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For thousands of years, religious canon formed the basic rules of social interaction and was both religious doctrine and law. Only for the last few hundred years have some countries separated church and state, with secular law becoming the legal framework. But is the separation of church and state social progress? Do they necessarily conflict, or can they complement and help each other? Portal Wissen spoke to Potsdam lawyer Prof. Götz Schulze about the relationship of law and religion – then and now.
To begin with, religion came first, historically speaking. In the age of religious wars and schism, the state was released from the religious rule. The state was nonetheless shaped by religion albeit without having religious leadership.
Religion originally claimed the right to organize and lead society and has always been a means of exercising power. The rule of faith continues in some countries where the claim to state power is still derived from religion.
This is the first question you have to ask is what the position of religion in our Western societies is. We have different models. In France, religion is completely kept out of the political system. This strictly secular model has a stringent separation of church and state. The German version of secularism is more moderate. There are gradations between the two. The German state collects a church tax, funds religious institutions, and there is a strong interrelation between state and church institutions. The state also grants the church special freedoms that the state does not interfere with. Some states follow the French model; others lean more towards the German one. It is different in Islamic countries that do not support the separation of church and state, and both are still indistinguishably interwoven. This does not necessarily mean one is way better or worse, but you have to be aware of this and keep it in mind.
This is an accurate observation. State law is a rational right and thus subject to justification, which is debated and discussed by the relevant legislation – at least in democracies. This does not apply to the interpretation of religious law. There are religious leaders and religious scholars with interpretive sovereignty who represent certain interpretations of religious texts. This is, of course, a fundamental conflict, with which we also have our difficulties.
For the people living there, however, these close ties between religion and the state are less problematic than it may seem to us. But there is great hardship in some cases. Whether we are more advanced just because we strictly separate the spheres of religion and state is a matter of perspective. For the individual, the separation initially creates more freedom. Religion becomes a private matter, and following the law is no longer necessarily a moral act – and therefore no longer a religious category. The state does not ask what motivates or persuades a person to act or follow the law. We see the inherent rationalization of law – and thus of power – as progress. At the same time, there is still a need for values and ideological orientation that the secular state can neither provide nor enforce, at least not religiously. This dilemma cannot and does not have to be resolved for all cultures in the same way.
There are three priorities. The first is the granting of the freedoms of faith, conscience, and religious denomination. Muslims living in Germany have the right to form a community and to have a mosque. This certainly involves potential conflict such as with the burqa ban, the status of women, or the circumcision issue. The second focus is family law. In cases of divorce, people in mixed religious or cultural relationships often face conflict between the applicable law and religious beliefs. The third point concerns inheritance law. This differs greatly depending on the cultural background. In Muslim law, there is no testament and last will. Men are better off than women, which is a clear violation of our principle of equality. On the other hand, even German law allows a son’s preferential treatment over a daughter in a will, so we have to be careful about correcting here.
A prominent example demonstrates the potential for conflict: A few years ago, an Iranian professional football player living in Germany had two wives – a permanent one and second “temporary wife”. The duration for the temporary marriage was five years, after which, according to their marriage contract, he had to build her a house in the community where he lived. This was Hamburg. When the woman asserted her right, it raised the question of whether this contract is also applicable here in Germany. Do we recognize the fact that someone is practicing polygamy here? Do we accept couples living in a temporary marriage? We ended up accepting this, provided that the marriages were performed in a culture that allows them, those involved were already living together in this cultural area, and no third-party rights were violated.
There is a limit we must not exceed and that is non-negotiable. In our understanding, whipping a critic or beating one’s wife is completely out of the question. At the same time, we want to respect individuals’ cultural identities while considering the actual legal differences, provided they are compatible with our core legal concepts.
Another recent example is the question what cartoons are allowed to be shown. Is the freedom of artistic expression and opinion allowed to hurt religious feelings? Do we need to draw a line somewhere, and, if so, who should draw it? Our society must constantly renegotiate what it is willing to accept. Religious feelings is, however, an insufficiently tangible criterion, so it has to be subordinated to clear constitutional boundaries. We apply the primacy of enlightened national law. We must also be able to cope with freedom.
Law and religion per se should always usefully complement each other, whereas law may and must define our understanding of the scope of religion. Up until 30 or 40 years ago, the Church had certain areas of life under its regulatory wing. The situation has largely changed but is problematic where it does still exist, such as in ecclesiastical labor law. Religion is practiced privately. The freedom to believe in nothing is a matter of course for us. Religion forms an idea of morality and shapes a living environment based on it. From the perspective of law, religious morality is only one of several possible options. It is different in countries where religion has greater influence. In these countries, people of another faith are quickly discriminated against and ostracized.
The law is not absolute; it is always bound to space and time. What is right today will not necessarily be right tomorrow or elsewhere. Comparing law shows that societies address similar problems quite differently. For me as a lawyer, this is rewarding and exciting. Our civil code is now 115 years old; the commissions who created it spent 20 years doing so. They compared it with the then-existing law, trying to learn from other jurisdictions. The law itself is always being changed by religious and cultural influences. It is meant to reflect social consensus, but this is constantly changing, for example through globalization and migration. These factors would ideally be included in legislation. Of course, religion is important here because it influences this basic social consensus.
Jurisprudence first analyzes what happens, i.e. the historical and present cases relating to law and religion, arranges them according to criteria, and compares them. It ultimately looks at which problems arise and whether they are being properly addressed. These issues are taken up in academic discourse and then flow into concrete laws, exemplified most recently by the European-wide inheritance regulation known as “Rome V”. Lawyers as such, however, must claim not to be moral actors; they have no moral authority per se.
The Law Faculty at the University of Potsdam and the Université Paris Ouest Nanterre jointly organized summer universities in Tunisia and Morocco in recent years with funding from the Franco-German University. Under the guidance of Prof. Schulze, the 2014 summer university in Casablanca addressed the topic of law and religion. Potsdam also hosted two conferences on cultural identity and international private law.
Prof. Götz Schulze studied law in Würzburg and Heidelberg. Since 2010 he has been Professor for Civil Law, European Private Law, International Private and Procedural Law, and Comparative Law at the University of Potsdam.
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Text: Matthias Zimmermann/Heike Kampe
Translation: Susanne Voigt
Published online by: Agnetha Lang
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