Modern Movement of Law: From Church to Parliament

  

Movement of Law is from Divine to Civil

Religion has played a pivotal role in the development of law. Historically canons of every religion has substituted and filled up the gaps in the norms of law where ‘state’ or ‘sovereign’ failed to do so. To say simply, religious laws have provided where positive laws lapsed. By far it is well settled that for human beings it is not possible to live in the ‘state of nature’, without any connections with each other. We are that species of nature which most likes to live in a non-natural habitat. In the state of nature, of course there shall be no need of either any law or religion. Realm of human laws is not to discuss the impossibility and its void but to provide for rules of existence of human beings. Human behaviors and rules to conduct it, are the true arena of all kind of laws.

Often religion has come to us in the form of ‘divine law’ or ‘revealed law’ with having superiority to the ‘law of nature’. Whether sun rises itself or not but we make our children believe that gods makes the Sun rise. Blackstone considered man as an entirely dependent being and thus ordained it to follow all commands of its creator in the form of either divine law or the law of nature.

Hierarchy of  Law in the Past

             Apart from elements of natural laws which are inherent in the nature of human beings and bereft of standards of reasonable or unreasonableness, all part of jurisprudence is artificial or may also be called as a social construction. Similarly apart from the laws which runs and shuts down the forces of nature, all divine laws are also man-made. Religious laws and sanctions behind them are more a matter of faith than any actual divinity behind them. Hitherto the gods of every religion, though widely believed, are in the realm of ‘unknown’. This fear from unknown is the divine power behind every religion. This obliviousness is the power of gods in heaven and his servants on Earth. Fear is always of unknown. Any knowledge of yet unknown power may erode the basis of faith of human beings.

                        For governance, religion played an important role while providing revealed law in the form of religious books to be followed. Religion has been used by the rulers as an instrument to rule since beginning. Constantine permitted Christian religion to be acceptable in Roman Empire only in 312 A.D. to solidify its fainting authority. Rome accepted Christianity officially when Theodosius I declared Christianity as the state religion of Rome in 383 A.D. since then unfailingly in almost all ancient and medieval societies divine laws remained supreme and at the top of the hierarchy of laws.      

                        Power of king was to be found in the decree of church. Advent of Christianity in governance structure made a new beginning. Religion not only gave a divine color to the authority of king but also made it universal. Prior to introduction of Christianity as state religion, Roman laws were essentially applicable only to the citizens till the time biblical laws changed this and made laws applicable for all, either citizen or non-citizen. Christian religion made divine laws omni-territorial contrary to Roman civil laws which were linked and confined to a territory in which the sovereign exercised its jurisdiction.  Divine Laws on the contrary were not linked to any territory or jurisdiction. They were applicable to all believers weather subject or alien. Religion created a new form of contract. Religion gave birth to a ‘divine contract theory’. All religions are based on a basic covenant between the believer and the divine. Divine contract was a new idea for the Romans and they accepted it for the sake of governance. Church made a covenant with believers that if they believe in god and obey the command of god they will be rewarded in this life and afterlife. Securing obeisance of laws through divine contract was a gift of Christianity to Constantine to save the already fraying Roman Empire in fourth century and perhaps the reason behind its becoming state religion.

                       

Hierarchy of Law in the Present

               In modern societies divine laws have become more and more personal opposite to their status in the ancient and medieval ages where they were having almost the status of public law. Personal laws have been given a new status distinct from the collective norms of society as a whole. Majority states are formed secular constitutionally, barring few exceptions. Authority of state comes from its constitution rather than the decree of church. State contract has replaced the divine contract and the constitution has replaced the bible in state governance. Behind the sanction of law there is no more divinity and the reward from gods. Sanction of law is enacted by the parliaments based on the will of people and implemented without discrimination to the name of prophet one believes in. Belief and practice of religion though guaranteed fundamentally, has been put subject to reasonable restrictions either to be provided by legislature or executive.

Modern Movement of Law

      Hence the movement of law has been from ‘divine to civil’ analogous to Maine’s ‘status to contract’.