A paper I had to redo (due to data loss, on my new laptop of all things), this work - while hastily rewritten and rearranged - was one of my favorites to research. I hope you like it, or get something from it, maybe.
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Law and the Role of Religion:
Historical Explanations,
Constitutional Goals
and Contemporary Analysis
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Introduction
The role of religion in influencing a nation’s practice of law can vary grandly. This is made doubly so when a country’s history has a deeply religious nature – especially when its Constitution states that it is a secular state. Saudi Arabia, for instance, utilizes the centuries-old Islamic religious law of shari’ah in dictating the basic statutes of its legal structure and proceedings; other religions are treated harshly and effectively banned from public. For years, Argentinean legal policy was heavily influenced by outside Catholic influences and semi-religious political parties were openly persecuted by the forces of dictator Juan Peron until the ascension of reformist President Raul Alfonsin in 1983, prompting a secularization of laws and a non-religious reimagining of the country’s Constitution. While officially secular, the legal system of India has no definitive “wall of separation” which pushes apart religion and the state; thus, the state interacts with different religious organizations and centers on a consistent legal level. Finland deals with religion in a liberal fashion, expressing the legal importance of religious freedom while at the same time endorsing a special relationship with the Finnish Orthodox Church.
Through a display and analysis of these and other examples of religion’s impact on national law, especially in pertinence to a country’s Constitution, proper comparisons between states can be made and the reasons for why these differences have emerged may be examined properly.
The Kingdom of Saudi Arabia: Theocratic Courts
The starkest example of religion as indicative of the law’s treatment of an individual is Saudi Arabia, a staunchly conservative Islamic state which utilizes Sunni Islam-oriented Shari’ah law in determining the results of legal cases. The Saudi Constitution is, strikingly, the text of the Islamic holy book known as the Qur’an. This point alone is quite indicative of the role of religion in determining the judicial legacy of the state. The Hanbali fiqh of Shari’ah is put to use in Saudi courts as a means of determining, in a semi-inquisitorial way, the violations put forth by a suspect against the country’s religious law. Executed by religiously-trained judges with relatively little input from lawyers or defendants, Saudi courts use Islamic law as a means of regulating the private lives of the country’s subjects. Punishments are derived from sometimes centuries-old Islamic sources and are considered archaic or slanted by many, including international observer organizations such as the Human Rights Watch.
Saudi Arabia’s penchant for Shari’ah can be explained through an analysis of its formation and its intermingling with religious fundamentalists known as “Wahhabis”. Since the formation of Islam, the Arabian Peninsula had always been a place of conservative views due to the homogenous nature of peninsular Bedouin society and the isolation experienced by nomadic Muslims. The original Saudi state was a small tribal power in central Najd, a desert region of the modern nation, headed by Saudi patriarch Muhammad ibn Sa’ud. Sa’ud joined forces with Muhammad ibn Abd al Wahhab, a religious fundamentalist imam who had been ejected from another settlement due to his extreme conservatism, and began to strike out against those Muslims they considered non-orthodox. After the movement was quashed by the Ottoman Empire, the Saudi state remained stagnant until the turn of the twentieth century when Sa’ud’s descendent Abdul Aziz ibn Sa’ud began to use Ottoman funds to rally those remaining Wahhabi forces to reassert their power over the Najdi region and eventually the western Arabian region known as the Hedjaz. Conservative Muslims from across the Arabian Peninsula joined the burgeoning state, promoting views which would later be codified into Saudi law. Ibn Sa’ud’s utilization of conservative Islam as a rallying point for jihad , and as a central pillar for the formation of a state, laid the foundation for the propagation of strict Islamic law in modern-day Saudi Arabia.
Those defendants within Saudi Arabia that are non-Sunni Muslims, such as the country’s Shi’ah Muslim minority or the sizeable number of non-Muslim foreign workers from both the West and Asia, are either afford a slight degree of religious autonomy in determining the results of less serious cases or must submit fully to Saudi Shari’ah courts despite their religious standing. In some cases, harsher punishments, from both the courts and the Saudi police, are dealt to non-Sunni Muslims. As seen in these examples, religion dominates the legal proceedings of Saudi Arabia despite the desires of those involved in the cases. Secular courts are utilized in only specific cases which tend to pertain to complaints against government policies and automobile accidents, issues for which the country’s generally archaic Islamic law has no proper statutes. Due to the strictness of the state’s enforcement of religion and Arab culture, traditional Bedouin gender roles are reinforced: women are legally exempt from voting or being in public without a written excuse from a male relative, and cuckolded men have the legal right to assist in deciding the punishment for their wives. Hanbali Sunni Islam law is applied in all cases in which it can be and secular legal proceedings are utilized only when there are no Shari’ah-oriented precedents.
