Judging Jews: Court interrogation of rule-making and decision-taking by Jewish ecclesiastical bodies

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Judging Jews: Court interrogation of rule-making and decision-taking by Jewish ecclesiastical bodies

Authors Stu Woolman, David Zeffertt

ISSN: 1996-2126
Affiliations: Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand; Academic Director, Symposia and Colloquia, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Professor Emeritus, School of Law, University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 196 – 218

Abstract

Determining who is in, and who is out, is a hot topic in debates about membership in religious communities, and the bodies, state and sectarian, that have the power to make decisions regarding such membership. For the most part, the state and the courts have taken a decidedly hands-off approach to interference in religious association decision-making. Some judgments have reinforced the proposition that individuals who ‘voluntarily’ commit themselves to a religious association’s rules and decision-making bodies must be prepared to accept the outcome of fair-hearings conducted by those bodies. At the same time, a number of judgments have demonstrated a willingness to intervene quite profoundly in the affairs of a variety of different religious communities and mediate the relationship between the profane and the sacred, the traditional and the modern. Our intervention concentrates on but two features of court-driven, constitutional review of religious association decisions regarding membership or participation in a given community. First, we suggest how the law of evidence can provide appropriate guidance to courts faced with the challenge of interrogating the validity of decisions taken by religious bodies. Second, we offer a theory of religious community life in a constitutional democracy that can guide courts in determining when and where they should and should not interfere in the decision-making of religious bodies.

Mottos, prayer and the public university

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Mottos, prayer and the public university

Authors Shaun de Freitas

ISSN: 1996-2126
Affiliations: Constitutional Law & Philosophy of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 176 – 195

Abstract

Recent decisions by the University of the Free State (UFS) regarding the amendment of its motto and the prohibition of the public manifestation of prayer at formal occasions serve as a catalyst towards discussion on the role and place of religion not only in a public university but also in the public sphere. The exclusion of religious expression and activity seems to be part of the UFS’s drive towards a ‘transformed and inclusivist’ approach. This article consequently investigates such exclusivist measures, critically analysing whether such initiatives are truly aligned with ‘transformative’ and ‘inclusivist’ aims. How religious (and belief) expressions and practices are dealt with at the UFS makes for a particularly good case study regarding commitments to pluralism, accommodation and multiculturalism. By looking specifically at the changing of the motto of the UFS and the exclusion of prayer at this institution, this article seeks to find solutions to a more effective accommodation of religious expression at the UFS. Lessons can be learnt from this not only for the UFS, but also for any public institution.

Religion and the public sphere: Towards a model that positively recognises diversity

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Religion and the public sphere: Towards a model that positively recognises diversity

Authors David Bilchitz, Alistair Williams

ISSN: 1996-2126
Affiliations: Associate Professor, Faculty of Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a Centre of the University of Johannesburg; Research Intern, SAIFAC, University of Johannesburg
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 146 – 175

Abstract

What model of the relationship between religion and state is optimal for South Africa? In order to identify the possibilities that exist, this article engages in a critical evaluation of the differing models of the state-religion relationship that have been adopted internationally. Part I seeks to identify, from a philosophical perspective, the advantages and disadvantages of particular models. Part II then focuses more closely on the particular historical and social context of South Africa as well as the most important constitutional provisions and case law. We shall argue in this section for what we term a ‘positive recognition’ model of the relationship between religion and state in South Africa, which emerges from the values underlying the Constitution. The model is not predicated on a strict, inflexible separation between the public and private realms. It requires the state to recognise the significance of religious identities to individuals and to take active measures to enable individuals to realise those identities. Importantly, it must do so in a manner that treats differing religious (and other philosophical) conceptions of the good equally. The last part of the article seeks to illustrate the implications of this model in practice in relation to two important practical questions where the state-religion relationship is implicated: public holidays of a religious character and the presence of religion at state ceremonies.

Introduction: The right to freedom of religion in South Africa and related challenges

by | Oct 19, 2019 | SAJHR, SAJHR V28 I2

Introduction: The right to freedom of religion in South Africa and related challenges

Authors David Bilchitz, Shaun de Freitas

ISSN: 1996-2126
Affiliations: Associate Professor, Faculty of Law, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Associate Professor, Faculty of Law, University of the Free State
Source: South African Journal on Human Rights, Volume 28 Issue 2, 2012, p. 141 – 145

Abstract

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