Religious norms: examples. Law and religious norms

The question of the correlation of legal categories with moral and ethical ones is one of the most difficult in jurisprudence. For many centuries, attempts have been made to divide these categories, or, at any rate, to establish an acceptable balance. However, today the problem is far from being solved.

Religious morals and law

The fact that the law and religious norms are in close connection with each other is recognized by the majority of specialists. In Russia, perhaps, only the most radical representatives of the libertarian theory (V. Chetvernin, N. Varlamova and others) tend to polarly breed morality and law, taking religious norms out of the legal field. Examples show that this turns out badly, because even the basic legal concept of libertarians - the notion of freedom - has obvious ethical roots and beyond the boundaries of ethics, in fact, it makes no sense. On the other hand, it is obvious that ethics itself is sensitive to religious traditions. The notion of good and bad does not arise from nowhere. It is conditioned by human practice, fixed by one or another religion, but over time it is conditioned by religious norms. If these norms are dominant in the legal system, if they determine it, then there is reason to talk about "religious law", as insisted by the famous jurist Rene David. Historically, the role of religious law is enormous, in today's world the situation is less unambiguous, there are only a few enclaves.

The main features of religious law

The most important feature of religious law is that the basic basis of all norms is the superhuman establishment recorded in the sacred books, which are regarded as sources of religious norms. The authority of the establishment is unquestionable, and any human act is judged according to it. At the same time, the entire legal system is to a decisive degree guided by religious dogma. Actually, the latter is a specific variation on the topic of natural law (B. Spinoza, J. J. Rousseau, I. Kant), in which, according to established scientific tradition, the law and law are divorced. Law relies on the objective values of human society, the law ideally makes these values legitimate. Contradictions of the legal system are due precisely to the inadequacy of the law (as a product of state activity) to objective law.

Historical and contemporary examples of religious law

The peculiarity of religious law is that as an "objective law" norms that are recognized as "superhuman" and fixed in sacred books are taken. Classical examples of religious law are the laws of the late Middle Ages, which became the basis for the courts of the Inquisition (especially in Germany, where the "legal" grounds of the courts of the Inquisition were spelled out in the most detail), many ancient legal systems, for example, the famous "Avesta", prescribing legal proceedings on the basis of the legendary postulates Ahura Mazda, revealing religious norms. Examples are often very expressive: even a dog appears as a subject of law.

In modern times religious law is most distinctly realized in the courts of Sharia and those countries where religious traditions are the basis for legal norms, for example, in Iran.

Religious Law and Gentiles

In most cases, the peculiarity of religious law is that it acts only within the community of coreligionists. Gentiles are not subjects of religious law. They are either subject to expulsion and even physical destruction if their activities and cults are not accepted by official authority (examples are the expulsion of Jews from Christian Spain in 1492, the expulsion of Armenians by the Turks in 1915, etc.) or the Gentiles simply move beyond the religious legal System. For example, in modern Iran, the following religious legal norms apply: for the faithful there is a ban on alcohol, and for Europeans or Jews an exception is made. This is most often explained by the fact that people of true faith can enter paradise while observing all rites and rules, and the Gentiles have already made their choice, accordingly, their souls can not be taken care of. Of course, do not underestimate the historical and religious traditions, often dictating the nuances of legal norms.

Religion and modern morality

If "classical" religious law is an exception in modern history, the question of the relationship between law and morality, which is also largely based on religious tradition, is one of the most important in jurisprudence. Maybe this is even the most important question. Indeed, is the right a certain established norm of relations (indifferent to ethics)? Or is it just the right to consider what has an ethical basis? If to say more simply, is any decree of the king, regardless of its ethical component, a legal act? In the system of religious law, this question does not arise at all, for no king dares to issue a decree contradicting the scriptures. Another matter - secular law, which has other grounds. The primitive question: "If the king or the government issues a decree committing the entire population of the country to be executed, will this decree be legal?" If so, the legal system is absurd. If not, where are the limits of legal competence and how are they determined? On this subject in modern science there are several alternative answers.

Legist theory

Representatives of this theory proceed from special ideas about how the law and religious norms are correlated, since they proceed from the sanctity of the law. Its origins date back to ancient Chinese legal practices. The norms of the law do not require discussion and comments, they are taken for an axiom. Legislation could become part of religious law, but the relationship here is complicated: as a rule, religious law allows for the correction of laws for their greatest compliance with the spirit of the divine attitudes. In this sense, legitimacy, rather, absolutes social, not religious, law.

The formal theory

This theory also reveals in its own way what religious norms are. Examples may be different, but first of all it is associated with the name of G. Kelsen.

He believed that law is a set of established norms accepted by the authorities and society. If society is inclined to accept religious morals as a right, it is a legal society. If it takes an anti-religious morality (for example, the pirate community, Soviet morality or Hitler's Nazi installations) is also a legal society, no matter how bitter about it. In Kelsen's theory, ethical components are placed beyond the brackets of legal relations. For this his theory was repeatedly criticized from the standpoint of other legal concepts.

Yusnaturalism (natural law)

The attitude of jusnaturalism to religious law is completely different. Very often, right up to the present day, supporters of jusnaturalism include religious social norms fixed in almost any religion ("do not kill," "do not steal," etc.) in the list of natural norms of humanity that should determine the contours of the legal picture of any era .

Positivistic theory

This theory - one of the most popular in modern life, at least in the life of today's Russia, - proceeds from the fact that the right fixes a certain system of norms that was naturally formed in this epoch. The ratio of legal positivism to religious morality and religious law is twofold: on the one hand, positivism takes into account religious experience, on the other hand it ignores it if conditions changed if ethics governing religious norms ceased to work. Examples can be given a variety. Thus, legal positivism easily coexists with both the Soviet (anti-religious) and the post-Soviet situation.

The liberal theory

The most outstanding representative is the famous American theorist of law, Lon Fuller.

According to Fuller, the law can not be immoral. However, the moral character of law is determined not by abstract norms, characteristic of religious law, but by real benefits for each member of society. The legal norms are better the more people benefit from them. Fuller's theory overlaps with religious morality, but only in the sense that abstract-ethical formulas acquire clear financial contours.

Libertarian theory

This theory is associated with the name of VS Nersesyants, but the final conclusion was obtained in the writings of his disciples. The essence of the theory is that law is human freedom, limited only by the freedom of another. Supporters of this theory tend to endure all religious norms and values beyond the legal field (Nersesyants himself insisted on this). Religious ethics, according to libertarians, is a serious obstacle to the path of law, as it claims to have some "universal" values that limit freedom. At the same time, supporters of this theory carefully do not notice the paradox that freedom itself, understood by them as an ontological category, has a direct relation not only to ethics, but also (for example, in Christianity) to religious philosophy.