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Pulse
7 November 2022

In September 2018, The Straits Times published an article by Professor Tommy Koh entitled ‘Section 377A: There is a Difference between Sin and Crime’. The article addresses a wide range of topics including legislation against homosexual practices and the relationship between religion and the state. I responded to some of the issues raised by Koh in an article published by the Ethos Institute for Public Christianity (https://ethosinstitute.sg/a-sin-or-a-crime/).

Koh makes a sharp distinction between a sin and a crime, in agreement with the former attorney-general of Singapore. He writes:

My good friend, former attorney-general Professor Walter Woon, has pointed out that there is a fundamental difference between a sin and a crime. He said that many regard adultery and fornication as sinful but they are not criminal behaviour. He concluded that sodomy may be a sin but it should not be made a crime.

For Koh, the distinction between sinful and criminal behaviour is premised on the separation between religion and the state. This is made clear when he writes, somewhat condescendingly:

There is an important point which I wish to made to the Christian and Islamic authorities. I would respectfully remind them that Singapore is a secular state. It is not a Christian or Muslim country. It is not the business of the state to enforce dogmas of those religions. In Singapore, there is a separation between religion and the state. Church leaders and Islamic leaders should respect that separation.

Koh repeats this point towards the end of his article:

Singapore is a secular state. It is not a Christian or Muslim country. The leaders of these religions should respect the separation of state and religion and refrain from pressuring the Government to criminalise conduct which they consider sinful.

But the distinction between a sin and a crime also suggests the separation between religion and the law. The law is seen as a purely secular (and scientific) enterprise that has no relation whatsoever with religious traditions and therefore is not dependent on their wisdom or their vision of public morality. It is this issue of the relationship between religion and law that I would like to explore – albeit briefly – in this article.

MODERN LEGAL POSITIVISM

The complex relationship between religion and the law can be traced to ancient times.

The Talmudic law of the Jews, which is an elaborate system of governance that covers all aspects of economic, political, and family life, is based on the moral law of the Torah. The equally elaborate Roman Law was established in Greek – especially Stoic – philosophy which emphasises the supremacy of natural reason and the Roman’s practical sense of order.

While some legal scholars have opined that Roman law is pervasively secular, Tim Murray has shown quite convincingly that religion and law in ancient Rome have a more subtle and complex relationship. They are separate, but not unrelated, ‘systems’ by which society is ordered.

Christianity inherited these two highly developed legal systems, the Hebrew and the Roman, when it came onto the scene. The Roman emperors who were converted to Christianity in the 4th century introduced radical reforms to the Roman laws in accordance with the moral vision of the Christian faith they had embraced.

As jurist Harold Berman explains:

Under the influence of Christianity, the Roman law of the post-classical period reformed family law, giving the wife a position of equality before the law, requiring mutual consent of both spouses for the validity of marriage, making divorce more rigorous, abolishing the father’s power of life and death over their children; formed the law of slavery, giving a slave the right to appeal to a magistrate if his master abused his powers and even, in some cases, the right to freedom if the master exercised cruelty, multiplying modes of manumission of slaves, and permitting slaves to acquire rights by kinship with freemen; and introduced the concept of equity into legal rights and duties generally, thereby tempering the strictness of general prescriptions.

Due to the influence of the Christian emperors, Roman laws were reformed ‘in the direction of humanity’, by eliminating what Christianity defines as iniquity (sin), and by infusing justice with mercy.

It was only during the Enlightenment in the 17th century that religion and the law began to part ways in tandem with the march of secularism and rationalism. By the late nineteenth century, faith in the new theory of knowledge nourished by the ideals of the Enlightenment led to a positivist turn in jurisprudence.

Commenting particularly on the American context, John Witte Jr. opines that the development of the positivist theory of the law can be traced in two stages.

The first stage was scientific. Inspired by the successes of the modern scientific revolution, nineteenth century American jurists sought to create a new method of law that is just as scientific as the new mathematics or the new physics.

This scientific movement in law, Witte writes, ‘was an earnest attempt to show that law had an autonomous place in the cadre of positive sciences, that it could not and should not be subsumed by theology, politics, philosophy, or economics.’

The second stage was philosophical. This is an attempt to reduce the subject matter of law to its most essential core, resulting in a new movement that is variously known as legal positivism, legal formalism, and analytical jurisprudence.

