Routledge Handbook of Law and Religion

Silvio Ferrari

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138084452
• eBook ISBN: 9781135045548
• Edition: 1
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

The field of law and religion studies has undergone a profound transformation over the last thirty years, looking beyond traditional relationships between State and religious communities to include rights of religious liberty and the role of religion in the public space.

This handbook features new, specially commissioned papers by a range of eminent scholars that offer a comprehensive overview of the field of law and religion. The book takes on an interdisciplinary approach, drawing from anthropology, sociology, theology and political science in order to explore how laws and court decisions concerning religion contribute to the shape of the public space.

Key themes within the book include:

• Religions symbols in the public space;

• Religion and security;

• Freedom of religion and cultural rights;

• Defamation and hate speech;

• Gender, religion and law;

This advanced level reference work is essential reading for students, researchers and scholars of law and religion, as well as policy makers in the field.

Part 1 Interdisciplinary perspectives on law and religion

DOI: 10.4324/9780203694268-2

1 Law and religion in the biblical canon

Michael Welker

DOI: 10.4324/9780203694268-3

Law and religion “continue to cross-over and cross-fertilize each other.” Not only throughout history but still today, as John Witte (2014) rightly states, have law and religion been related conceptually, methodologically and institutionally. They share hermeneutical, casuistic, systematic and pedagogical methods, and they are both deeply related to human morality (Fuller 1969; Schweiker 1998; Raz 2009).

Law, religion and morality

Human beings have to mutually attune their ways of thinking, acting and behaving. In a general way, they foster this attunement by moral communication. In moral communication, they influence each other by giving or withdrawing respect, by promising respect or by threatening to withdraw it (Luhmann 1978; Welker forthcoming 2015). The modes of respect come in a broad spectrum from a sharp, short view on each other to vibrant admiration. The communication of respect starts with teaching in earliest childhood and reaches to operations of the most elaborated global media systems today. The indispensability of moral communication to social life is the reason why a naïve perspective automatically links moral communication with a positive ethical orientation. But this is not necessarily the case. The quality of the moral communication is connected with the value systems that inform and guide the processes of giving or withdrawing respect. And it is also connected with the stability of its orientation, with the “security of expectations,” which it provides (Welker 1986). Here, the interconnections of law and religion with morality and morals come into play.

In a simplistic way it is possible to say that law and religion relate morality to God and to justice and that they thus guarantee the “goodness” of morals. But God and justice are complex realities and loaded terms. These terms can function as mere ciphers of pretense in order to protect self-righteous or even evil behavior and lust for dominion and oppression. It is therefore most important to unfold and examine what “law and religion” provide in concrete contexts of life and thinking. And it is also most important to explore and cultivate not only the mutually strengthening normative potentials of law, religion and morality, but also the powers of mutual control and mutual critique. In order to serve this purpose, the following contribution deals with the relation of law and religion in the biblical traditions. It helps to decipher the notion of “law” in canonical religious texts that are of the highest importance for religious and moral communication in Jewish and Christian communities of faith.

The many meanings of “law” in the bible

Biblical talk of “law” is no less complicated than the use of the term “law” in legal studies or in the natural sciences (Welker and Etzelmüller 2013; Welker 2014). The biblical law can shed great light on legal, moral and theological thinking. But it does not offer illumination in the form of a simple idea or a single clue.

In some Christian communities, all of the Old Testament is termed “the Law” – a whole book that has “grown” over a millennium. Some theologians see in the biblical law only “the divine demand or the divine imperative” – a mere figure of thought. In some Jewish and Christian thought, the five books of the Torah, that is the five books of Moses in the Hebrew Bible, are called “the Law.” Within this corpus of text we find three substantial legal corpora. They offer us the best clues to penetrate and understand the relation of “law and religion” according to the biblical traditions. These legal corpora are:

1. the Book of the Covenant (Ex 20:22–23:33);
2. the law in Deuteronomy (Deut 4–26; 29f); and
3. the so-called Priestly Law (Ex 25–23; Lev 1–7; 11–26; Num 1–3).

We also find texts in the Psalms (Ps 1; 19B; 119) and in the Wisdom traditions (for example, Eccl 24; cf. 1; 6; 9f; 15; 23; 51 and Bar 3f) that have been associated with “the law.”

