XIII

THE RELATIONS OF LAW AND

RELIGION

THE MOSQUE EL AZHAR

To the modern European world Religion and Law seem rather opposed than akin, the points of contrast more numerous and significant than the points of resemblance. They are deemed to be opposed as that which is free and spontaneous is opposed to that which is rigid and compulsive, as that which belongs to the inner world of personal conscience and feeling is opposed to that which belongs to the outer world of social organization and binding rights. The one springs from and leads to God, who is the beginning and the end of all religious life; the other is enforced by and itself builds up and knits together the State. Even where the law in question is the revealed Law of God the contrast remains. The efforts which we find in the New Testament, and especially in some of St. Paul's Epistles, to reconcile the law delivered to Israel with the dispensation of the New Covenant, all point to and assume an antagonism. Grace, that is to say, the spontaneous goodness and favour of God, is felt as the antithesis to the Law; and it is only when human nature has been brought into complete accord with God's will that the antithesis vanishes, and we have the Perfect Law of Liberty.

This law of liberty, moreover, is not positive law at

ail, but supersedes that law; for when all men have been so made perfect, the need for human law has ceased because their several wills, being in accord with the will of God, must needs be also in accord with one another.

This antagonism of Law and Religion has been conspicuous in the relations to each other of the lines of thought followed by the ministers of religion on the one hand and the students or practitioners of law on the other. In the theology of the Reformers of the sixteenth and two following centuries Legalism is a term of reproach and is contrasted with the freedom of the Gospel. Readers of the Pilgrim's Progress will remember the part played in it by old Mr. Legality. The clergy have been apt to dislike lawyers, to accuse them of cramping the freedom of the Church, and of desiring to bind it in State fetters. Erastianism, of which some lawyers and statesmen have been known to be proud, is a name of dark reproach on ecclesiastical lips, while the legal profession on its part, though it has always had to yield precedence to the other gown, conceives that the Church needs to be strictly controlled, gladly seizes occasion for limiting the action of her ministers, often suspects them of trying to evade or pervert the law, and is prone to bring accusations, more or less railing, against them, as seeking to compass their (possibly excellent) ends by irregular or even illegal methods.

But in earlier times, and in many countries, the two lines of thought, the two branches of learning, the two professions, whether as teaching or as practising professions, were either united or deemed to have a close affinity. In the lowest forms of organized society, such as we find among the aborigines of Canada and South Africa, the first kind of profession that appears is usually that of the wizard or practitioner of magic, and the rudiments of a priest are developed out of the medicine man, who represents the most rudimentary form of the physician. But in this stage of progress there is no religion properly so called, and the usages that prevail

and which are the material out of which law will grow, are too few, too rude, and too often interrupted by violence, to form a system of settled and harmonized rules. When, however, Religion and Theology begin to emerge from the superstitions of the savage state, and when custom, already settled, and growing more complex with the progress of culture, has enabled civil society to organize itself in institutions, Law and Theology are usually found in close affinity. Law everywhere begins with Custom. Now many of the Customs which form Law are concerned with worship, because the relations they regulate are relations depending on religion. The Family is a religious as well as a natural organism, for it is often sacred, and in many peoples is held together by the common worship which its members owe to the spirits of their ancestors. Hence the maxims that regulate marriage, and the relation of parents to children, and the devolution of property, have a religious basis, and are precepts of religion no less than rules of law. To take vengeance for the killing of a near relative is a duty which the pious son or brother owes to the ghost of the slain; while on the other side the slaughter has created a legal right the enforcement of which, by compelling the payment of a proper compensation to be exacted from the slayer or his kinsfolk, will also satisfy the religious obligation. Other relations of men to one another not primarily religious become so by being placed under supernatural protection. Where a promise or agreement is to be rendered specially binding, the party engaging himself takes an oath invoking the Divine Power, and perhaps takes it at a shrine, or (as in Iceland) on a temple-ring, or (as in the Middle Ages) on the relics of a saint. These contracts are not confined to private affairs. Treaties are made in the same solemn way. Compacts such as that for the single combat of Paris and Menelaus in the Iliad1,

1 Il. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to the Rivers and to the Earth.

are placed under the sanction of the gods by a formal appeal to them as witnesses. And when a person who had violated such an oath dies suddenly, his death is ascribed to the anger of the Powers to whose keeping his promise had been committed1. In such cases the priest of the deity invoked is apt to become the interpreter of the obligation undertaken, or the arbiter as to how far it has been performed. Possibly he is made the keeper of an object for which safe custody is desired, or the depositary of an object whose ownership is disputed. Sometimes, indeed, it is rather within the breasts of chiefs or kings (since they act as judges and exercise executive power) than in those of priests that the knowledge of customs and maxims is deemed to reside. But in these cases the royal office has itself, if not a priestly, yet a sacred character, and the priest plays no leading part in the political or social system. The nature of the religion, and its more or less mystical tendency, have of course a good deal to do with the place allotted to the priesthood in early societies.

Where legal rules take the form of written records embodying what is held to have been delivered to a people either directly by the deity or through sages recognized as inspired or guided by some divine power, the sanctity of law reaches its maximum. It is then a part of religion, and those who know it and expound it have a religious no less than a legal function.

In such documentary records Law and Religion are often so closely interwoven as to be scarcely separable. Many rules are secular in one aspect, religious in another, so that it may be doubted which kind of motive prompted them, which kind of object they were designed to secure. A regulation of ceremonial purity may have its, perhaps forgotten, origin in considerations of a sanitary nature. A sacrifice prescribed as an atonement

1 Thus we are told by an early Irish annalist that 'the sun and the wind killed Laoghaire (king of Ireland in the time of St. Patrick) because he broke his oath to the men of Munster.'

for sin may also operate as a civil penalty. Offences against the community may be deemed primarily offences against the deity and so dealt with; and a frequent punishment for what we should now call crimes is to devote the culprit to the wrath of the powers of the nether world, or to deprive him of the protection of those who rule the upper world, and therewith expose him to outlawry, the oldest of all legal sanctions.

In nations living under the influence of such ideas, the exponents of Law and Religion tend to be the same persons, because these two branches of public administration are conceived as being the same, or at least two different sides of the same thing. Such persons may or may not be priests performing sacrifices or consulting the deity through oracles, or omens, or a sacred lot. But they are the depositaries of the sacred traditions, and it is they who interpret those traditions and apply them to concrete cases. As such they are usually among the ablest and most educated persons in the community, sometimes prominent members of the ruling class.

Yet religion must not in such a state of society be conceived as the dominant power, which gives birth to Law. In early societies the duties and acts which belong to the external or secular side of life are more important than is the part of life concerned with the emotions felt towards the deity, whether of reverence, love, or fear. But in the observance of all the established cus-toms and in the performance of all the prescribed ceremonies, that which is pleasing to the gods is not separated even in thought from that which is salutary for the community. The service of the deity consists, apart from occasions of orgiastic excitement, not in the emotional attitude of the soul, but in the discharge of the duties recognized as owed to the family and the community, duties which are more or less moral according to the character of the religion-for righteousness may hold a higher or a lower place among them-but which, whether they relate on the one hand to sacrifices offered