The Republic of India: Officially Secular, Realistically Prescriptive
India presents a unique example of an interaction between a state which is technically secular and the many religious issues which it faces. The modern-day nation of India encompasses the birthplaces of multiple religions – Hinduism was effectively “founded” in India’s northeastern city of Varanasi, and Buddhism was doctrinally formulated nearby – and came to interact with others including Islam and Sikhism. While it was conceived as a secular state and was only reinforced in this by later amendments to its Constitution, religion continues to be much-discussed issue in the courts of India.
Prior to Indian independence, the interaction between foreign authorities and their very religious Indian subjects contributed to eventual Indian secularism. British colonial domination of the region led to the banning of certain religious practices such as Sati , prompting a public response that the statesmen who would eventually become India’s founders preferred to avoid. During the rise of Gandhi and Indian nationalism, the British policy of regarding separate religious communities in judicially different ways came under criticism and led to new calls for secularism. The sheer amount of influence from other religions in the country would make it difficult for any one religion to have proper “authority” within the government, which prompted India to emerge as a secular state. For others, religion functioned as a rallying point which anti-colonialists could call upon as a means of resisting the British attempts to stabilize their colony. Despite the proposed secularity of the state, religion continued to play a major role in its development and often took center stage in political and legal disputes. Events such as the partitioning of colonial India into the secular Republic of India and the starkly Islamic Republic of Pakistan, as well as conflicts over religiously-disputed regions between those two states such as Kashmir, support of this concept.
An observation of Indian laws pertaining to religion, as well as the Constitution of India, shows the interesting relationship that the supposedly secular state has with its multiple faiths. Officially dictated by the country’s Constitution is, once again, the secular nature of the nation: discrimination as a result of religion is prohibited, unfair legal considerations on a religious basis are strongly disallowed and Indian citizens are allowed to profess any religious belief they choose. As noted by Tahir Mahmood, however, the state reserves the right to initiate, codify and enforce legal statutes which promote “social reform” that may or may not affect religion. Narenda Subramanian of McGill University states that early Indian statesmen, in an attempt to quell potential religious unrest, had homogenized Hindu beliefs by transferring them into the legally-applicable doctrine that would become part of the Indian Constitution of 1950; this led to the adoption of multiple religious laws in determining the country’s family law, starting with the Hindu Marriage Act of 1955. Other legal codifications of religious practices include the country’s Hajj Committee Act of 1959 and the judicial regulation of activities pertaining to Hindu and Islamic religious land trusts. “Secular” Indian civil law, too, is greatly affected by religion.
“Conversion to any religion other than Hinduism, Buddhism, Jainism, or [Sikhism] is seen as a civil offense also under each of the other three Hindu-law enactments of 1956, resulting in loss of succession, guardianship, maintenance, and adoption rights. Thus, parents ceasing to be Hindu, Buddhist, Jain, or Sikh lose guardianship of their minor children, while convert wives and children are deprived of their right to be provided maintenance by their husbands and parents, respectively.”
India’s official secularity, an important method of preventing any one of the country’s many religious factions from gaining overt influence, is tempered by its need for a method of regulation of its many faiths. The country’s subsequent incorporation of multiple forms of religious law in determining family law and civil law is simply an extension of India’s attempts at secularizing, or in this case ecumenicizing, its legal framework.
The Russian Federation: Resurgent Religion and the State’s Response
Contemporary Russia has emerged as a result of historical religious extremes. For hundreds of years, Tsarist Russia was an effective confessional state: strengthened in religious authority as a result of the fall of the Byzantine Empire in 1453, the Russian Orthodox Church came to heavily influence all aspects of the Empire and dictated its policy of forced multireligious orthodoxy. Muslim and Protestant congregations operated at the behest of state religious authorities who, in some cases, codified and redefined religious laws in a way which ensured the loyalty of otherwise troublesome groups to the Empire. In contrast to Imperial Russia, the Union of Soviet Socialist Republics (USSR) – a state which overthrew the Tsar in 1922 – was staunchly atheistic and actively persecuted members of all state clergies. Soviet authorities forcefully disbanded religious communities and regularly demolished places of worship in an effort to redirect its citizens to identity with and support the state. This complex legacy led to the establishment of the Russian Federation in 1991.
