Charlie Stephenson
Should religion dictate law? This is an experiment humanity has been running since the very dawn of civilisation. To many, their religion is the ultimate code of moral conduct, a divine dictation of what is wrong and right, a "recognition of all our duties as divine commands." as Kant explains . Therefore, if the law is truly just, then the law must be based on whichever the chosen religious text is. But is this really true in practise? Should religion be given a say in law making in the 21st century?
Can Morality Exist Without Religion?
Laws are a reflection of the moral values of a society. The law should exist to ensure a fair and just society. Naturally, this leads to the question, do we need God to guide our morality? And therefore by extension, do we need God to guide our lawmaking?
The essential pretence in the 'for God' morality argument explains that God is the basis of moral reasoning, and without that basis, moral reasoning cannot occur or is pointless. William Lane Craig argues this, explaining that "If there is no God, then any basis for objective moral values and duties is removed. All that’s left is societal
convention or personal preference, neither of which can serve as a valid foundation for morality." Thus without any foundation, discussion about morality cannot occur and just laws cannot be created, leading Fyodor Dostoevsky to state that "If God does not exist, everything is permitted."
Yet secularist scholars disagree with this stance, instead considering that morality is imbedded in human nature rather than in divine will. Richard Dawkins explains this position, proposing that "we do not need God (in order) to be good or to act morally", he instead believes that "secular ethics, based on reason, empathy, and a concern for human well-being, are perfectly sufficient to guide us in making ethical decisions." Secularists argue that reliance on human nature instead of a set divine moral codes can create laws that are "anchored in human nature itself, and in our evolved capacity for empathy, cooperation, and social living." (David Dennett).
Indeed, this is a stance many modern nations have adopted, including most Western and Asian nations. These nations all have functioning legal systems despite the absence of religious foundations and, as Dennett highlights, "have worked well without any dependence on religious beliefs". So perhaps the debate is over, judicial institutions and law making runs seamlessly without religion. Yet across the world in the 21st century some nations still are running the experiment - theocracies.
Do Theocracies Work?
Historically speaking, theocracy has been a primary form of governance. A theocracy is a system of governance where the supreme deity is the ultimate ruler. The deity may rule personally as a god in human form or indirectly through earthly servants, usually the clergy, who act in the deity's place. The Feudal System in Medieval Europe is a suitable example, where the 'Divine Right of Kings' provided justification for the law making power to be held with the clergy and nobles, which naturally lead to different stratas of legal privilege across society.
Similar patterns can be seen globally from feudal Japan where the emperor was the ‘ruler from heaven’ and considered a direct ancestor of Amaterasu (Shinto deity) to India where the Hindu caste system divinely upheld the Brahmins, who were usually priests, whilst leaving other groups to the bottom, such as the so called 'Untouchables'. With historical hindsight and modern ethical standards, most are likely to conclude that no, theocracies have not provided morally correct legal codes.
But what does a theocracy look like in the 21st century?
A modern example is Iran, where the fourth article of the constitution states that all laws and regulations must be based on undefined “Islamic criteria” and official interpretation of Sharia (Islamic law). A key challenge for Iranian lawmakers to overcome is how literally should Sharia interpretations be implemented into actual law. Should other moral and ethical opinions get taken into account? Or should a true theocracy put its sole ethical trust its chosen religious text? It seems the answer is not the latter, because Iran's reliance on religious texts as a foundation for law making and legal reforms have resulted in a similar trend to the historical theocracies analysed previously.
For instance, Sunni Muslims cannot establish political parties or own newspapers. Article 638 of the Islamic Penal Code mandates that women must wear a hijab in public. Failure to comply can result in fines, imprisonment, or corporal punishment. Article 907 states that a son inherits twice as much as a daughter, Article 199 states that the testimony of a woman is worth half that of a man in court and Article 147 deems boys criminally responsible at 15 lunar years, while girls are at 9 lunar years.
