Importance Of The Religious Freedom

In 2012, there was a declaration by the government of the state of Osun of the hijrah holiday. In 2013, the National Assembly in Nigeria- a law-making body- passed a law signed by President Goodluck Jonathan which made same-sex marriages illegal. However, there was already a provision in the criminal code before this time that made gay relations illegal. The Act of 2013 explicitly provides that a marriage certificate can not be presented to individuals of the same sex and in default of this law the penalty is 14 years upon conviction.

An examination of this reveals that Nigeria’s laws reflect a highly religious and conservation society that considers homosexuality a deviation from their beliefs and condemns it as a practice, Now the question is- Is Nigeria a secular state as declared by the constitution? Is it lacking in focus on any religion? Does there exist a separation of church and the state?

Although there ought to be a separation, every person religious or not has a set of principles they live by. Some individuals may refer to it as core values while some individuals may just refer to it as principles they live by. They are fundamental beliefs of a person which guides and dictates the behavior of such a person to help him/her place a distinction between right and wrong, it is a belief that a person views as being of central importance. It helps individuals to determine whether they are on the accurate path and whether they are accomplishing their goals by creating a steadfast guide. These principles basically dictate how a person would live his life and they stem from the beliefs of such individuals, examples are belief in God or a spiritual institution, belief in honesty, belief in family, etc., these things will shape a person’s life principles or core values. Mention must be made of the fact that not all core values are positive, some are negative, for example, a belief that the world is a fundamentally brutal place, and this as well will dictate the lifestyle and actions of such persons especially when put in an authoritative position in a state because religion is very synonymous with nature, hence, man has formed his existence based on religion. Religion is the bedrock of civilizations, no society has been known to exist without a religion. Religion determines the social conditions for societal identification, it is the core of the existence of man. For this purpose, this dissertation would examine the above-stated issues as well as how religion contributes to the social structure of a state i.e. the legal and social order.

Before going further, noteworthy is the clarifications of these conceptualizations. The word religion is derivative of the Latin word “religion” which means a moral bond used by the Romans, before Jesus Christ, to indicate the worship of the demons. The origin of “religion” has been contested since time immemorial. Cicero said it comes from “relegate” which means to read again, to re-examine carefully) which means to carefully consider the things related to the worship of gods.

In modern terms, Religion could be simplified to mean conviction or credence in a spiritual being, Emile Durkheim delineates religion as a “unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden – beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.' It could also mean the identity-justification of society using myth and ritual.

In general can be referred to as a belief, or recognition of a higher unseen power. It also connotes rites or worship or devoted fidelity; a phenomenon that has to do with norms, beliefs, and practices that govern human beings as they relate with the supernatural being (God)- a perpendicular realm of human experiences. In its most comprehensive sense, religion includes credence in the existence and flawlessness of God, in the disclosure of his will to man, in man’s duty to comply with his commands, in a state of reward and punishment, and man’s accountableness to God.

According to Roger A. Johnson, religion is an extremely complex phenomenon, it encompasses beliefs and doctrines, myths and rituals, sacred scriptures and cultic subjects, and the manifestation of transcendence in these many aspects. Joseph Alder defines religion as a means of ultimate transformation or orientation.

Whereas an order can be conceived as the total of all the parts unified into an entity that exists apart from, and despite, any of the parts. In a way, a system is a corporate whole and not a mere assemblage of parts. An order is a system in the sense not only of the completeness of its parts but its formal dependence from other similar systems, its internal cohesion, consistency and its ability to regulate and contain changes internal to self and without its own instruction, because every system has contradictions, the notion of an order is its ability to resolve or overwhelm those contradictions.

Social Order

Schools of thought in sociology assume that there is order in society and that it can be discovered, described, and understood. In a given society, individuals perform numerous social acts. If there is no order in society would result in chaos

Any number or group of people associated together geographically, racially, or otherwise with collective interests qualifies as a society. When elements of feelings or togetherness and mutual bonds are added to the equation then such is best referred to as a community. Ferdinand Tonnies, a German Sociologist called community Gemeinschaft, and society, Gesellschaft. For him, society refers to groups that are sustained by it being instrumental for their members’ individual aims and goals. There are several relationships, connections, and interdependence among people that live within a society. This distinctive, stable arrangement of institutions whereby human beings in a society interact and live together is known as a social structure while the norms that govern such interactions are known as the social order.

The term social order can be used in two senses. In the chief sense, it denotes a specific set of systems of linked social structures, institutions, relations, customs, values and practices which conserve, maintain and enforce certain pattern of relating and behaving. In the subsequent sense, social order is juxtaposed to social chaos or war or disorder and refers to a stable state of society in which the existing social structure is accepted and sustained by its members. For this thesis, the former definition this the area of focus.

