Religion, Law And

Origins of Law

Scholars commonly agree that the origin of much formal law can be found in religious traditions. Indeed, the first formal systems of law were probably religious law systems developed in what were effectively theocratic societies. Research documenting this connection include Max Weber's (1864–1920) and Peter Berger's treatments of the origins and functioning of Jewish law, Mark Leone's discussion of the application of Mormon law and courts in some western territories of the United States, and Kai Erickson's analysis of the role of Puritan law in New England during the time of the witch craze. Beyond these historical examples, there also are important systems of law deriving directly from religion in contemporary societies, with the influence of Islam on law in many countries perhaps the best known illustration.

The classical tradition of sociology of law examined law's origins. Early sociologists such as Émile Durkheim (1858–1917) offered functionalist oriented theories about how law developed and the form law would take under particular societal circumstances. His research included considerable work on religious traditions, such as those of the Australian Aborigines. Within the functionalist tradition, religious institutions could influence the operation of a society, including the production of legal systems, and are related to later pluralist theories of law such as those of political scientist Robert Dahl. Dahl's theoretical approach would allow for religious organizations, especially more powerful ones, to play a significant role in legal developments within societies where such organizations were allowed to function.

Marxist theories have also been prominent in discussions of the origin of law, with the key assumption viewing law as a product of economic relationships that serves the interests of those in positions of power in society. While Karl Marx (1818–1883) adopted a decidedly atheist position concerning religion, his theoretical approach assumed that religion was a powerful instrument of social control. Liston Pope's Millhands and Preachers (1965) is a wellknown example of this type of theory. Margaret Short's analysis of the role of religion in Marxist Cuba is a good analysis of the religious and philosophical basis for a new system of law in that country after Fidel Castro declared himself a Communist. Her work demonstrates that even in supposedly atheistic Communist countries, religion plays an important role in legal developments.

Modern theorists such as William Chambliss have rejected Durkheim's theories, as well as those derived from the Marxist tradition, claiming that they are too mechanistic, reifying, and tautological. Chambliss proposed instead a dialectical approach to lawmaking that recognizes human volition as a key element in the process of resolving contradictions, conflicts, and dilemmas that arise in specific contexts in which law is developed. Another such approach that “brings people back in” is that of Sheryl Grana and colleagues, whose theory of the social context of law involves the interweaving of social conditions, social ideas, and people. These modern theoretical approaches have been fruitfully applied to many areas of legal development, but they have seldom been applied to the development of law and religion or religious organizations. James Richardson discussed the value of Chambliss's approach to the promulgation of laws dealing with minority religions around the world, and he demonstrates the dialectic process that Chambliss proposes. [Page 1297]This seems a potentially useful area in which to apply these more humanistic-oriented theories.

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