Monday, 3 November 2008

RELIGION AND LAW: FORCES OF LIBERATION?

RELIGION AND LAW

Forces of Liberation?

Religion and law, as generative agents of meaning and order in personal as well as social existence and as products of human civilization, have been two concomitant powers in almost every human society. There wouldn’t be any exaggeration in saying that they represent two indispensable dimensions of human existence. Just as air and water are essential for sustaining life, religion and law – in their varied forms of transcendence and immanence – are necessary to live a life proper to human nature. In fact, these two agents have played crucial roles in enabling humanity spread its wings and fly over the horizons, untouched by pitfalls, contributing their might to navigate humanity through the multifaceted life and its patterns.

Religion and law are existential realities in the social and personal lives of human beings. While religion opens up the needed horizon for loving and lasting relation between the Divine and the human beings, law functions as a guardian of the right rhythm in the dynamics of its operations. In other words, as law embodies the moral ought in externally enforceable legal codifications, religion enhances it through its dynamic meaning-giving modes of operation. As James Nafziger, basing on Mircea Eliade’s findings, puts it, “as ethical systems, both law and religion address the global order in a profound manner; both are concerned with the manner in which we accept and organize the world and the universe around us.”[1] In fact, religion remained as the basic inspiration in many cultures across the world, especially in enabling the code of law accepted by the people to become a basic pattern of living, leading to social cohesion and cultural maturity.

Apart from their mutually supportive roles, we find that religion and law have a lot in common. They accomplish development of a worldview or perspective of life by way of inspirational wisdom and legal codifications, both of which could be found enshrined in the ancient scriptures of various religions. Thanks to their incessant operations, they have mechanisms to instil a consciousness of rights and duties based on the accepted worldview. In fact, they succeed in establishing and maintaining social order, leading to the formation of cultures and civilizations. Moreover, in cases of individuals going astray from the accepted patterns, they maintain mechanisms to enforce a return and re-establishment of the neglected or lost order. Thus, these forces, through spiritual counsel or punitive norms, have been capable of animating individuals to establish and maintain mutually enhancing relationships with other individuals as well as communities.

Religion and law may complement and contradict with each other as both of them are sources of rule making. They have exercised significant role in moulding or framing the consciousness of individuals as well as societies covering the spheres of private and public life. Engendering of religion and law in human society expects to enhance the good in human life. The authority commanded by both of them fundamentally originates from among the people who express their allegiance and acceptance of various worldviews for attaining the common good, whether it belongs to the material or spiritual realm. Proactive and successful religions and legislations remain participative, as their dynamics arise from a communitarian nature inbuilt into their structures, experience of fundamental equality among the members, and the respect for personal discernment on the part of individual participants.

As very closely associated functions of human life, these two realms probably received their distinctive identities only in the course of developing human consciousness and, as a result, have assumed almost specific natures and functions in the modern thought. Although both these contribute to the enhancement of personal integrity and social cohesion, in the course of time, their dynamics were distinguished and territories demarcated to such an extent that religious as well as secular societies consider them to be different in character and competence, sometimes even putting in place a watertight compartmentalisation within their territories and reach.

Many factors, including human creativity and imagination, have played an indispensable role in the development of religion; it has not merely been a product of divine revelation; in fact, most of the teachings and practices now associated with any particular religion have resulted from human understanding, creativity, ability to transcend the limiting conditions of the present, and an ever-vibrant futuristic thrust shared by a group of people. Religion in its ideal state of affairs attempts to unite and liberate people who are otherwise said to be scattered and fettered through the isolating tendencies resulting from egotism or self-indulgent personal goals. This emancipatory role is facilitated by inviting those who subscribe to the particular worldview of a religion to live in conformity with a set of precepts enshrined in the scriptures or traditions ensuing therefrom.

In practical terms, religion provides the ambience for mutual knowledge and understanding among different individuals, facilitated around a commonly acceptable faith content, acceptance of which would accentuate intense and stable relations through periodic gatherings for prayer/worship and cooperation in works of common interest, including humanitarian concerns. In the context of a communion emerging from a commonly shared faith experience, there evolve social patterns and standardization; naturally, it is here that we find the need of introducing law within a religious setup. When law is closely and foundationally promoted by a religion, especially through its sacred scriptures, it would become the ‘rule of life’ commonly cherished by the votaries of a particular religious tradition. A cross-fertilisation that happens through the close collaboration between religion and law ultimately culminates in the generation of a living environment that would promote the good of individuals as well as that of the whole society.