The clarification of this concept varies outside and within the field of sociology. Freestanding of the field of sociology, social order may just refer to a state of stability, consensus, and unanimity that exists in a society in the absence of war, pandemonium, and commotion. Sociologists on the other hand refer to it as the association of many interconnected chunks of society when individuals reach an agreement to a shared ‘social contract’ that states that certain rules and laws must be obeyed, and certain norms and values are upheld.

Legal Order

The legal order simply refers to a group of norms that regulate the behavior of people in a society. Hans Kelsen in his thesis, ‘the concept of a legal order’ commenced by defining the legal order as an; “aggregate or a plurality of general and individual norms that govern human behavior, that prescribe, in other words, how one ought to behave. That behavior is prescribed in a norm or, what amounts to the same thing, is the content of a norm means that one ought to behave in a certain way. The concept of the norm and the concept of the 'ought' coincide. To prescribe in a norm how one ought to behave is understood here not only as a command but also as positive permission or authorization.”

Hans Kelsen introduces the legal order as an aggregate of norms that conduct and govern human behavior basically just stating how a person “ought” to behave. The fact that there is a norm presupposes that a person ‘ought to behave a certain way, there is something ‘expected’ of him in a particular situation, expected behavior and the plurality of these norms becomes what is called an order if the norms constitute a unity, they can only constitute a unity if they have the same basis of validity.

As established in the definitions above, we can deduce that the concept of legal order cannot be alienated from the concept of social order, as the legal order is just a minute component of the social order which encompasses a particular set of systems of linked social structures, institutions, relations, customs, values and practices which conserve maintain and enforce certain pattern of relating and behaving, which includes the rules that a community or society will refer to as binding. For example, in China, the social order can be classified as the communist system or communist where there exists a classless society where everyone worships the communist party and all decisions and laws are determined by the communist party.

There is a love-hate relationship between the terms “law and Religion”, from their harmony and sync in certain matters to their discrepancy in other matters. The nexus between law and religion, the influence of the latter on the former, dates back to Biblical times. The Naturalists sought to focus on discovering and evaluating the content of law as deducible by reason having universal and immutable concepts and values.

Notable among this school of thought are St. Augustine and St. Thomas Aquinas, who postulated that ‘…..any law which departs from natural law is no longer a law, but a pervasion of the law,’ ‘and therefore should not be obeyed.’ At the time these postulations were made, there was little or no difference between the State and the Church which was the Custodian of religious norms and values. This write-up is not intended to go into full critique or evaluation of the Natural law school but merely to show the influence of religion on the law. The Sharia Law, for instance, is a complete product of the religious influence on the legal system of our society, thus Gibb’s assertion that :

Islamic law was the most far-reaching and effective agent in molding the social order and the community life of Muslims…. and the moral authority of the law. This influence could be seen even in a secular state by the influence of a principle or value that is common to all the different religious sects in that society. “Thou shall not steal” and “Thou shall not kill” have no doubt been of almost universal application to most jurisdictions regardless of what religion is obtainable there, and appear in the various criminal and penal codes of most societies. The influence of religion again reveals itself in procedural law as can be seen in the Law of Evidence relating to the practice of putting a witness on oath before giving testimony in court.

Religion and law often appear to be harmonious. They share elements of ritual, tradition, authority, and universality that “connect the legal order of any given legal society with that society’s beliefs in ultimate transcendent reality. ” Professor Hart opined that the laws of every modern state shout at a thousand point the impact of both the acknowledged morality and inner moral, this influence enter into law either abruptly or violently through legislation or silently and piecemeal through the judicial process.

The interconnectedness between Religion, Social order, and the Legal order is undeniable, to deny it is to be ignorant to the reality of the legal system, below are a few examples of this interconnectedness amongst others;

1. The Law of Evidence- The idea of taking the oath and the crime of perjury. Section 180 of the Evidence Act 2011 states that all oral evidence must be given on oath ;

2. The 1999 Constitution- Oath and 1999 constitution most especially oath of office;

3. Contract- Good faith in contractual and promise-based communications;

4. Tortious Liability- The neighbor principle in Donoghue v Stevenson, etc.

Thomas Hobbes in his “Leviathan” opined that law and morals are identical and can barely be distinguished. There is, too, a certain sanctity to any body of law, just as there is an authoritative and often constitutive structure in religion. Most religions are based on a covenant.

In Martin Buber’s terminology of “I and Thou”, both religion and law are essentially dialogue; both seek to prove orientation of knowledge and a greater realization of the meaning of life. In a sense, the whole concept and practice of legal order presuppose a moral and teleological viewpoint that is essentially religious. They are both ethical systems and structures which profoundly address the legal order; both are concerned with how we accept and organize the world and universe around us. Just as the United Nations Secretary-General Javier Perez de Cuellar has referred to the U.N. Charter as “my religion.”

