03. religious law

The question

The common law and the civil law locate the source of legal authority in human institutions, the courts in the one tradition and the legislature and the code in the other. A further family of legal traditions locates the source of authority elsewhere, in a body of law held to derive from a religious revelation or a sacred tradition. This sub-unit examines religious law, the law of these traditions, and asks what distinguishes a religious legal tradition from the secular ones, how the principal religious traditions are organised, and in what ways religious law operates within the legal systems of the modern world. The treatment is descriptive throughout, a matter of comparative law, and it evaluates neither the truth of any religion nor the merit of its law.

The distinguishing feature

The defining characteristic of a religious legal tradition is that the ultimate source of the law is held to be of religious origin, a divine command or a sacred tradition, rather than the will of a human legislature or the decisions of human courts. The authority of the law, in such a tradition, rests upon its religious foundation, and the law is understood by its adherents as binding because it issues from that foundation.

This feature connects directly to the doctrine of sources examined earlier in the course. In a secular tradition, the formal source that confers validity is a human institution identified by the system's rule of recognition; in a religious tradition, the foundational source is the sacred text or revelation, and the work of human jurists consists in interpreting and elaborating that source rather than in originating the law. The relation between an unchanging foundational source and an evolving body of interpretation is a recurring structural feature of these traditions, and it gives the religious jurist a role of central importance, comparable in influence to the judge of the common law or the scholar of the civil law.

Consider how a question of permitted commercial conduct is approached within a religious legal tradition. The jurist does not ask what a legislature has enacted; the jurist asks what the foundational sources, the sacred text and the authoritative tradition, require, and reasons from those sources, through established interpretive methods, to a conclusion about the case. The method is interpretive and derivative, drawing the rule out of a source regarded as given rather than enacting a rule anew.

A religious legal tradition is therefore distinguished by the religious origin it attributes to the ultimate source of law, a feature that shapes its method, the role of its jurists, and the character of its authority.

The principal traditions

Several religious legal traditions have produced developed bodies of law, and three are described here in general terms as the principal examples. The description is necessarily summary and addresses the structure of each tradition rather than the detail of its rules.

Islamic law is the most extensive of the living religious legal traditions. Its foundational sources are the Qur'an and the Sunna, the recorded practice of the Prophet, and from these sources a vast body of jurisprudence has been developed. The term sharia denotes the divine law in its ideal and complete sense, the path ordained for the believer, while fiqh denotes the human understanding and elaboration of that law, the science by which jurists derive concrete rules from the foundational sources through recognised interpretive methods. Several schools of fiqh developed within the tradition, differing in method and in particular conclusions, and Islamic law addresses worship, personal status, and a developed law of commerce and obligations.

Jewish law, known as halakha, is the body of law derived from the Hebrew scriptures and the rabbinic tradition that interprets them, recorded above all in the Talmud and elaborated by centuries of rabbinic scholarship. Halakha governs religious observance, personal and family matters, and a developed law of civil and commercial obligations, and it has been applied through rabbinic courts within Jewish communities across many states and centuries.

Canon law is the internal law of the Christian churches, most fully developed in the Roman Catholic Church, which possesses a codified body of canon law governing the organisation of the church, the conduct of its officers, and matters of religious discipline and personal status within the community of the faithful. Canon law historically exerted a profound influence upon the development of the secular law of Europe, contributing concepts and procedures that passed into both the civil law and the common law.

These three traditions illustrate the family: each attributes the ultimate source of its law to a religious foundation, each has developed a sophisticated jurisprudence interpreting that foundation, and each has governed the lives of its adherents across many states and many centuries.

Religious law within the modern state

The relation between religious law and the legal system of a modern state varies widely, and three patterns may be distinguished, each illustrating a different way in which religious law operates within the contemporary order. The variation is itself a family-level proposition, since the same religious tradition may occupy a different position from one state to another.

In some states, a religious law forms the general law of the land, or its foundational source, with the institutions of the state administering and enforcing it across the field of legal life. In a larger number of states, a religious law governs a defined domain, most often the law of personal status, comprising marriage, divorce, inheritance, and related family matters, while the general commercial and public law of the state is secular; in such states a person's family affairs may be governed by the religious law of that person's community, applied by religious or by state courts. In still other states, where the general law is wholly secular, a religious law operates only as the internal law of a religious community, binding its adherents as a matter of conscience and communal membership and enforced, if at all, only through the community's own institutions rather than the state's.

Suppose an international enterprise conducts business across several states. In one, the law of commercial obligations may be shaped by a religious legal tradition, so that the enterprise must understand the requirements that tradition imposes upon its contracts; in another, the general commercial law is secular while the personal affairs of individuals are governed by religious law, a matter that may touch the enterprise when it deals with questions of a counterparty's capacity or family arrangements; in a third, religious law has no bearing on the enterprise's dealings at all. The example shows that the practical reach of religious law depends entirely upon the constitutional arrangement of the particular state.

Religious law within the modern world therefore occupies a spectrum of positions, from the general law of a state, through the law of personal status alongside a secular general law, to the internal law of a community within a secular order, and the position it occupies in any given state is a matter for the law of that state.