Judging the role of religion in law

Aug 02, 2012

Religious reasoning should not affect how judges decide cases—and may even infringe on religious freedom, says University of Alberta law scholar.

There's a passage in the Old Testament's Deuteronomy that says if a case too difficult to decide comes before the courts, it should be brought to the Levite priests who will render a verdict in God's name. However, one University of Alberta researcher says that may be taking religious freedom a step too far.

Sarah Hamill, a doctoral student in the Faculty of Law, recently published an article in response to a premise that said judges who lack direction-setting precedence in cases should use religious-based reasoning. Hamill contends that—aside from being a serious breach of the separation of church and state—such decisions would be constitutionally dangerous. She says that when it comes to deciding on issues from human rights to balancing conflicting rights, cooler, secular heads should prevail.

"In order for everybody to be able to agree with a judicial decision, they have to start from a position of neutrality, which is the state," said Hamill.

In praise of a secular state

Hamill notes that the emergence of Western democratic states gave rise to a separation of church and state, one that saw religions lose their place in national identity and their influence on political power. In Canada, immigration and the adoption of a multicultural society has led to what she calls a new understanding of a secular society. She says the Canadian Charter of Rights and Freedoms guarantees freedom of religion and conscience for all, and aims to promote tolerance and accommodation of Canadians' wide variety of . But she says that when it comes to equality and fairness in law, religious considerations have no place in the judicial decision-making process.

"I understand the emergence of secularism as a compromise," said Hamill, "but it's a compromise that is needed if we're going to come together and live together. Particularly if we're going to live together peacefully."

When church and state collide

Even within a secular society, there will be clashes. Hamill cites examples of legal challenges in which religious beliefs and personal freedoms collided, such as the case of a drugstore chain that questioned the legality of a law that forbade Sunday shopping, or a printer who refused to accept a print job for a gay and lesbian organization because of his religious beliefs. For cases in which there is potential for conflict, Hamill says there is usually sufficient Supreme Court jurisprudence and case law that clearly identify where the interests of the law rest.

"Freedom of religion means accommodation but not support. The Canadian state is not trying to impose any one set of particular religious views on anybody," said Hamill. "These are democratically agreed-upon views, a commitment to live together peacefully. People don't have to agree with it, but they have to comply with it."

Judges as Solomon lite: All the wisdom, without the faith

Hamill says judges need to remain unbiased and impartial in any case they preside over, and should recuse themselves from a case when they believe themselves incapable of remaining neutral, to remove any chance of impartiality or bias. Impartial legal decision-making actually favours all parties; otherwise legal findings could alter significantly depending on the religious bent of the judge. Whichever side of the court Canadians find themselves on, she says, the absence of religious-based reasoning ensures fairness and equality.

"An impartial judiciary is crucial for ensuring fairness and justice in the application of the ," said Hamill. "Judicial decisions free of religious-based reasoning ensure that the state does not support one religion over another, or impose religious beliefs on those who may not share them. Thus it actually upholds, rather than infringes, freedom of religion."

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Deathclock
3.6 / 5 (14) Aug 02, 2012
The role of religion in law? None. Religion is irrational, law must be rational.
chromosome2
3.9 / 5 (7) Aug 02, 2012
I do look forward to a day when we don't have to worry about religion, because it's tricky, legally. There's passages in the tanakh about suffering not a witch to live and so on, and we can't let religious people carry out those parts of their religion, because it interferes with the rights of others to life, liberty, and the pursuit of happiness. I was circumcised as an infant, without my consent, which is a violation of the integrity of my body. That shouldn't have been able to happen to me or anyone, and I trust soon, aside from legitimate medical reasons, that will be the case. We have to have cages for these things because they bite when they're loose. I don't want to live in a country where religions have more rights than people do.
truth4life
1.9 / 5 (13) Aug 03, 2012
The two of you are idiots and so is the writer of the paper. This is why especially in the west; we are in the pickle we are in. Lax judicial laws interpreted without a clear conscious decision making based on principles of right and wrong, which by the way are religiously based. The penalties especially in the instances of extreme crimes that result in the death of an individual; are by far traceable to antiquity, Hammurabi comes to mind. As Berretta said in his one hit wonder show, dont do the crime if you cant do the time I wonder if we could extrapolate the data from the 18th century in the days of public hanging with todays idea of housing the guilty of those crimes that calls for execution, at the taxpayers expenses. And see if crime is deterred. Unfortunate even if to toss out the idea of religious views, we still have the problematic opine of political ideology. It goes without saying, how do I feel today
Thank God for a jury of your peers.
Deathclock
3.3 / 5 (16) Aug 03, 2012
...principles of right and wrong, which by the way are religiously based.


