Why Chief Justice Mogoeng Mogoeng is wrong - law infused by religion is a bad idea

The lead story in the news this morning (28 May 2014) is a report that South Africa's Chief Justice, Hon Mogoeng Mogoeng, wants to "infuse laws with religion" to raise the moral fibre of the nation. He was speaking at the Religion and Law Conference at the University where I teach (Stellenbosch University).

While most faiths do develop the moral fibre of their adherents, this is not something that should be put into law! Yes, faith has a public role, and should have positive effects on public life, but religion should not get preference from the legal system of a nation. The law is intended to protect the rights of all citizens, regardless of their religious perspective. Laws should be based on the principles of justice and our shared human dignity - whether a person has a religious belief system or not, or differs with the religious beliefs of a minority, or majority, of the population, their rights should be protected in law. Religion on the other hand is based on beliefs that are not commonly shared, in fact some beliefs may run contrary to our common human rights (like the treatment of women and girls in some faiths, or the disregard of the rights of persons with a same sex orientation). Most people who want religion to be enfranchised in law want their religion, or religious convictions, to occupy that privileged place. I am guessing that Judge Mogoeng inadvertently expressed such a view. Indeed, nations like South Africa are deeply religious, and so we must take note of religious convictions and religious groupings. But such individuals or groupings should not be accorded special place before the law. Civic organization should enjoy the same access to the law and the same rights and privileges as a religious organization.

This does not mean that religious persons and organizations have no role to play in society, or in serving the nation. Quite to the contrary, campaigns such as Unashamedly Ethical and EXPOSED - Shining a light on corruption are wonderful examples of how people of faith are engaging social issues. The law protects their right to express their views and gather others to encourage them to change their values and behaviour. It was not always so in South Africa, a government that called itself 'Christian' oppressed its citizens, robbing them of their rights and dignity. No, we need a just, ethical, secular state that protects the rights of all citizens, including those who are religious, to be able to express their views in society.

By a secular state I do not mean a state that relegates faith from the public sphere and confines it only to the private realm.  Rather, I think of a secular state as one similar to that espoused in the constitution of South Africa - that is a state that is not partisan to any one religious group, or to persons with no faith perspective. Such a state recognises the importance of faith in shaping people's lives, their values, choices and actions, and so protects that right. Yet it does not accord higher value to any one group than another.

A religious state is a bad idea! I developed this idea in my recent book 'Between Capital and Cathedral: Essays on Church and State Relationships' (co authored with my friend from UNISA, Dr Wessel Bentley).

On the issue of a Christian government in any nation - I personally believe it is naive of believers of any faith to think that having persons of their faith persuasion in power will make things better for all. What Christians should pray for, and work for, is a just, ethical and unbiased government that looks out for the interests of all of the citizens of their nation. It is the role of the Church and believers to bring people to faith, that is not the role of the government. We should not long for a modern form of Constantinianism. Faith driven political agendas are destructive to faith and society.

Here's my view.

• You don't want an anti-religious government (like that in the former USSR or China, where people of faith are persecuted). Faith is an important part of life. People should have the freedom to practise their faith as long as it does not destroy the rights of others.


• You certainly also don't want a religious government (we have simply seen too many of these kinds of governments abusing people! Governments like those in Iran, and even the calls for 'religiously sanctioned wars and killings' in America which have confused religion with foreign and public policy) are harmful to faith and society! The problem with a religious government is that politicians are seldom 'religious persons' first and politicians second. Most politicians are politicians first, and they hold some religious conviction when it suits them. Also, if the religion in power is not your religion, or they belong to a different expression of your faith (e.g., Catholic instead of Protestant, or Suni Muslim instead of Sufi...) it can become extremely abusive. I certainly believe that we should have Christians in government, they should be salt and light! But, I don't believe that the Church should abdicate its role and function to the state.


• No, I believe that one should work for an honest, impartial, just, servant minded secular state. A state that will protect and uphold the rights of all of its citizens, giving equal space for all to exercise their positive beliefs. Such a state serves the nation well and protects the freedom and rights of its citizens to live out their faith convictions within society. We have just such a system in South Africa. It can be uncomfortable for extremists and fundamentalists. But, I believe, as a Christian, it is the way of Jesus to make space for others. Let our love, not our laws, win the hearts and minds of those who hold different convictions from our own. I will write some more about this in the weeks to come.

Some years ago I was privileged to hear a lecture by Professor Martin Prozesky at the Joint Conferences on Religion and Theology at Stellenbosch University. The title of his lecture was the following: 'Is the secular state to blame for the decline in moral values in Southern African society'.

I recorded the lecture using my Macbook - so the sound quality is not all that great. It is not all that bad, but there were some instances when a few desks and chairs were moved in order to get some extra persons into the venue who arrived late. So please just skip through those bits.

The gist of the lecture is this: Does a secular state contribute towards the decline of moral and ethical values? Many religious groups and faith communities would seem to suggest that this is so. Martin makes an exceptional argument that a secular state (not to be confused with secularization) makes for a high moral and ethical standard in society.

The reasons, as stated above, is quite simply that the only alternatives to a secular state (i.e., a state that his not swayed in an direction by religious beliefs) is a theocracy (such as nations in which Islamic law is applied in the name of God), a anti-faith states (such as the USSR under Karl Marx). Neither of these are desirable for truly moral and ethical development. Rather, what is necessary is the kind of freedom that allows all citizens to participate in developing ethics for the common good of the whole of society.