A person’s religion can basically define who that person is, most of the time it makes up a person, therefore such a person’s ideology, decisions, and values would be influenced by that religion. As discussed above, even though there is a major difference between a community and a society, the point remains that it is still people who come together to actually become either a society or a community. They are persons with beliefs and ideologies about life which would eventually influence the way of life of such a people. Due to the sensitivity and peculiarity of religion as a concept, it can be classified as a major tool of unity amongst a group of people. It was stated earlier that no society can exist without a legal or social order as it is a pillar upon which the structure of the society rests.

In a Legal and social order, the only connection Sphere of influence is Religion. The best example to illustrate this view is Iran. Iran is a proud Shiite country, in fact, Iran’s official name is the “Islamic Republic of Iran”. Now the question arises - why would a state want to relate a religious ideology to its official nomenclature? The obvious answer is the sphere of influence and how does the sphere of influence work? Iran is a majority Muslim country sitting on the eastern edge of the Euphrates. Before its revolution, in the latter part of the 20th century, Iran was recognized as a secular country in the sense that what guided its legal and social order was not a unified religious ideology i.e. positive law.

Subsequently, after the revolution, Iran had a spiritual who created a precedent of a religious leader called the ayatollah. The first ayatollah was an Islamic scholar and cleric who did not agree with the former political and social order of Iran before the revolution, therefore the ayatollah decided to unify the social and legal order of Iran with that of Shiite Islamic ideology. What makes it further interesting is that Iran changed its name from Iran to the Islamic Republic of Iran. Today in Iran, sharia law reign supreme overall (the Shiite variance). This implies that the laws governing social and legal relationships, be it between government and people or people and people and with other governments are strictly under the purview of Islamic law. For example, recently, Iran just allowed women to watch football in stadiums due to a religious belief that it can cause sexual temptation for women.

Like every other religious ideology in the world, to question the “gatekeeper” of such ideology is a sin (haram). As the Pope is to the Vatican, the Ayatollah is to Iran controls every facet of the life of Iranians, the ayatollah is one person but there is a supreme Islamic council- they are seven in number and the ayatollah is the seventh person. Yet Iran still has a president, the president essentially listens to him the president still takes instructions from the Ayatollah even though he is guided by law. the Ayatollah can be compared to the Queen of England while the presidents can be compared to the Prime Minister of England. the latter is still very influenced by the former. Therefore when decisions are questioned it's almost like a question that gives keyboard ideology which is the Ayatollah. most Iranians do not even see a problem with this, left to them it's a remarkable system of governance.

Despite this a few of the opinions that the Ayatollah should not exercise such power because he is just a religious power. Iranians on the other hand do not have a problem with this because the Ayatollah claims to be guided by Qur’anic and Islamic principles - nonetheless, we all know that that is not the complete truth as every person has their personal bias which would definitely influence their decisions whether or not they claim to be guided by a particular set of laws or principles- just as the same for judges in a courtroom. The social and legal order is subservient to Islamic law. For example, the court system makes use of Sharia judges such as the caddy on the ground caddy and as for the social order, there are so many rules stating that men can do this or women can do this because it is a sin. everything is based on Islamic law so you can see how that relationship with religion on its own changes everything in a government and its legal and social order. In contrast with this, we can take a look at China, which is an officially atheist country - This means there is no room for religion or belief in anything except worship for the Communist Party. Secular states will stay that you can believe in whatever you want to and worship whatever you want to but as for China, they are grounded in the fact that you cannot believe in any religion or have any religion but rather you must worship the Communist Party. The Chinese way of life, that is the legal and social order, has no relationship with any religious ideology and neither is it influenced by any religion. In as much as people say that Chinese people are ideologically motivated by Confucianism, most of the principles of their social and legal order are not derived from any religion they're more like free thoughts or long practices that don't have any root or connection to religion.

Conclusion

In conclusion, I beg to differ that the idea of secularism in a sovereign state would bring about unity and diversity, the question be asked is “can there be unity in diversity?” The 1999 Constitution of the Federal Republic of Nigeria states that Nigeria is a secular state and yet abolishes by law homosexual relations based on religious notions, same with the United States which identifies the separation between the Church and the State and yet its official motto as established in 1956 signed by President Dwight D. Eisenhower, is “In God we trust”. These instances raise questions as to the reality of the separation of the church and the state. There can never be a separation between religion and the legal and social order because the law and social constructs are defined by the community i.e. the people, whose core of existence is religion. As stated earlier, religion is the bedrock of civilization, no society can exist without religion but if a state is declared as a secular state, there would be varieties of beliefs, diverse opinions which would eventually lead to a clash of beliefs, but when there is one religion, there is a lower tendency of war and discord because disunity is just an offspring of diversity.