AHAHAHAHAHAHAHHAHAHAHAHHAHA...

Okay, now that I got that out of my system... you have to be out of your fucking mind if you think morality is based on religion. Most religions holy books have HORRIBLE moral teachings that are IGNORED by people today because we have a NATURAL moral compass based on the evolved trait of EMPATHY which leads to higher survival rate within a social species and was thus selected for via natural selection.

Evolution provided us our sense of empathy, which guides our moral compass, which informs our system of ethics.

The bible gave us stupid bullshit like it's okay to own slaves, people should be put to death for working on Sunday, women should not speak unless spoken too... I could go on and on.

Religion is ancient, archaic nonsense, it's time we all grow the fuck up and realize that.
Deathclock
2.6 / 5 (10) Aug 03, 2012
The penalties especially in the instances of extreme crimes that result in the death of an individual; are by far traceable to antiquity


Yep, and that is where they should remain. Retribution is a barbaric notion that has no place in modern society. The goal of our justice system should be PREVENTION of injustice. The idea that justice is served by punishing criminals is nonsense. Retribution is nonsense. It doesn't do anything good for anyone.

All of your actions are based on who you are, which is the physical layout of your brain and the neural connections therein. Your brain is formed based on the sensory input from your 5 senses that it receives throughout your life. You are LITERALLY the sum of your experiences. Most experiences you have are beyond your control, so the growth and formation of your brain, which makes you who you are and determines your actions, is also largely beyond your control... People need rehabilitation, but until we can do that effectively... cont.
Deathclock
2.3 / 5 (9) Aug 03, 2012
... all we should be concerned about is PREVENTING crimes. If the best we can do is lock up criminals to keep them away from the general public than that is the best we can do, but don't mistake the goal or intent of that as retribution, because that should have nothing at all to do with it.

If we could stop thinking like ancient retards (like you) we could all come to these realizations and the world would be a much better place...
truth4life
2 / 5 (12) Aug 03, 2012
Youre still an idiot, even your attempt to communicate in the human language, especially in English shows the depth of your moral ignorance. Clearly whether you believe or not, Biblical truth is and always will show the depth of total moral depravity, something the other worlds religions will not embrace. Whether you believe it or not; the fact is simple you have a moral conscious of right and wrong, do you not? The bible is full of stories that show the timeless dilemma of good and evil and the consequences of those choices among humanity. Whether a judge is religious or not, may not be the status quota, but certainly he/she will have an understanding of good and bad and the punishment that fits the breaking of the moral law
truth4life
2.1 / 5 (11) Aug 03, 2012
The point really, is can any human being deliver a right or wrong verdict without first admitting their own guilt. You see deathclock that is why Christ was made a propitiation for ALL of humanities sins. No one is sinless on this planet. But of course I digressed and insinuated my own views towards a closed mind on all fronts. You cant fix the problem with the injustice individuals will seek instead of the empathy of humanity. Case in point in the Dark Knight (2nd) Joker tells Batman why you are so serious, you need me. In a realistic world of good and bad, he that is the joker is saying I am the opposite of you, your protagonist if you will. Bad is pure evil, just a good is true light, that simple people do have a choice Evolution nay, humanities futile attempt to create a perfect utopia, aint goin to happen. Power, sex and money are the driving forces; unfortunately even the judges succumb from time to time.
TheGhostofOtto1923
3.2 / 5 (29) Aug 03, 2012
Biblical truth is and always will show the depth of total moral depravity
I dont understand. Are you saying that the bible is full of examples of the depths of moral depravity? Because you would be right. Just one example of god-mandated rape and murder:

