Exploring Definitions of Religion

Introduction

There have been a plethora of attempts to define definition with contrasting explanations. The definition of religion is controversial and remains a point of departure for many scholars. Edward B Tylor simply defines religion as the belief in Spiritual Beings while Catherine Albanese considers it to be a system of symbols through which people orient themselves in the world with reference to both ordinary and extraordinary powers, meanings, and values. According to the Oxford Dictionary, religion is the belief in and worship of a superhuman controlling power, especially a personal God or gods. A common thread in all these definitions is the existence of belief in a higher body or being with great powers.

A community or people harbouring beliefs in various religions can greatly be influenced by its teachings and the recommended way of life. Religions teaches and dictate certain moral and ethical codes that its subscribers ought to adhere to. These moral and ethical codes are taken to originate from the Supreme Being who has given them to man for their common good. These moral codes sometimes are taught by religious traditions and may sometimes become the law governing a given community. When moral and ethical codes taught by religious traditions become law it is referred to as religious law. Each religion has a set of rules of conduct which govern how people behave in everyday life. While these rules are meant to bring out the best in every individual, the endgame is to please a higher being or power.

Law and Religion

Is there a relationship between law and religion? This has been a polarising question for centuries and still is today. Sir Henry Main contends that there is a deep correlation between law and religion and that the relationship is an evolving one, from fusion to separation of the two over time. Further, he argues that initially the relationship between law and religion was blurred but over time the two began to delineate so that

Tylor Edward Burnett. Primitive Culture: Researches Into the Development of Mythology, Philosophy, Religion, Languages, Art and Customs. (H. Holt and Company 1877)
Albanese Catherine L, America: Religions and religion. (Cengage Learning 2012)
Martínez-Torrón Javier and W Cole, Durham Jr. Religion and the Secular State/La religion et l’Etat laïque. (International Center for Law and Religion Studies 2010)

there was a clear distinction between the two. A.S. Diamond does not agree, he maintains that law was never religious in the first place. It is his vehement contention that law secular at first and discounts Maine’s account of fusion between law and religion. However, Diamond concedes that law and religion meet at the points of sacral crimes and administration of oaths. Although the two scholars take two different approaches to the issue, the reality is that law may be both secular and religious and the same time, purely religious or totally religious.

Religious Law and Religion

Religious law manifests itself in different forms including Islamic sharia, Jewish halakha, Hindu law and Christian canon law. A common example of Christian cannon law is the Ten Commandments handed to Moses by God as per accounts of the Old Testament Bible. Sharia is the moral code and religious law of Islam and is attributed to the precepts found in the Quran and the life examples set by Prophet Muhammad in the Sunnah. Both Christians and Muslims respectively believe that the Ten Commandments and sharia are God’s law. Halakha, on the other hand, is a collection of rabbinic Jewish religious laws resultant from oral and written Torah and other commentaries.

At this point it is key to note from the above discussion that there is a difference between religion and religious law, although the two are correlated. A country like the United States is quite religious but is not governed by religious law. Interestingly, in 2016, the US was made up of 73.7 percent of total population being Christians. It means that while individuals or communities believe in and practice different religions, that religion is not the law that governs their conduct or behaviour. The point here that there can be secular state governed by secular laws not influenced by religion or religious state governed by religious law or a hybrid of the two. However, this paper will majorly focus on the two divergent categories.

Saint Kitts and Nevis as a secular country

Cohn D’Vera and Andrea Caumont, 10 demographic trends that are shaping the US and the world. (Pew Research Center 2016)

Saint Kitts and Nevis also known as the Federation of Christopher and Nevis is an island country in the West Indies with a population of 56, 200 people and an approximate area of 261 square kilometre. The religious demographics of the country is as follows: Christians 94.6%, Agnostics 1.6%, Hindus 1.5%, Spiritists 1.3% and others 1%. The preamble to the Constitution of Saint Christopher and Nevis of 1983 declares that the nation is established on the belief in Almighty God and the inherent dignity of each individual. Under this constitution, fundamental rights and freedoms of every individual has been recognised irrespective of that person’s race, place opinion or colour. Essentially, the country’s constitution and laws although ascribing to God protects the right of the citizens to have freedom of conscience, including freedom of though and religion. Religious communities are permitted to establish and manage their own places of education albeit at their own expense. A Religious Freedom Report by ACN International shows that that there are no reported incidents of violation of freedom of religion and the relationship between the state and churches has improved.

