How religion has fallen, for law to take its place

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By Katie King on

Philip Wood, a QC and former Allen & Overy partner, pens book on why lawyers are the new priests

Speaking to a former lawyer turned lawtech expert recently on why he thinks City firms are so slow to adopt technology, he tells me: “It’s because of law’s doctrinal commitment to ‘traditional’ law. It’s like a religion.”

Broad-brush similarities between law and religion aren’t hard to come by. They’re both, broadly, codes of conduct, with concepts of protection, morality, survival and control over destiny at their heart. But the relationship between law and religion is far more complex, and interesting, than that.

Philip Wood, an honorary QC and a former partner at Allen & Overy, is the author of one of the most to-the-point texts on this topic. His book, The Fall of Priests and The Rise of Lawyers, “charts the growth and slow decline of religions over centuries and the fantastic and sudden growth of law”.

Oxford graduate Wood explains over 272 pages how the importance and influence of religion has been on the decline since the early modern period, when scientific breakthroughs courtesy of the likes of Francis Bacon and Galileo took place. Rational attacks on religion started in the West in the 1600/1700s: people began to doubt God’s omniscience and omnipotence, while scientific discoveries dispelled ‘God in the gaps’ beliefs that a deity must be behind concepts we don’t understand. And so, the “total devotion” to God common among populations in the 1600s was, gradually, squashed.

Another major factor behind religion’s dwindling follow-count, and likely one that will pique our law student readership’s interest, is what Wood calls “the growth of state power over law-making which displaced the power of the priests”.

Law, he says, “expanded with colossal rapidity” from 1830, at which time the world’s population and its GDP shot up. Since 1830, population has increased seven-fold, GDP 85-fold, and written law in books? By a thousand.

These things, it seems, are linked. Population increases mean more people, who made more things, which generated more wealth. “Creatures of industrialisation and credit”, like banks, insurance and property, cropped up. These things needed to be regulated, and it was the law that did so over Western religious authorities. To the latter, says Wood, “God had little interest in corporations or banks”.

Now, there are more than 140,000 solicitors in the United Kingdom, a seven-fold increase on the 1960s. In the same time period, the Church of England reckons the number of regular service attendees has halved, despite a huge population increase since then.

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Wood’s exploration of law being on the up and religion on its way down implies law and religion are two distinct things. But historically this hasn’t been the case.

Roscoe Pound, an American legal scholar, in 1942 described the major agencies of social control as: morals, religion and law. “In the beginning of law,” he says, “these are not differentiated.” He continues that in ancient Greece, “the same word is used to mean religious rites, ethical custom, the traditional course of adjusting relations, the legislation of the city, and all of these looked on as a whole”. Another example is Old Testament Israel where, an academic paper from the 1980s says, “the law, the Torah, was the religion”.

Nowadays, though there are plenty of similarities between them, law and religion feel a long way away from being synonymous. But maybe, says Karen Armstrong, an author on comparative religion, that’s because we see religion through a Western lens.

Speaking on an Intelligence Squared podcast about the history of religion and violence, she explains that our view of religion “as a series of rituals and obligatory beliefs centring on a supernatural God, and entirely separate from other activities” is unique to the West. She continues:

“The Oxford Classical Dictionary firmly states that there is no word in either Greek or Latin that corresponds to the English ‘religion’ or ‘religious’… [T]he words that we translate as ‘religion’ in other languages almost invariably have a much wider, more inclusive frame of reference… [For example] Dharma in sanskrit includes law and social life and commerce and politics as well as the service of the Gods.”

Maybe it is the case, then, that law and religion are in some ways one and the same. Lord MacMillan — who, fangirl moment, sat on the seminal tort law case of Donoghue v Stevenson — notably said that: “The whole conception of the relationship between God and man is legal. God enters into a covenant with man whereby He contracts that in consideration of man performing certain stipulated duties He will bestow upon his certain rewards.”

As for law being inspired by religion, well it’s not hard to draw comparisons between the ancient Ten Commandments and our modern criminal law. ‘Thou shalt not steal’ and ‘thou shalt not murder’ — there’s no explanation required there. As for ‘thou shalt not bear false witness against thy neighbour’, this sounds like a warning against perjury or fraud, and even the fourth of the commandments, to respect the Sabbath day, seems to bear a resemblance to the law of Sunday trading hours.

That leaves, then, six other commandments — and a whole load of other stuff in The Bible and other religious texts — that don’t seem to have had any bearing on the law at all. Perhaps Wood is correct in his belief that law has now “outstripped” religious codes; we’ve certainly seen major legal changes like the decriminalisation of homosexuality pushed through despite religious opposition.

More pressing now, then, is not whether law and religion are the same, or similar, in concept — but what the former’s approach to and relationship with the latter should be.

Human rights cases like Eweida and policies which ban certain Muslim dress in France, for example, expose the tensions between religious freedom, competing rights and public policy. Next month’s gay cake case, which will see the Supreme Court travel to Belfast to decide whether two Christian bakers breached discrimination laws when they refused to bake a cake bearing the slogan “Support Gay Marriage”, will shed some light on this historically, and unceasingly, complicated relationship.

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