"So they sent twelve thousand warriors to Jabesh-gilead with orders to kill everyone there, including women and children. "This is what you are to do," they said. "Completely destroy all the males and every woman who is not a virgin." Among the residents of Jabesh-gilead they found four hundred young virgins who had never slept with a man, and they brought them to the camp at Shiloh in the land of Canaan."
the status quota
What is a status quota?
he/she will have an understanding of good and bad
Any judge would condemn the things god demanded of joshuas minions in canaan.
Bad is pure evil
Well your writing is bad. And as you are a godlover I would suggest that it is evil as well.
TheGhostofOtto1923
3.1 / 5 (27) Aug 03, 2012
based on principles of right and wrong, which by the way are religiously based.
Religion-based laws invariably include penalties for not believing in the god who concocts them. This is by definition unjust. And evil. "Ye shall have no other gods before me...I am a jealous god..." etc. This is wickedness codified.

Also, a god who wanted people to trust in his judgement wouldnt have written a book which is so very easy to disprove. All it took was a little archeology in palestine, and a little objective analysis, to prove that the bible is full of lies. It wasnt written by the people it claims it was, and it describes events that never took place.

This shows bad judgement on gods part.
Calenur
3 / 5 (6) Aug 03, 2012
truth4life....really? What compelled you to even show your face here? You seriously believe morality could EVER come from the christian god?

If that's true, then I have quite the weekend ahead of me. I need to go beat my slaves (not so hard that they die, mind you), rape Miley Cyrus so she's forced to marry me, but then quite ironically stone some un-married couples to death for having consensual sex outside of marriage. And dear lord, Sunday is going to be busy, as I'm going to have to kill every person in my office for working on the Sabbath.
truth4life
2.1 / 5 (11) Aug 03, 2012
This rank and file is totally off base and still stupid. A monkey can grasp good and bad and understand the consequences. If you can save your own ass from the moral stupidity that you perceive is untouchable from your perch. Then be my guest. See thats the problem with society, people think their s#*t dont stink. We can follow your illogical conclusion to its end, if youre right nothing really matters, but if youre wrong then indeed due justice will be served appropriately. Good luck relying on your own stupidity to save you
Calenur
3 / 5 (6) Aug 03, 2012
Thank you =) I will be happy to rely on my own stupidity, and not the inane rantings of long dead psychopaths who worshiped a sky wizard. Be on your way, good man. Your work here is done.
TheGhostofOtto1923
3 / 5 (26) Aug 03, 2012
We can follow your illogical conclusion to its end, if youre right nothing really matters, but if youre wrong then indeed due justice will be served appropriately. Good luck relying on your own stupidity to save you
Or we can follow yours which says your religion is the only way to channel gods will, and we can denigrate all the others whose religions say exactly the same thing. And we can all strive to outgrow each other until we are killing each other so our children might have enough to eat.

This is where your illogical conclusion has led us time and again. I ask you, WHAT US MORAL ABOUT THIS? Your gods are all butchers, which by your ideology is entirely right and moral.

The only reason you religionists think your god is the source of morals, is so you can act immorally toward your enemies and claim you are only doing gods will. Just following orders.
TheGhostofOtto1923
2.8 / 5 (26) Aug 03, 2012
Morality is an expression of the tribal dynamic ie internal altruism coupled with external animosity. Those tribes which were better at maintaining these traits would be expected to win out over others in conflict, and so were evolutionarily selected for.

