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Law and Religion: To Sides Of The Same Coin
Donald Davis’ The Spirit of Hindu Law challenges readers to push back on the parochial notions of ‘law’ being a set of rules enforced by the state and ‘religion’ being a mere belief system involving a deity. Davis proposes analyzing law and religion as two sides of the same coin in order to realize there are legal components to religion and religious components to law. Davis defines ‘theology’ as “the attempt to understand or give meaning to the transcendent significance of acts.” He uses this definition to describe the law as being a reflection on mundane actions that assigns a higher meaning or purpose to them, resulting in a set of ideals codified into a way society ought to act.
Davis contends that religion is not mere belief, nor does it require “otherworldly ends … God or Gods … or escaping or circumventing the practices of ordinary life.” Religious institutions are composed of laws, but the distinction between law and religion lies in the mediating process of theology, which is used to “make a boundary around religious itself.” In regards to law, theology is used to assign a higher meaning to a quotidian act. As Davis puts it, “when theological perspective is brought to bear on ordinary life, the result is law.” In religion, theology is used to bring mundane actions into concert not just with some higher meaning, but with an extraordinary act. When theological reflection is brought to bear on ordinary life, tying it to the uncanny, the exceptional, or the transcendent, the result is religion. Religion, therefore, is the legalization of the extraordinary.
Since Davis’ thesis hinges on the mediating factor of theology, he notes that, “the abstract or abstruse quality of theology is associated with its more professionalized forms, the theologies of [Christian] priest, rabbis, pandits and mullahs…” Conveniently, Paul Dresch and Judith Scheele provide a useful tool for theorizing the abstract, formal features of religion-legal theology: legalism.
“The idea of legalism that we took from Lloyd Fallers was described in Volume One of this series as involving an appeal to rules that are distinct from practice, the explicit use of generalizing concepts, and a disposition to address in such terms the conduct of human life. Explicit concepts (or categories) and explicit rules coexist in varying degrees.”
This paper will first highlight two archetype examples of law from Hinduism and Judaism, respectfully: the Hindu concept of property (svatva) and the Jewish trend of including a “Messiah Clause” in tenant agreements. While at first glance these appear to be entirely legal in nature, this paper will demonstrate that there are religious sides to them as well. I will then turn to two components of Hinduism and Judaism that typically evoke religious connotations: a subsection of ācāra, specifically rules of cleansing after using the toilet, and the Jewish prohibition against electricity during Shabbat. In showing the less-obvious legal sides of both, I will reveal Davis’ thesis arguing inherent intertwinedness between law and religion. Finally, I will employ Dresch’s theory of legalism to explain how the selected ostensibly-religious phenomena are in fact classic examples of legalism.
On first blush, Svatva is a prototypical example of law. Even a narrow definition of law will include property as a necessary concept to define and determine ownership, distribution of goods, and privacy. All bodies of law surely lay out a framework for addressing conflicts that may arise in regards to private property.
In Hindu jurisprudence, however, svatva is more than a definition and a set of rules. Dharmaśāstra views property as a means to be used for service to the gods and to manifest the relationship an individual has with the gods. While secular societies see property as what defines a person’s relationship with another object, Dharmaśāstra holds that relationships are independent of property ownership. The goal of svatva in Hindu jurisprudence “is to connect ordinary ownership with a theological framework that pulls the many different kinds of relationships that people have with things into the ambit of what is now a judicial or legal view of those relationships.” The telos of Dharmaśāstra, what it envisions, its transcendent goal, is Varṇāśramadharma, a way of life that is structured by a caste system, with every individual having particular duties assigned to him based on his status. Therefore, svatva exists to be in service to this caste system and Varṇāśramadharma. “Svatva, property or ownership, concerns the way in which our interactions with material objects define us socially and legally, and in some views theologically as well. As in Christianity, therefore, ‘property is an analogy for the human condition theologically understood … because the nature of being human reflects, refracts and refines the nature and function of property.’”
Because Dharmaśāstra’s telos is realized through svatva, there is a tremendous religious component to the Hindu concept of property, which ties into Davis’ observation that “ religion makes the ordinary humanly purposeful.” In the case of svatva, religion makes the ordinary concept of property humanly purposeful in tying it to the extraordinary: Varṇāśramadharma.
The “Messiah Clause” In Tenant Agreements
Numerous Jews who live in the diaspora also own homes in the land of Israel. A common trend among these landowners is to rent out their homes in Israel and insert a “Messiah Clause” into the tenant agreements, one that requires the tenants to vacate the home to allow the landowners to move in upon the arrival of the Messiah. On its face, this clause is a simple term in a legal document, one that can be enforced by a court order. However, a closer look at the Messiah Clause highlights its religious nature. Upon the arrival of the Messiah, the civil courts in the State of Israel would no longer have the backing of the state to enforce the contract. In the times of the Messiah, the only court that with any authority will be the Sanhedrin. Therefore, inserting the Messiah Clause into a tenant agreement is legally meaningless since it is unenforceable. This is precisely what makes the clause a religious act — it is simply a way for Jews to express their fidelity to their religion. The Messiah Clause merely serves to manifest a devotion to the Torah and an intention to fulfill the mitzvah of moving to the Land of Israel when the Messiah arrives. A number of sources argue the requirement for Jews to live in the land of Israel will reemerge upon the arrival of the Messiah. As such, the Messiah Clause is explicitly linked to an “extraordinary act,” accentuating its religious quintessence.