Following the above practices, Saint Kitts and Nevis can rightfully be equated to a secular state. That is, a concept of secularism where the state is distinct from religion, and it does not discriminate against or favour persons (or communities) based on their religious subscriptions. Although a state recognizes that there exists different religions, it does not apply any religious laws in governing the conduct of people. Rather, it utilises human laws to govern the external conduct of people in accordance with the concept of secular state sovereignty espoused by Immanuel Kant and Rene Descartes. Secular state sovereignty concept is juxtaposed with the dive sovereignty. However, to understand the two concepts fully, a peek at the evolution of the two concepts is recommended.

Initially, natural law theorists like St Augustine and Thomas Aquinas proffered the argument that law was handed down to man by a divinity being God. These religious thinkers believed in subordination of individual liberties to immutable holy laws as interpreted and administered by religious officials. Before the ratification of the Westphalia Treaty of 1948 a destructive war had been raging for thirty years due to

The Constitution of Saint Christopher and Nevis 1983
ACN International Legal framework on freedom of religion and actual application: A Religious Freedom Report

religious differences, commercial interests and power politics. The war was partly instigated by the rivalry between the Roman Catholics and Protestants, who were against the former’s re-conquest of Europe. Significantly, the treaty confirmed the Peace of Augsburg 1555, which had allowed for religious tolerance of the Lutherans and the Calvinists. Therefore, before the age of Enlightenment, God was the unquestionable source of sovereignty. After 1700, libertarian theorists like Hugo Grotius, John Locke and Thomas Jefferson emerged advancing the social contract theory for self-government that was divorced from religion.

US government and the church

Just like Saint Kitts and Nevis, the United States has legal system in the form of a secular state. However, unlike the US Constitution that is founded on the sovereignty of man and not God, Saint Kitts and Nevi’s makes reference to God in its preamble. Apart from that element, the two countries have a similar characteristics pointing to a secular state despite both being religious. The First Amendment to the US Constitution is the ultimate foundation for secularism. It provides that the state shall not interfere with the freedom of religion and speech. In other words, there is a separation between the Church and the state; the state is not to interfere through policies, legislations or otherwise with the freedom of religion. This separation of the two institutions has been tested by conflicts between law and religion since James Madison’s incorporation of Enlightenment ideals into the US Constitution in 1787.

The US Federal Supreme Court has thus been faced with cases touching on conflict between religion and the law. In consideration of arguments advanced by the Amish community and Wisconsin State in 1972 decided that Wisconsin’s compulsory school attendance law was unconstitutional when applied to the Amish. The court’s rationale for the holding was that the law violated rights of the Amish under the First Amendment, which guaranteed the freedom of religion. Essentially the Supreme Court held that the

Christenson Gordon A, Liberty of the Exercise of Religion in the Peace of Westphalia (Transnat'l L. & Contemp. Probs 2012) 721
Morgan Robert J, James Madison on the Constitution and the Bill of Rights. (Greenwood Press 1988)
Wisconsin v. Jonas Yoder, 406 U.S. 205 (1972)

Amish parents were at liberty to exercise their religious beliefs that required them not to educate their children past 8th grade. The Amish’s fundamental right to freedom of religion was found to have trumped the state’s interests in educating their children. As a result of the decision, all states must now grant the Older Order Amish the right to establish their own schools but at their own cost. Notably, the decision in the Amish case has subsequently been used as justification by parents who wish to educate their children out of the formals school framework out of their religious inclinations.

In another case, the same court was tasked with a decision on whether creating a public school along the lines of a religious belief was unconstitutional.Justice Souter found that the creation of a school district unit for a religious group was unconstitutional, it flew directs into the face of the First Amendment.In contrast Justice Scalia disagreed with the majority stating that the school was in fact established on the basis of culture and not religion. Nevertheless, the key take away from this 19914 decision is that the courts have jealously guarded against any attempt to marry the Church and state. Just as envisioned in the constitution, the church and state should remain separate. Therefore a secular nation is one in which everyone can freely choose a faith and support voluntarily, and the government does not support religion over non-religion or favour one over another.

A case for Europe

Apart from the US, France is the only other country that has been categorical on its secularism. In Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not clearly set out the kind of relationship that should exist between state and the church. The convention merely makes reference to the freedom of religion and certain things that the state should not do in contravention of the same freedom. In Kokkinakis v. Greece, the European Court of

Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994)
Justice Souter famously remarked thus: the government should not prefer one religion to another or religion to irreligion.
Thomas Jefferson once said: ‘The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg’
Articles 9 and 14 of the ECHR envisions state neutrality between religions.
(application No. 14307/88)

Human Rights held in 1993 that a Jehovah Witness man’s conviction for proselytism was a violation of his freedom of religion under Article 9 of the ECHR. The court was of the opinion, on a majority decision that Mr Kokkinakis has the freedom to manifest his religious beliefs despite the conflict with domestic law.

