We tend to think of law as a system of binding rules of conduct, available in written form (a “law code”) and usually enforced through a set of institutions. However, anthropologists have ascertained that even tribal peoples without writing honor legal principles that are preserved through oral transmission. In fact, most legal systems derive in whole or in part from oral precursors. That is true, for example, of the Common Law, the system dominant in most English-speaking countries.
In addition, the Greeks recognized “unwritten law,” a set of transcendent principles which may overrule conventional law codes, especially with regard to precepts that seem unjust. Sophocles’ Antigone appeals to this principle of unwritten law when she insists on burying her deceased brother, even though the tyrant Creon has forbidden it. This principle of the unwritten law has contributed to the development of international law It also fosters social movements based on an appeal to Justice, as those movements that seek to secure rights for ethnic and erotic minorities. Sociologists recognize a category of “victimless-crime" laws, with the implication that they are illegitimate, or at best superfluous; they should not be laws at all.
In another way, we designate principles in the world of nature that are thought to be immutable, such as the laws of mathematics, the laws of physics, the laws of logic, and so on. A still-controversial field of philosophy, known as Natural Law, seeks to extend this scientific principle to ethics, though many regard this endeavor as an impermissible breach of the boundary between “is” and “ought.”
In the Judaeo-Christian tradition the expression “the Law” characterizes the “revelation of the will of God” set forth in the Hebrew Bible. Among Jews this meaning applies particularly to the Pentateuch (the Torah in the strict sense).
More generically, “Jewish law” refers to the Halakha, a set of obligatory principles that guide not only religious practices and beliefs, but numerous aspects of everyday life. Halakhah embraces not only the laws described in the Torah, but also the 613 commandments (mitzvot), as well as later Talmudic and rabbinic law, customs and traditions, (A more literal translation of Halakha might be "the path" or "the way of walking;" the word derives from a Hebrew root meaning to go or to walk.)
These usages are of considerable interest in their own right. Still, the aim of this chapter is to examine the role of law in the strict sense in Judaism, Christianity, and Islam, with due attention to the broader legal and cultural context.
LAW IN THE NEAR EAST
Some American religious conservatives are fond of proclaiming that the “Ten Commandments are the basis of our law.” This assertion is false. The basis for legal system in the United States is the English Common Law as modified by the Constitution and the legal enactments of our Congress. Many other countries observe Civil Law traditions, deriving ultimately from the Roman codification of law. Neither of these major legal systems relies on the Ten Commandments (otherwise known as the Decalogue), or indeed any of the collections of laws and precepts found in various books of the Hebrew Bible.
What is the nature of the laws that appear in that Bible? In addressing this question, context--the Middle Eastern setting--is all important
Many believers, Jewish and Christian alike, regard the law passages of the Hebrew Bible as sui generis. They stand alone because they are, ostensibly, the word of God. If so, God was rather busy rushing around in olden times, for modern scholarship has shown that the Israelite laws are part of a vast cultural and legal network in the ancient Near East.
A prerequisite for this broader contextual approach was the decipherment of the cuneiform script. Here the decisive step was taken by Sir Henry Rawlinson, a British army officer, who published his interpretation of the Behistun inscription in 1851. Like the famous Rosetta Stone, this monument was trilingual: Old Persian, Elamite, and Akkadian. Gradually, other languages, including Sumerian, Urartian, Hittite, and Ugaritic, were deciphered.
Sometimes the term cuneiform law is used to refer to any of the legal compilations (commonly, but inaccurately known as “codes”) written in cuneiform script, that were developed and used throughout the ancient Middle East among the Sumerians, Babylonians, Assyrians, Elamites, Hurrians, Kassites, and Hittites.
Why are these documents not codes in the true sense of the word? The answer is that they lack the comprehensive scope and systematic arrangement that characterize such later achievements as the Justinian Code (sixth century CE) and the Napoleonic Code (nineteenth century). Instead, these Near Eastern legal corpora are florilegia, that is, anthologies that probably grew gradually by accretion, but never extended to embrace the full range of prevailing law, much of which remained oral. As such, this type of law was transitional between the informal law customs of tribal peoples, of necessity oral because of lack of literacy, and our own comprehensive systems of written law.