Finally, the Torah respectively the Old Testament offers two versions of the “Ten Commandments” (Ex 20:2–17; Deut 5:6–21). In many outside perspectives and in many Christian catechisms, these Ten Commandments have been regarded as “the law” in general (cf. Smend and Luz 1981).

What then is the biblical law? A whole canonical book that grew over a millennium? Selected texts from the five books of Moses? Further selected texts from the Hebrew Bible? Or the so-called “Ten Words,” the Ten Commandments, which can be regarded as a great tutor in a combination of basic religious ethos and a neighborhood ethos? (Miller 2009). Or is it just a moral figure of thought, comparable to the famous categorical imperative of Immanuel Kant?

According to Konrad Schmid, on all these levels the emphatic term “law” (Torah) in the Hebrew Bible means “the one and complete, normative, literally codified will of God … the one and only way to a successful life and an adequate relationship to God” (Schmid 2013). But what exactly is it that God wills and what characterizes a successful life?

Justice – mercy – worship: “the weightiest matters of the biblical law”

Matthew 23:23 describes the “weightiest,” the most important aspects of the law as “justice, mercy and faith.” These three elements are indeed present with differing degrees in all biblical law texts. In a particular clarity, the “Book of the Covenant” interrelates three clearly distinguishable groups of regulations:

• Regulations dealing with the juridical conflict solution and the legal maintenance and transformation of social life by the law (the juridical code of the law).
• Regulations that aim at the protection of the weak and the systematic safeguarding of their interests. I called these regulations “laws of mercy” (the mercy code of the law).
• Regulations that deal with the cult, with the public and generally accessible relationship with God and the life of worship (the cultic code of the law).

The juridical code of the law

The juridical regulations assume the existence of a community of equal persons and aim at regulating the restoration of this equality following situations of conflict. The laws of mercy, however, assume a common coexistence of persons of equal status with persons of unequal status. They regulate the free and creative self-withdrawal of the strong for the benefit of the weak (Welker 2014). Finally, the code that deals with the cult regulates public contact with God and its religious and ethical impacts. Despite their differences, the three groups of regulations share numerous points of contact.

At its core, the Book of the Covenant contains a collection of juridical regulations that have been termed “archaic law” (Ex 21:12–22:19). This collection of legal regulations is bracketed on both sides by “laws of mercy,” namely “slavery laws” (Ex 21:1–21:11) and a collection of legal regulations for the benefit of the acutely and chronically weak – widows, orphans, the poor, the stranger (Ex 22:20–23:12). In turn, at the beginning and end of the Book of the Covenant, the laws of mercy are framed by laws that deal with the cult (Ex 20:22–21:11 and 23:13ff) (cf. Schwienhorst-Schönberger 1990; Welker and Etzelmüller 2013: 205ff).

These early juridical rules consist of an initial phrase that provides a “definition of the offense” and is then followed by a second phrase, a “determination of the legal consequence,” both combined in an “if-then” formula. For example:

• Ex 21:33f.: “If someone leaves a pit open, or digs a pit and does not cover it, and an ox or a donkey falls into it, then the owner of the pit shall make restitution …”
• Ex 21:35: “If someone’s ox hurts the ox of another, so that it dies, then they shall sell the ox and divide the price of it; and the dead animal they shall also divide.”

Many scholars agree that this so-called “casuistic law” was originally a narrative of a legal conflict and its settlement (Boecker 1980). Through complex processes of abstraction, a repeatedly tested and proven settlement is raised to the level of a legal regulation. In addition to proving the worthiness of the law by repeated public approval, there was also an interest in appropriate calibration, consistency and coherence among the differing laws. Thus, for example, a distinction was made between the theft of cattle and the concealed theft of cattle (by selling or eating the animal). These cases were distinguished by differing levels of compensation, which also likely served as a deterrent (cf. Ex 22:1 and 3). Following a similar logic, murder and manslaughter are distinguished and attract differing compensatory penalties (cf. Ex 21:12ff).