Genuine religious systems, on the one hand, impart meaning into all that is brought under their purview and, on the other, make all that is brought under their wings also ‘hallowed’. Although religion would provide legitimisation to a legal system and would enable internal motivation for the same, it may become a victim of rigid standardization, sometimes even without providing a logical framework and rational justification. For, sacred legitimisation claims to be overwhelmingly powerful in the case of the believers of a particular religion; moreover, such a legitimization also introduces the impossibility of change and amendments, by asserting that it is so given by the divine law giver, although in truth everyone knows that all human legal mechanisms, whether promulgated by religious or secular authorities, are all human made or, at least, received in human patterns. That is, some religious legitimisations that resist change or modification, in certain instances, can turn out to be irreligious in content and impact.[2]

Notable examples in this case could be found in the caste system within the Indian society and slavery in the western societies. It is in relation to such contexts that V. R. Krishna Iyer wrote: “… when millions are seized by communal convulsions and countless lives are lost in religious carnage the law cannot wish away macabre bitterness. Secular law had to face this sensitive challenge of degenerate religion.”[3] Law is of help, then, in safeguarding religion from slipping into excesses, as it may be verified in cases ranging from the rudimentary rules of primitive religions to the latest US Supreme Court verdicts in the cases of child sexual abuse among the clergy. When a religion loses track of its inspirational sources, such as its own sacred scriptures and the examples of the lives of exemplary members, it runs the risk of getting more attached to legal frameworks that can enforce discipline; unfortunately, however, without the necessary inner dynamic sources, which are considered to be the spiritual foundations that sustain members of a religion, law fails.

A religion is built on the faith affirmations of individuals and communities. The fundamental strength of any religious body is the faith and the ensuing practice of those who subscribe to the unique faith perspective of that religion. However, what we find in the case of the organized religions, in particular, is the fact that this foundation is not sufficiently attended to in the formulation of their religious legislations; instead, such a base is taken for granted in the enforcement of the enacted laws. That is, when it comes to the application of the legislations, they are coerced by articulating the implications of their faith declaration. The ineffectiveness noted in the area of religious legislations is ascribed to the fact that there is erosion of religious foundations, not only at the end of the whole process (i.e., at the level of practice by ordinary people), but also at the very source of such legislations, as, at least, some of such legislations have resulted from those who are at the zenith of the hierarchical structure of religious authority. If they had taken stock of the faith foundations of the faithful and the importance of genuine religiosity, the enacted legislations would have organically emerged from the faith-life and the existential contexts of those faithful, instead of surreptitiously locating their source exclusively in the power corridors.

Experts dealing with the law within the framework of religions are generally well-versed in the laws; however, as they have their foundation in the scriptures, those who promulgate, deliberate, and interpret the laws must have not only a broad knowledge of the scriptures (mostly understood literally) but must have proper scientific grasp and the technical know-how so as to interpret the scriptures for the present generations based on the central values, spiritual insights, and true religious perspectives. If not, it is highly probable that these ‘experts’ would do more harm than good to those religions to which they declare allegiance, and for whose sake they apparently involve in religious legalism. In this context, training/educating new members who would engage in studying and interpreting the rule/law shall not be made exclusively juridical. While juridical aspects are important and need constant attention, those scholars need to be given ample training in scriptural foundations and holistic theological interpretation.

Religion crystallizes the global inheritance of human wisdom which shall be wisely accepted as the foundation as well as an ongoing catalyst in further enriching our legal systems around the globe, be it ‘sacred’ or ‘profane’. It is generally admitted that incorporation of religious thinking and its inspirational sources into the development of law has constantly encouraged a progressive moral development within every legal system. Even the development and declaration of human rights by the UN have been traced to religious ideals, although religions had appallingly betrayed their noble ideals through their conspicuous but unbecoming silence, especially when human rights were crushed under might of abusive religions and arrogant state machineries. In their close proximity, religion and law, at least in the initial stages of the latter beginning to affirm itself as an independent discipline, have drawn inspiration and strength from each other. Of course, the mutual interdependence of religion and law have been instrumental in making them more inclusive, though at times things have gone berserk through the exploitation and exclusive use of each other.

Strictly speaking, law has its source in reason’s quest for order and maintenance of justice in the ongoing development of our social life. Hence, there is a gradual process of social evolution involved in the development of any legal system.[4] It is endowed with the ability to inspirationally animate (religious law) and politically coerce (civil/criminal law) people into an orderly life.[5] The enforcement of law, generally, involves a heteronomous move where the autonomy of the ordinary is protected against the selfish onslaught of the more powerful ones.

