Religious norms: examples. Law and religious norms

The question of the correlation of legal categories withmoral and ethical 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 inclose ties with each other, is recognized by most experts. 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 loses its meaning.

On the other hand, it is obvious that ethics itselfsensitive 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 speak of "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 straightforward, there are only a few enclaves.

The main features of religious law

The most important feature of religious lawis that the basic basis of all norms is the superhuman establishment recorded in the sacred books, which are considered as sources of religious norms. The authority of establishment is unquestionable, and any human act is judged in accordance with it. At the same time, the entire legal system is to a decisive extent guided by religious dogma.

Собственно, последняя является специфической variation on the topic of natural law (B. Spinoza, J. J. Rousseau, I. Kant), in which, according to the established scientific tradition, law and law are divorced. The right is based on the objective values ​​of human society, the law ideally makes these values ​​legitimate. The contradictions of the legal system are explained precisely by the incompatibility of the law (as a product of state activity) with objective law.

Historical and contemporary examples of religious law

A feature of religious law is thatthe norms recognized as “superhuman” and recorded in sacred books are taken as “objective law”. The classic 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 more detail), many ancient legal systems, for example, the famous “Avesta”, prescribing legal proceedings on the basis of legendary Ahura Mazda, revealing religious norms. Examples are often very expressive: even a dog appears as a subject of law.

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

Religious law and the Gentiles

In most cases, the feature of religiousrights is that it operates only within the community of co-religionists. Inovers are not subjects of religious law. They are either subject to expulsion and even physical annihilation if their activities and cults are not accepted by the official authorities (examples of this are the expulsion of Jews from Christian Spain in 1492, the expulsion of Armenians by the Turks in 1915, and so on), or non-believers simply system. For example, in modern Iran there are the following religious legal norms: there is a ban on alcohol for the faithful, and an exception is made for Europeans or Jews. This is most often explained by the fact that people of the true faith can go to heaven if all the rituals and rules are observed, and the Gentiles have already made their choice, respectively, you can not take care of their souls. Of course, one should not underestimate the historical and religious traditions, often dictating the nuances of legal norms.

Religion and modern morality

If “classical” religious lawin modern history is rather an exception, 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. Perhaps this is even the most important question. Indeed, is a certain established norm of relations (indifferent to ethics) right? Or it is possible to consider as the right only what has under itself the ethical bases? If it is simpler to say, is any decree of the king, regardless of its ethical component, a legal act? In the system of religious law, such a question does not arise at all, for no king would dare to issue a decree contrary to the holy scriptures. Another thing - secular law, which has other grounds. The primitive question: "If the king or the government issues a decree obliging to execute the entire population of the country, will this decree be legal?" If yes - the legal system is absurd. If not, where are the limits of legal competence and how are they defined? On this occasion, modern science has several alternative answers.

Legistic theory

Representatives of this theory come from specialideas about how law and religious norms correlate, as they proceed from the holiness of the law. Its origins go back to ancient Chinese legal practices. The norms of the law do not require discussion and comments, they are accepted as an axiom. Legism could become part of religious law, but relations here are complex: as a rule, religious law allows for the adjustment of laws to best suit the spirit of divine attitudes. In this sense, legism, rather, absolutizes social, rather than religious law.

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 the right is a kind of aggregateestablished standards adopted by the government and society. If society is inclined to accept religious morality as a right, this is a legal society. If it accepts anti-religious morality (for example, the piracy community, Soviet morality or Hitler’s Nazi attitudes), this is also a legal society, no matter how bitter it is. In Kelsen’s theory, the ethical components are outlined in legal relations. For this, his theory was repeatedly criticized from the standpoint of other legal ideas.

Jusnaturalism (natural law)

Attitude of Jusnaturalism to Religious Lawcompletely different. Very often, right up to today, supporters of justnature include religious social norms fixed in almost any religion (do not kill, do not steal, etc.) in the list of natural norms of mankind, which should determine the outlines of the legal picture of any era .

Positivist theory

This theory is one of the most sought aftermodern life, in any case, in the life of present-day Russia, proceeds from the fact that the right enshrines some system of norms that naturally developed in this era. The relation of legal positivism to religious morality and religious law is twofold: on the one hand, positivism takes into account religious experience, on the other, ignores it if conditions have changed, if ethics regulating religious norms has ceased to work. Examples can be given very different. So, legal positivism easily gets along with the Soviet (anti-religious), and with the post-Soviet situation.

Liberal theory

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

According to Fuller, the right cannot be immoral.However, the morality of law is not determined by abstract norms characteristic of religious law, but by a real benefit for each member of society. Legal rules are the better, the more people benefit from them. Fuller's theory partly 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 V.S.Nersesyantsa, but the final completion received in the writings of his students. The essence of the theory is that right is the freedom of a person, limited only by the freedom of another. Proponents of this theory seek to bring all religious norms and values ​​outside the legal field (Nersesyants himself insisted on this). Religious ethics, in the opinion of libertarists, is a serious impediment to the path of law, as it claims some “universal” values ​​that restrict freedom. At the same time, supporters of this theory diligently fail to notice the paradox that freedom itself, understood by them as an ontological category, is directly related not only to ethics, but also (for example, in Christianity) to religious philosophy.