Why Chief Justice Mogoeng Mogoeng is wrong - law infused by religion is a bad idea
Wednesday, May 28, 2014 at 6:49AM
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.
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'.
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