Internal altruism with external animosity - these are traits of all religions yes? But they also include forced reproduction, in order to outgrow and overrun their enemies. Only procreative sex is moral, isn't that right?

Obviously, what we need is a universal tribe of humanity, and this is what the west is striving for. And obviously all your tribal-based religions are anathema to this. We are already moral; we just need to rid ourselves of that which keeps dividing us.

As long as you all try to instill your separate beliefs on the world, there will be no peace. The world does not need one universal religion, it needs NO RELIGION. Heaven will come to earth when god leaves it, and takes all superstition along with him.
Estevan57
2.2 / 5 (31) Aug 03, 2012
Looks like Physorg trolled you pretty good Otto. You always bite on the religious hate thing. Yes, you bite. ;]
TheGhostofOtto1923
2.7 / 5 (24) Aug 03, 2012
Looks like Physorg trolled you pretty good Otto. You always bite on the religious hate thing. Yes, you bite. ;]
Estevan what IS your problem?

Evolution, tribalism, morality, and war
http://rechten.el...RID2.pdf

Estevan57
2.3 / 5 (33) Aug 03, 2012
Just my opinion. See ya around.
Torbjorn_Larsson_OM
4.4 / 5 (7) Aug 05, 2012
@ truth4life:

"principles of right and wrong, which by the way are religiously based." " If you can save your own ass from the moral stupidity that you perceive is untouchable from your perch."

That is totally non-factual, and you even admit it yourself when you note that animals "can grasp good and bad".

Without religion a dog can be careful when playing with a kitten family member: http://www.youtub...embedded .

Dont you think the dog could easily kill the kitten if it wanted to? Why doesnt it? It would make a nice snack. Do you think the dog believes in zombie Jesus? If not, then why is it showing restraint? Whats stopping it killing the kitten?. [HT Griff]

They learn that in the litter.

Similarly we know from many observations (so you can easily google it) that all humans have the same basic moral reactions regardless whether they have religion and its type, or no religion at all.

Religion doesn't teach us basic morals.
Torbjorn_Larsson_OM
4.3 / 5 (6) Aug 05, 2012
[cont]

And how could it, when it has no modern morals?

The historical fact is that we have seen religion kicking and screaming being dragged into modern secular morals: democracy, human rights, children rights, freedom for religion, sexual freedom, et cetera. None of that would have happened in a theocracy, and haven't, those still counteract these principles of right and wrong.

And we note that you don't offer any alternative solutions to the article's basis for religious freedom either.

Instead you discuss other stuff like failed jurisdictional systems that are morally insane, the state aiding and abetting in revenge murders and often on the innocent, known to penalize the tax payer, many times more expensive than lifetime in prison, and known to not work, crime rates are as high or higher.

Those idiocies are often religiously supported, as that was the original idea of "principles of right and wrong" as opposed to fair process and commensurate response (and what works).
Didymus
2.9 / 5 (10) Aug 06, 2012
truth4life and deathclock:

You do not call people idiots or stupid, and you do not use language like f**k etc.

I do not understand why we have these articles on religious/legal matters on a science website in the first place, other than to promote a secular agenda and to throw raw meat to the rabid dogs.

However, given we get such articles from time to time can we not conduct discussion and commenting with some decorum and generosity of spirit? These ad hominem statements and peurile characterisations of religion (Christianity in particular) are tiresome and inappropriate.

Science is great but it isn't everything in life, but those who confess a faith (listening Christians?!) should remember the old tolerance - I will love you, serve you and be there for you, it's just I may not always agree with you - and if you don't agree you should treat them with dignity (just don't expect any back).
antialias_physorg
1 / 5 (2) Aug 06, 2012
And dear lord, Sunday is going to be busy, as I'm going to have to kill every person in my office for working on the Sabbath.

That doesn't sound too bad.
Deathclock
2.3 / 5 (12) Aug 06, 2012
"You do not call people idiots or stupid, and you do not use language like f**k etc."