He makes some wonderful statements about what ethics is in its broadest terms. He also discusses the notion of a secular state and makes reference to problems with Southern African constitutional democracy.

I found it most interesting! I would love to hear your comments and feedback!

Here's the lecture - it is a 10MB mp3 file.

If you do use this lecture or download and share it could I please ask that you reference it to Professor Martin Prozesky, 22 June 2009 (Stellenbosch), and also please send a link back to me here at http://www.dionforster.com

Thanks!

Update on Thursday, May 29, 2014 at 9:57AM by Dr Dion Forster

The Chief Reporter of the Star and Idependent Newspapers, Murray Williams, contacted me yesterday for comment.  Here is his article.

Religion in law: judge triggers talk (The Star / Daily News article)

Cape Town -

South Africa’s most senior judge has sparked debate about the role of religion in law, in a lecture damning the country’s descent into a moral void.

Chief Justice Mogoeng Mogoeng spoke at the second Annual African Law and Religion conference at the University of Stellenbosch on Tuesday night.

Justice Mogoeng decried the levels of maladministration, crime and corruption, and “the extremely low levels to which morality has degenerated… the dishonesty as well as the injustices that have permeated all facets of society – price-fixing and fronting included”.

These, he argued, “in my view would effectively be turned around significantly if religion were to be factored into the law-making process”.

The chief justice was not available for any further explanation at his office at the Constitutional Court on Wednesday.

In response, Professor Pierre de Vos, who holds the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town’s law faculty, cited a ruling by Justice Albie Sachs – who was also a speaker at Stellenbosch on Wednesday night.

“In the judgment, the values of the constitution – human dignity, equality and freedom – are viewed as sacrosanct,” he explained.

“The constitution requires in an open and democratic society the rights of non-believers to be respected.

“Judge Sachs says there must be ‘respect for the co-existence between the secular and the sacred’.

“That means that in the legislative sphere, in the political sphere, the secular holds sway,” he explained.

But he stressed: “That doesn’t mean that people cannot have their religious beliefs. Just that it is the role of the constitution to ensure that the view of the majority doesn’t oppress other groups.”

Another academic, theologian and author Dr Dion Forster, who lectures at Stellenbosch University, commented on his blog site: “Here’s my view. You don’t want an anti-religious government – like that in the former USSR or China, where people of faith are persecuted. Faith is an important part of life… But you certainly don’t want a religious government – we have simply seen too many of these kinds of governments abusing people.”

Instead, Forster argued for “an honest, impartial, just, servant-minded secular state… A state that will protect and uphold the rights of all of its citizens, giving equal space for all to exercise their positive beliefs”.

The chief justice is publicly a devout Christian, a fact which surfaced in the Judicial Service Commission interviews which preceded his appointment.

“Do you think God wants you to be appointed chief justice?” Inkatha Freedom Party commissioner Koos van der Merwe asked Justice Mogoeng.

“I think so,” he said.

May 29 2014 at 09:11am 
By MURRAY WILLIAMS

Comments

[simon]

Hi Dion, yes most disturbing notion, but not surprised Communism/Socialism itself has its own type of religion going on, for them to try a form of syncretism and draw in other religions is just one more step towards a one world religion. which is in my estimation, where we are heading.

[Wessel Bentley]

I agree with what you said, Dion. You know where I stand in terms of the separation of church and state, their relationship and the growth towards a post-secular (which is very distinct from a secular) constitutional democracy. I would like to know more about what he meant with "religion being factored into the law making process". Is he arguing for a religious state? If so, and given the fundamentalist utterings he made in the past, it would be the wrong move. If he means that the state should not take a stand of deciding on the value or devalue of religious norms and values, but recognise that even in the formation of law, it is the basic premise of democracy that all partners in that democracy contribute towards the fundamental structure which frames the constitution (Habermas), then I can hear some truth. How does the legislature listen to all partners in democracy, including religion (not only religion)? That in itself is a very complex question, for it assumes in very broad terms that religion can be encapsulated in one group with corresponding beliefs. I agree with Habermas that religion can and must contribute to the constitutional framework and that the state needs to make a concerted effort to include religion in consultation, BUT religion does so as a partner with other voices and cannot have a place of preference.

For a more elaborate working out of the argument, wait for TSSA! :-) In the meantime, I'll ask the CJ what he meant. :-)

[Burn injury attorney]

Burn injury lawyer is not alone who suffers the trauma and agony but the family members and relatives are also indirectly victimized due to the incident. At the gruesome moment, a legal advisor can be useful for at least providing the financial support to the grieved family.

[Burn injury attorney]

Burn injury lawyer is not alone who suffers the trauma and agony but the family members and relatives are also indirectly victimized due to the incident. At the gruesome moment, a legal advisor can be useful for at least providing the financial support to the grieved family.

[Burn injury attorney]

Burn injury lawyer is not alone who suffers the trauma and agony but the family members and relatives are also indirectly victimized due to the incident. At the gruesome moment, a legal advisor can be useful for at least providing the financial support to the grieved family.

[Gary Phillips]

I enjoyed your blog post, I came across it via the Christian Blogger and will be back to read more!

I agree with the dangers of Constantinianism you point out. I was wondering though about the alternative you put forward for South Africa - is it possible in our context to have a secular state without secularisation (as Martin Prozesky puts it) especially where our government sees the formation of a national value-system as central to its vision... are church and state not on an inevitable path towards conflict where the church, in the name of a secular state, is willing to give space but the state, in the name of secularisation, is only keen to take it?