Naslov
Legal nature of religion

Autori
Padjen, Ivan

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
Convictions philosophiques et religieuses

Urednik/ci
Vanderlinden, Jacques ; Foblets, Marie-Claire

Izdavač
Bruylant

Grad
Brisel

Godina
2010

Raspon stranica
477-514

ISBN
978-2-8027-2780-4

Ključne riječi
religion, definition, law

Sažetak
The initial question posed by conveners of the Conference, namely, “Is a ’religion’ capable of being included into a positive legal order?”, implies, or at least can be read to imply, that religion is the name of a phenomenon which can be defined but cannot be regulated by positive law ; and that even if it can, a positive legal order may but need not include religion. All the implications of the initial question are highly problematic The first implication is not supported at least by Croatian practice. Principal constitutional acts, namely, the Constitution, the Law on Legal Position of Religious Communities, and published judicial decisions do not define religion either in a conventionally explicit way, that is, analytically (per genus proximum et differentiam specificam), or in a similar way, that is, in a discernible synthetic or implicit but informative way.Nonetheless, Croatian law has recognized several religions, and even that in an indirect way, namely, by recognizing religious communities. Hence the central problem of this paper: why or how, on the one hand, Croatian constitutional law has recognized religions without defining religion ; while, on the other, the US and Canadian constitutional laws have defined religion? The solution of a part of the central problem is briefly as follows: by defining religion, perhaps even on the basis of scientific criteria, American and Canadian constitutional law may be less traditional than Croatian but not any better. American lawyers have found long ago that religion cannot be constitutionally defined. At the same time the partial solution transforms the central problem into a simpler form, which dispenses also with both the constitutional level and the query why: how can law without a definition of religion recognize a religion or religions? For the sake of brevity, the first part of the paper summarizes the finding (to be published elsewhere), which is characteristic of post- modernity, that religion cannot be conceptualized either philosophically or scientifically. The second implication of the question “What is ’a religion’ capable of being included in a positive legal order?” is that religion is not capable of being regulated by law. The implication seems to be obvious, despite a widespread regulation of religion. A reason follows from the conclusion of the first part that religion cannot be defined or conceptualized either philosophically or scientifically. If so, how is it possible to know that what is legally regulated as religion is, indeed, an instance of religion rather than of superstition or ideology or culture or something else? Another reason is that some protestant theologians and, under their influence, even the Catholic Church make a distinction between faith and religion. On that account it may indeed appear that religion is something external and collective while faith is internal and private to a believer and hardly – if at all - communicable. A further reason why religion may seem to be incapable of being legally regulated is again Western but philosophical: in a Cartesian perspective, only I can know my faith while another person can only surmise my faith on the basis of my behavior. However, rather than dis-believing law regulating religion, it may be intellectually more profitable inquire whether religion would be possible – at least in Europe (and perhaps even in the West) – had it not been included in positive law or, to put it more bluntly, if religion was not legal. The inquiry calls for an analysis of, on the one hand, the legal nature of religion and, to that end, for a new inquiry into defining and conceptualizing religion, but now from a perspective of law and legal theory ; and, on the other, the religious nature of law. The central part of the paper has a triple task: first, to otline tenets of a theory of law and religion, which can be developed from an integral theory of law sensitive to post-modern constrains and extended to religion ; secondly to demonstrate that the theory can provide inter alia a solution to what has been left of the central problem of this paper, namely, an answer to the question how law without a definition of religion can recognize a religion or religions ; thirdly, to indicate that the theory is valid because it is to a great extent a common sense legal doctrine of law and religion, or church and state, widespread in contemporary Europe and, perhaps, the whole West. The central part of the paper is divided into the following sections: elements of a theory of law and religoin ; criteria for recognition of a religion. The third implication of the initial question, ”What is a ’religion’ capable of being included in a positive legal order?”, is that a positive legal order may but need not include a religion. If any it is this implication that seems to be beyond reasonable doubt : inexistence and disappearance of religioons in vast areas of the world ; the separation of church and state ; widespread legal positivism, which denies that positive law may have any content other than the content created by human will. Not a single one of the just stated facts is as firm as it is obvious. The last part of the paper, if and when it is completed, will argue that it may be both theoretically and practically more rewarding to answer the question from a very different angle, by extrapolating findings of the previous chapter and asking: could law recognize religion without being religious?

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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