Law and Religion " Are They going in hand?"

Final project report- law and sociology


Submitted to-:
Ms. Arpita Mitra
Subject teacher
Sociology and law








 
Table of Contents
INTRODUCTION 3
Law 3
Law as custom 3
RELIGION 4
Religion is set of belief 5
SUMMARY OF RELEVANT LITERATURE 5
FINDINGS 5
FUNCTIONS OF LAW- 5
To bring change in society 5
To provide social justice 6
Dispute resolution 6
LAW AND RELIGION CAN NOT GO HAND IN HAND 6
Religions are backward looking 6
Religion is obstacle of state 7
Religion is hurdle for the fulfillment of purpose of law 8
THEOCRATIC STATE AND LAW 8
CONCLUSION. 8










INTRODUCTION
Law
As such, there is no single or correct answer to this question, so this is one of the most difficult term to define. There were many jurist and law makers attempted to define it but no one could be able to define it properly. In past no one really questioned lawmakers, law distributors, or the laws themselves. The best way to define law is by examining the sources of the law and its function. But in general we can say Ubi societas, ibi jus. it means wherever there is society there is law. “a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts” . But if we come to examine what is the social basis of law? It Law is practical craft of systematic control of social relations and institutions . Moreover there were many other philosophers and jurists have attempted to define it according to them. Bentham Jeremy defines law as a law is what a sovereign commands, He stated that 'commands' are expressions of desire that another shall forbear, which is accompanied by a threat of punishment (the "sanction") for disobedience. Austin also defines law as command of sovereign, in his sovereign command he says the command should be on lower authority by higher authority.
Law as custom
There are many law which have derived from custom also. In each and every society there is some custom which is to be followed by that the member of that society.teh experience of pleasure and pain provided the test of success. But the historical struggle for survival went on in groups so that many seeking the same aim tended to come to similar opinions as to what was best more productive of pleasure than pain. Each profited by other’s experience hence there was concurrence towards that which proved to be most expedient. All at last adopted the same way of the same purpose hence the ways turned into customs and became mass phenomena. Instincts were developed in connection with them in this way folkways arise. Folkways are not noticed or consciously considered until long after they have become established. But eventually some folkways come to be seen as good for the welfare of the society. When the judgment of social good is added to folkways they become mores
Law grows or should grow out of the mores. It shaded into them but is distinguished by being backed by state force. Folkways and mores change gradually as the conditions of life change but there is in Sumner’s view little scope for changing them fundamentally through many conscious acts of legislation. When mores accepted by society and approved by state power then it becomes law.
RELIGION
Man is social animal is also a religious or spiritual being. Religion is a major concern of man it is one of the earliest and the deepest interests of the human beings religion is universal permanent pervasive and perennial interests of man. Man not only has biological economic and social needs but also what is known as a religious need. Religion is such a very vague term to define on religion opinions differs from the great religious leader down to an ordinary man; there is no consensus about the nature of religion. Sociologists are very to find a satisfactory explanation of religion.
Durkheim defines in his book the elementary forms of the religious life defines religions a unified system of beliefs and practices relative to sacred things that is to say things set apart and forbidden.
James g Frazer in his the golden bough considered religion a belief in powers superior to man which are believed to direct and control the course of nature and of human life.
Edward Sapir an American anthropologist says that the essence of religion consists in mans never cease attempt to discover a road to spiritual serenity across the perplexities and dangers of daily life.
MacIver and Page have defined religion as we understand the term implies a relationship not merely between man and man but also between man and some higher power.
Max Muller defines religion as a mental faculty or disposition which enables man to apprehend the infinite.
Religion is set of belief
All religious organization depends upon beliefs knowledge and training to exercise influence upon their members. Religious belief is the cognitive aspect of religion. It tries to explain to and origin of sacred things. It assumes that the sacred things do exist. These are the knowledge that belief gives us about the so called sacred object and their links with the super empirical world. But in both the cases belief rests upon an attitude not upon observation it is belief based on faith rather than upon evidence it is in biblical language the substance of things hoped for the evidence of things not seen.
SUMMARY OF RELEVANT LITERATURE
In my research on the tropic law and religion I referred many books on law and religion. In order to make this project first I defined religion and law in different aspect. to define law I followed some books on jurisprudence and law, like salmond on jurisprudence, learning the law , some article provided by ahemed ali sir, moreover some of the social basis law I have also mentioned in my research for that I have referred the book Cottrell the sociology of law second edition.. For the definition of religion I followed the book bunch of thoughts by M.S.Golwalkar, some ideas of Damodar Vinayak Sarvakar on religion, a book written on Hinduism by swami vivekanand. I have also mentioned some basic principles of Islam by referring book Quran and HADITH and one book named Quran and science by Jakir Nayak the founder of Islamic research foundation. In order to prove religion and law cant go hand in hand for that I have to refer some law book. For that I refered a book called secularism and its critics themes in politics and in regard to talking religion in terms of Indian law I referred some books on constitution like m.p.jain on Indian constitution, B.N.Shukla on Indian constitution and a bare act by P.M.Bakshi. dispite all these I referred some internet resources relating law and religion.
FINDINGS
FUNCTIONS OF LAW-
To bring change in society
By looking at definition of social basis of law that the Law is practical craft of systematic control of social relations and institutions it proves that law is such a weapon of state to control social relation and institutions, if any social institution is exercising its power beyond provided law attempts to stop it. In fact we can say that law is the thing which draws the boundary line for each institutions and individuals so that it cannot go beyond its object and domain. Professor Stephen J. Toope President and Vice-Chancellor The University of British Columbia by addressing Lawyers’ in Rights Watch Committee said that social change is meaningless unless it is underpinned by the law . Even The current chief justice of India addressing in lecture in Raipur in Law University; said that law should be used as a tool of social engineering.