… [O]n the one hand, law is perceived by the citizen and mankind in general as an external reality, like a human expression of a heteronomous willpower, which limits the freedom and autonomy of the person. The law is seen as the concrete manifestation of the compulsory force of an organised power system or downrightly as the expression of the free will of the strongest… On the other hand, the same law reveals itself to mankind as the indispensable instrument that guarantees, precisely through the imposition of determined limits on individual liberty, order and peace for common civil life. In this latter viewpoint the law manifests itself to mankind as a social factor of prime importance that permits the individual and the collective plan their civil future with confidence. The law is therefore perceived as a balancing element and as the human expression of a superior justice that transcends individual interests.[6]

These human dynamics really give rise to a resistance among those who have to follow legal injunctions. Such a resistance is especially encountered by those who are said to be responsible to oversee the successful application of religious legislations.[7] Although inspirational wisdom is accepted as the foundation of religious motivation, very seldom it is directly perceived as the foundation of legislations, much less when it comes to the punitive enforcement of those legislations. This points to a crisis pervading the corridors of legal enforcement machinery that lacks solid moral foundations, especially as the common people realize an erosion of values in the profession and practice of law: in fact, it starts from the stages of legislation and promulgation and pervades all through interpretation and application, thus leading to its ignominy and ultimate impotency.

There were attempts made by various revolutionary movements within religions to highlight the divide between the spiritual and the legal, apparently with the intent to redeem the former by claiming that the latter was completely secular. This view, however appealing to the radicals, does not seem to be doing justice to the human aspect of the religious reality. For a sample, I quote the position of a German Protestant theologian, Rudolph Sohm, whose views were permeated by a denial of all that is human within the religious reality: “Canon Law has shown itself above all as an attack on the spiritual essence of the Church… The nature of the Church is spiritual, the nature of the law is worldly. The nature of the Canon Law stands in contradiction to the nature of the Church.”[8] In spite of the unbecoming practices and horrors unleashed against human beings and their dignity, some times, by religiously sanctioned laws, I prefer to differ with the view expressed above which claims that law stands in contradiction to religion. Insofar as religion is a human attempt to capture and carry the divine encountered in human history and horizons of human life, it cannot but be human. Insofar as it is human in its dynamics and a plurality of members is involved (thus, taking religion to a public domain), it cannot escape the humane need of legal frameworks. What we should insist upon is the fundamental role and positive influence that genuine religious experiences have to play in the formulation and promulgation of legal enactments in view of the enhancement of life aimed at by religions.

Jurisprudence triumphs in a society only when an enlightened social conscience is at its foundation. Emergence of a consciousness that is sensitive to the transcendental dimension of life as well as the age old universal values enshrined in human conscience needs to be facilitated through conscious efforts. There is a need to elevate the consciousness of the masses to higher levels, where integration would be a key factor. Such an enhancement of the consciousness may be better facilitated by religions, as their primary motive as well as the fundamental process is designed to initiate and maintain higher levels of consciousness among their members, a level of consciousness that is otherwise lost sight of in the vicissitudes of human life.

An anomaly that we find within the context of religious legislation is the lack of proper equity accorded to some sections, forming, in most religions, a major part of the faithful. Particular reference must, in this regard, be made to the women folk who form at least half of the faithful in most of the religions. Take any place of worship, except probably the Mosque, the congregation is mostly constituted by female devotees. When it comes to attending religious ceremonies or fervent religious practices, women seem to be outnumbering men. Although this is more or less a universal phenomenon, when it comes to religious legislation, both the role and the influence of women are said to be almost completely absent. Unfortunately, in the case of both organized and unorganized religions, compliance of women with regard to religious legislations is taken for granted and, as a result, they are seldom consulted and not even given proper platforms to express their concerns as well as viewpoints. Moreover, the chauvinistic attitudes prevailing among those who wield authority in such religions continue to ignore this major part of the faithful. Whatever is the justification that they come up with, if the strength of a religion ensues from the practice of faith, naturally, those who form part of the faithful should have a role in legislating and enacting laws, even if democratic procedures are not integrated into their legislative ethos. If not, it would only show the paucity of such religious frameworks in addressing the existential aspects of the faith practice in the life of all concerned. If justice needs to be done in religious legislations, these religions have no alternative than admitting all concerned, especially women – the hitherto neglected partners in religious experience and religious management – in the processes that are adopted in enacting any further legislation within their ‘sacred’ precincts. In fact, the declining enthusiasm to religious legislations and the coldness with which religious legislations are thrown to winds in the contemporary society could be attributed, at least partly, to the lack of equity in enacting and promulgating legislations; if the faithful are given a chance to be heard in the enactment of the laws, there would be better chances that these legislations will have their acceptance and effectiveness in the lives of the same faithful.

