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Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law
By Marylin Johnson Raisch
Marylin Johnson Raisch is the Librarian for International and Foreign Law at the John Wolff International and Comparative Law Library of the Georgetown Law Center. She received her J.D. from Tulane University School of Law (1980) with work both in civil and common law courses as well as international law and Roman law. She holds degrees in English literature from Smith College (B.A. magna cum laude, 1973) and St. Hugh's College, Oxford (M.Litt., 1978). She received her M.L.S. degree from Columbia University School of Library Service in 1988 and has worked as a law librarian for fifteen years, the past ten of which were at Columbia University School of Law as International and Foreign Law Librarian. Marylin has served as moderator or panelist in several continuing education programs at the annual meetings of the American Association of Law Libraries on such topics as effective quick reference in international and foreign law, foreign law in English, and Russian law, and a 2005 workshop on European Union law. She has also presented talks on web access to foreign and international materials for the International Association of Law Libraries, has co-directed one of a series of special four-day institutes on "Training the Next Generation" of international and foreign law librarians, and has edited (with Roberta I. Shaffer) the resulting volume of proceedings, Transnational Legal Transactions (Oceana, 1995). Marylin is the author of several articles, reviews, and web guides on international and foreign legal research, such as "The European Union: A Selective Research Guide," 1 Columbia Journal of European Law 149 (1994/95), and hyperlinked web guides published from 2001 through 2003 on research in treaties and public international law, European Union law, and human rights law.
Acknowledgments and sources: Reynolds, Thomas H. and Arturo A. Flores. Foreign law guide: current sources of codes and basic legislation in jurisdictions of the world. Berkeley, Calif.: University of California, 2000-[electronic format]; The World Factbook 2005. Washington, D.C.: Central Intelligence Agency, 2005 [electronic web version]. Nicholas Erickson, J.D. cand., Georgetown Law Center, assisted with research.
Published February 2006
Table of Contents
Basic sources and their descriptions
Basic sources and their descriptions
Christian Canon Law (Roman Catholic Church)
Basic sources and their descriptions
Basic sources and their descriptions
Basic sources and their descriptions
Confucian Law and Legal Theory
Basic sources and their descriptions
Implementation of religious law in several jurisdictions (CHART)
General Law and Religion: Selective Bibliography
[Note: transliterations used are those found in the cited texts and are not consistent since even modern religious law relies frequently on ancient texts using older forms of language or modes of transliteration now common in scholarly references. The western Christian calendar is used for all dates with the awareness that each of these systems uses its own calendar; dates before the birth of Christ are designated B.C. and dates after that event bear no designation, since the Christian era neither denotes a commonly accepted divinity nor a common era].
Religious law emanates from the sacred texts of religious traditions and in most cases purports to cover all aspects of life as a seamless part of devotional obligations to a transcendent, imminent, or deep philosophical reality, either personal or cosmological. Religion for law must be defined broadly but its truth value need not and ought not be addressed. Most religious law gradually came to apply in its most institutional form to its own organizations and to familial or contractual matters. Application to ritual is a gray area but generally excluded from discussion and classification.
Religious law in this guide is seen as a branch of comparative law and legal study. Further, it is argued here that comparative law itself may most usefully be seen as part of the tradition of legal philosophy. Far from being wholly academic, however, comparative law is a practical approach in the service of 1) legal education 2) the appreciation of treaty implementation and 3) choice of law in the new world of public/private international law known as transnational law. At the conclusion of this guide to sources is a brief discussion of this approach to comparative law.
After the events of September 11, 2001, academic interest in Islamic law and countries governed by its principles as implemented along with secular positive law grew in an attempt both to understand the legal culture of middle eastern conflicts and to explore ways to address issues arising in multicultural jurisdictions with greater understanding. It is clear that in areas of private law such as family law, inheritance, and in come commercial transactions, several religious systems influence secular law or are incorporated as a regime which may or must be applied in those areas or to members of certain religious communities. As sources for legal research in these areas are inter-disciplinary and often less known in the world of legal research, an overview of the major world systems, and where and how they are implemented, is offered.
Constitutions, sources of texts: essential for determining if religious law applies in certain legal systems and in what areas of law
· World Legal Systems, University of Ottawa, excellent maps; overview of all traditions in jurisdictions of the world however in this area exercise caution: information for the legal system of Israel indicates the application of Talmudic law. This is not actually the case; Israel is a secular state applying many kinds of religious law in certain areas for certain communities, only one of which is Jewish. Islamic and other religious law also may be an option for religious communities in Israel.
