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Published on October 30, 2007

Author: Danior

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Competing Normative Orderings: Religion and Law:  Competing Normative Orderings: Religion and Law Zoe Kelley Tony Rickett Jennifer Kelley Week 2: Readings: Religious Foundations of Law in the West: An Historical Perspective Harold Berman (1983) 1.1, Journal of Law and Religion, pp.3-44 Religion and Law: Some Thoughts on Their Intersections Sibley, Mulford Q. (1984), 2.1, Journal of Law and Religion, pp.41-67 U.S. law not based on Ten Commandments Church & State, 2003 (2 pages) I - What is “our legal tradition”? :  I - What is “our legal tradition”? 1050 - Europe Roman Catholic Church set out to established its political and legal unity under its own monarchy giving it freedom from domination by emperors, kings and feudal lords. (p. 3) The slogan of the reform party was “freedom of the church.” (It was the church insisting on separation from the state.) Until then the emperor had been the head of the church 1075 - Pope Gregory VII declared the absolute political supremacy of the Pope over all secular rulers. Pope Gregory avowed “Emperors must kiss the feet of the bishop of Rome.” Civil wars were fought in Europe between supporters of the papal and the imperial powers for fifty to a hundred years before the original papal declaration was sealed. Slide3:  Why was this important for the development of law? As an independent political entity, the Church need its own system of law. (p. 7) The church created the first modern Western legal system. (Jus canonicum, the modern canon law.) Systematization of canon law Systematic collections Treatises on canon law Hierarchical system of courts Trained legal profession Universities Professors teaching canon law at universities Many basic features of contemporary American law descended from the canon law of the twelfth century Constitutional law, criminal law, wills, contract law, property law… Slide4:  Natural Law/Divine Law Positive Law Customs 1100’s – The development of new methods of analysis and synthesis used to reconcile and harmonize the differences between secular and religious laws. Western legal tradition took root in the duality of religious and secular laws. No political power was absolute and each checked each other. Kings and Popes were accountable under their own laws. Law was needed to maintain balance. Slide5:  The Church had deeper goals: Its mission was to reform secular law, making It more just, more humane, more in conformity with God’s will. How was this to be achieved? “Gradually, over generations and centuries.” (p. 11) This introduced a new “time sense” into human history. It was assumed that each generation would do its part to build on what the previous generation had accomplished towards these goals. This is similar to a great cathedral started in the twelfth century and planned to be built over generations. Many national revolutions took place between 1640 and 1917, each introducing a new relationship between “church” and “State” II - Martin Luther:  1515 – Martin Luther denounced the papal claim to remit punishments in purgatory. Luther believed that salvation was only through grace, not through doing good works. Civil war ensued in the German Empire and eventually Protestant principalities were accepted. 1520 – In response to serious abuses by the papal hierarchy, Luther proclaimed the abolition of the ecclesiastical jurisdiction. This delegalized the church, breaking the dualism of ecclesiastical and secular laws. Luther believed that if the ruler was a Christian he would treat his responsibilities as a Christian calling and govern in a decent and godly way. II - Martin Luther Slide7:  1532 – Emperor Charles V circulated a comprehensive criminal code for the empire as a whole, the Constitutio Criminalis Carolina (p. 21) The ‘Carolina’ is universally recognized to be one of the great achievements of the Western legal mind and of Western legal policy – Its chief author was a prominent Lutheran Changes Lutheran Reformation made in German Law: The prince was again head of the Church exercising legislature, administrative and judicial powers over the church in his territories. Secular Civil Service Secularization of the canon law in many matters of civil and criminal law III - Puritans:  1536 – John Calvin – The best form of government is a system compounded of aristocracy and democracy. (p. 25) Connections between religious beliefs and the long-range development of English law in the seventeenth century: Radical law reform as a religious activity ‘Instrument of Government’ First national written constitution in history Civil rights – by the virtue of Christian’s being willing to go to prison for those rights Laws of evidence and judicial supervision of jury “Calvinism in England and America was the last great movement within the institutional church to influence the development of Western law in any fundamental sense” (p.37) III - Puritans IV – Secular Religion:  IV – Secular Religion Nineteenth Century – A gradual reduction of traditional religion to the level of personal, private matter. Liberal democracy was the first great secular religion in Western history. First ideology which became divorced from traditional Christianity while keeping its sense of the sacred and many of its values