A question of meaning in Law and Religion: Problematizing “the objective normative value system” imposed by judges on the South African Constitution.

Tomorrow the summer school on religion and law will begin at the University of the Western Cape.  I have the privilige of co-presenting the opening paper with Advocate Keith Matthee (a fellow Methodist, Senior Council at the Cape Bar and acting Judge in the High Court).

The Summer School is a collaboration between the Humboldt University in Berlin, Germany, the University of the Western Cape, the University of KwaZulu Natal and Stellenbosch University.  This year we will focus on the topic of law and religion.

The title of our paper will be:  A question of meaning in Law and Religion:  Problematizing “the objective normative value system” imposed by judges on the South African Constitution.

Here is the abstract:

In a 2001 Constitutional Court case Ackerman J and Goldstone J stated:

“Our constitution is not merely a formal document regulating public power.  It also embodies, like the German Constitution, an objective normative value system.” [1]

Our paper seeks to highlight and discuss a key problem in this accepted approach to the South African Constitution. Namely that this approach incorrectly presupposes only one meaning for concepts such as dignity, equality and freedom and that such meaning is ascertainable by reference to an objective value system contained in the constitution itself.

The result of such an approach is that the constitution becomes imbued with theological meaning and power and so oversteps its bounds from being a protector of religious freedom and an arbitrator of religious rights, to holding a normative theological position alongside, or even in conflict, with religious groupings in South African society. 

The problem can be illustrated by means of a comparison of the different conclusions reached by the South African and German legal systems about whether an unborn child is “life” as envisaged in the equivalent provisions in the two constitutions.

Our paper will argue that the following could serve as a contribution towards addressing this legal theological problem:

1. See the bill of rights for what it should be, a legal document regulating public and private power and not a document for imposing a specific worldview (“objective … value system”) on society.
2. In every legal decision judges must recognize the role of their own worldview, inclusive of those who hold a worldview that they would describe as agnostic or atheist,  as an authoritative point of reference, (or value system) when they seek to give content to concepts such as dignity, freedom and equality.  This is of particular importance if the judge concerned in her own daily life draws upon a normative religious source, such as the Bible, Quran or some other commonly accepted religious/philosophical document or code.
3. The various religious communities, inclusive of the atheistic and agnostic communities, must be allowed and encouraged to exercise their unique role when it comes to developing, critiquing, or explicating the “normative value system” referred to in the quote above. In this process the role of the state/courts/law should be to regulate these religious communities inter alia with a view to curbing any abuse in the exercise of this unique role.

I will post feedback on the paper, and the paper itself (once it is published). So please do check back here for more information.

Here is a list of the papers that will be presented:

Tuesday 24 February

8h45-9h15		Arrival and registration
9h15-9h30	Bernard Martin (Dean of Law, UWC)	Opening and welcome
9h30-11h00	Dion Forster (SU, Systematic Theology) and Keith Matthee (SU)	A question of meaning in Law and Religion:  Problematizing the objective normative value system contained in the South African constitution.
11h00-11h30	Tea
11h30-13h00	Wilhelm Gräb (HU, Theology):	Religious Implications of a Constitutional Democratic State: Why the Secular Differentiation is not True and What the Religions can Contribute to Law and Justice in a Constitutional Democratic State
	Jacques de Ville (UWC, Law)	The khōric Constitution
13h00-14h00	Lunch
14h00-15h30	Rosa Schinagl (HU)	Love – a law or an inner drive?
	Asharaf Booley (UWC, Law)	Women and Islam: An Overview of the Marital Contract and Practices found in Muslim Countries
15h45-16h30	Phillip Öhlmann (HU)	“Faithful men don’t beat their wives?” Measuring religiosity as a determinant of individual actions and social capital
17h00-18h45	Agustín Fuentes (Notre Dame)	Dean’s Distinguished  Lecture (UWC Library Auditorium): Deep roots for justice, law and religion? The significance of cooperation, compassion and imagination in human evolution

Wednesday 25 February

9h00-10h30	Simanga Kumalo (UKZN, Practical Theology):	Religious Organizations and African Immigrants in post-apartheid South Africa: The Case Study of Central Methodist Mission and Bishop Paul Verreyn
	Miranda Pillay (Religion and Theology, UWC)	Abortion, Law and Religion
10h30-11h00	Tea
11h00-1230	Ian A Nell (SU, Practical Theology)	Towards a deeper understanding of “Just Leadership”: Engaging Beyers Naudé
	Johan Cilliers (SU, Practical Theology)	Poverty and Privilege: Re-hearing sermons of Beyers Naudé on religion and justice
12h30-14h00	Lunch
14h00-15h30	Mbhekeni Nkosi (UWC, Ethics)	Conceptual clarification of the German restitution model:  South Africa as a case study
	Grischa Schwiegk (HU)	Secular distinctions and the problems of ground and motivation in “secular” law – theoretical considerations
15h30-16h00	Tea
16h00-16h45	Manitza Kotzé (UWC, Religion and Theology)	Biotechnology, bills and belief: Justification, self-realisation or domination?
19h00	William Storrar (CTI) Cilliers Breytenbach (Faculty of Theology, HU) Michael Weeder (St Georges)	Panel discussion (St George’s Cathedral): International perspectives on Religion, Law and Justice

Thursday 26 February

9h00-10h30	Demaine Solomons (UWC, Religion and Theology)	Justice and Reconciliation: Antagonists or soulmates? The Kairos Document Revisited
	Muneer Abduroaf (UWC, Law)	The impact of South African case law on the status of Muslim women: An analysis of court decisions versus the current (2010) Muslim Marriages Bill provisions
10h30-11h00	Tea
11h00-12h30	Lana Sirri (HU)	The tensions between ancient and modern interpretations of Islamic law, based on the work of Kecia Ali Sexual ethics and Islam- feminist reflections on Qur’an, Hadith and jurisprudence”
	Hendrik Bosman (SU, Theology)	“The dialectic of religion and law according to the memories of Moses in the Hebrew Bible / Old Testament”
12h30-14h00	Lunch
14h00-15h30	Andreas Feldtkeller (HU)	“Justice in Islam between Tradition and Modernity. Some Thought in Dialogue with the “Open Letter to Al-Baghdadi”
15h30-16h00	Tea
16h00-17h30		Open discussion of conference theme
18h30-	Conference Dinner	Life sciences building

It looks like an exciting program with a lot to think and talk about!

References:

[1] Please see the quote in, Ackermann, L. 2012. Human Dignity: Lodestar for Equality in South Africa. Juta and Company Ltd. p.28.