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The term “sacred law” generally denotes a body of laws that is understood by a group of believers to have been divinely revealed. Most, but not all religions, have such legal aspects: Hinduism, for example, traces the origins of its sacred laws to the oral traditions recorded in the Vedas, while for Judaism the earliest source of sacred law is in the Torah.
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Divine law usually refers to a divinely created natural law or to the unwritten and universal rules of morality, but sacred law is intended to govern human actions in the temporal sphere in accordance with the sacred, and often takes the form of positive written laws and oral or customary laws. Sacred law, therefore, leaves room for human interpretation and adjudication of conduct and transgressions of sacred law, usually by a priestly class. Although most, if not all, religions have legal aspects, this article will focus on the sacred laws of the major religions: Hinduism (and by extension Buddhism), Judaism, Islam, and Christianity—religions in which the law is believed to be divinely inspired or revealed, organized in a discernable collection of written or oral codes, and binding over human activities in the temporal sphere.
Hindu and Buddhist Law
Hinduism, the oldest of the major world religions, traces the origins of its sacred law to the earliest written texts, the Vedas, a collection of oral traditions written down in the period around 2000 BCE. Although the Vedas concentrated primarily on rituals devoted to a pantheon of gods, and not on law, the concept of dharmas, moral principles which guide human action in conjunction with karma (the force generated by a person’s actions to bring about transmigration and to determine the nature of the person’s next existence), is discernable throughout. The dharmas also contributed to the development of the caste system of Hinduism, and thus formed a customary code of social obligations in ancient India.
Toward the end of the Vedic period, around 500 BCE, many of the rituals and rules that had developed from oral tradition were collected in texts known as sutras. The Dharmasutras, the rules of daily life, became the first codes of Hindu law. Living according to dharma became one of the “jewels” of Buddhism as well, and therefore, in terms of sacred law, Buddhism and Hinduism share a common origin. In Buddhism, however, the concept of dharma evolved aesthetically, with individuals seeking to achieve an inner tranquility, and it achieved its fullest expression in the Japanese cult of the Buddhist monk Nichiren (1222–1282 CE) and the Lotus school. In India, the Hindu law of dharma became a comprehensive code of personal law, governing marriage and the family, inheritance, and social obligations. In 1772, the British ordered that the Dharmasutras be considered binding as personal law in the Anglo-Indian courts, and thus the Hindu law, in conjunction with English rules of criminal and civil law, remained an effective code in a secularized form in the modern age.
The Torah, also known as the Pentateuch, is the first source of sacred law for the Jewish tradition; it is a written, substantive law governing Jewish religious, social, and familial obligations believed to have been divinely revealed to Moses during the Exodus from Egypt. During the fifth century BCE, after the Persian emperor Cyrus the Great (c. 550–529 BCE) permitted Jews to return to Palestine following the Babylonian conquest, a number of Jewish scribes provided commentaries on the Torah; some of the most significant are found in the Book of Ezra, and they created the foundations of a comprehensive Jewish jurisprudence. In addition to the Torah, Jewish tradition holds that the sacred law also included a divinely revealed oral law (halakha). Halakha, which was comprised of the statements of oral positive law (Mishna), commentaries on these laws (Gemara) and a number of moral and ethical precepts (Haggadah), were put into written form in the third through sixth centuries CE in the Palestinian and Babylonian Talmuds. The Mishnas are organized categorically and they cover legal matters ranging from religious observances to dietary laws, contracts and torts, criminal law, family law, and property and legal procedure. In the last few centuries BCE, legal questions turned into sectarian rivalries between the high priests, the Sadducees, who regarded only the Torah as authoritative, and the scribes and laity, the Pharisees, who regarded the oral law as an equal part of divine law. The activities of the Pharisees proved vitally important in Jewish history, as they developed a method of legal study of the law centered on a rabbinic tradition and scholarly communities that became a permanent feature of Judaism. Still, later movements in Jewish history, such as the Hasidic movement of the eighteenth century and the Jewish Enlightenment (haskalah) and secularizing reform movements of the late eighteenth and nineteenth centuries, have significantly challenged the binding authority of Jewish law to regulate the private and public lives of Jews.
