DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
LUCKNOW

Final Draft
Subject: - Foundation of Law
Project on: - Influence of Religion on Law

SUBMITTED TO: -

SUBMITTED BY:

Miss. Deepika Urmaliya

Assistant Professor
Foundation Of Law
R.M.L.N.L.U.

Srijita Kundan
Roll No. 133
Semester 1st (Section-B)
B.A. LL.B (Hons.)
CONTENTS

1. Acknowledgment
2. Introduction
3. Sources of law
4. Religion as a source of law
5. Influence of religion on law
6. Extent of influence of religion on law
7. Conclusion
8. Bibliography

ACKNOWLEDGEMENT

First of all I would like to thank my teacher Asst. Professor Deepika Urmaliya
for giving me such a golden opportunity to show my skills through this project
and enhance my knowledge on this topic. The project is a result of an extensive
research study, hard work and labor, that is put into to make it worth reading
and this was possible only with the heartiest support of my subject teacher.
I wish to acknowledge that in completing this project I had full support of my
library staff. This project would not have been completed without the help of
my universitys library Dr. Madhu Limaye library which had various quality
books on the chosen topic and the universitys internet facility that helped me in
making my research a success.

INTRODUCTION

Religion is a set of cultural systems and beliefs that related to spirituality and
moral value in man and concerning the cause, nature and purpose of the
universe involving devotional and ritual observances. Most religions tend to
have traditions, symbols, narrative and sacred histories that are intended to give
meaning to life and/or explain the origin of life and universe. They often contain
a moral code for governing human affairs from their ideas about human nature
and the universe. According to some estimates there are roughly 4200 religions
in the world.
In primitive communities religion, morals and law were indistinguishably mixed
together for example in the Ten Commandments of Christianity, the Eight
Commandment is a legal duty, Thou shalt not steal, other Commandments also
speak of how a person should live his or her life. The distinction between law
and morality, law and religion came in the very later stages of evolution of
modern thought.
According to Sir Henry Maine, Religious fear of evil was the principle
instrument in securing uniformity of conduct in primitive society at a time when
law did not enjoy and independent existence. Origin of law in Greece was the
divinely inspired judgments of the priest judges.1
The fact that religion is a source of law can be seen as under the use of religious
law in various countries today. In India itself there are different laws for Hindus
and Muslims. Ridicule to the tenets of Christianity is blasphemy under the
English Law.
Religion enriched the law of England; the Chancellors of England who were
responsible for the growth of equity were guided by their conscience.
It can be seen that due to the popularity of religion, the law which is but also a
moral code of conduct, has been influenced by religion as the original fear of a
supernatural force imposing punishment of a wrong done is the principle
instrument in seeking uniformity of conduct.

SOURCES OF LAW
1 Sir Henry Maine, A Study in Victorian Jurisprudence, Cambridge University Press,
Cambridge, 1988

According to Salmond2, there are two material sources of law:

Legal Sources Instruments or organs of the state by which legal rules
are created. They are authoritative and are followed by law courts as of
right. Ex - Legislative.
Historical Sources Sources where rules subsequently turn into legal
principles. These rules were first found in an un-authoritative form.
Sir Rupert Cross3, Professor at University of Oxford, has classified sources of
law into two types again:
Literary Sources The original documentary source of information
concerning the existence of a rule of law. In this sense, law reports are a
source of law whereas a textbook on tort or contract falls under the
category of legal literature.
Historical Sources This includes the original, mediate or immediate
sources from which rules of law derive their content as a matter of legal
history.
As according to this classification given by Salmond and Rupert Cross, religion
as a source of law comes under historical sources of law.

RELIGION AS A SOURCE OF LAW

2 Sir John William Salmond, Jurisprudence: Or Theory of the Law, Steven and Haynes, 1907
3 Sir Rupert Cross, Precedent in English Law, Clarendon Press, Fourth Edition, 1991

Religion is an important source of law. It played an important role in the

primitive period when men were very much religious minded and in the absence
of written laws the primitive people obeyed religion thinking it of divine origin.
In the medieval period, most of the customs that were followed were only
religious customs. Even today the Hindu Laws are founded on the code of Manu
and the Mohammedan Laws are based on the Holy Koran. The religious codes
become a part of the law of the land in the state incorporates the religious codes
in its legal system.
Religious law often throws light on the way in which a specific country views
and supports its religions. In most cases, religious law works alongside the
mainstream law to provide guidance to individuals.
Religious law refers to ethical and moral codes taught by religious traditions.
Each religion has its own idea of what religious law should contain.
As said by V. D. Mahajan, in his book Jurisprudence and Legal Theory, The
Jews, Hindus and Mohammadans regarded their laws as divine. The law of
England would have been different in form and content if there had been no
Christianity. It was Christianity, which preserved the substance of Roman law.4
According to Sir Henry Maine, the origin of law in Greece was the divinely
inspired judgments of the priest judges. Religion also enriched the law of
England. The Chancellors of England were responsible for the growth of equity
and were guided by their conscience.5

