Philosophy of Society

Philosophy of Law

Religious Legal Family

In certain countries or non-state entities, there exists a legal system where the religious aspect is prominently highlighted. These legal systems are grouped into a religious legal family. Within this family, one can distinguish canonical law, Islamic law (Sharia), Jewish law, and Hindu law.

Canonical law is the legislation of the Catholic Church. As the largest organization on Earth, the Catholic Church must possess well-crafted laws to regulate the relationships among its members and its stance towards institutions and individuals outside the Church. Canonical law has been developing since the earliest days of Christianity. Its principles are embedded in the Bible, the primary source of Christian doctrine and morality. Over two millennia, the laws of canonical law have been codified by Ecumenical and Local Councils, Church Fathers, Roman Popes, the Roman Curia, and others. Canonical law is founded on three fundamental principles:

• Divine Principles - These are principles established by God in the Bible. They are eternal and cannot be altered by any human authority. Examples include the value and inviolability of human life, the indissolubility of marriage, and human freedom. The Church's role is solely to embody and protect these divine principles of canonical law, not to alter them.
• Universal Human Principles - These are principles established by human legal tradition that complement divine principles of law. They may be modified if they come into conflict with divine principles, but generally, they do not contradict them, as they stem from natural law.
• Ecclesiastical Principles - These are principles established by the Church to clarify and implement divine principles, taking into account the spirit of the times. These principles can be modified by the Church, as the Church has established them.

Today, canonical law is represented by several documents:

• The Code of Canon Law (Codex iuris canonici) - A compilation of canons governing all Roman Catholics, issued by Pope John Paul II in 1983;
• The Code of Canons of the Eastern Churches (Codex Canonum Ecclesiarum Orientalium) - A compilation of canons governing all Eastern Catholics, issued by Pope John Paul II in 1990;
• Concordats - Agreements made between the Holy See (the Vatican) and the governments of other states;
• Encyclicals - Pastoral letters from the Roman Popes;
• Documents of the Roman Curia (the government of the Holy See).

Islamic law, or Sharia, represents the principles of a Muslim's life, rooted in the Quran, and manifesting in all areas of life. Muslims derive their law from the following sources:

• The most authoritative source of Sharia norms is the Quran. What is defined by the Quran is incontrovertible and absolutely binding.
• If a situation arises that is not covered by the Quran, the norms for its regulation are sought in the Sunnah, the second most authoritative source of Sharia. Since the Sunnah recounts the life and sayings of the Prophet Muhammad, it provides examples of how the Prophet acted in similar situations or addressed similar matters.
• The third source of Sharia is Ijma - the consensus of Sharia scholars on complex legal situations not addressed by the Quran or Sunnah.
• The fourth source is Qiyas - reasoning by analogy, a decision based on a similar past situation.
• Sometimes, Taklid - imitation, is accepted as a source of law. According to this principle, the example of an authoritative mufti, imam, or faqih may be regarded as a legislative norm. Different madhabs (schools of thought) have varying attitudes towards Taklid, though it is generally positive.
• Another source of legal norms is Adat - customary law.

In Islam, several schools of Sharia, or madhabs, have developed:

• The Hanafi madhab, founded by the jurist Abu Hanifa, which dominates among Sunnis in Turkey, Syria, Jordan, Ukraine, Russia, northwestern Egypt, western Iraq, Kazakhstan, Uzbekistan, Tajikistan, Afghanistan, Pakistan, India, and other countries;
• The Maliki madhab, founded by Malik ibn Anas, prevalent among Sunnis in Kuwait, western areas of the United Arab Emirates, and small regions of Saudi Arabia, alongside Kuwait and the UAE;
• The Shafi'i madhab, founded by Ash-Shafi'i, common among Sunnis in northeastern Egypt, among Muslims in Somalia, Eritrea, eastern Ethiopia, central-eastern African countries, Yemen, border regions of Saudi Arabia and Iraq, in Palestine and Syria, Chechnya, Ingushetia, Dagestan, and Indonesia;
• The Hanbali madhab, founded by Ahmad ibn Hanbal, which predominates only among Sunnis in most of Saudi Arabia, southeastern United Arab Emirates, and partially in Oman;
• The Ja'fari madhab, founded by Ja'far al-Sadiq, which dominates among Shia Muslims.
• Jewish Legal System - The Jewish legal system is based on the laws of the Jewish religion, as outlined in the sacred Jewish texts: the Torah (Law), Nevi'im (Prophets), and Ketuvim (Writings). Supplementary sources of Jewish law include non-binding religious writings such as the Mishnah (commentary on the sacred scriptures), Tosefta (a collection of comments and decrees related to religious life, compiled alongside the Mishnah), Gemara (commentaries on the Mishnah), Talmud (the Mishnah and its commentaries), Midrash (parables and instructive stories), and Halakhah (a compilation of religious laws and decrees). While Jewish law does not have official status in any country, it has influenced Israeli laws. It governs matters of kosherness (ritual purity of food), the behavior of Jews, and various aspects of family, economic, financial, and other issues.
• Indian Law - Indian law developed within the framework of Hinduism and is significantly reflected in the 1950 Constitution of India, also influencing the legislation of some Asian (Pakistan, Burma, Singapore, Malaysia) and African countries (Tanzania, Uganda, Kenya). During British colonial rule, Indian law was part of British colonial law, mandatory in India and among Hindus outside India. However, some aspects of Indian law, such as the caste system (Brahmins, Kshatriyas, Vaishyas, and Shudras) and sati (the tradition of burning a widow at her husband’s funeral), were strongly condemned by both British and modern Indian governments. Hindu law derives from religious texts divided into two categories:
• Shruti (sacred Hindu texts, Vedas),
• Smriti (additional religious texts).

The most significant and authoritative collection of Hindu laws is the Laws of Manu, compiled by the legendary first king of humanity, Manu. Customary practices also serve as an essential and highly influential source of law. As British judges in India during the colonial period were unfamiliar with all nuances of Indian law, elements of the Anglo-Saxon legal system, such as the interpretation of judicial precedent as a source of law, were incorporated into Indian law. Nonetheless, the British held Indian legal traditions in high regard; until 1833, every British judge working in India and lacking expertise in Indian law was accompanied by a pandit (an Indian well-versed in Indian legal traditions who could advise the judge). This respect for Indian legal traditions was further demonstrated in 1833 when the government undertook the codification of three types of legislation in India:

• Hindu law, applied to Hindus,
• Islamic law, applied to Muslims,
• Territorial law, a modification of English law considering local customs, for inhabitants of India who were neither Hindus nor Muslims.

The British also sought to increase Indian representation in Indian courts, though challenges such as poor English proficiency and limited knowledge of English legal traditions persisted. To address these issues, the British government facilitated opportunities for talented Indians to study at British universities. For instance, Mahatma Gandhi studied at the London University Law School. After gaining independence, Indian lawyers continue the tradition of Indian legislation, although the influence of the Anglo-Saxon legal system remains substantial.