CHAPTER V

 

TENSIONS IN LEGAL AND

RELIGIOUS VALUES IN THE 1996

SOUTH AFRICAN CONSTITUTION

 

EBRAHIM MOOSA

 

 

INTRODUCTION: LAW AND RELIGION

 

It is no longer intelligible to posit the view that religion and law are two absolutely opposing antinomies that have no interconnections. Even radical secularists have to admit that religion plays a greater implicit and explicit role in our thinking processes than had hitherto been acknowledged. In the Western tradition two statements were to herald the end of religion. Karl Marx’s famous and abused characterization of religion as the "opium of the masses" and Friedrich Nietzsche’s announcement of the "death of God." By the close of the second millennium "the classical religions have been neither destroyed nor consigned to folklore," in the words of Pierre Legendre.1 To the contrary, religion is making an unprecedented appearance on the world stage. And, panic-stricken observers fear that the major achievement of the Enlightenment, namely the secular state, is increasingly under attack by social movements and forces inspired by religion.

Some quarters view this tendency with alarm, accompanied with the fear that it may undo the hardwon achievements of post-Enlightenment secularism, especially the achievement of the secular state. On the other hand, for many the emergence of political and social orders in which religion plays a prominent role is viewed as a corrective to the aberrations and havoc that secularism had wrought on society. While the debate on religion and secularism will be briefly dealt with below, we will direct our gaze to law and the effect religion has had on this pillar of secularism.

Even among the Greeks and the Romans, the progenitors of modern legal systems, law was rooted in the mythic and supernatural worldviews of these societies.2 In other words, the fact that law did have religious moorings of some kind is no longer denied. By the close of the twentieth century law has "undisguisedly" become a pragmatic human process and the Siamese twin of the secular order.3 The nation-state as a political system has become the symbol of the secular order. And, secularism and secularization are no longer the exclusive features of Western societies. Colonization has in its wake brought about a semblance of homogenization of legal and political systems in non-Western cultures in Africa, the Middle East, Asia and Latin America. While each of these contexts are variegated and differentiated there is a noticeable tension between what can be characterized as the globalizing legal and political order on the one side and the local socio-cultural order, on the other. Within non-Western cultures specifically, though not exclusively, this conflict becomes manifest in the debates about democracy when the attempts to domesticate imported political systems come into conflict with indigenous values and worldviews.

Nowhere else does this encounter of imported legal and political systems versus resurgent indigenous socio-legal orders make itself manifest as it does in certain Muslim societies where these debates have assumed fierce proportions. This debate is also evident, albeit in less spectacular ways, in societies in which African traditional religion, Buddhism or Hinduism are found.4 

In this essay I will sketch the relationship between religion, state and law in South Africa until the adoption of the 1996 Constitution. Thereafter I will do a close reading of the provisions of "freedom of religion, belief and opinion" in the overall context of South Africa’s new constitutional order. Finally, I will explore some of the implications of this rights discourse for religious communities.

 

RELIGION AND STATE IN SOUTH AFRICA

 

South Africa’s anti-apartheid struggle received significant support from religion, especially in the last two decades prior to the demise of a political order based on racism. Some of the leading work on liberation theology in Christianity and Islam emerged from the South African context. Lest it be forgotten, one should remember that organized religion has had a longer tryst with history in this African sub-region. The European colonial adventures brought with them religion, whether it be the Calvinist brand of the Dutch colonists, the Protestantism of the French Huguenots or the Episcopalian variety espoused by the droves of Anglican missionaries of the London Missionary Society. Other religions such as Islam, Hinduism and Chinese traditions also made their presence felt in this sub-region over a period of roughly three centuries of colonial rule. The indigenous religions of the African peoples were repeatedly denounced and demeaned as superstition, syncretism and false religions. Once European conquest began to succeed in southern Africa around the 1890s, only then did the missionaries begin admitting, albeit reluctantly that indigenous people had a religion.5 Today, African traditional religion may still be the core religion of the majority of South Africans. However, the mainstream religion, particularly a variety of Christian denominations, prevails over all others in South Africa, both in terms of size, visibility and profile. African traditional religion proper, has been eclipsed by the high profile of the African Independent Churches. While the institutional representation of African Traditional Religion in terms of modern organization can hardly compete with other religious traditions, it still has a strong following and is showing signs of resurgence. In the past, Christianity defined what was normative with respect to religion and shaped both colonial policy and that of the apartheid state. Marginalized religious communities enjoyed no protection from either the state or hegemonic religions. In fact adherents of Islam and African Traditional Religion were legitimate targets for proselytisation. When the basis of relationship between the colonial state and its subjects was not one of ethnicity, then it was very often determined by religion.6 Relationships between religions, if they were not marked by hostility, could be described as being competitive. This endured for most of South Africa’s history until special social circumstances as well as changes within religious traditions in the last two decades of the 20th century made inter-religious social action and dialogue possible.