Moreover, lawmaking government branches, such as the Guardian Council, limit the legal rights of citizens who to do not identify with Shia Islam, leading Nasr to conclude that “the state's apparatus, from the judiciary to the military, is deeply imbued with religious ideology,”. Although an extreme example, theocratic nations like Iran illustrate the most pressing Achilles heel to the religious lawmaking stance – religion is stagnant.
Evolution of Law vs Religion
Laws are constantly being reviewed, re-written and revised. In common law nations, such as Australia or the UK, every new judgement is a new addition to the law. This allows the law to remain updated and relevant. In contrast, religious texts cannot be reviewed or revised to fit into the 21st century context. Whilst the interpretation of religious texts changes with time, they are unable to provide solutions to modern legal problems.
Religious texts are old; the Bible is around 1,900 years old, the Quran is around 1,400 and the Vedas are at least 2,100 years old. Naturally these texts were written when societal standards and values where different. Secularist scholars argue that religious texts, while historically significant, were written in specific cultural and historical contexts that may not be directly applicable to modern legal systems. Indeed, taking a historical text literally would not provide an updated basis for law making, as Christopher Hitchens explains, these texts "were written in a pre-scientific, pre-modern age," which results in the "ethical and legal prescriptions they contain (being) developed in times that had none of the benefits of modern knowledge and understanding." In the 21st century, nations need to be flexible with their implementation and use of law, which religious based legal systems simply cannot achieve as effectively as secularist ones.
Importance of Secularism
These issues highlight the importance of a secular law-making process which is able to uphold the principle of neutrality. In modern pluralistic societies, secularism helps maintain a clear separation between religion and state which Rodell describes as ‘“institutional separation, freedom of belief and no discrimination on grounds of religion.”. Laws derived from secular reasoning applied uniformly to everyone, ensures that no particular group is given preferential treatment. This is essential in diverse societies where multiple faiths, races and ethnic groups coexist. As Ronald Dworking summarises, "the integrity of a community’s law depends on a recognition that moral principles, not religious commands, provide the foundation for political justice.".
Conclusion
Ultimately, although religion has provided the moral foundations of most legal codes across the world, it is clear that legal philosophy has developed beyond the boundaries of religion. The experiment has been run, and religion failed. Modern ethical values of equality, justice and human rights do not always fit within religious based law making and therefore it is apparent that a secularist approach allows for broad support and a flexible advanced law making process, ultimately providing a fair and just legal system.
Sources:
Law:
Civil Code of the Islamic Republic of Iran art 907.
Islamic Penal Code (Iran) art 147, 199 & 638.
Books:
Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (Twelve, 2007) 43.
Daniel Dennett, Breaking the Spell: Religion as a Natural Phenomenon (Penguin Books, 2006) 47.
Fyodor Dostoevsky, The Brothers Karamazov (Constance Garnett trans, William Heinemann, 1912) 776 [trans of: Brat'ya Karamazovy (first published 1880)].
Immanuel Kant, Religion within the Boundaries of Mere Reason (James Ellington trans, Cambridge University Press, 2009) 55 [trans of: Die Religion innerhalb der Grenzen der bloßen Vernunft (first published 1793)
Richard Dawkins, The God Delusion (Bantam Books, 2006) 263.
Ronald Dworkin, Law's Empire (Harvard University Press, 1986) 240.
Vali Nasr, The Shia Revival: How Conflicts within Islam Will Shape the Future, (W.W. Norton & Company, 2006) 176.
William Lane Craig, Reasonable Faith: Christian Truth and Apologetics (Crossway, 2008) 172.
Reports:
Hackett Conrad, Brian J Grim, ‘The Global Religious Landscape’ (Research Paper, Pew Research Centre, 2012)
Pew Research Center, 'The World's Muslims: Religion, Politics and Society' (Report, 30 April 2013) <https://pewresearch.org/religion/2013/04/30/the-worlds-muslims-religion-politics-society-beliefs-about-sharia/>.
Articles:
Rodell Jeremy, "What do Secularists Mean by Secularism?" (Blog Post, LSE Religion and Global Society, 9 January 2019)
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