Explain the Sacred Origin of Rule of Law
The rule of law has several origins including political, religious and even cultural origins. Sacred denotes association with holiness. It is the state perceived to be associated with divinity. Many religions across the globe have the rules governing their conducts. These rules and laws have their origins. In this paper we discuss the various origins of the religious laws.
Laws, in almost, if not all cultures are religious or sacred in origin. This is because it is law that governs society and man. Because it declares and establishes the meaning of righteousness and justice, law is unavoidably sacred, in that it begins in practical technique the critical fears of a culture. Consequently, an essential and required foundation in any and every study of law needs to be, first, an acknowledgement of the sacred nature of law.
Secondly, it must be appreciated that the origin of law in any culture is the god of the society. If the origin of law is the man’s reason, then the god of this society is the reason. If its source is in a court, ruler, senate or an oligarchy, then this source is the god of that societal system. Law according to Greek culture was fundamentally a humanistic religious concept. However, contrary to any law derived from revelation, laws originated from the mind. This is because for Greeks, the mind was having the critical order of things and thus was able to discover vital laws out of the mind’s own resources by penetrating through the matter and confusion of calamity to the essential ideas of being. It is as a result of this that the Greek culture became humanistic because it was man’s mind with intimacy and neoplatonic, hostile and ascetic to world of matter, since mind had to distinguish itself from non-mind.
Modern humanism and the religion of a state, finds law in a state and hence makes people or the state as follow the rules and terminologies in the state, which is the god of this system. An example is in China where Mao Tse-Tung said that their God is none other than the multitudes of the people of China. Law has however slowly moved away from God to people or the state as its origin in western culture although vitality and historical power has solely lied on law and biblical faith.
Thirdly, any changes in law are an implicit or explicit religious change. The religious change is actually revealed by the legal revolution. Once the legal fundamentals swing from biblical laws to humanism, it simply means that the society pulls its power and vitality from humanism not from religious theism.
Fourth, in any society, no disestablishment of religion is possible. A church can be renounced and a specific religion can be replaced by another, but this change is basically to a new religion. Since the basics of law are inevitably religious, no society can exist absent a religious basis or without a system of law which organizes the ethics of its religion.
Fifth, there cannot be lenience in a system of law for a new religion. Toleration is a stratagem used to announce a new system of law as a prolog to new intolerance. Lawful positivism, a humanistic belief, has been violent in its unfriendliness to the Biblical system of law and has demanded more space towards an open system. But Cohen, a Christian, has appositely described the rational positivists as nihilists and their faith as nihilistic absolutism. Every system of law must uphold its survival by unfriendliness to every other system of the law and to unfamiliar religious basics, or otherwise it commits recklessness.
The history of the rule of law is closely linked to the civilization development. As far back as 3000 BC, an Ancient Egyptian law that contained a civil code was broken into twelve books. Its basis lay on the Ma ’at concept characterized by rhetorical speech, social impartiality and equality and tradition. In the 22nd century BC, the prehistoric Sumerian leader Ur-Nammu expressed the first law code consisting of conditional statements of if.then.At around 1750 BC, the Babylonian law was developed by King Hammurabi by inscribing it on a stone. The Old Testament ages back to 1280 BC. It defines the form of ethical imperatives as endorsements for a better society. The prehistoric Athens was the first society based on wide inclusion of citizenry, excluding the slave class and women.
However, they had no single term or legal science for law but instead relied only on distinctions between human decree, custom and divine law. But then the prehistoric law of the Greek contained major constitutional innovations in the democracy development. In Muslim community, Sharia law was used in a non-codified form. Codifying elements of the laws were attempted in 19th century. Efforts have been made to bring the laws in line with modern conceptions and conditions. Even in modern Muslim countries the legal systems are drawn from both common and civil law as well as custom and Islamic law. In fact the constitutions of certain Muslim countries recognize Islam as a religion of state obliging the legislature to adhere to the sharia law. For example, Saudi Arabia identifies Quran as its establishment and is thus governed based on Islamic law. It is the belief of Muslims that the law came from Allah.