The leading legal ideas or legal principles become particularly clear when we look at the famous talion formula (Ex 21:23–25). In the case of particular injuries in physical conflicts, the authority in charge of administrating justice was instructed: “If any harm follows, then you shall give life for life/eye for eye/tooth for tooth/hand for hand/foot for foot/burn for burn/wound for wound/stripe for stripe.” This often quoted “eye for eye, tooth for tooth” formula has been misunderstood as an expression of retaliatory thinking. However, the talion formula is precisely aimed at limiting the dynamics and escalation of revenge and retribution:

The point here is to limit that mechanism of vengeance triggered by a particular harm, and to allow for the survival of those concerned … The escalation of revenge … should be prevented through use of the talion. Therefore, one could paraphrase the talion formula as: Only one life for a life, only one eye for an eye, only one tooth for a tooth.

(Boecker 1980; cf. Schmid 2014)

Yet the limitation and termination of conflict alone do not yet reach the level of a legal regulation (it could also be achieved by brutal measures of intimidation). The level of the law is attained when the (abstractly) thematized dispute and its consequences are observed and recorded in a form that can be applied to other forms of conflict and their consequences. Not only the theft of cattle (a, b, c, d), but also the theft of grain (a, b, c, d) and even the theft of persons or bodily harm become typified, calibrated and limited; they are considered from a leading point of view and are thus regulated: for example, in accordance with the principle of compensation. Across a range of abstractly composed “cases,” a principle is maintained (at a second level of abstraction) that connects the definition of the elements of an offense from the most differing contexts. Thus, regulative legal ideas or principles now have an effect upon the determination, comprehension and limitation of legal cases (cf. Welker and Etzelmüller 2013: 205ff).

The juridical regulations seek to redress the conflicts, to restore the state of events to what it was before the conflict or, when this is not possible, to limit the conflict by concentrating on compensation. In this way not only past but also future conflicts can be treated as isolated and in principle closed, limited cases; they are standardized. This is an enormous achievement. By legally typifying and standardizing concrete conflicts, their beginnings and ends are made foreseeable. Due to the abstraction and objectification of the law, present conflicts can be treated in the same way as past conflicts. Understood from a legal perspective, conflicts become identifiable as something in principle already gone by. Their solution is not only familiar, but as good as already carried out. In this way the law provides normativity and “security of expectations.”

The mercy code of the law

The juridical regulations in the Book of the Covenant are preceded by so-called “slavery laws,” which start with the sentence: (Ex 21:2): “If you buy a Hebrew slave, he is to serve you for six years. But in the seventh year, he shall go free, without paying anything.” And they are followed in Ex 22:20ff by a series of such regulations that deal with the protection of the stranger (Ex 22:20 and Ex 23:9), of widows and orphans (Ex 22:21ff), the poor (Ex 22:24ff; 23:6ff and 10ff), those who are powerless, lack influence or are otherwise isolated (Ex 23:1ff), and even deal with behavior over against an enemy or opponent (Ex 23:4f).

These regulations, generally formulated as (appellative) so-called “apodictic laws” (Weinfeld 1972; Boecker 1980), are clearly distinguishable from cultic and conflict-solving legal regulations. On the other hand, in individual cases they are tightly related to and interwoven into those laws, representing a type of hybrid. (For example, the cultic regulations that cover the Sabbath and the Sabbath year expect positive impacts upon slaves and foreigners.) By making mercy and compassion themes of the law, behavior over against the weaker is removed from the capricious, random inclinations of the individual and their bondedness to a particular situation. There should also be a particular security of expectation for merciful acts. Behavior toward the acutely or chronically weak is placed under the pressure of public expectation and directed toward compensatory legal relationships.

The laws of mercy go hand in hand with the discovery of new formative possibilities in the evolution of the law. This already becomes clear in the first, elementary regulations of the slavery laws (see above). The law formally brings the circumstances of slavery, completely natural in the societies of the ancient Near East and indispensable for their economic and social order, onto the same level as regulated conflicts. This means that the law not only aims at dealing with acute and short-term cases, but also with long-term transformational processes that altered the relationship between unequals into a relationship between equals. Besides being an instrument of short-term dealing with individual and social conflicts, the law thus becomes an instrument of long-term social transformation.

This transformation had revolutionary consequences for ancient slaveholder societies. For the slaves, at least for the “Hebrew slaves,” this meant that they were to be viewed as potentially free persons and ...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• Introduction: The challenge of law and religion
• Part 1 Interdisciplinary perspectives on law and religion
• Part 2 Freedom of religion or belief as a human right: critical reflections
• Part 3 Law, religion, state and society
• Part 4 Controversial issues
• Index