There are different types of religious law based on the different religions. The
most prominent sort of religious laws include
4 V. D. Mahajan, Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, Fifth
Edition, 2003
5 Sir Henry Maine, A Study in Victorian Jurisprudence, Cambridge University Press,
Cambridge, 1988

 Buddhism
Christianity
Biblical/Mosaic Law
Cannon Law
Hinduism
Islam
Judaism

In India, the most prominent religious laws are the Hindu and the Muslim law,
governing the Hindus and the Muslims respectively.
Hindu law is based basically on Manu Smriti. Prior to Indian Independence,
Hindu law formed part of the British colonial legal system and was formally
established as such in 1722 by Governor General Warren Hastings.
The substance of Hindu law implemented by the British was derived from early
translations of Sanskrit texts known as the Dharma Sastra, the treatises on
religious and legal duty.
In the case of Hindu personal and family laws, as outlined by the Acts of
Parliament, those that are followers the Hindu religion, as well as those who are
not Christian, Jewish or Muslim, are held accountable to these laws. Therefore,
it is assumed that all Indians who are not Muslim, Jewish or Christian are
Hindu, disregarding personal religious laws of followers of Buddhist, Jain, Sikh
and other religions, creating controversy within these communities. The Indian
legal system does recognize Muslim, Jewish and Christian family courts as well
as secular family courts.
Religious law or moral code of Islam is called Sharia. It deals with topics
addressed by secular law, including crime, politics and economics as well as
personal matters. There are two primary sources of sharia law: the precepts set
forth in the Quran and the examples set by the Islamic prophet Muhammad in

the Sunnah. Though interpretations of sharia vary between cultures, in its

strictest definition it is considered the infallible law of Godas opposed to the
human interpretation of the laws.
Muslims have responded in a variety of ways to the forces of modernity. These
responses cross the lines of tradition, sect and school. They affect the way sharia
is interpreted by individuals in their personal lives, and the extent to which
sharia is implemented in the public sphere by the state. These diverse
movements can be referred to collectively as contemporary sharia(s)

INFLUENCE OF RELIGION ON LAW

In primitive societies the influence of religion on law was obvious, but it is not
so obvious in modern societies.

According to Rt. Hon. Lord Denning6, many people now think that religion and
law have nothing in common. The law, they say, governs our dealings with our
fellows, whereas religion concerns our dealings with God. Likewise, they hold
that law has nothing to do with morality. Law lays down rigid rules, which must
be obeyed without questioning whether they are right or wrong. Its function is
to keep order, not to do justice. Although religion, law and morals can be
separated, they are nevertheless still very much dependent on one another.
Without religion, there can be no morality; there can be no law.
Law, morality and religion have been historically related. In earlier times, the
source and authority from which human laws derive their legitimacy was
believed to be divine will. Even though there has been some secularism of law
from religion, many of the modern day laws are based on religious values and
beliefs because they are often so universal and beneficial to the well being of all
the members of the society.
Religion is the product of the Human Consciousness and the extra thinking of
the mind. The religion plays an important role while making the laws. Laws are
for the people and religions are also for the people, so we can't separate these
two words from each other.
In India, cases related to Hindu law are decided in district courts. State judges
apply Hindu law on a case-by-case basis. The judges that preside over the
district courts in India are state bureaucrats, not religious priests or scholars.
Thus it is possible for a Hindu judge to preside over a divorce case between a
Muslim couples or for a Christian judge to preside over a case involving a
Hindu family. With no formal education on the religious laws of the state,
judges may not be well versed in the laws they are to adjudicate. They rely
heavily on case precedent and scholarly works to guide them through the cases.
In Muslim law, the concept of justice embodied in sharia is different from that
of secular Western law. Muslims believe the sharia law has been revealed by
God. In Islam, the laws that govern human affairs are just one facet of a
universal set of laws governing nature itself. Violations of Islamic law are
6 Rt. Hon. Lord Denning, Influence of Religion on Law, Canadian Institute for Law
Theology, 1977

offenses against God and nature, including one's own human nature. Crime in
Islam is sin. Whatever crime is committed, whatever punishment is prescribed
for that crime in this world, one must ultimately answer to God on the Day of
Judgment.
Sharia judicial proceedings have significant differences with other legal
traditions, including those in both common law and civil law. Sharia courts
traditionally do not rely on lawyers; plaintiffs and defendants represent
themselves. Trials are conducted solely by the judge, and there is no jury
system. There is no pre-trial discovery process, and no cross-examination of
witnesses. Unlike common law, judges' verdicts do not set binding precedents
under the principle of stare decisis and unlike civil law, sharia does not utilize
formally codified statutes. Instead of precedents and codes, sharia relies on
jurists' manuals and collections of non-binding legal opinions; these can be
made binding for a particular case at the discretion of a judge.
If we consider Christianity, it is essentially an ethical religion; and, although
its moral principles were meant directly for the elevation of the individual, still
they could not fail to exercise a powerful influence on such a public institution
as law, the crystallized rule of human conduct. The law of Rome escaped this
influence to a large extent, because much of it was compiled before the public
authorities recognized Christianity.
In the Middle Ages, most political theorists liked to describe the King as the
"shepherd" or "steersman" of the community. The King's authority was not
absolute, he was expected to rule within the bounds of the moral law, and his
authority was contingent on his so doing, but it was supreme. The King was
seen as the chief, almost the sole, source of order and harmony in the
community; he was the protector, the judge, and the lawgiver.7 In the exercise of
temporal power the King had neither partners nor rivals, but enjoyed undivided
sovereignty; all decisions passed in a top-down fashion from the will of the
King to the obedience of his subjects.
Conservatives often maintain that a strongly religious society is more apt to
remain loyal to the ideals of liberty. Specifically, they claim that religion offers
two advantages: that it provides a firmer foundation for moral character and
7 http://www.newadvent.org/cathen/09066a.htm