Individualism, rationalism, nationalism 1917 -Revolutionary socialism Both ideologies show a common ancestry in Christianity V – Privatization of theistic religion:  V – Privatization of theistic religion The law is becoming more fragmented, more subjective, geared more to expediency and less to morality, concerned more with immediate consequences and less with consistency or continuity. (p.42) What effect has privatization of theistic religion had upon basic legal concepts and institutions? A movement toward fragmentation and disintegration of the law. A weakening in the belief in the growth of law, its ongoing character over generations and centuries. Law having no history of its own. The viewpoint that law is distinct from the state. Law being presented as only the ‘rules of the game’. Globalization also plays a role: There is a movement towards common legal language and a new legal tradition that will be worldwide in character. “The Western belief in the autonomy and supremacy of law, historically based on the dialectic of church and state, can hardly serve as the principal foundation of legality in a world that is only partly Christian.” (p. 43) Overview of Mulford Q. Sibley’s piece “Religion and Law: Some Thoughts on Their Intersections” published in the Journal of Law and Religion (1984):  Overview of Mulford Q. Sibley’s piece “Religion and Law: Some Thoughts on Their Intersections” published in the Journal of Law and Religion (1984) Part One: “historical roots and development of law and religion” Religion: Many scholars have speculated about the essential nature and “remote origins” of religion. Sibley presents Bronislaw Malinowski’s concepts: Religion is one of three ways in which cultures relate to the world around them- Magic- humans manipulate nature Science- humans can control surroundings Religion- humans in reverence to God(s) Note: In class, we discussed civil religion and the possibilities of including science and magic within a definition of Religion. Malinowski raises some questions regarding the definition of religion. Slide12:  General Custom as root of religion Sibley proposes that: First came customs and rituals: “semi-conscious worship” Next came debate and questioning of ethics and practices Finally, a “reflective religious faith” develops Questions: Do people really tend to practice “reflective” religious faith today any more than in the past? What evidence do we have that people at one time did not reflect on, or question, their religious faith? Do we not have many examples of blind faith being practiced in this present day- both civil religion and non-secular religion? Slide13:  Simultaneously, law develops… Undifferentiated customs in the beginning: law and religion not separated. Despite attempts on the part of legal historians, such as Hart, to create definitional differentiation, the separation was unrecognizable to many people. Law: involves enforceable norms (How does one separate?) Religion: gives divine sanction Some historical examples of the overlaps of religion and law: *Ancient Egypt Maat: a term used interchangeably in the political sphere to describe justice and lawfulness, and within the religious/ spiritual arena to describe truth. *Torah- the books of the Law: a “way of life”. The Law leads to justice. *Ancient Greece Sophocles’ Antigone: Nomos- law, or “religious and family tradition” Issues of “new,” or state law arise- the conflict of nomos and state law. Slide14:  Plato’s ‘The Laws’: Plato critiques state law, or the law of man, for its unsatisfactory ability to deal with the “never uniform and constant” state of the human condition. He does, however, believe that men need law to control their tendency toward impulsive actions. Thus, he creates a system of law in The Laws. Plato proposes that in order for the Law to work citizens must believe that the gods exist (CIVIC RELIGION). Those who do not believe are put to death. The severity of this law is believed necessary in order to create unity within the polis. Sibley states that this “creed is noteworthy in part because it endeavors to sever the ancient tie between religion and magic: God is to be worshipped because it is right to do so intrinsically”(46). Q.: Is God to be worshiped because it is right “intrinsically,” or because it is a political necessity for unity (domination and control)? Q.: Was the Inquisition (“witch hunts”) a political move or solely an issue of religion? What part did the threat of science play in this. *Rome Early Rome: law associated with religious rites Slide15:  College of Pontiffs (Pontificus Maximus, leader): Pontiffs were guides in “both religious and legal affairs.” Evolution of CLASS OF THE CLERGY (Patrician Class)- those with protected knowledge and, therefore, POWER. NONVIOLENT RESISTANCE leads to increase in power and influence of the plebeians. This leads to the lay JURIS CONSULT and increase in secular law. Rise of Christian Cults in Rome: Conflict between secular and religious laws arise as Christians resist serving as soldiers (CONSCIENSCIOUS OBJECTION) or participate in certain aspects of secular law due to religious beliefs. *Dualistic Ethic: ethic of perfection- nonviolence as privilege of the clergy ethic of compromise-violence permissible to general public (a necessity to war) This leads to justification for notions of “just” or “holy” wars. Slide16:  CANON and CIVIL LAWS (49)??? *St. Thomas