The so-called Code of Hammurabi (the sixth king of Babylon, who probably ruled from ca. 1792 BC to ca, 1750 BCE) is the best known exemplar of the cuneiform laws. Discovered in December 1901, it contains over 282 paragraphs of text, not including the prologue and epilogue. As with the Flood story, and other Near Eastern motifs, striking similarities have been detected in kindred material embedded in the Pentateuch. However, these parallels must not be exaggerated, for Israelite law has some distinct features of its own.
In 1934 the German biblical scholar Albrecht Alt took a decisive step forward. In a paper published in that year he distinguished between two types of laws found in the Pentateuch. The first, or Casuistic type, is characterized by the formulas “If such, then ...”, “When such, then .. , or “Supposing, then. ...” These laws abound in the so-called Book of the Covenant (Exodus 20:22-23:33), situated immediately following one of the redactions of the Ten Commandments. Here are two examples pertaining to livestock. “If someone’s ox hurts the ox of another, so that it dies, then they shall sell the live ox and divide the price of it; and the dead animal they shall also divide.” “When someone steals an ox or a sheep, and slaughters or sells it, the thief shall pay five oxen for an ox, and four sheep for a sheep.” (Both NRSV).
Formulated in this way, such laws are well suited to the actual operations of a court, because the fulfillment of the opening condition triggers the application of the law. Absent the condition, there is no cause of action, as today's lawyers say.
The second type of law in Alt’s classification consists of Apodictic laws. These dispense with the opening clause, flatly forbidding or commanding a certain sort of behavior. We are familiar with one category of these in utterances of the “Thou shalt” and “Thou shalt not” type. An example infesting the Book of Covenant is the notorious “Thou shalt not suffer a witch to live." (KJV; Exodus 22:18).
Alt held that only the second type was distinctly Israelite, while the legal precepts of the first type were borrowed from the Semitic environment, specifically (he conjectured) from Canaanite law. Later scholars have offered some refinements, noting that the formal distinction of the two types is less clear-cut than the German scholar had assumed.
There are also difficulties--and this is a key point--in localizing the sources of the two types of law. Although major discoveries of Canaanite texts (the Ras Shamra finds) were being made at the very time that Alt was writing, no actual body of Canaanite law has been recovered. In all likelihood, the Casuistic laws derive from several Near Eastern sources.
There remains the problem of the origin of the Apodictic laws. It is tempting to regard these as a distinctive hallmark of early Israelite culture, precepts hammered out in the harsh school of the desert. Yet since the historicity of the exodus story is nowadays generally discounted, these laws were most likely created in the territory of ancient Israelite itself, as those who became Israelites gradually enucleated themselves from the Canaanite environment in which they had been originally embedded. One can easily obtain an Apodictic law by lopping off the opening conditional clause of a Casuistic law. Apodictic laws are then simply condensed, or (if you will) mutilated forms of Casuistic originals. I confess that I do not know how Biblical scholars would respond to this hypothesis.
At all events, a further question intrudes. Are the Apodictic pronouncements (including the Ten Commandments) actually laws? In fact they are better regarded as simply formulations of taboo, intended more for the observant than for the courts. As such, they are precursors of the vast compilation of 613 obligatory precepts (mitzvot) assembled by the rabbis. A harsh judgment would be that taken as a whole, such adjurations are a manifestation of a collective and transhistorical case of the Obsessive-Compulsive Syndrome.
At all events, the idea that is currently fashionable among Christian evangelicals and other conservatives--namely, that the Ten Commandments are the foundation of our secular law--is untenable. It does not correspond to what we know of the history of the common law and statute law.