Reference to the lack of equity in religious legislations takes us to a general pattern that is prevalent in the dynamics of secular as well as religious legislations. A common denominator in unjust legislations present in any society – be it religious or secular – is the fact that there is no representation given to the people concerned who are expected to abide by the legislations. Moreover, those who are instrumental in enacting such legislations do have their interests at stake if certain legislations are not promulgated. As private interests of those who wield authority assume the centre stage in legislative processes, many a time they would be led to the establishment of unjust laws, not to serve the genuine and valid interests of all concerned but only of those who are at the helm of affairs. In certain cases, however, nominal representations are provided to the people concerned which is necessary in all democratic setups, although, in reality, the said people may not have any say in the actual choosing of their representatives; it would be mostly dictated by those whose interests are at stake. Such legislative mechanisms, very much functional in our contemporary national as well as international political and religious arena, seem to be ultimately incapacitating the legislative machinery in serving the good of the people concerned. Thus, it is quite alarming to note that when it comes to exploitation through legislation, both religious law and secular law would fall back upon the same dynamics. It would become all the more troublesome, if these two begin to function hand-in-glove to conspire against the people – be they believers of religions or the electorate of a polity. Although codifiers of the law aspire and assert it to bring a liberative experience to its subscribers, very seldom does it become really liberating. For, collaboration of religion and politics for exploitative purposes is a deadly combination, as it is repeatedly attested to in history.[9]

Equity destroyed or denied through the collaborative designs of religion and politics cannot be redeemed as long as they retain reins of power in the society. Longer such systems prevail through their conspiracy, people remain in fetters, and longer it is sustained through more and more unjust means, cry for liberation from such exploitative legislations would become louder and louder until they are granted freedom and equity through proper channels that could be at the same time humane and religious.

We live in a world where religion and law intersect quite often, especially in the context of the modern state, which has assumed an all-pervasive role in human affairs. Gone are the days when a mere religious sanction would settle all issues. As people claiming non-allegiance to any form of organised religious lifestyle become increasingly assertive, we are faced with an existential situation of competition between organised religionists and outsiders. For example, if people conducting their religious worship in one place complain about another social or sports event being conducted, how would we look for a settlement. In fact, both being affairs of the society, we need to look for a resolution, lest the common good would be adversely affected. If such a complex situation is analysed and resolved merely by referring to the religious tenets, it can naturally evoke resistance from many corners. For, the invoked religious tenets need not have universal approbation. This is not to suggest that the religious tenets are of no value; moreover, in the context of Indian secular state, especially, where a multitude of religious affiliations forms the backbone of the society, having no regard for religion or having a preference for a particular religion in settling issues related to public welfare would only fetch doom. However, as public welfare is at stake, I would suggest, the law of the state has to play its pivotal role in settling such issues without infringing the freedom of individuals, balancing it with reasonable demands from other groups who also form part of the state.

When religion is put before the bar of law, naturally, religion would be understood only from the legal perspectives, commitments, and goals. As objectivity plays a crucial role in the legal worldview, a legal version of religion would naturally be reduced to its symbolic expressions, structured dimensions, external practices, and normative commitments, which, though are important aspects of religion, by themselves would not make the reality of religion. In the same way, it is dangerous to reduce the whole of religious reality and religious consciousness to a few aspects of a culture, almost amounting to an assertion of the identity of religion and culture. Moreover, there is an increasing tendency among jurists and legislators, to claim a definitive distance from religion, especially from the period of Enlightenment onwards, which seems to be climaxing in the secularist globalized philosophies that have gained currency in the affairs of the day. However, if an impoverished form of religion is accepted as the point of reference by the bar of law, it would result in an impoverishment of law itself, as ‘being religious’ participates in a predominant worldview which continues to be offering enhancing perspectives to a great variety of peoples living across the globe.

Although constantly found on the warpath, religion and law seem to be allies working hand-in-hand when it comes to their own benefits. No organized religion functions without subscribing to its own legislations, even if they are said to be founded on revealed wisdom (being inspirational in content and character); in their attempts to enforce religious legislations, religious authorities do not hesitate to take recourse to secular mode of external and coercive penal mechanisms. In the same manner, secular legislative bodies, which assert their independence from non-secular authorities, including religious ones, do know well that religious motivation is a powerful tool in generating a positive allegiance towards the legislated laws by providing an internalizing mechanism supposedly issued from a constantly evolving religious consciousness. As long as these two rivals remain pretentiously on their own ideal path, they seem to be on the fighting mode, probably in their attempt to prove each other’s supremacy. However, when it comes to their own territories, while they continue to insist on their independence, both attempt to capitalize from the other’s treasuries, though quite reluctant to openly admit the fact.

Another interesting factor in the mutual interaction between law and religion is their ability to be a corrective to each other. While religious excesses have many a time been curbed by secular law,[10] enabling religious authorities to function in a human mode without losing their transcendental dimension, we do not lack instances where religious offices have been put to use to curb the ill effects of some of the secular legislators/legislations that had haunted various peoples and civilizations. Apart from providing “a transcendent perspective by revealing a dimension of human life over and above the social and political order,” “religions set a limit to the power of the collectivity and the state, since in a religious context the state cannot pretend to be the unitary source of all authority.”[11] Thus, religions have to don a prophetic role in the vicissitudes of life vis-à-vis the legislations promulgated by legal regimes, especially when they are made to perpetuate unjust practices through legal sanctions. It is in such contexts that religion has to function as the conscience keeper of the society, without being and becoming the co-conspirator of unjust political regimes, and speak out relentlessly against them for the sake of establishing and maintaining a social order based on an uncompromising value system.

