The relationship between legal categories with the moral and ethical is one of the most difficult in jurisprudence.For centuries, or attempts to separate these categories, or, at least, to establish a valid balance.But today the problem is far from solved.
religious morality and law
that the rights and religious norms are closely connected with each other, is recognized by most experts.In Russia, perhaps, only the most radical representatives of libertarian theory (V. Chetvernin, N. Varlamov and others) tend to breed polar morality and law, lead outside the legal field religious norms.Examples show that it turns bad, because even libertarians support the legal concept - the concept of freedom - has obvious ethical roots and beyond the boundaries of ethics, in fact, lose smysl.S the other hand it is obvious that she is sensitive to the ethics of religious traditions.The concept of good and bad does not arise out of nowhere.It is caused by human activity, fixed any particular religion, but over time it is caused by religious norms.If these rules are dominant in the legal system, if it is determined that there is reason to talk about the "religious right", as urged by the famous jurist Rene David.Historically, the role of the religious right is huge in today's world, the situation is less clear, there are only a few enclaves.
main features of religious law
most important feature of the religious right is that the basic foundation of all recognized standards superhuman determination, recorded in the sacred books, which are regarded as sources of religious norms.The authority to establish no doubt any human act is evaluated in accordance with it.The entire legal system is crucially focused on religious dogmy.Sobstvenno, the latter is a specific variation on the theme of natural law (Spinoza, Rousseau, Kant), which, according to well-established scientific tradition, and the right to divorcelaw.Right based on objective values of human society, the law Ideally these values makes it legitimate.The contradictions of the legal system is explained by a mismatch of the law (as a product of the activities of the state) an objective law.
Historical and contemporary examples of the religious right
peculiarity of the religious right is that as an "objective law" are taken provisions to recognize the "superhuman" and recorded in the scriptures.Classic examples of the religious right are the laws of the late Middle Ages, were the basis for the courts of the Inquisition (especially in Germany, where "legal" reasons the courts of the Inquisition were prescribed in most detail), many ancient legal systems, such as the famous "Avesta", prescribing the proceedings on the basis of the legendary postulatesAhura Mazda, revealing the religious norms.Examples of often very expressive: even the dog appears as the subject of rights.
most clearly in modern religious law of Sharia is implemented in the courts and in the countries where religious traditions are the basis for the rule of law, for example in Iran.
religious rights and Gentiles
In most cases, characteristic of the religious right is that it operates only within the community of fellow believers.Gentiles are not subject to religious law.They are either subject to expulsion, and even physical destruction if their activities and cults are not taken official power (examples of this - the expulsion of Jews from Christian Spain in 1492, the expulsion of the Armenians by the Turks in 1915, and so on), or Gentiles simply vented outside religious lawsystem.For example, in modern Iran, the following religious law: for the faithful there is a ban on alcohol, and for the Jewish people in Europe, or an exception.The reason is often that people of true faith can go to heaven if all the rites and rules, and the Gentiles have already made their choice, respectively, for their souls can not take care of.Of course, do not underestimate the historical and religious traditions, often dictated by the nuances of the law.
Religion and modern morality
If "classic" religious right is in modern history is the exception rather the question of the relationship between law and morality, which is also to a large extent is based on religious tradition, it is one of the most importantin jurisprudence.Perhaps it is even the most important issue.Indeed, whether the right kind of relationship established norm (indifferent to ethics)?Or the right can only be considered something that is under an ethical grounds?To put it simply, if any decree of the king, regardless of its ethical component, a legal act?The system of religious law this question does not arise, because no king would not dare issue a decree contrary to the scriptures.Another thing - the secular law has other grounds.Primitive question: "If the king or the government will issue a decree requiring the execution of the entire population of the country, whether this legal decree?"If yes - the legal system is absurd.If not - where the boundaries of legal jurisdiction and how are they defined?On this occasion, in modern science, there are several alternative answers.
legistskih theory
representatives of this theory based on the characteristics of ideas about how to relate to the right and the religious norms, as proceed from the sanctity of the law.Its origins date back to ancient Chinese legal practitioners.The norms of the law do not require discussion and comments, they are taken for granted.Legalism could become part of the religious right, but the relationship here is difficult: as a rule, a religious law permits adjustment laws for their compliance with the spirit of God's most installations.In this sense, Legalism, rather, an absolute social, not religious law.
formal theory
This theory also reveals its own way, what is the religious norm.Examples may be different, but primarily it is associated with the name G.Kelzena.
He believed that the right - a certain set of established norms to be considered by the government and society.If society is inclined to accept as the right of religious morality - it is a legal society.If it takes the moral anti-religious (for example, the community of pirates, Soviet or Nazi morality installation Hitler) - it is also a legal society, no matter how bitter to talk about it.In theory, Kelsen ethical components taken out of the brackets of legal relations.For this, his theory has been repeatedly criticized from the standpoint of other legal concepts.
jus (natural law)
ratio jus to religious law is quite different.Very often - until now - supporters of jus include religious social norms enshrined in almost every religion ("thou shalt not kill," "Thou shalt not steal" and so on. D.) The list of the natural rules of humanity that should define the contours of the legal picture of any era.
positivist theory
This theory - one of the most popular in modern life, in any case, in the life of today's Russia - comes from the fact that the law establishes certain naturally developed in this era system of norms.The ratio of legal positivism to religious morality and religious rights in two ways: on the one hand, positivism considers religious experience, on the other - ignore it if the conditions have changed, ceases to operate if the ethics governing religious norms.Examples can be very different.Thus, the legal positivism and easy to get along with the Soviet (anti-religious), and post-Soviet situation.
liberal theory
The brightest representative of a famous American legal theorist Lon Fuller.
According to Fuller, the right can not be immoral.However, the morality of law is determined not by abstract rules specific to the religious right, and the real benefits for each member of society.Legal rules the better, the more people benefit from them.Fuller's theory is partly overlaps with religious morality, but only in the sense that the abstract ethical formula gain clear financial circuits.
Libertarian theory
This theory associated with the name VS Nersesyants, but the final completion of the works received in his students.The essence of the theory is that the law - it is human freedom, limited only by the freedom of others.Proponents of this theory tend to make all the religious norms and values outside the legal field (in this and insisted he Nersesyants).Religious Ethics, according to libertarians, is a serious obstacle to the right, as claimed by some "universal" values, limiting freedom.At the same time the supporters of this theory diligently do not notice the paradox that freedom itself, understood them as an ontological category, is directly related not only to ethics, but also (for example, in Christianity) to the religious philosophy.