Aquinas law as “ordinance of reason for common good” “ultimate order of the universe”- ‘the eternal law’ Word of God (Scriptures)- Divine law *Inquisition Contradiction of Ethic of Perfection- clergy engage in acts of torture. Rules bent and reinvented to allow acts of torture and murder. *This leads to a shared Catholic and Protestant “belief in the legitimacy of religious persecution.” Sibley speculates that religious indifference, (rather than moral values, perhaps) leads to a decline in persecution. He then speculates that a decline in persecution may be the result of an increase in interest in trade and commerce. Q.: What, then, would he say of the enormous profits being made under the guise of religion and morals that we see today? Slide17:  What is religion? Plato believed that every law should have a preface which justified the law in rational terms Most religions (or law) are thought to have sprung from general customs. As general customs pass down the generations, eventually some “leaders” began debating and reflecting, while some poor group of saps worked extra hard to provide for the debating and reflecting. After reflecting, the “leaders” realized that in the excitement of debate they intertwined each idea to give meaning and value to the other. Thus, we have a chicken and egg dilemma. Scholars are still arguing about this today. The point is: religion came first. So…..it must be better. Even great economic models of law such as the Code of Hammurabi are based upon the religious sanctification of the King Malinowski believed that we see our relationship to the universe through science, magic, and religion. A difference between religion and magic should be noted. Religion is the worship of a god because one wants to, or it is right to do so. One does not worship a god to receive something or be protected, this is magic. In Plato’s day you die if you can’t get this concept. Slide18:  For most of history an elite few dealt with religion and law. Finally, a plebeian gained control in Rome. In 253 B.C.E. Coruncanius, became the first non-patrician class PONTIFEX MAXIMUS. The masses were invited to debate and reflect. Enter stage right: Christianity. Early Christians avoided secular law, as they were forbidden to use roman courts, or kill. Eventually, they got over this “do not kill” thing and “just war” became part of the vernacular. Civil and cannon law, although inseparable, became separate fields from which the two sides laid claim to one another. Thankfully, they both want us to follow the norms and provide them with authority based upon reason and conscience. Physical force, or coercion if you prefer, will be used if need be. For instance, one might believe whatever one pleases in the United States of America. Yet, try and marry a couple sisters. You can’t. They won’t let you. Schools: Now we have opened a can of worms. Does the establishment clause of the First Amendment violate and supersede the free exercise of religion clause? Do we charge a “conscience” tax on some religions? Does the Sileven case outline the battle for the future of minds? Have at it and keep it clean. Slide19:  Do you take your law and religion Erastian or Gelasian? Is positive law over ecclesiastical law, or is the single society under both? Some believe the Church is similar to the D.M.V.. Others think the church is special and thus handled differently from other associations and social constructs. Sometimes the law of god wins, sometimes the law of people. Obviously, the church and state will collide. We will struggle both personally and socially with secular and non-secular laws. Sometimes, we will struggle against both. Are we to be “prima facie” sheep, or civil disobedient fodder? Slide20:  Questions: Is it OK to display the Ten Commandments in any State/Federal setting? 2 )Why was this important for the development of law? Jen 3) Do people really tend to practice “reflective” religious faith today any more than in the past? Zoe 4) What evidence do we have that people at one time did not reflect on, or question, their religious faith? 5) Do we not have many examples of blind faith being practiced in this present day- both civil religion and non-secular religion? 6) Is God to be worshiped because it is right “intrinsically,” or because it is a political necessity for unity (domination and control)? Slide21:  1075 - Pope Gregory VII declared the absolute political supremacy of the Pope over all secular rulers. Pope Gregory avowed “Emperors must kiss the feet of the bishop of Rome.” Civil wars were fought in Europe between supporters of the papal and the imperial powers for fifty to a hundred years before the original papal declaration was sealed. Slide22:  As an independent political entity, the Church need its own system of law. (p. 7) The church created the first modern Western legal system. (Jus canonicum, the modern canon law.) Systematization of canon law Systematic collections Treatises on canon law Hierarchical system of courts Trained legal profession Universities Professors teaching canon law at universities Many basic features of contemporary American law descended from the canon law of the twelfth century Constitutional law, criminal law, wills, contract law, property law… Slide23:  General Custom as root of religion Sibley proposes that: First came customs and rituals: “semi-conscious worship” Next came debate and