Religion thus approached is gravely in need of thorough introspection which would enable itself to be the relevant voice to our times and peoples. Every religion is in need of transcending its self-imposed, historically conditioned faith formulations – including certain dogmatic formulations and related practices – which tend to belittle itself and limit the liberative dimensions of faith experience with a view to broadening the horizons and deepening the commitments to the causes of humanity as well as nature. Indeed, its lost contacts with the inner recesses have to be re-established, and the spiritual fountains are to be freshly unearthed. No amount of political clout will redeem the inner vitality of religion; it needs to be recharged by its own spiritual power centres that would infuse its inner and outer mechanisms as well as any other system – including law – that could be made better through close collaboration.

Modern attempts that happened especially after the Enlightenment and World War II, leading to aggressive measures of globalisation, have facilitated secularisation and the resulting affirmations without the explicit reference to religious categories. In some cases, there have been attempts to use more inclusive languages and broader perspectives, which would be acceptable to audiences beyond the horizons of a particular religion; at the same time, in certain other cases, these secularisation movements were resulting from conscious attempts on the part of some to give up and condemn religion and religious categories. Though some valid attempts could be found in the latter, there is no rational justification in sidetracking the whole of religion and religious categories for the secular, as it reflects only an option for a different point of view, which does not necessarily enjoy immunity from further criticism and rejection. In fact, despite the affirmative steps of secular minded individuals who have assumed offices in political or civil arenas, and a decline in the numbers of meticulously practising individuals within the religious sphere, a religious perspective shared by many across the cultures and political regimes cannot be simply wished away. If we are ready to face the fact, it must be admitted that even the contemporary world of 21st century continues to be religious despite the so-called onslaught of secularism and many other anti-religious theories. Given this, some introspection is necessary on the part of both religions and legal regimes, so much so that they would succeed in facilitating more inclusive approaches.[12]

Moreover, the secularists’ attempt to drop the religious vocabulary altogether (e.g., God, the Creator, the Divine, etc.) simply does not mean that all that was (and is) cherished as religious is completely given up. Despite such an apparent absence, a closer perusal of the new language will obviously bring to focus the fact that most of the cherished values propounded by religious traditions all through history are found to be present, though presented in a secular garb. Thanks to some such secularists that these attempts have been more effective in powerfully putting across such great ideals, which otherwise the religions have been hitherto incapable of doing effectively.[13] In this context, it is up to the religionists to continue to strive to give visibility to the ideals that they have been religiously adhering to among their in group members, thus, redeeming and maintaining the importance of religious ideals, terminologies, and concepts.

Despite the presence of many extreme secularists who tend to wish away religion altogether, claiming that it has lost its relevance and vitality in the modern era (mostly because there is a decline in an overall response to the life patterns proposed and maintained by organised religions), a close scrutiny will quickly convince us that humanity as a whole still aspires for religious foundations, especially since many modern alternatives seem to be sheer short lived meteors. Humanity is still on the lookout for firm and transcendental foundations, which nothing but religion alone can offer: “People will not give their allegiance to a political and economic system, and even less to a philosophy, unless it represents for them a higher, sacred truth. People will desert institutions that do not seem to them to correspond to some transcendent reality in which they believe – believe in with their whole beings, and not just believe about, with their minds.”[14]

Having affirmed the necessity of religion and religious ideal and the all-pervading role of law in human life, we find them merging on the platform of morality. Religion penetrates into the day-to-day living of its votaries not only by routine rituals or religious practices but also by inspiring them to live a life in accordance with the moral principles. In fact, a religion’s success can be measured in its ability to inspire and motivate its members in living a virtuous life in accordance with the principles enshrined and inculcated in its sacred scriptures and other subsequent teachings. On the other hand, in the case of law, we come across with morality as its foundation. Although validation of a legal system is mostly made through political processes, the ultimate source that lends credibility to any law is morality, so much so that the absence of the latter would make the former hollow and sterile, although it would continue to exercise its power within the frameworks epitomised by itself. Thus, while religion infuses morality with inner spirit (meaning) and motivation, the same morality enables legislations to be meaningfully founded on universal principles that have emerged from the collective practical wisdom of humanity in different places and ages. It is true that our century, apparently claiming to be established on secular foundations and profane values, seems to be ignoring these bases and connections; an integral personal as well as social life, however, could be facilitated when human societies succeed in holding together religion and law through the dynamics of morality.