EXCURSUS. Here are some examples of law collections from the ancient Near East:
• ca. 2350 BCE - Reforms of Urukagina of Lagash - not extant, but known through other sources
• ca. 2060 BCE - Code of Ur-Nammu (or Shulgi?) of Ur - Neo-Sumerian (Ur-III). Earliest legal florilegium of which fragments have been discovered
• ca. 1934-1924 BCE - Code of Lipit-Ishtar of Isin - With a typical epilogue and prologue, the law deals with penalties, the rights of man, right of kings, marriages, and more.
• ca. 1800 BCE - Laws of the city of Eshnunna (sometimes ascribed to king Bilalama)
• ca. 1758 BCE - Code of Hammurabi
• ca. 1500-1300 BCE - Assyrian law
As has been noted above, what is referred to as “Jewish law” alludes to the Halakha, that is to say the collective body of Jewish religious obligations that has evolved over the centuries.
In the diaspora, Halakha at one time served many Jewish communities as an enforceable instrument of civil and religious law. With the inception of the Age of Emancipation, however, Jewish citizens are bound to Halakha only by their voluntary consent. Yet under contemporary Israeli law certain areas of family and personal status law fall under the authority of the rabbinic courts and are therefore treated according to Halakha.
During the Second Temple period the norms of Jewish faith and of secular practice were enforced by a group of special courts, bearing the name of Sanhedrin. The Sanhedrin was a corps of twenty-three judges appointed to serve in every city in the Biblical Land of Israel. At the head of these courts stood the Great Sanhedrin, the supreme court of ancient Israel, comprising seventy-one members. The Great Sanhedrin was made up of a Chief/Prince/Leader called Nasi (at some times this position may have been held by the Kohen Gadol or High Priest), a vice chief justice (Av Beit Din), and sixty-nine general members. Meeting in the Hall of Hewn Stones in the Temple in Jerusalem, the court convened every day except festivals and on the Sabbath.
The last binding decision of the Sanhedrin dates from 358 CE, when the Hebrew Calendar was adopted. Continuing pressure and persecution from the Christian imperial authorities led to the dissolution of the Sanhedrin. Over the centuries, there have been occasional attempts to revive the institution, such as the Grand Sanhedrin convened in 1806 by the Emperor Napoleon.
In many countries of the diaspora today there are rabbinical courts which rule on certain matters. For example, a couple may seek a Jewish religious divorce, called a Get, but they will usually require a secular divorce as well, issued by the secular authorities of the countries where they reside.
THE NEW TESTAMENT WORLD
Lacking political power, Jesus and the Apostles found it expedient to acquiesce in the law of the land as defined by the Roman power. This principle is reflected in some interpretations of the “render unto Caesar” episode. As stated in Matthew 22:21, Jesus’ utterance reads in full, “Render therefore unto Caesar the things which are Caesar’s, and unto God the things that are God’s” (KJV). According to the Gospel accounts, the hostile questioners tried to trap Jesus into taking an explicit and dangerous stand on whether Jews should or should not pay taxes to the Roman occupation. Jesus was on the spot: should the tax be paid or not? The interrogators anticipated that Jesus would oppose the tax. Jesus first called them hypocrites, and then asked one of them to produce a Roman coin that would be suitable for paying Caesar’s tax. One of them produced a such a coin, and he asked them whose name and inscription were on it. They answered, “Caesar’s,” to which he responded as noted. Flummoxed by this authoritative (though ambiguous) answer, his opponents left disappointed.
Somewhat simplistically, perhaps, this utterance came to stand as a lapidary summary of the relationship between Christianity and secular authority. The original remark, coming in response to a question of whether it was lawful for Jews to pay taxes to the Roman emperor, has in fact given rise to multiple possible interpretations about when it is permissible for the Christian to submit to earthly authority. The interpretations range widely, encompassing several beliefs: that it is good and appropriate to submit to the state when asked; that spiritual demands supersede earthly demands, but do not abolish them; that the demands of the state are non-negotiable; or that spiritual authority must maintain its independence from temporal authority, which rules by force rather than moral law.
In Romans 13:1, the Apostle Paul seems to provide further clarification on this matter: “Let every person be subject to the governing authorities; for there is no authority except from God and those authorities that exist have been instituted by God” (NRSV). Resistance would appear to be simply wrong. However, this interpretation is disputed, because the Greek expression that is rendered “governing authorities” may refer to cosmic powers, instead of earthly ones.