· Berkley Center for Religion and World Affairs at Georgetown University, Religious Perspectives Database, http://berkleycenter.georgetown.edu/7315.html From the web site: "The Religious Perspectives Database allows users to compare and contrast key scriptural passages across five traditions [Buddhism, Christianity, Hinduism, Islam and Judaism] and five themes [inside/outside, justice/injustice, health/illness, wealth/poverty, and peace/violence]. The column and row headers point to introductory essays by Georgetown professors. Behind the individual cells of the grid you will find short essays on how each tradition approaches each theme, and links to key scriptural passages."
· Traditions- legal anthropology, semiotics (semiotics and legal traditions re Asia)
· Church and State- AcademicInfo, Law and Legal Research: Law and Religion - U.S.-based site for links relating to church/state issue, Native American religious issues, and U.S. Supreme Court cases.
· General humanities guide to research on world religions (print and electronic, such as CD ROM encyclopedias of Judaism and Islam, free and paid databases and text archives)
· General comparative religion - U.K. site for resources on world religions
· British Academy Portal - follow the 'Theology and Religious Studies' link from the home page
Comparative law treatises with treatment of religious law:
Aaron Kuperman, cataloger in the Library of Congress Social Science Cataloging Division, Law Team, has observed that "'Religious law' is a square peg that doesn't fit well in the round hole of American law." Ritual traditions and modern legal anthropology create most of the blurred distinctions between legal and non-legal classification decisions in particular collections. Mr. Kuperman, along with Jolande Goldberg, Senior Cataloging Policy Specialist in the Cataloging Policy & Support Office at the Library of Congress, as well as Lesley Wilkins and the Islamic Legal Studies program at Harvard Law School, have worked on the development of the LC classification schedules for religious legal systems:
For LC Subject Heading access, the above descriptors, adding only Buddhist law, work well either as actual broader term headings (which will require a limit with a term, say "women," especially for Islamic law) or as keyword searches.
For Confucian "law" it is necessary to use e.g., Philosophy, Confucian-[country name] or Confucian as a keyword with "ethics" or "law."
Religious legal systems: Outline. Each religious system will be presented in two sections:
Subject headings: Books and Articles
Please note that for this guide, very few monographs are listed. This is a selection intended to suggest further searches under the subject headings discussed above under "classification." Articles are drawn mainly from legal periodical indexing for two reasons, 1) to demonstrate the existence of this narrower subject area in that literature, and 2) to exclude the wider and very numerous publications in legal anthropology, a closely-related discipline which should be researched in a thorough scholarly exposition of the entire field. It is, however, beyond the scope of this guide.
According to the excellent outline provided by Irshad Abdal-Haqq in Islamic Law: An Overview of Its Origin and Elements, 7 J. Islamic L. & Culture 27 (2002) ( Reprinted with author's permission in the same journal from its first appearance in 1996), Islamic law might refer to all the law and jurisprudence of Islam and includes
(1) the primary sources of law (Shari'ah)
Shari'ah has two main sources:
· the Qur'an and
· the Sunnah (traditions of Muhammad ibn Abdullah, the last prophet of Islam), which means
o the things he said, i.e. hadith,
o the way he lived his life, his conduct
and
(2) the subordinate sources of law and the methods used to discover and apply the law (Islamic jurisprudence or fiqh), described by Mr. Abdal-Haqq as follows:
"While the principles and injunctions of the Shari'ah are infallible and not subject to amendment, fiqh-based standards may change according to the circumstances.
Four methods, often called sources of law by Muslim writers, for deducing and establishing fiqh-based law are universally recognized by Islamic jurists.
. the extraction of Qur'anic injunctions and principles based on interpretations of it;
. the application of the principles reflected through the Hadith of Prophet Muhammad;
. the consensus of opinion from among the companions of Muhammad or the learned scholars (ijma);
. analogical deduction (qiyas). .
Nineteen schools of fiqh (fiqh madhhabs) developed during the first four centuries of Islam. By the fall of Baghdad (in 1258 C.E. to the Mongols, that is- not to be confused with modern events) the number of major madhhabs had dwindled to five (four sunni and one shia). At present, the four major schools of fiqh among the sunni Muslims are: (1) Hanafi, (2) Maliki, (3) Shafi'i, and (4) Hanbali. Among the shia, the Jafari school predominates."
Abdal-Haqq, Islamic Law supra at 36
Judges also use individual judgment and reasoning, known as ijtihad (can include reasoning from analogy), but greatly varying over time. His excellent article goes on to distinguish each school or madhab by the relative importance each attaches to the authority of sources of law in on pages 67-75.
Finally, author Abdal-Haqq observes at pages 68-69
"Currently, Saudi Arabia, Sudan, and Iran stand alone as those countries that fully recognize the Shari'ah as the official law of the land. Qatar, the two Yemens, Kuwait and Bahrain also acknowledge Shari'ah principles but to a lesser degree. All other legal systems in the Muslim world are hybrids of Islamic and European law."