We live within a world-wide-web where enactment of any law requires not only a consideration of the given context and the interests of the immediately affected individuals. In fact, the ‘butterfly-effect’ that has gained currency in the scientific world seems to be operative even in the arena of legislation. Legislations, therefore, can be made, interpreted, and applied only after having appraised of its wider ramifications, ranging from scientific considerations, religious aspirations, issues related to transport and communication, and commonsense concerns. That is, even simple legislations done in a concrete setting (local or global) offer legal as well as religious consciousness immense opportunities for mutual interaction, critical and creative support, and enhancement.

We witness an increasing tendency to deny the prevalence of religious influence, especially when it comes to governance of the state and its people. There seem to be conspicuous attempts made by the interested parties, who qualify themselves to be secularists, to shun religion from the public sphere and relegate it exclusively to the private sphere.

Conventional accounts of law, human rights, and democracy afford little space to religious ideas and institutions. Laws are generally viewed as rules and statutes promulgated by the sovereign, not as temporal elaborations of a divine or natural law. Human rights norms are generally viewed as secular claims to a good life, not as corollaries to divine duties for right living. Political rulers are generally viewed as representatives of public opinion and vindicators of human rights, not as vice-regents of God or champions of divine justice. To be sure, most writers today would agree that religious believers must be guaranteed liberty of conscience and free exercise of religion and that religious institutions must be guaranteed collective worship and corporate organisation. But religion, according to conventional accounts, is fundamentally a private matter with little constructive role to play in the drama of law, human rights, and democracy.[15]

It is an attempt to deny any creative role to religion and religiosity in the social lives of people by restricting it to the private space. Those who gear up such a theory seem to forget the organic connection between the religious ethos that has been instrumental – sometimes even through certain negative mechanisms – in birthing a humane worldview that is fundamentally religious in substance, although, in some cases, the traditional anti-human garb and authoritarian stand of those who were at the reins had betrayed the real religious core, thus, wrongly winning for it notoriety among the modern intellectuals. The failure of a few at the helm of affairs, I think, cannot be taken to be the failure of a movement or a system; their short-sightedness and exploitative tendencies for personal fame and name, probably are at the back of it.

The attempts made by materialists and secularists who shun everything spiritual as an artificial addition to human mode of existence must be curbed and, instead, conscious efforts need to be initiated to build up a social fabric which is integrally human and religious at the same time. The new political culture that seems to be doctored by the secularists tries to sabotage the proper balance between being human and being religious, as they consider secular foundations to be self-sufficient to build up a society; however, the failure of secular democracy in the Indian situation, for example, attests to the fact that we should not ignore the transcendental aspect of life in setting the social foundation for political governance, especially within a democracy where the electorate is expected to be enlightened and to maintain a balance between various dimensions of human life. Instead of religiosity being exploited for cheap electoral gains, religious leaders as well as ordinary religious believers must be united in lending support to raise a social consciousness that would be akin to the perpetuation and practice of validly enacted laws by infusing them with value backup and transcendental ideals which can pull it through the thick and thin of individual and social life. Without letting itself be reduced to a mere tool in the hands of vicious politicians, religion should assume its fundamental role of animating the citizenry to realize the value of every legislation and thus enable them to meaningfully design a life around the political and legal structures that are essential for an enhanced human existence. In fact, mere legislations and the strict practice of laws are insufficient to develop and sustain a law-abiding society. Creating a healthy ambience for a law-abiding life requires a social consciousness that draws from human creative intelligence and its transcendental resources, which together would enable the development of enlightened norms for a dynamic and meaningful social life.

Intense search for meaning is characteristic of the postmodern phase in the development of human social living. Although the religious dimensions of human experience would influence the holistic development of the law, a mere religious justification is generally considered to be insufficient in infusing the institution and practice of law with meaning and relevance. It is true that lawfulness is essential for human society; however, the formulations of law that are accessible to human societies, as all of them are said to be in one way or another originated through human agency, must be open to change and transformation as it would be dictated by the need of the times. As it is stated earlier, due to the human element present in religious legislations, even they are mutable and should be changed as and when the need arises. In case, the possibility of change is ruled out in terms of timelessness of legal formulations, they would gradually become irrelevant in designing a meaningful life – both for the individuals and groups. In fact, an absolute denial of the need of change would only spoil the spirit and goal of law, so much so that lack of respect or a total rejection of the law would prevail, ultimately causing the distortion and un-attainability of the common good of the society.[16] Postmodern challenges call for creative responses emerging from both jurisprudence and religious authorities to reconsider every legislation and its supportive metaphysical position and religious motivation, in such a way that acceptance and practice of various laws would enable its adherents to ennoble their lives in better ways that they are otherwise accessible to them in the vicissitudes of life. As various mechanisms adopted in the social living are put in place to facilitate nurturing and elevating humanity to its highest levels of existence, religion and law should facilitate their ultimate goal in terms of communion among individuals and communities. Then, truly an exalted communitarian consciousness would finally be attained.