When the word “law” (nomos) is used in the New Testament it usually refers to the Torah (as in the expression “the law and the prophets”).
Later, as the bishops emerged as powerful figures, they found it necessary to codify their own rules of procedure--hence canon law.
Canon Law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the governance of the Christian organization and its members. It functions as the internal law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. To be sure, the way that such church law is promulgated, interpreted and adjudicated In all these Christian traditions, a canon was initially a rule adopted by a council (from Greek kanon / κανών, meaning rule, standard, or measure); these rules formed the foundation of canon law.
The earliest stratum is the Apostolic Canons or Ecclesiastical Canons of the Same Holy Apostles, a collection of ancient ecclesiastical decrees (eighty-five in the Eastern, fifty in the Western Church) concerning the government and discipline of the early Christian Church. Also relevant are the Apostolic Constitutions, part of the corpus of writings known as the Ante-Nicene Fathers.
The Roman Catholic Church boasts the oldest continuously functioning legal system in Western Europe, predating the Common and European civil law traditions. What began with rules ("canons") of the early church has blossomed into a highly complex and original legal system encapsulating not just norms of the New Testament, but some elements stemming from the Hebrew Bible (Old Testament) as well as Roman, Germanic, and Celtic legal traditions. Collectively this material spans thousands of years of human experience.
In the Roman Catholic Church ecclesiastical laws, ostensibly based upon either immutable divine or natural law, or changeable circumstantial and merely positive (statutory) law derive formal authority and promulgation from the pope, who as Supreme Pontiff assumes the totality of legislative, executive, and judicial power in his person. The scope of the canons is not just doctrinal or moral in nature, but virtually all-encompassing in terms of the human condition.
In the early church the first canons were decreed by bishops assembled in two types of gatherings: 1) ecumenical (general) councils (generally called by the emperor summoning all of the known world's bishops to attend with the consent of the Bishop of Rome); or 2) "local" councils (comprising bishops of a region or territory). Over time, these canons were supplemented with decretals issued by the Bishops of Rome, responding to doubts or problems. In keeping with the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, the case is closed") the responses were final.
Later, the papal pronouncements were gathered together into collections, both unofficial and official. The first truly systematic collection was assembled by the Camoldolese monk Gratian in the eleventh century in a book known as the Decretum Gratiani ("Gratian's Decree"). A number of other popes, including Gregory IX, Boniface VIII, and Clement V, promulgated further collections.
By the nineteenth century, this body of legislation had grown to include some 10,000 items. Many of these have proved difficult to reconcile with one another due to changes in circumstances and practice. This situation impelled Pope Pius X to order the creation of the first Code of Canon Law, a single volume of clearly stated laws; this was published in 1917. Finally, the need for further reform was accommodated when Pope John Paul II promulgated the revised Code of Canon Law in 1983. Containing 1752 canons, it is the law currently binding on the Latin (Western) Roman Church.
Standing apart from the Western church, the Greek-speaking Orthodox have collected canons and commentaries upon them in a work known as the Pēdálion (Greek: Πηδάλιον, "Rudder"), so named because it is meant to "steer" the Church. Not highly centralized, the Orthodox Christian tradition treats its canons more as guidelines than as laws, the bishops adjusting to cultural and other local circumstances.
In early modern England the boundaries between the jurisdiction of the secular and ecclesiastic courts were not as carefully drawn as they are today. In fact the ecclesiastical authorities intervened so broadly in morals cases that they were popularly termed "bawdy courts." Most parishes had bishop's or consistory courts that addressed moral offenses, including adultery, whoredom, incest, drunkenness, swearing, ribaldry, and usury. They also sanctioned heresy, blasphemy, and failure to attend church. The accused were obliged to collect character references from respectable neighbors, who, by the curious standard of compurgation followed in the church courts, were called upon to testify not to the truth of an accusation but to the general belief in it. In practice there were two legal systems, each with its laws, officers, trials, and punishments.
