Difficulties with the Term ‘Religious Law’

by Philip Jones

The suggested concept of an inter-religious ‘common law’ faces at least four difficulties:

First, it assumes what it seeks to prove.  It implies that there are principles and rules of governance common to all religions, Christian and non-Christian alike.  However, it is argued that the existence of such common principles and rules must be established first, by research.  Only then may it be legitimate to label them collectively ‘religious law’.  It is wrong to speak of a ‘religious law’ whose existence has not yet been established, relying only on the hope that future research will confirm its existence.

Second, it may give the misleading impression that Christianity teaches a divinely ordained legal order, as some other religions do.

Third, much ecclesiastical regulation is not law, nor is it particularly religious.  The Roman Catholic Church, the Church of England, the Church of Scotland and certain European Protestant Churches are indeed constituted by law, but most Anglican and Protestant Churches govern themselves by quasi-contractual rules which are not laws and do not claim to be.

Much ecclesiastical governance, whether by law or by quasi-contractual rules, is derivative, drawn from contemporary secular governance.  Thus it is not very religious in content.  There is not much point in persons of other religions studying ecclesiastical governance that is merely derived from secular governance.  They might as well study the relevant secular governance directly.

Fourth, the basis of all regulation within the Christian community is the Church (ecclesia) and the concept of ecclesia is unique to Christianity.  It is true that there is profound disagreement among Christians as to what ecclesia is.  Nevertheless, all Christian communities profess a belief in ‘the Church’, and regard themselves as, in some sense, a part of it.  All Christian communities and places of worship are described, at least colloquially, as ‘churches’.

The Roman Catholic Church does not officially accept that Protestant communities are Churches in the true sense.  However, it does accept that indefinable elements of the true Church are present with Protestantism.  It also acknowledges that Protestant Churches are churchlike (‘ecclesial communions’).  They resemble or imitate the Church, even though they are not the genuine article.

Thus a ‘religious law’ which neglects or marginalizes the concept of ecclesia will not have much relevance to the governance of Christian communities.  On the other hand, a religious law which is based on the concept of ecclesia is unlikely to have much to say to non-Christian religions.

It is argued that the phenomenon variously described as ‘religious law’, ‘Christian law’ or ‘canon law’ is best described as ecclesiastical governance (cf. corporate governance).  This term is broad enough to encompass the different legal regimes (ecclesiastical law, canon law, quasi-contractual rules) that apply to different Church communities, and yet does not ignore or blur the differences between them.