The Russian Federation is a secular state but has been known to respond to religious forces in ways reminiscent of tactics employed by both the Tsarist Russia and the USSR. The Russian Constitution, established in 1993, promotes a distinct policy of state non-interference in religious affairs and a purely secular position. Any discrimination based on religious preferences, legal or otherwise, is also prohibited by the Constitution. Factually, the system is quite different. After emerging from its Soviet Era, the Federation saw a “boom” in religious expression from non-Russian Orthodox factions such as Muslims in Chechnya and Evangelical Christians in European Russia. Fearing the loss of social cohesion promoted by the Russian Orthodox Church, the State Duma nearly passed legislation which would have legally limited the legitimacy of non-Orthodox faith communities which had not been in the Russian Federation for over fifteen years (an impossible task, considering the state had only existed for six years by this point) or subsets by banning “religious dissension” (a very broad term). The act, which gained huge support from European Russians and passed the Duma almost unanimously, was vetoed by President Yeltsin on July 22nd, 1997; despite the fact that it was in open violation of not only the Russian Constitution but also the 1948 United Nations Declaration of Man. The potential legal ramifications of the act’s passing would have severely undermined the Constitution’s secular intentions. Since this occurred, the state has gone on to criticize and restrict religious organizations such as the Jehovah’s Witnesses and Jesuit missionaries on the basis that their religion may destabilize the faith-related unity of European Russia. This is in direction violation of the Russian Constitution, as the state has acted out against religious minorities in a fashion the Constitution specifically restricts.
A place where the Russian Federation’s secularist mission has completely failed is Chechnya, an organ republic of the Federation in the northeastern Caucasus Mountains. Populated mostly by Muslims, Chechnya had once been a rebellious territory of Tsarist Russia that regularly fought against attempts by Imperial authority to control the region’s ecstatic religious practices. During the Soviet Era, the region’s stubborn Islamic subjects had been forced to migrate to Central Asia or Siberia in order to disintegrate any cohesive religious movement between former residents. From 1994 to 1996, separatist forces fighting for an independent Ichkerian Chechnya managed to secure state sovereignty by disabling Russian state apparatuses in the region and later repelling military forces sent against them. Brotherhoods of Sufi Muslims, groups indicative of the region’s Islam and are normally non-political, had assisted in turning away the Russians and did so without much difficulty. After several years of nominal sovereignty, the Second Chechen War broke out and the state was effectively swallowed up and dismantled by Russian authorities. In an attempt to dissuade such events from ever occurring again, the Russian Federation appointed former Ichkerian Chechens loyal to the state, such as current Chechen President Ramzan Kadyrov, to positions of authority. At the same time, Russia refused to acknowledge the legitimacy of moderate or Ichkeria-aligned figures due to their perceived penchant for Islamic extremism.
To stabilize the region and ensure order, these new statesmen have effectively ignored the legal statutes put forth by the Federation’s Constitution. Stating that the official mission is to “blunt the appeal of hardline Islamic separatists,” Kadyrov has enforced strict Shari’ah law and endorsed more conservative elements of Chechen culture. Harsh interpretations of gender roles and property law have been reinforced by these authorities and in many cases are more conservative than when the region had been under non-Russian control. By legally endorsing such things, and “[encouraging] men to take more than one wife, even though polygamy is illegal in Russia,” the Chechen Republic has generally abandoned the non-religious goals of the Russian Federation in order to ensure some sense of stability in the fragmented Caucasus republic. The government has turned a blind eye to Kadyrov’s actions, setting a precedent that may be followed in other parts of the country if there is truly no long-term reaction to his use of state-supported Shari’ah law.
Finland: A ‘Special’ Religious Relationship
Home to two state-endorsed churches, Finland is a former province of not only the Swedish Empire but also the Russian Empire. In 1917, Finland established its own independence; during World War II, the Baltic state fended off a Soviet invasion with the help of highly-skilled partisan guerrilla and sniper regiments. Prior to the state’s independence, every subject of Finland – as a province of the Russian or Swedish empires – had to be registered as either a member of the Finnish Lutheran Church or the Finnish Orthodox Church. The Act of Nonconformity was passed in 1889, allowing for other denominations such as the Baptists to gain state recognition. Finland’s subsequent exposure to multiple denominations of Christianity led to a historical policy of general religious tolerance. In contrast to this, Finland has maintained its two churches as state-supported apparatuses paid for mostly through tax revenue collected from members of the congregations. In opposition to this is Finland’s Constitution, which states that the nation does not treat any religious entity different than any other; the general message of the Constitution is that religious equality, as opposed to separation of Church and state, is the Finnish goal.