In modern Britain most of the prerogatives of the ecclesiastical courts have been stripped away, though they still have jurisdiction over certain church-related matters (e.g., discipline of clergy, alteration of church property, and issues related to churchyards). In contrast to the other courts of England, the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily regulated by parliamentary statutes.
The canon law of the Roman Catholic church remains the most salient of these ecclesiastical regulatory systems. For a long time non-Catholics have tended to ignore it, regarding the matter as not the business of society as a whole. After all, Catholic canon law pertains only to Catholics, does it not? "Not necessarily" is the appropriate answer. One need only think of the priestly pedophile scandals in a number of countries in the 1980s. It is evident that all too often the labyrinthine complexities of canon law, and the way it is administered--or not administered--have led to a climate of legal chaos, something that amounts to lawlessness. Many priests were simply not disciplined at all for their misconduct, and the laity was discouraged from reporting the incidents to the secular authorities. This negligence has contributed to a sense, justified or not, that the Roman Catholic church sees itself as above the law.
MUSLIM LAW (SHARIA)
Sharia (Arabic: "way" or "path") is the sacred law of Islam. Muslims generally agree that Sharia is God's law, but they have differences between themselves as to exactly what it entails. Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Various countries and cultures honor varying interpretations of Sharia as well.
Muslims hold that all Sharia is derived from two primary sources: 1) the divine revelations set forth in the Qu’ran; and the 2) sayings and example set by the Prophet Muhammad. Fiqh, or "jurisprudence," interprets and extends the application of Sharia to questions not directly addressed in the primary sources, by including secondary processes. These secondary processes include the consensus (ijma) of the religious scholars and analogy from the sacred sources through analogous reasoning (qiyas).
Where it enjoys official status, Sharia is applied by Islamic judges, or qadis. On an everyday level the imam has varying responsibilities depending on the interpretation of Sharia. While the term imam is commonly used to refer to the leader of communal prayers, he may also be a scholar, religious leader, or political leader. Sharia deals with many topics addressed by secular law, including crime, politics, and economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting.
Introduction (or reintroduction) of Sharia is a long-standing goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (as in India) have attained institutional recognition of Sharia to adjudicate their personal and community affairs. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare.
In Western European countries, where Muslim immigration is relatively recent, Muslim minorities have sought to introduce Sharia family law for use in their own disputes with only modest success (e.g. Britain's Muslim Arbitration Tribunal). In fact, efforts to introduce Sharia principles have encountered great resistance from mainstream opinion in Western European countries for two reasons. First, this innovation is regarded as eroding the universalism that is implicit in the rule of law as developed over centuries in these countries. Secondly, provisions regarded the place of women and homosexuality are regarded as harsh and inhumane.
From the ninth century onwards, the power to interpret and refine law in traditional Islamic societies was in the hands of the scholars (ulema). This separation of powers served to limit the range of actions available to the ruler, who could not easily decree or reinterpret law independently and expect the continued support of the community. Through succeeding centuries and empires, the balance between the ulema and the rulers shifted and reformed, but the principle remained the same. In this way the seeming absolute power of the rulers was subject to check.
During colonial times legal systems and principles characteristic of the European Enlightenment made their way into Islamic countries. With the coming of independence the Islamic revival, together with a sense that these importations were tainted by imperialism, led to a renewed emphasis on Sharia as a means of emphasizing the particular character of a given society.
Most Muslims regard themselves as belonging to either the Sunni or Shi’a branches of Islam. Within these sects, there are different schools of religious study and scholarship. The schools within each sect have common characteristics, although each differs in its details. The four main school of the Sunni tradition are the Hanafi, Shaf’i, Maliki, and Hanbali.
In the Western view many applications of the Islamic criminal law seem excessively harsh. For example, apostasy and blasphemy may merit the death penalty. The manner of carrying out such sentences may also be regarded as repugnant. Stoning to death (Rajm) is primarily a punishment for persons who engage in unlawful sexual relations, including homosexual relationships. The criminals' hands are tied behind their backs and their bodies are put in a cloth sack. They are then buried in a hole, with only the head showing above the ground. If it is a woman, she is buried up to her shoulders. Stoning is then administered.