In comparison to property and tenant agreements being seemingly obvious legal concepts, ācāra appears to be as far from the parochial definition of law as it gets. Ācāra is:
“the form dharma takes when things are right. In the normal, ideal world, people are habituated to perform the normative actions spelled out in the ācāra division of dharma … this is the division that describes sacramentary and household rites, marriage, eating, bathing, and all the other personal dharmas … These are the rites of law that form the central core of dharma — actions that when appropriate and then carried out in conformity to tradition, produce ritual-like results, both in this world and the next.”
One example of ācāra comes from the Laws of Yajnavalkya, where the text describes how to cleanse oneself after using the toilet:
Holding his penis, he should stand up and, with earth and water that has been drawn up, clean himself thoroughly until the smell and filth are removed (YS 1.17). The commentary of Yājñavalkya explains that “the cleansing described in the phrase ‘until the smell and filth are removed’ is common to people of all life-stages, but the restrictive rule concerning the number of times earth should be used is for an unseen purpose.”
While directives on how to clean oneself and commentary on scriptures all seem to be ostensibly religious phenomena, further analysis reveals that these instructions and subsequent commentary fall directly in line with Davis’ definition of law: the theology of ordinary life. Here, theological reflection is applied to the mundane action of using the toilet to determine a higher purpose: maintaining a clean body and environment. This higher meaning is then brought into reality through a codified directive. The intellectual reflection on this quotidian act results in law.
The directives regarding toilet purification also form textbook legalistic categories. The commentary on the cleaning instructions touches on categories including cleansing, hygiene, and social class. As University of Virginia legal scholar Frederick Schauer noted in his work on First Amendment jurisprudence, “without categories there could be no rules.” Using Schauer’s argument, it becomes evident that Yājñavalkya’s commentary categorizes the different subjects involved in the original text. The use of legalism in this seemingly purely religious text makes clear that it does contain substantial legal elements as well.
Electricity on Shabbat
The prohibition against using electricity on Shabbat stems from God resting on the seventh day of creation, clearly an “extraordinary act” which is consistent with Davis’ definition of religion. However, the Torah never explicitly bans electricity. There is no way the ancient text could have ruled on the permissibility of electricity, something that would be discovered thousands of years into the future.
The Talmud discusses several arguments explaining the prohibition against electricity, each opinion attempting to categorize its usage with an activity whose permissibility is not in question. For example, the Chazon Ish analogizes a light bulb with the act of cooking and rules that electricity is prohibited due to the Torah’s enumerated prohibition against cooking during Shabbat. Several other authorities argue electricity is analogous to kindling a fire, an activity explicitly prohibited on Shabbat in the Torah.
The type of legalistic thinking employed by the rabbis demonstrates that although the prohibition against using electricity on Shabbat traces its roots to an “extraordinary act” and is ostensibly religious, it has an enormous legal component to it. The way rabbinic rulings pertaining to electricity are legalistically categorized indicates that the Talmudic Sages view the product of their reasoning as being unquestionably legal.
The two disparate notions of law and religion are linked by Dharmaśāstra and Halakha, two religious and legal projects aiming to build a just world in which Varṇāśramadharma and a life of mitzvot, respectively, flourish. Many directives that appear religious are actually mundane — ācāra: cleaning, bathing, eating, etc. and the Messiah Clause. Concepts that appear legal are quite religious, such as svatva: property and the prohibition against electricity on Shabbat. Based on these examples, it becomes clear that Dharmaśāstra and Halkha are legal traditions in their own rights, containing legalized and religious elements woven together.
Centuries of secularization have conceptually divided the two realms of law and religion. Law intruding on private human life, especially concerning decisions made behind closed doors of a private house, is far removed from the notion of law in modern secular legal systems — and perhaps for good reason. Davis acknowledges that “there are good reasons to maintain a view of law that has boundaries, because of the close and potentially exploitative connection of law and state.”
Employing such an approach to religion and law, seeing them as two sides of the same coin, reminds us that “that law is not necessarily the sole province of the state, and that law enables human flourishing as much as it constrains human vice.” Seeing law and religion as both stemming from theology allows us to reverse the description of law “as an institution that merely controls human behavior” and rather appreciating the good law can create, “describing law rather as primarily an institution that makes human flourishing possible.”
Appreciating the legalistic nature of religious directives is equally valuable, particularly for worldly citizens who will interact with religious folks and be faced with situations in which religious and secular laws clash. It’s easy to judge and roll one’s eyes at a devout individual practicing a strange custom when the source of that practice is foreign to the one observing. It is particularly important for people with positions of power (lawyers, judges, politicians, etc) to realize that the same type of legalistic reasoning utilized by the judicial branch is employed by the Hindu sages and Jewish rabbinic scholars; there is simply a different source of law used by each party. While the Supreme Court rules on questions not contemplated by the Constitution, rabbis and Hindu priests make religious legal rulings on questions not contemplated by the Veda or the Torah. Acknowledging that religious institutions employ the same, valid legalistic system of jurisprudence as the secular legal system is the first step in becoming understanding of different practices, creating a more tolerant and considerate world.