Religion and law seem to be interacting with each other; at times, it is smooth and mutually enhancing, while at other times it had been tumultuous. On the positive side, if religions could keep themselves open to the creative interventions initiated by certain legislations and, on the other, the legislative bodies to the positive insights and promptings of religious scriptures and authorities, without infringing upon the rights of each other, a lot of good may be accomplished. For example, in certain instances, a specific law enacted may beckon a particular religious tradition to higher standards than its prevailing beliefs, practices, and even the inner dispositions that individual believers allow, as what has happened in the cases of abolishing slavery and caste system, recognition of women’s rights, etc. Indeed, sometimes such instances would even call for serious and genuine introspection that can create disturbing tremors in the corridors of power, whether it is religious or political. Law can challenge particular religious communities to go beyond the self-assumed but limiting boundaries of personal as well as social living, usually ascribed to the belief systems put in place by religious inspirations and ensuing traditional practices.

A religious response to legislations or a legal response to religious consciousness shall not, by itself, engender pessimism: if it happens it would amount to sheer prejudice. Religion and law, as two arms of human consciousness, by being sensitive and responsive to each other, shall mutually contribute towards the preservation, inclusion, and transformation of each other in an ongoing process of enhancing and perfecting human living.

It is with such a positive as well as a critical note that Journal of Dharma has initiated a discussion on “Religion and Law: Forces of Liberation.” The contributors to this volume have approached the issue with scholarship and imagination and, in general, have come up with a clarion call for both religion and law to consciously and conscientiously exercise their roles in order to attain liberty by liberating humanity and the entire creation from the maladies of disorder and lawlessness, sometimes epitomized by these guardians of humanity itself. “Law and Religion: A Feminist Biblical-Theological Critique” by Pauline Chakkalackal scrutinizes patriarchal nature of the biblical texts, on the one hand, and their liberative potential, on the other. She poses an existential challenge to various practices within the Church-life and calls for a radical metanoia, which she believes would bring the Church back to the spirit of Jesus, the source and agent of true liberation. Sebastian Mullooparampil, in his article entitled “Jesus’ Liberative Approach to Jewish Law and Religion,” makes an earnest attempt to unveil the liberative approach that Jesus had adopted in imbibing the true spirit of Old Testament worldview and, at the same time, transcending the corrupting elements within that framework, not merely by offering a reinterpretation of the law, but by offering his own life and thus inaugurating a new paradigm of the law of love: transforming and fulfilling the OT understanding of religion and law through an ongoing kenosis of unconditional self-giving. Continuing the liberative quest, Cherian Thunduparampil approaches the issue from the perspective of the canon law in his article, “Canon Law: Liberative or Restrictive?” Based upon a detailed analysis of marriage annulment cases and the issue of freedom of expression, the author conclusively proves that the laws, including the penal laws, established in the Church through the Canon Law are essentially intended to be liberative. In a brief reflective article, “Justice Wedded to Mercy: Law and Religion Paving the Way to Freedom,” Benny Joseph scans through the historical development of law in human thought and affirms that the rule of law has the primary end of realizing justice in the society. In the final entry, “Nyaya Panchayat: Towards Speedy and Easy Justice,” Davis Panadan takes us through the rich cultural heritage of ancient India, which is found to have made lasting contributions in the field of administration of society. Against the background of the popular statement, ‘justice delayed is, in fact, justice denied’, his study of the Nyaya Panchayat system indicates that it could be taken as a viable and valid alternative to avail speedy and easy resolution of legal issues in the present context of India.

Life is an ongoing process, both at the personal and the societal levels. As this process unfolds in human life, it is inevitable that new circumstances would emerge which would call for renewed approaches from religious as well as legal frameworks. In fact, radically new circumstances call for radically new approaches and, if the frameworks available in the traditional paradigms are insufficient to address them, we need to look forward to consciously formulating the needed new paradigms, without losing sight of both the successes and failures that humanity has realized over the centuries, whether it came from particular religious doctrines or politicized legal regimes.

As omnipresent agents in human social living, the reach of religion and law is immense. Both of them could shed light from their inner core and can dispel the darkness that surrounds the human community that is losing its grounds to abysmal proportions. Their ability to overcome chaotic ripples in human consciousness and turbulences in social existence through establishing order and cohesion resounds their natural but symbiotic relationship that is ideally conceived in their mutually enhancing functions. This points to an abundance of optimism that these two human devices would evolve better mutual understanding and ongoing creative mutual critique so much so that they would continue to fulfil their role of generating and maintaining order in enhancing the human state of existence and, thus, reinstating the natural rhythm of the whole reality.




[1]James A. R. Nafziger, “The Function of Religion in the International Legal System,” in Religion and International Law, eds., Mark W. Janis and Carolyn Evans, The Hague: Martinus Nijhoff Publishers, 1999, 159. See also Mircea Eliade, The Sacred and the Profane: The Nature of Religion, trans. Williard R. Trask, New York: Harper and Row, 1957, 29.