Because of the provision requiring four male eye witnesses before rape can be ascertained, many who have been subjected to rape end up being charged with "adultery." In other words, the victim is punished. This was the case for 13-year-old Aisha Ibrahim Dhuhulow in Somalia who in October of 2008 was buried up to her neck and stoned to death before more than 1,000 people in a football stadium. She had been the victim of gang rape. Incidents of death by stoning have also been reported in Iraq and Pakistan. Stoning forms a part of Afghan, Iranian, Nigerian, Indonesian, Sudanese, Saudi Arabian, and United Arab Emirate law.
An August 2009 Pew survey found that 83% of Pakistanis believe that adulterers should be stoned. Another survey carried out in "moderate" Indonesia revealed that almost half the respondents backed stoning as a punishment for adulterers.
THE SPECTRUM OF MUSLIM LEGAL SYSTEMS TODAY
At the turn of the twenty-first century the following balance sheet prevailed.
Secular Muslim states: Muslim countries such as Mali, Kazakhstan, and Turkey (which is experiencing pressure from religious political parties) have declared themselves to be secular. In these states, religious interference in state affairs, law and politics is discouraged or prohibited. The role of Sharia is limited to personal and family matters.
Muslim states with mixed legal systems: Pakistan, Indonesia, Afghanistan, Egypt, Nigeria, Sudan, Morocco, and Malaysia have legal systems that are influenced by Sharia, but also cede ultimate authority to their constitutions and the rule of law. Outwardly these nations conform to democratic norms, but most tend to fall under the influence of authoritarian leaders at one time or another. In these countries, politicians and jurists make law, rather than religious scholars. Most of these states have modernized their law codes and now have legal systems that differ significantly from classical Sharia.
Muslim states using classical Sharia: Saudi Arabia and some of the Gulf states do not have constitutions or legislatures. Their rulers have limited authority to change laws, since they are based on Sharia as it is interpreted by their religious scholars. Iran shares some of these characteristics, but also has a parliament that legislates in a manner consistent with Sharia.
The rise of centralized states in Western Europe during the early modern period entailed a gradual unification of law, reducing the effects of customary and local law in favor of a single legal system that would be dominant throughout the realm. The most important landmark in this process is the Code Napoleon, promulgated in 1804. Before the Code, France did not have a single set of laws; laws depended on local customs, often reflecting a patchwork of exemptions, privileges and special charters granted by the kings or other feudal lords. The many different legal systems used in different parts of France were replaced by a single legal code. The code confirmed the abolition of feudal privileges achieved under the the French Revolution, and fostered the idea of the rule of law throughout the realm. Carefully crafted, the Code Napoleon was widely imitated in other countries.
Napoleon’s achievement was part of a larger trend towards the clarification and unification of the laws. In a nutshell the basic principle is “one nation, one law.” Even the coming of the European Union with its legal institutions that can override existing national law provisions, did not violate this principle because the European Union can be regarded as a nascent nation, entitled to its own legal system.
In some European countries, notably Great Britain, there were vestiges of ecclesiastical courts. However, their scope had been gradually whittled down.
Now, however, we are witnessing a countermovement that threatens to endanger the hard-won principle of unity of law. During the early twentieth century Britain and some other countries accorded a quasi-official status to traditional courts, though their jurisdiction extended only to religious Jews who chose to accept them. The proposals to introduce Sharia law in this manner are more disturbing, as some aspects, such as stoning or amputation as punishment and the absolute ban on homosexuality go counter to Western traditions of humanity and tolerance. For its part, the presence of Catholic canon law is not new, but in some ways it reinforces the general tendency to legal particularism.
In these ways, then, religiously-based legal systems, Jewish, Muslim, and Christian, may turn out to be subversive elements that threaten the autonomy and supremacy of secular law as defined by the nation-state--and by implication erode the rule of law itself.
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