Here, too, the influence of developments in scientific discourse and presentation is obvious. Just as physics can be reduced to ‘matter in motion’ and biology to ‘the survival of the fittest’, so the law must be reduced to its essential core.

According to John Austin from England and Christopher Columbus Langdell from America, law is simply the rules and procedures propounded by the sovereign. The implication of this reductionist view is that law becomes increasingly insular and narrow, separated from other realms of human knowledge. As Witte explains:

Many other institutions and practices might be normative and important for social coherence and political concordance. But they are not law. They are the subjects of theology, ethics, economics, politics, psychology, sociology, anthropology, and other humane disciplines. They stand beyond the province of ‘jurisprudence properly determined’.

Legal positivism has driven a philosophical and an epistemological wedge between law and religion, forcing them apart.

A BROADER DEFINITION

Since the late nineteenth century, the positivistic theory of law has been pervasive in American universities. However, despite its prominence as the new orthodoxy in jurisprudence, it has many detractors.

In the early decades of the twentieth century, American sociologists of law increasingly hold the view that the nature, purpose and development of law must be understood more broadly than legal positivism would allow. The spirit of the people and their times, what their German counterparts termed as the Volkgeist und Zeitgeist, must also be given serious consideration.

Leading American jurists such as Lon Fuller, Jerome Hall, Karl Llewellyn, Harold Berman, and many others pressed for a broader understanding of the law as a social activity. As Witte puts it: ‘Law is rules, plus the social and political processes of formulating, enforcing, and responding to those rules.’

The re-visioning of the nature and purpose of law led to a paradigm change that maintains that legal studies should be enhanced by the methods and insights of other disciplines. This has resulted in the recovery of the importance of religion – especially Christianity – in society and the role it has played in the history of Western jurisprudence.

Justice Harry Blackmun captures this new sensibility well when he pointed out in 1988 that law and religion ‘are an inherent part of the calculus of how a man should live’ and how a society should be run. Although law and religion are distinct sciences of human life, they have a dialectical relationship, constantly cross-fertilising each other.

Western law is constitutionally related to religion, especially Christianity. As Witte points out:

Many of the great Western constitutional doctrines of the church and state – the two cities theory of Augustine, the two powers theory of Gelasius, the two swords theory of the High Middle Ages, the two kingdoms theory of the Protestant Reformation – are rooted in both civil and canon law, in theological jurisprudence and political theology.

Law and religion are also related conceptually. For example, law and religion hold analogous concepts of covenant and contract, justice and righteousness, redemption and rehabilitation.

This means that the concepts of sin and crime are also analogous. In fact, many of the modern concepts of crime in Western jurisprudence are shaped by the ancient Jewish and medieval Catholic theologies of sin.

Recent development in American legal education has been encouraging as an increasing openness to exploring the religious sources and dimensions of law is becoming more evident.

For example, the Association of American Law Schools now has a substantial section of members working on law and religion. Academic journals such as The Journal of Law and Religion and the Journal of Church and State focus on the relationship between religion and the law. The ever-expanding list of monographs on the subject also shows that scholars are doing serious work in this complex field.

CHRISTIAN WITNESS AND THE LAW

The relationship between Christianity and the law must therefore be given serious consideration, and the way the former has shaped the latter must be carefully examined from both historical and philosophical perspectives.

The Church’s interest in the law, however, is not confined to these historical and philosophical matters. It has to do also with the Church’s witness in the world, her engagement in a public square that has become increasingly and enigmatically more secular but also more religiously plural.

Since the inception of the Church, Christians who inhabit an essentially pagan culture and environment have asked themselves if they are morally bound to obey the immoral laws of the State. The answer to that question is no. The early Christians have demonstrated this commitment by their refusal to participate in the worship of the Roman emperor, which was required by law.

Having said that, it remains imperative that Christians must continue to take an interest in the law of the land because of their responsibility to bear witness to the truth, justice and mercy of God. Part of the witness of Christians in this regard is ‘to redress the balance of the excessive secularisation of law’, as Berman puts it, and to guide it ‘in the direction of humanity’.

In a multi-religious society like Singapore, Christians should work with other faith communities and the secular authorities to ensure that the laws of the land are just and humanising. For the separation of religion and politics in Singapore does not prohibit the involvement of the people of faith in working with one another and the government for the common good of our multi-religious society.


Dr Roland Chia is Chew Hock Hin Professor at Trinity Theological College (Singapore) and Theological and Research Advisor of the Ethos Institute for Public Christianity.