On the same subject of the lack of "pure" Islamic law today, note the article below by Professor Lama Abu-Odeh, The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, 52 Am. J. Comp. L. 789 (2004) and see below in this guide under Implementation of religious law in several jurisdictions.
Family Law
Commercial Law
"Jewish law is the legal system of the Jewish people as it has developed from Biblical times to the present." This definition by Phyllis Weisbrod in Basic books and periodicals on Jewish law: a guide for law librarians, 82 Law Libr. J. 519 (1990) summarizes a complex written, oral, and oral-as-written textual history of sources for Jewish law. Torah is the term used for the divine source of wisdom relating to all of creation, so to work towards a definition that relates to the narrower scope of its application as law, or halakhah, begins with the Torah in a more literal sense, namely, the first five books of what the Christian western tradition calls the Pentateuch or first five books of what came to be the Bible. While the status in Biblical and form-based criticism of the ancient compilers of this narrative is beyond the scope of this guide, an oral history of commentary on the Torah arose and became written down as the Mishnah in approximately the year 200. Talmud and Torah also contain non-legal teachings bound up with legend, myth and philosophy, referred to as aggadah.
Learned opinions based on this addition to the divine tradition were recorded as a commentary on the Mishnah and became known as the Talmud or "study." The Jerusalem Talmud (or Gemarah in Aramaic) dates from the fifth century after Christ and approximately 100 years later there appeared the Babylonian Talmud, a more authoritative text. Other sources of the "oral" law include the Tosefta and the Midrashe Halakhah. After the fall of the Second Temple in 70 and the ending of the assembly of elders known as the Sanhedrin, interpretation fell to the institution of a bet din or rabbinical court of three rabbis. Such a court continued through the diaspora wherever there was a Jewish population. There is no appeal or stare decisis; one can ask the court to correct an erroneous judgment or re-open a criminal case. The tradition is much closer to that of the European civil law in that regard.
Codes of restatement also appeared over time; the codes of Moses Maimonides in the 12th century and of Joseph Karo in the 16th century are considered authoritative. As those rabbis learned in the law applied it in opinions, these became written down as answers and advice known as response, and these constitute a living law.
Archaeological research and scroll discoveries have also added to the wealth of study and potential sources for Jewish law. See Baumgarten, J. "The Laws of the Damascus Document in Current Research," The Damascus Document Reconsidered (ed. M. Brosh). Jerusalem, 1992. In 1896, noted Talmud scholar and educator Solomon Schechter discovered evidence of sectarian Jewish documents which later were found to be medieval versions of the Damascus Document fifty years before the Qumran discoveries.
On the difficulties of separating legal and non-legal treatments of Jewish daily ritual life as well as commercial and family law areas to which it also applies, and the impact on law cataloging, see Kuperman, Aaron, Technical Services Law Librarian, Volume 25, No. 1 (September 1999)
Jewish law is now applied in personal law (such as marriage and family) in Israel and Morocco and others which recognize such applications to religious communities; see below in this guide under Implementation of religious law in several jurisdictions.
A.Philip and Muriel Berman, eds. Philadelphia: Jewish Publication Society, 1994.
The canon law of the Roman Catholic Church began to develop alongside Roman law and indigenous law in Europe after the end of the Roman Empire and the retreat of ancient Roman law. Gradually canon law and its Roman law elements would develop into a body of law that could challenge emerging monarchies to develop a coherent national law or the civil law code tradition of secular law in most of Europe today.
From the Catholic Encyclopedia online via New Advent (see link) we have the following definitions and description:
Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members.. but the expression "canon law" (jus canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the "civil law" (jus civile), and later we have the "Corpus juris canonici", as we have the "Corpus juris Civilis". Canon law is also called "ecclesiastical law" (jus ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: canon law denotes in particular the law of the "Corpus Juris", including the regulations borrowed from Roman law; whereas ecclesiastical law refers to all laws made by the ecclesiastical authorities as such, including those made after the compiling of the "Corpus Juris".
By the twelfth century the mass of laws or canons were systematized and rationalized by canonist Gratian in the "decretals" or Concordance of Discordant Canons near the same time as the revived study of ancient Roman law began at the university at Bologna, but further work was done to create the decretals of Pope Gregory IX in 1234 and so by the end of the 13th century, the Corpus Iurus Canonici consisted of the following texts:
(1) the "Decretals" of Gregory IX;
(2) those of Boniface VIII (Sixth Book of the Decretals);
(3) those of Clement V (Clementinæ) i. e. the collections which at that time, with the "Decree" of Gratian, were taught and explained at the universities. (Catholic Encyclopedia online)
Ecumenical councils of the church, the Pope and Apostolic Letters such as bulls or briefs, decrees of the Roman Curia or Acts of the Holy See also form part of canon law.