While the state’s relationship with its two major religious appendages may be unequal or preferential, the idea religion as contributive to judicial practice in Finland is largely unrecognized. The state funds its two churches, but allows citizens to exempt themselves from paying for them; religious education is a legal obligation for secondary school students, but they have the legal right to replace such classes with non-religious ethics-related courses. Unlike “secular” India and Russia, Finland does not utilize unconstitutional methods in maintaining the religious status quo of its nation nor does it use religious preference as a determinant in restricting what an organization may do. The twin churches of Finland have been steadily losing membership each year, as non-state-supported religious congregations have been gaining adherence. The state has not responded to this in any authoritarian or prescriptive way, allowing for both other religious groups and the country’s atheist community to grow in recent years. Populations of Muslims have begun to emerge to urban Finland, prompting the state to introduce non-Christian religious education into the state-funded educational system.
The popularity of social liberalism in Finland has been attributed as a reason behind the country’s policy of honest religious tolerance. Sexual and gender equality are actively addressed in state-funded churches, prompting organizations such as FreedomHouse to label Finland as one of the most religiously free and liberal countries in the world. Since independence, the country has promoted a policy of religious tolerance which has attracted members of foreign religious groups such as Muslims to the country; this is in great contrast to some European countries, such as France and Switzerland where religious minorities are sometimes faced with legal restrictions to their worship. State offices actively host ecumenical conferences between different religious groups, promoting cohesive social action across religious lines. Finland’s policy of religious tolerance is cyclical: as new religious communities are founded or migrate to the nation, ecumenical relationships between them and existing groups are founded and continuously propagate a cohesive religious atmosphere. This is, unlike the other “secular” states mentioned in this term paper, a sign of Finland’s success as a nation promoting religious tolerance.
Conclusion
The information drawn from the four nations mentioned in this report – Saudi Arabia, India, Russia and Finland – amount to explanations as to how the relationships of states, and their prior colonial or pre-state polities, with religion assist in the determination of religion’s role within the nation. The foundation of Saudi Arabia as a staunchly Wahhabist Islamic state garnered it support from ultra-orthodox Arabian Muslims who later solidified their beliefs through policy once the state came into being, leading to the legally-sanctioned oppression of non-Muslims and Muslims alike. The prevalence of religion in Indian society prompted an attempt at secularism, which later resulted in the state codifying and ecumenicizing preexisting indigenous religious law in an effort to accommodate its populations. Russia’s policy of secularism, stained with authoritarianism and a bent for conserving important aspects of Russian culture, led to the distinct legal oppression and subjugation of non-Russian Orthodox religious groups of which the state is wary. Despite its historical support of multiple state religious institutions, Finland successfully promotes a policy of religious tolerance with no existing religious legal preference due to the traditionally high prevalence of social liberalism within the state.
The states all contrast to each other quite grandly. Both Russia and Finland have had historical state support for religious entities, but Russia’s legacy of effective authoritarianism has prevented its secular mission from succeeding in the same way as ultraliberal Finland. India’s attempts at secularism despite a high prevalence of religion led to an ecumenical approach to law, while Saudi Arabia’s existence as an entity endorsed by conservative religious authorities effectively collapsed any attempt at secularism within its legal system. One of the few things that can be truly established from this analysis is that two influences – the historical role of religion, and the state’s use or misuse of religion – have the ability to dictate how a modern state may operate. The role of religion in Russia as a unifying aspect of culture and authority or a basis for gaining popular support and regional recognition as in Saudi Arabia, shows the important result of what happens when a nation utilizes religion as an apparatus of the state. In Finland and India, the state actively attempted to promote interreligious relations: India saw the hostile reactions to British attempts at banning or dictating religious behavior, while Finland was split between powers which endorsed their own religious views upon the eventually independent nation.
Religion is a powerful tool for a state to utilize, but has many negative consequences if used inappropriately. Russia and Saudi Arabia, two authoritarian polities with little consideration for religious minorities and futures bound with future trials pertaining to religion, are examples of this. India stands at a middle point, while Finland has ascended to a high point of religious tolerance. Responsibility in the use of religion, it seems, dictates the future of a state.
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All rewritten from scratch over the course of a few hours. Not bad.
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