Islamic law (sharia) originated with divine revelation. The Qur’an, which Muslim tradition holds was divinely inspired, and which is generally believed to have been written by Muhammad (c. 570–632 CE), contains the founding principles of Islamic law, principally, definitions of the holy obligations of believers. The Qur’an has few direct legal statements, and these are limited to modifications of Arabic customary law. However, once Muhammad had established an Islamic community at Medina in 622, he began to apply the general ethical and moral principles of Islam to matters of secular jurisprudence, thus forming a basis for a specifically Islamic customary law. The application of Qur’anic ethics to secular affairs developed into an Islamic jurisprudence, by which the juridical goal was the discovery of the exact meaning and application (fiqh) of Allah’s law in secular matters. The founding of the first Islamic dynastic state, the Umayyad dynasty, in Damascus in 661 broadened the focus of Islamic law into areas of civil, commercial, and administrative law. The ninth-century Shafi’i school created a comprehensive Islamic jurisprudence that integrated elements of positive, customary, and natural law. Jurists were first obligated to consult the Qur’an and the precedents set by Muhammad on matters of law. In cases to which the positive law of the Qur’an did not directly apply, judges were then to compare elements of the case at hand with established precedent (customary law), and finally to take into consideration matters of public interest and equity (natural law). The Shafi’i school of Islamic jurisprudence became the dominant school of Islamic law, especially within the Sunni communities, and it generally fixed the available sources of law and juridical procedure. However, the Shi’a tradition, which became especially influential in modern-day Iran, held that secular rulers were divinely inspired descendants of Muhammad, and therefore their legal decisions established a much wider set of case law that jurists might examine for relevant precedents.
The early development of Christianity entailed a break with Judaism and Jewish law. Christian belief considered Jesus Christ the fulfillment of the Jewish prophets’ prediction that a messiah would arrive. The mission of Paul (first century CE) to non-Jewish communities within the Roman world, and Paul’s insistence that converts to Christianity were not obligated to follow Jewish law, entailed a decisive break between Christianity and Judaism. Intermittent Roman persecution of Christianity in the first three centuries CE made the religion essentially a private cult, one which developed little in the way of laws that governed public life. The conversion of the Roman emperor Constantine (c. 274–337 CE) to Christianity, and the subsequent adoption of the religion as the official cult of the Roman Empire, meant that in secular legal matters, the Christian church deferred to the secular powers. The collapse of the Roman Empire in the West left the Christian church as one of the only central authorities in Western Europe, yet it remained under the dominance of secular kings in legal and jurisdictional matters. The Investiture Controversy (1075–1122 CE) between the Holy Roman emperors Henry IV and Henry V and Pope Gregory VII, which started as a conflict over lay nomination of bishops, was as much a conflict about whether or not the state had jurisdiction over the affairs of the Church. The outcome decidedly favored the Church, and it emerged as an independent institution, a virtual state, with its own hierarchy and rules of governance. The Church created a system of canon law, the jus novum, which drew heavily from the Roman Code of the Byzantine emperor Justinian, which was newly discovered in the West. The monk Johannes Gratian (d. c. 1160 CE) drew up the full code of canon law, A Concordance of Discordant Canons, in 1140; although not formally a sacred law since it was not held to be divinely revealed, Christian canon law was the first widely used code of law in the West following the collapse of the Roman Empire.
Sacred Law and Integrative Jurisprudence
The modern trend by which in some societies the law is viewed as a fixed body of rules set by lawmakers acting out of secular and rational concerns, while in other societies the law continues to be understood as a function of the sacred, has led to what Samuel P. Huntington (1996) called a “clash of civilizations.” Nonetheless, even various sacred law traditions contain elements of jurisprudence that would be recognizable to modern secular legal traditions. In other words, despite the fact that sacred law is held by believers to be divinely revealed, these sacred law traditions all contain elements of what the legal scholar Harold J. Berman (1993) called an integrative jurisprudence of positive law (the rules established by the law maker), customary law (the law in a historical and social dimension), and natural law (moral and ethical principles). Thus, the seeming dissonance between the various religious legal traditions, or between religious and secular law, may very well be overstated when considered in terms of common elements of integrative jurisprudence.
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