Within the context of Christianity, the sacred origin of the rule of law has been based on several definitions. One of the origins is the Mosaic Law which they consider as the Old Testament also called the biblical or divine law. The most prominent example is the Ten Commandments. Another origin is the teachings of Jesus of Nazareth to his followers in the Gospel often referred to as the New Commandment or new covenant or law of Christ. Yet another origin is the apostolic decree which is still witnessed by the Orthodox Church in Greek. Another source is the canonical law practiced in Anglican, Orthodox and Catholic churches. In some denominations, law has been contrasted with grace. This is about attempts to gain salvation by obeying a code of laws as opposed to trailing salvation through faith in compensation made on the cross by Jesus. Catholics have inherited their view on holiness from the Jews. In this view certain behaviors are deemed appropriate at certain times and places. The Catholic practice is given shape by a calendar that seems to focus more on the Eucharist, in which there is manifestation of the real presence of Christ.
The Christians views of the Mosaic Law are central to ethical practices and Christian theology. The Mosaic Law or God’s law refers to principles or statements of religious ethics and sacred rule of law codified in the books of the bible. These laws have become ingrained and incorporated in the legal systems of many nations. The canonical laws are regulations and laws adopted or made by ecclesiastical authority, for members of Christian organization and its government. It is the origin of laws governing Oriental Orthodox, Eastern, Anglican Communion and Roman Catholic Churches. The way of interpreting, legislating and adjudicating varies among these churches. The origin was initially from a rule approved by a church board.
The Catholic Church has a legal system that began with rules approved by the Council of Jerusalem in the 1st century. The first canons were decreed by bishops in councils. However these canons have been coded with in line with the modern legal systems. The canons steer the church as their constitutional laws and obligations. Not only in the Catholic Church but also in the said reformed and Presbyterian churches which have canon laws also known as church orders which include laws respecting its discipline, government, worship and legal practice. The Lutheran Church has a book of concord which originates from the church council. It is the rule of law in this church. The United Methodist Church has a book of discipline which originates from the legislature of this church. These laws also contain guidelines, policies, rules and laws.
The Hindu law originated from the Koran. It was established by Governor General Hastings Warren with a plan for the administration of justice in all aspects of life regarding marriage, caste, other religious usages and inheritance. Hindu law governs the movements and beliefs of the Hindus. This is their rule of law.
In Islamic context, it can be argued that there are many sacred origins of laws governing any religion as a basic organ of a nation. In an Islamic state the sources of the rule of law are the Sunnah which describes the acts done by Prophet Muhammad, Holy Quran, Ijmaa (collection wisdom) and Hadith which describes precedents of Prophet Muhammad), Ijtehad modernly called the judge made or case law, Qiyas which means intention behind law making and Istaslah which is to mean reformatory legislation. Laws in these sources have no greater divergence with those of the nation’s legal system.
Divergent beliefs on the sacred origins of the rule of law have affected efforts to have uniting laws that govern the society. There are so many types of religions each with different beliefs on the origins of the laws. However, even with the divergence religion or the sense of divinity cannot be separated from the law. All sources of sacred nature will always have laws that are acceptable to human kind. There are actually some nations which have endorsed a certain religion and thus the constitution which is the foundation of the rule of law has been established on the religion’s canons. There are, however, secular states whose rule of law exists in the mind of the people but not religious sources. Others have the traditional sources of law rather than the sacred ones. However the sacred sources still upholds in such areas since the mind is still based on the sacred existence of human beings.
Religion laws as a source of law and as a developing factor of the traditional law cannot be ignored. Sacred sources of law should be the major considerations in developing laws governing a nation. This is because religious laws which come from sacred sources are a critical element of most of the legal systems.
Dunlap, K. (2008). Religion: Its function in human life: A study of religion from the point of view of psychology. New York: Cengage Learning.