The question of the correlation of legal categories withmoral and ethical is one of the most difficult in jurisprudence. For many centuries, attempts have been made to divide these categories, or, at any rate, to establish an acceptable balance. However, today the problem is far from being solved.
The fact that the law and religious norms are inclose ties with each other, is recognized by most experts. In Russia, perhaps, only the most radical representatives of the libertarian theory (V. Chetvernin, N. Varlamova and others) tend to polarly breed morality and law, taking religious norms out of the legal field. Examples show that this turns out badly, because even the basic legal concept of libertarians - the notion of freedom - has obvious ethical roots and beyond the boundaries of ethics, in fact, it loses its meaning.
The most important feature of religious lawis that the basic basis of all norms is the superhuman establishment recorded in the sacred books, which are considered as sources of religious norms. The authority of establishment is unquestionable, and any human act is judged in accordance with it. At the same time, the entire legal system is to a decisive extent guided by religious dogma.
A feature of religious law is thatas the "objective law" are taken norms that are recognized as "superhuman" and fixed in the sacred books. Classical examples of religious law are the laws of the late Middle Ages, which became the basis for the courts of the Inquisition (especially in Germany, where the "legal" grounds of the Inquisition courts were spelled out in the most detailed way), many ancient legal systems, for example, the famous "Avesta", prescribing legal proceedings based on the legendary postulates Ahura Mazda, revealing religious norms. Examples are often very expressive: even a dog appears as a subject of law.
In most cases, a feature of religiousthe right is that it acts only within the community of coreligionists. Gentiles are not subjects of religious law. They are either subject to expulsion and even physical destruction if their activities and cults are not accepted by official authority (examples are the expulsion of Jews from Christian Spain in 1492, the expulsion of Armenians by the Turks in 1915, etc.) or the Gentiles simply move beyond the religious legal system. For example, in modern Iran the following religious legal norms operate: for the faithful there is a ban on alcohol, and for Europeans or Jews an exception is made. This is most often explained by the fact that people of true faith can enter paradise while observing all rites and rules, and the Gentiles have already made their choice, accordingly, their souls can not be taken care of. Of course, do not underestimate the historical and religious traditions, often dictating the nuances of legal norms.
If the "classical" religious lawis an exception in modern history, the question of the relationship between law and morality, which is also largely based on religious tradition, is one of the most important in jurisprudence. Maybe this is even the most important question. Indeed, is the right a certain established norm of relations (indifferent to ethics)? Or is it just the right to consider what has an ethical basis? If to say more simply, is any decree of the king, regardless of its ethical component, a legal act? In the system of religious law, such a question does not arise at all, for no king will dare to issue a decree contrary to the scriptures. Another matter is secular law, which has other grounds. The primitive question: "If the king or the government issues a decree committing the entire population of the country to be executed, will this decree be legal?" If so, the legal system is absurd. If not, where are the limits of legal competence and how are they determined? On this subject in modern science there are several alternative answers.
Representatives of this theory proceed from specialideas about how the law and religious norms are correlated, since they proceed from the sanctity of the law. Its origins date back to ancient Chinese legal practices. The norms of the law do not require discussion and comments, they are taken for an axiom. Legism could become part of religious law, but the relationship here is complicated: as a rule, religious law allows for the correction of laws for their greatest compliance with the spirit of the divine institutions. In this sense, the legitimacy, rather, absolutes social, not religious, law.
This theory also reveals in its own way what religious norms are. Examples can be different, but first of all it is associated with the name of G. Kelsen.
The relation of jusnaturalism to religious lawcompletely different. Very often, right up to the present day, supporters of jusnaturalism include religious social norms fixed in almost any religion ("do not kill," "do not steal," etc.) into the list of natural norms of humanity that should determine the contours of the legal picture of any era .
This theory is one of the most popularmodern life, at least in the life of present-day Russia, is based on the fact that the law fixes a certain system of norms, which was naturally formed in this epoch. The ratio of legal positivism to religious morality and religious law is twofold: on the one hand, positivism takes into account religious experience, on the other hand it ignores it if conditions changed if ethics governing religious norms ceased to work. Examples can be given a variety. So, legal positivism easily coexists with both the Soviet (anti-religious) and the post-Soviet situation.
The most prominent representative is the famous American theorist of law, Lon Fuller.
This theory is associated with the name of VS.Nersesyants, but the final completion was in the writings of his students. The essence of the theory is that law is human freedom, limited only by the freedom of another. Supporters of this theory tend to endure all religious norms and values beyond the legal field (Nersesyants himself insisted on this). Religious ethics, according to libertarians, is a serious obstacle to the path of law, as it claims to have some "universal" values that limit freedom. At the same time, supporters of this theory carefully do not notice the paradox that freedom itself, understood by them as an ontological category, has a direct relation not only to ethics, but also (for example, in Christianity) to religious philosophy.