Who do you think you are? You are not the morality police and you are not anyone's mother who posts here. I will call anyone ignorant when I see that they are being ignorant, and I will use the word fuck whenever the fuck I want. Words are tools and language is the toolbox, if I feel the job calls for a particular tool I will use that tool, and the word FUCK is a sledgehammer. I will not use a ball peen hammer when the job calls for a sledgehammer just because the neighbors might complain about the noise of that sledgehammer.

Get over yourself and your delicate sensibilities, you're an adult, words don't hurt you like they might a child.
Didymus
5 / 5 (4) Aug 06, 2012
Deathclock:

Yes, you are correct I am an adult and as an adult I think it is inappropriate for children (or adults) to swear on a public platform. This is not being puritanical, it is affording others respect; it is also against the forum guidelines.

As for language and toolboxes, well there are plenty of other words, and wit is a far deadlier linguistic tool if your intention is to be offensive.

Frankly, I am amazed how people who purport to be so rational and so intellectual merely come across as over-emotional and one-dimensional. Where now the empathy and moral compass?
Deathclock
2.1 / 5 (11) Aug 06, 2012
Do you want to discuss the moral implications of calling someone an idiot when they are acting like an idiot, because I would be glad to...

I guess some people just take "curse words" more seriously than others... I use them to accentuate what I am saying, they are similar to an exclamation point. For example "You have no fucking idea what you are talking about" to me is not more offensive than "you have no idea what you are talking about", but it does impart greater insight into the intent of the writer. Perhaps, when using "curse words", I intend to show a bit of emotion, because written media lacks most of what qualifies as communication, it lacks all forms of non-verbal communication... but we can remedy this using carefully applied words that reveal the emotional state of the writer, something which would be impossible to discern without them.

It makes no sense to suppress emotion in our writing when having a 1 on 1 conversation with somebody else. Cont'd...
Deathclock
2.5 / 5 (11) Aug 06, 2012
Of course it does make sense to suppress emotion when writing for certain purposes... I wouldn't "drop the F-bomb" in a thesis paper or any other formal work, but that is not what this is, this is a conversation between individuals, and without adding such emotive words we really cannot glean any insight into the attitude of the writer, which is not a benefit in communicating with each other.

When I use "curse words" it's because I intend to to convey meaning. When I call someone an idiot it's because I believe they are acting like an idiot. I don't have Tourretes, I don't use "curse words" randomly for no reason.

(FYI, I used the term "curse words" throughout to show you the ridiculous nature of how people perceive these words, this nonsense comes straight from a period in our history when we actually believed in curses and that certain words had magical or metaphysical power... which is of course completely fucking ridiculous ;)
Modernmystic
3.5 / 5 (8) Aug 06, 2012
The role of religion in law? None.


Agreed.

Religion is irrational,


Agreed.

law must be rational.


It's a nice ideal...good luck with that ;)
Modernmystic
3 / 5 (10) Aug 06, 2012
I must agree that religion and the concept of morality are fundamentally incompatible...

If someone "points a gun" at your head and says you're going to burn in a pit of lava for all eternity if you don't do thus and so then what you're actually doing is OBLITERATING the operation of morality. Free choice without threats of death or hell are necessary for a moral agent to exercise morality both in principle and practice.

You're not being moral if someone "made you do it"....
Didymus
3.6 / 5 (8) Aug 06, 2012
Deathclock:

A comment thread is not a private conversation between two people but a public platform in a forum. Who are you trying to convince with your reply (eloquently put by the way)? Yourself? Because you're not convincing me or I suspect the majority of others who want a science discussion forum that grants respect to others, including the odd religious or anti-religious nutcase.

