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Tydskrif vir Geesteswetenskappe

versión On-line ISSN 2224-7912
versión impresa ISSN 0041-4751


STRAUSS, DFM. Religion and law: A few historical and systematic perspectives. Tydskr. geesteswet. [online]. 2021, vol.61, n.1, pp.6-24. ISSN 2224-7912.

The relationship between religion and law plays a crucial role within diverse societies. In this contribution some historical contours will be outlined and eventually related to a few relevant systematic remarks. Traditional societies are undifferentiated but in Greece some succeeded in developing the Athenian polis (city state). The basic motive of matter and form gave direction to Greek culture, initially dominated by the matter motive and later on by the form motive. The religions of nature were succeeded by the cultural religious motive of form, measure and harmony in which the Olympic Gods played a key role. The notions of justice and order obtained a more restricted juridical meaning during the 5th century B.C. related to what we today associate with positive law. However, Protagoras relativised the yearning towards what is considered to be immutable. Yet, despite his nominalistic-individualistic inclination Protagoras still viewed the polis as the formative cultural power shaping individuals. The cultural form thus obtained is constituted by obedience to the jural laws of the polis. Ancient Greece and Medieval conceptions departed from the nominalistic-individualistic legacy by continuing a universalistic or holistic view of religion, society and law. The initial meaning of the terms logos (concept) and nomos (law) is found in the meaning of law in a jural sense, although the cosmic scope of the term logos by far exceeded its juridical meaning. Developments within Roman Law were radically transformed during the fourth century in a twofold way. The expansion of the Roman empire gave rise to the ius gentium in order to make provision for the legal position of non-Romans within the Roman empire. At the same time Christianity surfaced and provided a starting point for the development of the subsequent Medieval contest between church and state. The culmination point of this struggle between church and state, religion and law, was reached when it was declared in the famous papal Bull, Unam Sanctam (1302) that there is no salvation outside the Roman Pontiff. The subsequent differentiation between church and state since the late Medieval era and the Renaissance moved towards a situation where the state acquired the upper hand. However, neither theoretical accounts nor the actual rise of the modern idea of the just state succeeded effectively to limit state power and secure religious freedom. More recently, the first Amendment of the USA Constitution secures religious freedom but sadly failed in guaranteeing academic (conviction) freedom at public schools. The significance of distinguishing between the jural aspect and the faith aspect of reality occupies a key position in the last part of our analysis. After a discussion of the jural function of both church and state, an account is given of personal freedom of faith as well as collective religious liberty which depends on the structural difference between public law, civil private law and non-civil private law (i.e. the internal sphere of competence of non-political societal entities). This analysis crucially depends upon the modal sphere-sovereignty of the jural and certitudinal aspects of reality, guaranteeing their mutual coherence and irreducibility. These aspects also guarantee the internal legal spheres of competence of collective faith communities and collective state communities, by respectively acknowledging the qualifying role of the faith aspect in the case of religious communities and the qualifying role of the jural aspect in the case of states.

Palabras clave : law; faith; religion; individualism; universalism; modal aspects; personal religious freedom; collective religious freedom; jural function of church and state; sphere sovereignty; legal spheres.

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