questioning of ethics and practices Finally, a “reflective religious faith” develops Slide24:  Do people really tend to practice “reflective” religious faith today any more than in the past? What evidence do we have that people at one time did not reflect on, or question, their religious faith? Do we not have many examples of blind faith being practiced in this present day- both civil religion and non-secular religion? Slide25:  Plato’s ‘The Laws’: Plato critiques state law, or the law of man, for its unsatisfactory ability to deal with the “never uniform and constant” state of the human condition. He does, however, believe that men need law to control their tendency toward impulsive actions. Thus, he creates a system of law in The Laws. Plato proposes that in order for the Law to work citizens must believe that the gods exist (CIVIC RELIGION). Those who do not believe are put to death. The severity of this law is believed necessary in order to create unity within the polis. Sibley states that this “creed is noteworthy in part because it endeavors to sever the ancient tie between religion and magic: God is to be worshipped because it is right to do so intrinsically”(46). Q.: Is God to be worshiped because it is right “intrinsically,” or because it is a political necessity for unity (domination and control)? Q.: Was the Inquisition (“witch hunts”) a political move or solely an issue of religion? What part did the threat of science play in this. *Rome Early Rome: law associated with religious rites Slide26:  What is religion? Plato believed that every law should have a preface which justified the law in rational terms Most religions (or law) are thought to have sprung from general customs. As general customs pass down the generations, eventually some “leaders” began debating and reflecting, while some poor group of saps worked extra hard to provide for the debating and reflecting. After reflecting, the “leaders” realized that in the excitement of debate they intertwined each idea to give meaning and value to the other. Thus, we have a chicken and egg dilemma. Scholars are still arguing about this today. The point is: religion came first. So…..it must be better. Even great economic models of law such as the Code of Hammurabi are based upon the religious sanctification of the King Malinowski believed that we see our relationship to the universe through science, magic, and religion. A difference between religion and magic should be noted. Religion is the worship of a god because one wants to, or it is right to do so. One does not worship a god to receive something or be protected, this is magic. In Plato’s day you die if you can’t get this concept. Slide27:  For most of history an elite few dealt with religion and law. Finally, a plebeian gained control in Rome. In 253 B.C.E. Coruncanius, became the first non-patrician class PONTIFEX MAXIMUS. The masses were invited to debate and reflect. Enter stage right: Christianity. Early Christians avoided secular law, as they were forbidden to use roman courts, or kill. Eventually, they got over this “do not kill” thing and “just war” became part of the vernacular. Civil and cannon law, although inseparable, became separate fields from which the two sides laid claim to one another. Thankfully, they both want us to follow the norms and provide them with authority based upon reason and conscience. Physical force, or coercion if you prefer, will be used if need be. For instance, one might believe whatever one pleases in the United States of America. Yet, try and marry a couple sisters. You can’t. They won’t let you. Schools: Now we have opened a can of worms. Does the establishment clause of the First Amendment violate and supersede the free exercise of religion clause? Do we charge a “conscience” tax on some religions? Does the Sileven case outline the battle for the future of minds? Have at it and keep it clean. Slide28:  Do you take your law and religion Erastian or Gelasian? Is positive law over ecclesiastical law, or is the single society under both? Some believe the Church is similar to the D.M.V.. Others think the church is special and thus handled differently from other associations and social constructs. Sometimes the law of god wins, sometimes the law of people. Obviously, the church and state will collide. We will struggle both personally and socially with secular and non-secular laws. Sometimes, we will struggle against both. Are we to be “prima facie” sheep, or civil disobedient fodder? Slide29:  Questions: 1) Is it OK to display the Ten Commandments in any State/Federal setting? Pope Gregory VII declared the absolute political supremacy of the Pope over all secular rulers 2 )Why was this important for the development of law? 3) Do people really tend to practice “reflective” religious faith today any more than in the past? 4) What evidence do we have that people at one time did not reflect on, or question, their religious faith? 5) Do we not have many examples of blind faith being practiced in this present day- both civil religion and non-secular religion? 6) Is God to be worshiped because it is right “intrinsically,” or because it is a political necessity for unity (domination and control)? 7) Was the Inquisition (“witch hunts”) a political move or solely an issue of religion? What part did the threat of science play in this.

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