Every time you rant or swear, particularly at someone, then you diminish your own argument and reputation. Argumentation, scientific or theological, cannot be reduced to a case of who can be the most aggressive or offensive; overly-emotional outbursts won't win you any arguments or any friends (well, not the type you would really want or could rely on).
Modernmystic
2.6 / 5 (8) Aug 06, 2012
Every time you rant or swear, particularly at someone, then you diminish your own argument and reputation.


The latter perhaps, the former absolutely not. Someone who says the Earth is round is just as correct if they do it throwing F-bombs or not...

Argumentation, scientific or theological, cannot be reduced to a case of who can be the most aggressive or offensive; overly-emotional outbursts won't win you any arguments or any friends (well, not the type you would really want or could rely on).


Being nice and being right aren't synonymous...sorry. It's going to be easier to convince another human being of your point of view if you don't hammer them over the head with profanity I agree, but it has nothing whatever to do with "correctness"...
antialias_physorg
2.3 / 5 (3) Aug 06, 2012
Every time you rant or swear, particularly at someone, then you diminish your own argument and reputation. Argumentation, scientific or theological, cannot be reduced to a case of who can be the most aggressive or offensive;

Having followed this I agree. However, having looked at your profile I would add that you may not know that these 'odd religious or anti-religious nutcases' are very annoying (and it's always the same three people under various names). They're also very persistent in trying to derail and destroy any kind of scientific conversation on this site (there are months - in some cases years of nutcase posting history involved here).

So it may come as little surprise that on occasion one or the other of us lets off a little steam.

It doesn't matter, anyhow. These few posters will not be swayed by argument - whether you use the F-bomb or argue in the most civil of tones.
kochevnik
1 / 5 (6) Aug 06, 2012
@Didymus want a science discussion forum that grants respect to others, including the odd religious or anti-religious nutcase.
Science is a meritocracy, not a democracy. FAIL
@uncouth4strife Clearly whether you believe or not, Biblical truth is and always will show the depth of total moral depravity, something the other worlds religions will not embrace
More than half of your fairy tales are forged http://religion.b...ar-says/
Didymus
4.5 / 5 (8) Aug 06, 2012
Modernmystic:

Who is talking about "correctness"? An argument is diminished by ranting and swearing, however, it is not refuted. When you rant and rave your argumentative thrush has less clarity and the impact is diminished. The underlying logic does not change but can be obscured.

Antialias_physorg:

I have been reading this website daily (apart from the weekend doldrums) for over three years. I have only recently registered to answer a blatant religious misrepresentation.

I am aware of most of the allegiances, aliases, petty squabbles and feuds, obessessions, prejudices, bigotism, nationalism, nay jingoism...that goes on here. And yes, I too get sick of cold fusion and aether every now and then.

I confess I am a Christian and often whince at both religious nutty comments and the (how do I say) irrational, emotive, uninformed, misinformed and downright rude anti-religious comments. But this is a science forum, not an arts, sports or theological forum.
Modernmystic
2.6 / 5 (5) Aug 06, 2012
Who is talking about "correctness"?


I thought you were, I misunderstood. That's why human beings communicate :)

Perhaps a better way to say it in the future is not that "the argument" or "an argument" is diminished, but "your argument" is diminished. I wouldn't have misunderstood if parsed that way.

That being said I agree with your point.
kochevnik
1 / 5 (5) Aug 06, 2012
I confess I am a Christian
Which literally means you idolize wax figures.
Deathclock
1.4 / 5 (9) Aug 06, 2012
What is said is not changed by the way it is said, the argument is not diminished, an argument is not diminished, my argument is not diminished... or any other way you want to say that.

If someone thinks less of an argument because of the tone with which it is presented then that is 100% on their end and is their problem. If you're as rational as you claim to be then you could look past the tone that so displeases you to see the logic being presented regardless. The point of communication is to convey meaning, part of that meaning is the literal message, and another part of that meaning is the tone with which I intend to present it, you are obviously capable of discerning both, so my communication was successful. It's on your end whether or not your displeasure with the tone affects your reception or understanding of the message.

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