To provide social justice
If we see the general definition of law It says is set of rules for the purpose of controlling the people and governance in society. Our constitution of India also in its preamble talks about social justice. The constitution ensures to all of its citizens, justice – social economic and political. Also in directive principle of state policy has been inserted in our constitution for certain principles of policy to be followed by the state which could bring justice and welfare in the society. After 42nd amendment brought by Indira Gandhi there was new article 39A inserted in our constitution by providing equal justice and free legal aid- this article says the state shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. as Aristotle says injustice arises when equals are treated unequally and also when unequal are treated equally, in this situation this is only the law is which tends to resolve this problem, law decide who is equal and who is unequal. Even Indian constitution article 14 also talks about equality before law, the main purpose of this article is to provide equality among equals.
Dispute resolution
Since the law is tool of social control and according to social control theory of john lock the man is by nature is selfish, egoistic, and according to Aristotle, human is social animal so we can say if human being will live together in society then it is necessary to clash of interest among man to man as per the theory given by john Locke. So this is the law which used to solve this problem. Moreover we can se practically in our society day and again the complaints are to be filled by peoples against on othere. It also resolve dispute of state and union in federal country like India.

LAW AND RELIGION CAN NOT GO HAND IN HAND
Religions are backward looking
As Edward Sapir an American anthropologist says that the essence of religion consists in mans never cease attempt to discover a road to spiritual serenity across the perplexities and dangers of daily life. Religion never let the people think any new think. For example we can see the basic principle of ISLAM says ya allah mohammad rusool allah, It means god is great is great nobody is greater than god, and like in other religion like Hinduism and Christinity there are some conservative things which has no any scientific basis. Since each and every religion is very old for example we can see Hinduism is 10000years of old, Islam is 1300 years old, and Christianity is more than 2000 years of old. By the fact we can say that all the principles of any religion is as old as that particular religion is. Amendment in law is easier as compare to religion. Even religion amended through only revolution for example we have example in front of us like DHARM SUDHAR ANDOLAN in India and also beyond India like Europe, prior to dharm sudhar andolan no body could question on church activity. Religion does not accept any change in law contrary to it, even if is need of society for this we have example of COPERNICKS and ISHA MASHIH who had been punished for diverting and discovering new thing apart from religion.
Religion is obstacle of state
If we accept the definition of law given by Austin- it is law as command of sovereign. In Justinian point of view law simply or strictly so called or law set by political superiors to political inferiors. And one of the essential of state is sovereignty; if a state has to be sovereign then he has to be superior to all the body under its boundary. But the basic principles of religions also talks about religious superiority; as I have already said the essential principle of Islam is ya allah Muhammad roosool allah. So this is the place where the conflict arises between state and religion. A state should not have any religion, in country like India which follow the idea of secularism, here all the religion are same this state has not any religion. And right to religion is also given to its citizens by constitution. Article 25,26,27 and 28 talks about different types of freedom about religion. In India state is not allowed to amend any law which is derived from religion. So we can say in secular countries if the state has to make any law regarding any private law of any religion it is not easy. The principle of religion to religion is different and there is very great possibility to conflict between religion to religion principles, for example the cow is considered to object of worship in Hindu religion but in other religion it is like only other animal and its slaughter is allowed in some religion, and in any secular country state has not to promote any of them so the interest of one is harm of religious sentiment of others. So how it can be possible to maintain sovereignty of state. Every time state has to bend in front of religion. In a very famous case named maulana rahamat barakkat ali v. state of bihar in this case the matter comes in front of court regarding performing namaj in loud speaker. The court could not able to give decision properly in favor of state. So these are the problem where the state has to surrender his power in front of religion. So it is obstacles for state to exercise it s sovereignty and power.

Religion is hurdle for the fulfillment of purpose of law
As I have already discussed the purpose of law that is dispute resolution, provide social justice, and to bring change in society. If we see the first purpose that is dispute resolution we can say religion is the thing which always arises disputes, for example the dispute of Manndir and Masjid, we have December 1992 Babri Masjid demolition which arose a lots of dispute around the country, now a days there are some of the extremist parties are claiming some of the masjid around the country as their ancient mandir and for that they gives slogan ye to abhi jhanki hai kasha Mathura baki hai this is the slogan is to be ginven by those people who has demolished babri masjid structure and now they are claiming to other Masjid of Varansi and Mathura as their ancient Mandir so ths is the real face of religion which work is to only creates dispute. In such a situation how can we clam that in existence of religion how the purpose of law could be fulfilled?
THEOCRATIC STATE AND LAW
theocracy is a form of government in which divine power governs an earthly human state, either in a personal incarnation or, more often, via religious institutional representatives, in theocratic state has its own religion everybody is bound to follow that religion, all the law made in such countries is derived from its custom so there is no more problem to follow such customs which they have been following since so long time, and other thing is that their all the laws are according to their religious choice so law and religion can go hand in hand only in theocratic state. But in current globalized world it not easy to be a state totally theocratic, because now current world is globalized village If a theocratic state not makes any law keeping in minds others interest then it is very hard to survive for that country, that theocratic country will go on and on by following its religion and because of that other will be disturbed.

CONCLUSION.

Lastly I would like conclude by saying only this thing that law and religion both are different entity. Although both are the inseparable part of society but both tends to keep itself as superior than one another, so there is every possibility of clash between both of them. As I have already discussed all the difficulties of law and religion so I not need to elaborate here also. If law has to be proper then it has to be strict and if law becomes strict then it is problem to religion it is as like as two swords in one cover.