In the 1980s a coalition of Christians, Jews, Muslims, Hindus and even Buddhists was formed against apartheid called the World Conference of Religion and Peace (WCRP). The representatives of each religious community articulated a social message rooted within their respective religious teachings against the evil of enforced racial separation and tyrannical white rule. Religion in this sense played the role as both liberator and later as facilitator of the transition from apartheid rule to a democratic order by promoting racial reconciliation most notably between black and white. This historic development possibly secured a place for religion in the new and emerging post-apartheid political order It was particularly the Christian church, though not exclusively, that played a leading role in promoting reconciliation.7 Religion in South Africa had no reason to fear its marginalization in the new South Africa.

 

DECLARING RELIGIOUS RIGHTS AND RESPONSIBILITIES:

RELIGION ANTICIPATES CHANGE

 

Anticipating the emergence of a constitutional state, the religious communities under the auspices of the South African chapter of the inter-religious WCRP began to positioning itself for the emerging new political order. On November 22-24, 1992 it held a landmark national inter-faith conference. It was by all accounts the most inclusive religious gathering of its kind in South Africa and adopted a pre-circulated draft "Declaration on Religious Rights and Responsibility" that comprised ten principles aimed at regulating the relations among religious communities, as well as relations with the state.8 A crucial assumption the declaration made was that "these principles will function within the framework of a Bill of Rights" and the conference thus proposed a clause for such a Bill of Rights (BoR). The proposed clause stated:

 

1. All persons are entitled:

1.1 to freedom of conscience

1.2 to profess, practice, and propagate any religion or no religion,

1.3 to change their religious allegiance

2. Every religious community and/or member there

of shall enjoy the right:

2.1 to establish, maintain and manage religious institutions;

2.2 to have their particular system of family law

recognized by the state:

2.3 to criticize and challenge all social and political structures and policies in terms of the teachings of their religion.9 

The "Declaration" also defined a "religious community" as "a group of people who follow a particular system of belief, morality and worship, either in recognition of a divine being, or in pursuit of spiritual development, or in the expression of a sense of belonging through social custom or ritual."10 In the Declaration the signatories acknowledged that religion was "used to justify injustice, sow conflict and contribute to the oppression, exploitation and suffering of people." At the same time the signatories also recognized that religion also upheld human dignity and justice in the face of oppression. For this reason the representatives of the various religions, gathered at Pretoria in 1992, undertook to redress past injustices and committed themselves to the construction of a just society.

A careful observation of the way the religious sector itself (at least as represented by the WCRP in South Africa) defines religion and how that notion gets grafted onto the 1996 Constitution will help to illuminate the discussion. "Religion" in the Declaration is defined as "belief, morality and worship" in the recognition of a divine being, or/and in pursuit of spiritual development or/and as a sense of expressing one’s belonging. In the pursuit of all these rights and responsibilities, the religious communities bound themselves to an "expression of religion [that] shall not violate the legal rights of others."11 In so doing religious communities thus affirmed a form of religious freedom that was subject to the surveillance of the law. Religious rights were to be circumscribed by an authority outside of religion. This extra-religious authority or referee is assumed to be the state and its legal apparatus. In the same breath however, the Declaration asserts that religious communities, singly, jointly or collectively "shall have the right to address the state and enter into dialogue on matters important to them." Any conflict between religion and state was thus to be resolved through "dialogue." What the parameters of this dialogue should be and how it is organized remains unstated, unless one is to infer a commonsense understanding of the term. The Declaration also stated that the religious sector would "critically evaluate social, economic and political structures and their activities."12 In a bid to prevent the co-option of the religious community by the state, the Declaration appealed to the religious leadership to "follow the dictates of their consciences to avoid conspiring or colluding to violate the public good or the legal rights of others."

What becomes evident is that religion, as articulated in the Declaration, sees its future role in the public space in two senses: a passive and private role; and an active and public role. The passive role is to ensure the rule of law is enforced and that all public activities take place within the framework of legitimacy set by the state. The activist role is limited to the extent that the religious sector will at its discretion invite the state to an undefined mode of dialogue about social and political issues. In terms of this self-understanding of the role of religion in a post-apartheid South Africa it remains unclear whether civil disobedience on the part of the religious sector, for instance, is an option in the event that dialogue fails. However, the appeal the Declaration makes to the religious leadership to follow the dictates of conscience in certain instances suggests that protest beyond dialogue may be contemplated. Yet one cannot ignore the fact that in claiming to be a corrective force and moral conscience of society, the religious sector does envisage a political role for itself. Given the role that religion played in delegitimizing power under apartheid, it is understandable that the religious sector understood how power is organized as well as its own role in the networks of power in post-apartheid society.

