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.

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