In San Marino, some parliamentarians refused to take oath of office on the gospels due to their religious beliefs. The Court found that the law requiring the parliamentarians to take oath on the gospels in order to take office was a direct interference with their religious freedom. Similarly, the same Court was called upon again to answer the question whether a law requiring people of a different religion to pay for construction of the Church of Sweden was permissible. It found that the mandatory religion tax was impermissible and an interference by the state in the lives of persons who were not members of the church of Sweden.

Turkey and Indonesia are a few examples of countries from the East that have embraced secularism in the legal system albeit with some restrictions. In Refah Partisi (the Welfare Party) and Others v. Turkey, the Court upheld the dissolution of the party on the grounds that it was necessary in a democratic society to protect the rights and fundamental freedom of others. Apparently, Refah had intended to apply sharia law in the plural legal system and the Court took issue with this stating that such intentions would take away the role of the state as a protector of individual rights and freedoms and individuals would be required to obey religious law instead of the laws of the state. The upshot of the above European court decisions is that the Court has attempted through case law to uphold a secular legal system and to define the boundaries between the church and state.

The state and religion as one

Unlike Turkey and Indonesia which have blended sharia with libertarian democracy and human rights, Libya, Yemen, Egypt, Pakistan and Syria have adopted a more theocratic

Buscarini and Others v. San Marino (application No. 24645/94)
Darby -v- Sweden 11581/85; [1990] ECHR 24; [1990] ECHR 24
[GC] -41340/98, 41342/98, 41343/98

form of democracy. This form of democracy relegates human rights and secular rule of law and promotes sharia. These countries have thus adopted the Eastern authoritarian model of democracy and human rights, which model is premised on the common good of the country rather than individual rights. The big question in Islamist countries that apply sharia is whether the system can guarantee rights and fundamental freedoms of all people including women and minority religions. Is it then possible to replicate the Islamist democracy in Turkey and Indonesia to countries like Iran and Saudi Arabia? It seems that these issues are complicated and one legal system cannot be replicated elsewhere without adjustments because not even the most libertarian systems lie the US are perfect, far from it. Offences like blasphemy only exist in countries where the state is either at the mercy of religious leaders or the state and religion is one and the same.

Conclusion

In the end, it is undeniable that there is indeed a relationship between religion and religious law. Further, the application of secular law as manifested in Saint Kitts and Nevis has been compared to other secular and religious states thus painting a picture of contrasting legal systems

Bibliography

See Shakir Naeem, Islamic shariah and blasphemy laws in Pakistan. (The Round Table 2015): 307-317. There has been recorded incidences of people being killed or lynched for blasphemy or for offences against religion, the hall mark of religious intolerance.

Table of Cases

European Court of Human Rights

Kokkinakis v Greece 1993 ECHR 20

Darby -v- Sweden 11581/85; [1990] ECHR 24; [1990] ECHR 24

Refah Partisi (the Welfare Party) and Others v. Turkey [GC] -41340/98, 41342/98, 41343/98

Buscarini and Others v. San Marino (application No. 24645/94)

United States

Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994)

Wisconsin v. Jonas Yoder, 406 U.S. 205 (1972)

Table of Legislation

The Constitution of Saint Christopher and Nevis 1983

Journals

Temperman J, State–Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance. Brill, 2010.

Tulkens F, The European Convention on Human Rights and Church-State Relations Pluralism vs. Pluralism (Cardozo L. Rev. 30 2008)2575.

Ferrari S, and Rinaldo C, Law and religion in the 21st century: relations between states and religious communities (Farnham: Ashgate 2010)

Evans C, and Christopher AT, Church-state relations in the European court of human rights (BYU L. Rev. 2006) 699.

Boyle K, Human rights, religion and democracy: The Refah Party case (Essex Human Rights Review 2004)1-16.

Martínez-Torrón J, and W Cole D, Religion and the Secular State/La religion et l’Etat laïque. (International Center for Law and Religion Studies 2010).

Cohn D, and Andrea C, 10 demographic trends that are shaping the US and the world. (Pew Research Center 2016)

Christenson GA, Liberty of the Exercise of Religion in the Peace of Westphalia (Transnat'l L. & Contemp. Probs 2012) 721.

Shakir N, Islamic shariah and blasphemy laws in Pakistan. (The Round Table 2015): 307-317.

Books

Sullivan, Winnifred Fallers. The Impossibility of Religious Freedom: New Edition. (Princeton University Press, 2018)

Huxley A, ed. Religion, Law and Tradition: comparative studies in religious law. (Psychology Press 2002)

Morgan RJ, James Madison on the Constitution and the Bill of Rights. (Greenwood Press 1988)

Grumet L, John C and Judith K, Curious Case of Kiryas Joel: The Rise of a Village Theocracy and the Battle to Defend the Separation of Church and State (Chicago Review Press 2016)

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