Because I Said So...

Andrei Marks · May 26, 2008

Here’s an interview from the Southern Weekend (November 11, 2007). It’s about law and religion, pretty interesting. I think I’d like to read up on the historical roots of law and its philosophical justification. However they abridged the interview for this article, so I feel that it doesn’t flow like it must have in reality, and some things seem out of place or unfinished. And I also kind of doubt that this guy actually called Confucianism a religion. That seems like too much of a rookie mistake.

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[Law]What’s Behind the Law?

On January 31, 2006, Liu Peng, a researcher for the Chinese Academy of Social Sciences’ School of American Studies, and visiting researcher at Emory University’s (US) Center for the Study of Law and Religion, interviewed Professor Harold Berman at his Emory University School of Law office. During the two and a half hour long interview, Professor Berman summarized his idea of the law in concise and simple terms. This was the only in depth academic dialogue that he had with a Chinese scholar before he passed away. Because of space restrictions, the interview has been abridged by the paper.


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Liu Peng(Liu):Professor,what commonalities do you believe exist between the law and religion?

Berman(Bo)
:Right, at the very least there are four points:ritual、tradition、authority, and universality. The belief in law is widespread, and is like a world religion. I very much believe that Christianity and all the great religions, especially Confucianism and Buddhism, and even all worldly belief systems, including Communism, have a spiritual level to them.

Liu:In a country that doesn’t have a foundation of religious belief, how can the law exercise its function on its own?

Bo:The law can only come into effect if it possesses spiritual force. If every person believes that it is wrong to break the law, then we need this law. I know this is true of any place.

Liu:What you mean is,when it comes to the law there are universal principles that can be applied to all of humanity?

Bo:Right,it exists within people。

Liu:Then,what do you think are the main differences between belief in the law and religious beliefs?

Bo:I think that whether or not the law has a spiritual element depends on how you look at it. Take the 6th and 7th Commandments of the 10 Commandments; no matter what the culture, stealing, killing, and reneging on promises are all wrong.

Liu:In China, we don’t have this type of Christian background, culture, or tradition, and because of this there are some people who emphasize the importance of the law, and call on people to respect the law. Our problem is that we have the law, but the people do not carry it out or obey it. How would you resolve this?

Bo:I think that,if they change their own understanding of the law, then things will take a good turn. Because the law is not just what the government says. People mainly know the unwritten laws, the ones that are set down in the peoples’ own households. To abide by one’s promises, help one’s neighbor, they believe it should be like this.

Liu:That is to say that unwritten laws exist within people.

Bo:Right。Children should respect their parents, and parents should take care of their children.

Liu:Then where do these common ideas come from? From religion or from spiritual beliefs?

Bo:I believe it comes from spiritual beliefs. For instance parents should treasure, respect, and take care of their own children: I call this spiritual, because it’s not just a moral, it’s a kind of feeling; it’s not just a good idea, it’s a passion. Men and women become attached to each other, and the question is, can they be faithful to one another? This is a spiritual question.

Liu:You studied in the former Soviet Union,where atheism was the main ideology, and there was also a set of laws to govern the people. Yet as a whole, the society had no true religion or beliefs. How do you explain the role of law here?

Bo
:If you take the Soviet Union as an example,the majority of the people, or rather the overwhelming majority of the people, preserved their beliefs in Christianity. Bef ore the Khrushchev era, they served as a code of ethics for Communism. If you read it, you would find out that it asks people to be friendly to others, and not tell lies.

Liu
:We also have those kinds of standards.

Bo
:Aren’t they like an oath?

Liu
:Yes, especially for party members, it means that you must be a good citizen in society and be a good member of one’s family; and you must be a very good person, a perfect person. It’s a very strict requirement.

Bo:It was also like that in the Soviet Union,the difference being that they required that every person should work hard to live up to that standard. At that time they were in the process of establishing Communism, and for those founders, it was necessary to be ethical to be a Communist, correct? In a Communist society, if every person should help others, and love others, then everything would be wonderful, and every person would be an atheist. This was all written in the code of ethics. They thought religion was harmful to people, causing people to fight and have conflicts because of different religions.

Liu:That means that on the surface they didn’t have religion, but in actuality they had something which served a religious function.

Bo
:Right,you could also say that it was based on religion that accepts “human nature as inherently good”. <p class="MsoNormal" style="text-indent: 21pt;"> </p>Liu:In China,there is a problem that people always emphasize or debate: if we establish a law, how can we guarantee that the law will be able to carry out its function? There are those who think that we should not depend on people and should instead depend on the system. What do you think of this viewpoint?

Bo:Just as you’ve seen, the law has its limits. If people understand this point, then it is not a question of how to use the law to make more money, it is a spiritual question. If different types of laws must be distinguished, it still always returns to basic moral principles, just as we say, “My Lord! You shouldn’t kill, you should steal, and you shouldn’t lie” and so on. We can perpetuate law based on these basic principles. If you steal, you will go to jail or be dealt other charges or punishments, this only needs a few regulations and programs of substantive law, and people will partake in the establishment of this type of law.

Liu:If you believe there is a universal law, how would you tell people of different faiths, backgrounds, and religions that everyone should obey this sort of law?

Bo:Abiding by agreements, not encroaching on others’ rights,respecting other people’s rights to property, this is simply human nature.


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