. Times, Sept. 11, 1984 at 10.

30. Reynolds v. United States, 98 U.S. 145 (1878)Google Scholar.

31. Prince v. Massachusetts, 321 U.S. 148 (1944)Google Scholar.

32. Romans 7:8 (Moffatt trans.).

33. Romans 7:19-20 (Moffatt trans.).

34. Romans 7:15-16 (Moffatt trans.).

35. An image which Paul, St. uses in Galations 4:34Google Scholar.

36. Epperson v. Arkansas, 393 U.S. 97 (1968)Google Scholar.

37. Stone v. Graham, 449 U.S. 1104 (1981)Google Scholar.

38. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)Google Scholar.

39. Wisconsin v. Yoder, 406 U.S. 205 (1972)Google Scholar.

40. See Ad Hoc Comm. for Religious Freedom, The Religious Freedom Record 13 (1984)Google Scholar.

41. In his early years, the late Harold J. Laski was usually classified as a pluralist and critic of the doctrine of sovereignty. See Laski, H., Studies in the Problem of Sovereignty (1917)Google Scholar. See also the works of the French jurist Leon Duguit.

42. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)Google Scholar.

43. Jones v. Wolf, 443 U.S. 595 (1979)Google Scholar, cert, den., 444 U.S. 1080 (1980)Google Scholar.

44. United States v. Moon, 718 F.2d 1210 (2d Cir. 1983).

45. See Matthew 27:3; Luke 9:7; John 8:9; Romans 2:15; I Timothy 1:19; II Timothy 1:3; Hehrews 9:14, 10:2, 13:18, 22; Hebrews 13:18; Hebrews 3:16; Peter 24:16; Romans 13:5, 14:22; II Corinthians 1:12; I Peter 2:19.

46. See Sibley, M., The Obligation to Disobey: Conscience and the Law (1970)Google Scholar.

47. This is a liberal rendering of the Latin. The original text is provided as an appendix in Harnack, A., Akten des Maximilianius, in Christi, Militia, Die Christliche Religion und der Soldatenstand in den Ersten Drei Jahrhunderten 115–17 (1905)Google Scholar.