personal responsibility, thus creating a citizenry more honest, self-disciplined,

and self-reliant, and so less likely to be tempted to advance themselves at the
expense of their neighbors through government coercion and that it offers the
authority of God as an alternative to the authority of the State, and thus serves
as a check on the government.8
The Church was allowed to exercise a wide influence on civil law by the fact
that her ministers, chiefly the bishops and abbots.
Practically all the laws of the barbarian nations were written under Christian
influences; and the illiterate barbarians willingly accepted the aid of the
literate clergy to reduce to writing the institutes of their forefathers.9
An instance of the influence of Christianity on legislation is found in
the appeal to the books of sacred scripture in support of civil laws.

EXTENT OF INFLUENCE OF RELIGION ON LAW

8 http://www.freenation.org/a/f23l2.html
9 http://www.newadvent.org/cathen/09066a.htm

Religions are popular across the world it can be seen that due to the popularity
of religion, the law which but also a moral code of conduct, has been influenced
by religion as the original fear of a supernatural force imposing punishment of a
wrong done is the principle instrument in seeking uniformity of conduct.10
The relevance of influence of religion cannot be understated. There is
considerable influence of religion on society and Law in everyday life. For e.g. Public holidays and observance of religious holidays;
Closure of businesses on particular days or prohibition of sale of goods
(e.g. alcohol, pork etc. the goods considered immoral by some
religions)
The wearing of religious symbols; the wearing of veil, headscarves and
religious symbols.
Religious obligations during employment (exemptions e.g. time-off for
Friday prayers etc.)
Role of Religion in society and Public life can be seen in:
Freedom of expression, freedom of the media (c.f. Blasphemy laws in
Pakistan)
The position of women in society.
Religious education in Schools - Content of education, role of faith-based
schooling.
There is application of religious laws in personal matters of individuals like: Specialist regimes for e.g. in marriages - formalities and capacity to enter
a marriage validity of arranged or forced marriages, recognition of
polygamous marriages.
10 http://bura.brunel.ac.uk/

 Divorces
Inheritance
Custody
Thus religious law affects the workings if the day to day life, as according to
the Roman law the power of the father over his children was as absolute as that
of the master over his slaves: it extended to their freedom and life. The harsher
features of this usage were gradually eliminated. Thus, according to the laws of
different emperors, the killing of a child either by the father or by the mother
was declared to be one of the greatest crimes.

CONCLUSION

This topic has been about the extent of influence that religion has on law. My
hypothesis had been that there has been a lot of influence of religion has been
there in law since its inception especially in and near India. India especially, has
a lot of religion specific laws for example the separate laws governing the
Hindus and the Muslims. In Europe, in the medieval ages, there has been a lot
of influence of the Church on the way people should live and the laws prevalent
at that time, in this period Saint Augustine, gave the concept that the goal of
human life was to enter the city of God and it was also believed that man is
fallen and devoid of reason and should look up to the chosen one of God for
guidance.
As can be seen, religious laws cover a lot of aspects. It has been much debated
that the allowing religion to influence laws violates the right of equality and
human rights. There is a right of all members of society to live free from
discrimination and to have equal access to employment, to education and
services always comes first and giving different treatments to different people
on the basis of religious laws is wrong as justice should be provided to all
equitably.
The influence of religion on law has been long debated however, it can be seen
that this influence cannot be ignored. Religion has been used since time
immemorial as a guideline for people to live in a specific way as it considered
the right way of living and in man though religion has been instilled a fear of a
superior power punishing him for wrongs done. This can be called as the
earliest stages of following a rule and law is but rules and regulations.
Hence, it can be seen that law is much influenced by religion even though
whether in the right way or not is under much debate.

BIBLIOGRAPHY

1. The influence of religion on law by Rt. Hon. Lord Denning

2. A Study in Victorian Jurisprudence by Sir Henry Maine
3. Jurisprudence and Legal Theory by V. D. Mahajan
4. Fundamentals of Jurisprudence by Dr. N. V. Paranjape
5. Fundamentals of Jurisprudence by Dr. S. N. Dhyani
6. Jurisprudence: Or Theory of the Law by Sir John William Salmond
7. Precedent in English Law by Sir Rupert Cross
8. http://www.freenation.org/a/f23l2.html
9. http://bura.brunel.ac.uk/
10. http://www.newsbatch.com/religion.html
11. http://www.newadvent.org/cathen/09066a.html
12. http://www.fas.org/sgp/crs/misc/R41824.pdf