[2]Herbert Spencer captures this very vividly in the following text: “Ecclesiastical institutions … strengthen social bonds and so conserve the social aggregate, but they also offer extreme resistance to change.” The Principles of Sociology, New York: Appleton, 1897, 770-771.

[3]V. R. Krishna Iyer, Law and Religion, New Delhi: Deep and Deep Publications, 1984, 20.

[4]For example, V. R. Krishna Iyer puts it as follows: “a country's constitution is not a sudden revelation inscribed in the paramount parchment. It is an evolutionary manifestation of cultural values, historical experience and contemporary social realities.” Law and Religion, 20.

[5]Forcing others to subscribe to a particular religion’s worldview through legislation is irreligious as well as inhuman, even if that would involve some of the cherished beliefs of the latter. Further, the same principle is applicable to secularists as well who would force people who subscribe to religious point of view in accepting the formers’ standpoint.

[6]Libero Gerosa, Canon Law, London: Continuum, 1996, 5.

[7]Gerosa writes, in his Canon Law (6), about the negative response to the positive law enforced in a religious setting: “In the Church too the experience of ecclesiastical law reveals itself above all as negative: the confession of faith in Christ, mankind’s Redeemer, which forms a strong spur to personal liberty, is limited in its concrete manifestation by canonical norms; so too divine law, which finds in prophesy and charism two particular expressions, can historically affirm all its binding force only through the interpretation and positivisation of human law. On the other hand, less immediate is the positive experience of Canon Law as a totality of norms that guarantee the permanence of the identity of the Church and the unity of the symbol of the faith, inseparable from the action of the Holy Spirit, through the protection of the substantial truth of the Sacrament and the Word of God.”

[8]Rudolph Sohm, Kirchenrecht, I: Die geschichtlichen Grundlagen, Leipzig 1892 (2. Auff. 1923, Neudruck: Darmstadt 1970), 700, cited in Libero Gerosa, Canon Law, London: Continuum, 1996, 7. Here it is not my intention to imply that only Protestant theologians subscribe to this view; in fact, there are both Catholic theologians and the leaders of other religions who hold that the said separation between religion and law must be maintained.

[9]In history, we do come across with instances in which religion and law have assumed the roles of tyrants; being tyrannical in themselves when they lost sight of their purposes, their combination had resulted in irredeemable catastrophes in human societies. Religion and law, if absolutize themselves by taking an upper hand, even to the extend of hating humanity, in general, and human beings, in particular, instead of enabling the latter to actualize their human potentials and to surge ahead to those unknown limits of life and existence by infusing it with immanent meaning and transcendental motivation, would both be as bad as blasphemy, treason, or lawlessness.

[10]According to Krishna Iyer, law is used to over-power savage religious injustices: “Sati was abolished by law, child marriages were abolished by law. The Special Marriage Act provided for inter-religious marriages. Even Muslim divorce at the instance of women, was allowed by law in certain limited circumstances. Maintenance for destitutes and children, beyond what the Muslim Law provides, was allowed by Law (Section 488, Criminal Procedure Code). Now, by Section 125 of the Cr.P.C. 1973, even divorcees, regardless of religion, are entitled to maintenance from their husbands. Parliament has made law whereby Hindu women have better terms of inheritance, better right to divorce and maintenance and, generally, better status.” Law and Religion, 73-74.

[11]Hilary Charlesworth, “The Challenges of Human Rights Law for Religious Traditions,” RIL, 405.

[12]There are many legal frameworks recognizing religions and religious consciousness; however, owing to the historical conditionings, such a recognition tends to be very narrow and, therefore, in the context of 21st century it is essential that the constitutional laws adopt a rather broader framework of religion and religious consciousness so as to be more inclusive; it would pave the way for better mutual acceptance and to pool together the strength of human community in diverse fashions.

[13]For example, the UN Charter of Human Rights.

[14]Harold J. Berman, The Interaction of Law and Religion, Nashville, TN: Abingdon Press, 1974, 73.

[15]John Witte, Jr., “Law, Religion, and Human Rights,” Columbia Human Rights Law Review 1, 1 (1996), 28.

[16]For example, the prescriptions to protect the rights of women, as they are enshrined in the “Convention of the Elimination of All Forms of Discrimination against Women” (UN, 1979: see http://www.un.org/womenwatch/daw/cedaw), have been rejected by some religious traditions (particularly, Islamic nations cited that the Convention goes against provisions of the Shari`a in resolving conflicts among individuals; see text of footnote 8 at http://www.socialwatch.org/en/informes Tematicos/86.html#_ftn8) on the pretext of these prescriptions going against the scriptural injunctions and traditional practices.

1 comment:

ajith said...

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WITH LOVE AND RESPECT
AJITH