The Roman Curia or departments of the Holy See consist of Roman Congregations, the tribunals, and the offices of Curia.
The Tribunals consist of the Sacred Penitentiaria, the Sacred Roman Rota, and the Apostolic Signatura. The Sacred Roman Rota consists of auditors who hear contentious cases and are doctors of canon law and theology. They take appeals from the episcopal tribunals of first instance or may be of the first instance for some matters. Cases may be criminal or regarding ordination or matrimony, involving a defender of the bond (of marriage). Advisory opinions may be requested as well. Conclusions of the court must be accompanied by reasons.
A common type of case in canon law relates to requests to grant an annulment of marriage after a civil divorce, since the doctrine of the Roman Catholic Church does not recognize divorce. It is a matter of controversy as to whether there have been in fact ecclesiastical "divorces" for influential persons or under experimental canons used in the United States before the latest Code of Canon Law, promulgated in 1983 (and as amended by Pope John Paul II in Ad tuendam fidem, apostolic letter motu proprio) but no Catholic theologian or canon lawyer would ever admit to such. The annulment concept came into secular law to void forced marriages and in several other instances, and in both religious and secular arenas, the court declares that no marriage ever existed and so it cannot be dissolved.
From an ancient time, 2000-1500 B.C., the Vedic literature existed, and while they inform a tradition of gods they point to the concept of the One as interpreted by the Brahmans, these teachers also used the sutras or memorized books (like textbooks) of law or dharma (in one of its meanings; closer to "way of life").
The Laws of Manu, a mythical author, of circa 200 B.C. shows the beginnings of the legal tradition of great variety although he focus was family, property, and succession law. This early Sanskrit literature was replaced gradually in the colonial period when the British substituted their own translations and understanding in place of what came before; Anglo-Indian law preserved family law areas (five elements of family law - marriage, child marriage, polygamy, divorce, and maintenance) as Hindu personal law and replaced the rest with colonial British law. It was a judge made law. The Hindu Code of independence became one among other personal codes and preserved much of the British innovation. Custom and local tradition could prevail over sacred texts even in the time of classical Indian law. According to the Laws of Manu, there are four sources of dharma: 1) the Vedas, 2) tradition, especially as set forth in treatises like Dharmasastras, 3) customary laws created by local or regional communities, and 4) personal preference.
The important post-colonial acts of Parliament for the Hindu Code include: the Hindu Marriage Act No. XXV of 1955, Hindu Code (1955); the Hindu Adoptions and Maintenance Act 78 of 1956, Hindu Code (1956); the Hindu Minority and Guardianship Act No. 32 of 1956, Hindu Code (1956); the Hindu Succession Act No. XXX of 1956, Hindu Code (1956); and the Hindu Succession (Amendment) Act No. XXXIX of 2005.
Internet Sacred Text Archive for the Vedas and Laws of Manu (older translations only).
Note: Titles in this area abound from Indian publishers over many decades and the list is selective based on citation frequency observed (not analyzed) in scholarly legal writing.
Tibet 1940-1959 is the most illustrative jurisdiction for an examination of what followers of the Buddha in an authentic Buddhist culture regard as the source of laws and rules that govern a monastically inclined community as well as householders' obligations.
According to Rebecca French,
"There are five major sources for Tibetan legal concepts: (1) religious source material such as the Vinaya which is a canonical text outlining the rules for the monks to follow as Buddha spoke them case by case; (2) Extant official documents which include administrative law books, edicts, decision documents, treatises, government contracts, estate record books, tax records and deeds to land; (3) documents issued by non-governmental institutions such as monastic constitutions, private leases and private contract documents; (4) law codes; and (5) written and oral statements describing the legal system." The Case of the Missing Discipline: Finding Buddhist Legal Studies 52 Buffalo L. Rev. 679, 682-684, fn 4
Dhammasattha is the Pali term for the genre of legal literature which may be examined in relationship to householders and communities or sanghas used by such communities in Laos, Myanmar (Burma) and Thailand and this literature probably dates from the first millennium. Courts of law in colonial times used "Acts of Truth" in Sri Lanka's Sinhala Buddhist community for proof in judicial proceedings. These were oaths taken upon consequences to be observed as between truth-tellers and others. In Thailand, legal proceedings that replace informal "injury narratives" in tort cases (or events which may or may not result in a case) appear less effective in resolution of claims than the traditional methods under Buddhist obligations (see Engel article cited below). These exercises in legal history and anthropology bear on modern developments in criminal law and restorative justice as well.