Wednesday, 23 July 2008

Religion, Law and Public Life


This is a summary of the lecture of Silvio Ferrari, Professor of Canon Law, author of the book, ‘Islam and European Legal Systems’ and all views are his unless I state them as my opinion

Here is a recap of what Ferarri said in the lecture. He began his discussion with some questions which he would answer. Is there a structural connection between law and religion? How will it be described? Ferarri used three examples, Islam, Judaism and Christianity. How much Jewish, Islamic and Christian laws have contributed to shaping the secular state in Europe, in Arab countries and the state of Israel? The legal status of the ‘other’ was the starting point of Ferarri. This is also the starting point of any community. To deal with the person who does not share the fundamental principles which the dominant community has. In order to do this one must go to the roots that in Islam, Christianity and Judaism that God has given the laws which cannot be changed by any human authority and is far superior by any human law. Divine revealed law has been ‘given’ and divine natural law is ‘given’ through nature. This means that every human being has the capacity to decide on what is good and bad. Most laws come from God but revered laws can only be known through divine revelation but natural law can only be known through the rational faculties. Divine revealed laws, found in holy books, are only binding on the faithful but the divine natural law, found in conscience - reason, is something that every human is bound by.

Jewish tradition does have God in the top of the spectrum. The law is based on the revelation to Noah and Moses. The commandments given to Noah. Maimonides said that anyone who shares the 7 commandments of Noah will enjoy a share in eternal life. The Noah commandments are for everyone and the law revealed to Moses is only for the Jews. Ferarri stated that in the Christian case, legal tradition is revealed by law and the other is found in man’s conscience. There are some principles that bind all human beings together. In Islam the starting point is the same. God is the law giver and revealed his law to the Jews and Christians but some say that the Jews and Christians did not maintain that law. Therefore there was a need for a final revelation and this was given to Muhammad. Ferrari stated that there is no clear idea in Islamic law that binds all of humanity. I disagree with this because Islamic law was a law for people, Muslim and non-Muslim. This is evident in histories of Muslim states in the past. I have no intention of stating how successful or unsuccessful these were but the point to note is that Islamic law cannot be understood as generic. Ferarri failed to highlight the different denominational aspects of the law, the difference between Shi’I and Sunni law. Ferarri commented on the Mutazillite movement in Islamic history (8th Century). Mutazillite, grasped God by reason and good and said that evil is not because of what God has said so but good and evil have their own consistency. This was the link and point of contact between Europe and Islam because this was what was being discussed here. However, the Mutaziillite did not win and they were lost by the Hanbali school, a more puritan school of legal thought. There were two prominent Muslim scholars at the time, al-Ghazali and al-Ashari. They said that good and evil are as such that God has declared them but God could have declared that the mother is good and the child is bad. Ferrari stated that if you were to open the books of Dun Scotus, a prominent Fransiscan theologian in the 13th Century, you find the same ideas, the voluntaristic approach to the will of God. Dun Scotus lost and Thomas Aquanus won in the same way the Mutazillites lost to the Hanbalis.

Ferarri examines the way in which the three faiths and their legal traditions have impacted the world today. How can we identify this impact on the state? This is done through a look at the constitutions where we find the principles that states are based. There are three parts that need to be seen, the constitution preamble which talks about the history etc. Some preambles are completely silent on the issue of religion (34%), some have a preamble on secularism (6%), some have a reference to generic God (41%) and finally some with reference to a specific God. It would seem that European constitutions 64% have more reference without God. There are no European countries with reference to secularism and only one state in the Arab world has reference to secularism (Lebanon). Lebanon has the same number of Muslims and Christians and the whole voting system takes this into consideration. This then means that the state is neither Muslim nor Christian. The reason why India is secular is to safeguard he religious identity of the population. We then moved onto the articles of the constitutions. There are no European states which state that they are Christian but 23% of Arab countries state that they are Islamic. Israel has no constitution but it has some fundamental laws. The two main components of the Israeli state are the terms ‘Jewish’ and ‘Democratic’. In summing up, three patterns, secular states (silent on religion), north Africa and Middle East are more explicit about religion (Islamic) and in Israel we have a Jewish and democratic state.

After the Lutheran reformation there were for the best part of a century wars of religion between the Catholics and Protestants. The criticism was that the reformation had broken the religious horizon of the Middle Ages. The solution and way out of the war was the appeal to the pontiff, the Pope. The two kings accepted the pope in hope that the wars would be stopped. The solution came through the question, when God is no longer in the picture what will be the unifying force? The unifying force was said to be human reason. This was then based on natural law based on reason. This then takes religion out of the public life and into the private life. This was established by Hugo Grotius (1583-1645) who was a Dutch jurist who laid the foundations of natural law. So to make a statement that Europe has Christian roots will then create unnecessary tension so it is better to remain silent on this. Silvio Ferarri was against the inclusion of Christianity in the European Constitution as the constitution needs to be as inclusive as possible, even though this is against the general understanding that Europe is deeply rooted in Christianity.

The constitutions of many Islamic states make reference to the Shar’ia, Islamic law. Is it possible to find the legal status of a non-Muslim in an Islamic state? Ferarri believes that the legal status of a non-Muslim in an Islamic state cannot be possible by the removal of the natural law and trying to remove Islam from the public sphere. Ferarri states that’s many Islamic states identify themselves as ‘Islamic’ in many different ways. Ferarri believes that the European model of natural law can be transferred to Islamic law. It is the Qur’an that recognises that Jews and Christians have received divine passages and have the right to reside in the Muslim community in peace, according to their laws and must accept that Islam is the supreme religion. This concept is called ‘milat’ and was applied in the Otomon Empire. It is important to make a distinction between state and society. The state has to be secular but the society does not have to be. In my opinion then the rational and logical mind and law needs to take precedent in order to see progress amongst Scottish Muslims and Muslims in other states and that secularism needs to be reclaimed not as a point of tension to the ‘religious’ but as a libratory device towards progress.

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