Whatever the religious sector expected in 1992 on matters of religion turned out to be very different in the Bill of Rights (BoR) as contained in the 1996 Constitution. If one reads the Declaration together with the 1996 BoR, the only power that religion can lay claim to is an appeal to the power of morality. It will be remembered that in the Declaration, the religious sector, in some instances, proposed for itself an alternative authority or voice to political authority. There could be several explanations for this gap between expectation and fulfillment. It appears that the religious sector either zealously overestimated its own future role or that the incumbent political powers may not have fulfilled their undisclosed commitments to the religious sector. Less carefully explored is the fact that the religious sector may have overlooked what the possible role of religion would be in a modern state with a liberal, secular and human rights-friendly Constitution. In the latter context public expressions of religious beliefs are constitutionally subordinate to the state and the principles of morality are theorized separately from the domain of politics.13 This raises the question as to what conditions and circumstances necessitated the Declaration to make such far-reaching claims about the authority of religion in a new democratic order. The reasons as to why this carefully drafted Declaration did not translate into a suitable legal formulation for consideration by the constitutional writers also needs to be explored.

The religious sector was not the only group to have been mobilized by the African National Congress and other pro-democracy forces. Women’s groups, trade unions, youth formations, the medical and health-care sector, as well as the education and legal sectors, all produced documents and declarations that would forward their respective visions for a post-apartheid society. From that perspective the religious sector did not have an unusual experience. How the vision of these sectional interest groups translated into the norm-setting document of the nation, namely the Constitution, has to be examined elsewhere. Translation is certainly the key metaphor here. How did the vision of the religious sector as set out in the 1992 Declaration translate into the 1996 Constitution? Translation is not a benign act, but is a profoundly political one, in so far as it involves a discourse and process of power. In converting the language of religious values, sentiments, visions and dreams into concrete norms and rights, from the brokers of religious power to the politicians and constitutional writers, all engage in the process of manufacturing the template of power.

The power wielded by the religious community in South Africa is significant. One has to consider the role of the Christian church not only in delegitimizing the apartheid state, but also in baptizing the negotiated settlement. The close proximity of crucial members of the religious establishment to the liberation movement prior to the lifting of the ban on the anti-apartheid political parties is an important consideration. With the liberation movement in exile, the religious establishment and that sector of the church and other religions that espoused liberation theology, acted as the moral guardians of the anti-apartheid struggle. With the return of the political exiles and the political leadership, the religious establishment in a sense transferred the mantle of moral authority to the politicians. Unfamiliar with the complexity of the vision of the religious establishment for the new society, the politicians only partly incorporated sections of the 1992 Declaration into the final text of the Constitution. Another less generous explanation could be that the politicians did not share the views of the religious sector and that the Declaration and the process leading up to it was nothing but political posturing and the co-option of the religious sector into the agenda of the dominant African National Congress alliance. Skeptical as it may sound, this view was not without its supporters. As the ruling ANC continues to amend its pledges to the various sectional social charters prior to the elections, this view is increasingly being validated with the benefit of hindsight.

 

 

 

 

Before dealing with the specifics of law and religion in the South African context it may be useful briefly to explore the link between religion and public policy. This link is particularly important in the light of the secularization of the public space in the post-apartheid era. Jose Casanova has argued that the theory of secularization should be complex enough to account for the historical contingency that there may be legitimate forms of "public" religion in the modern world.14 He suggests that the traditional bias against the role of religion in the public domain may be reconsidered in the light of new roles that religion may play. Religion may have a role to play which is not necessarily that of "positive" societal integration. There are certain expressions of public religion, says Casanova, that do not endanger the modern functional differentiation between the public and the private. In fact the latter may allow for the privatization of religion on the one hand and the pluralism of subjective religious beliefs on the other.

In order to conceptualize such possibilities, Casanova argues that the secularization theory will need to reconsider at least three of its historically ethnocentric biases: firstly, the bias for subjective Protestant forms and definition of religion as belonging to the realm of the private, secondly the bias towards the liberal conception of politics and what constitutes the public sphere, and, thirdly, the bias for the sovereign nation-state as the systematic unit of analysis.15

By failing to take cognizance of the changing role of religion and not adequately theorizing the notion of the collectivity (of which religion is only one) we may be denying ourselves a meaningful account of the deprivatization of religion. The dominant sociology as well as the liberal or civic republican models of analysis that make a radical distinction between the public and private are not very helpful models of analysis. For instance, to say that society is being secularized could mean one or more of several registers of signification. It could mean a) the differentiation of the secular spheres from religious institutions and norms; b) the decline of religious beliefs and practices; and, c) the marginalization of religion to the private sphere. At the same time theories of religion or secularization and modernization should be open to the idea that there are other kinds of religion that play some role in institutionalizing their own patterns of secularization. Various religious traditions have maintained an uneasy relationship with modernity, partly accommodating and also recognizing some of the values of the secular as their own. But at the same time these religions refuse to accept the claims of the market as well as that of the state, which suggest that moral norms ought not to interfere in the public space. If carefully considered, the above options, as suggested by Casanova, could offer a new way of conceptualizing religion in public policy in South Africa, compared to the kind which is enumerated below.

 

RELIGION AND THE 1996 BILL OF RIGHTS

 

The 1996 South African Constitution, more specifically chapter two called the Bill of Rights (BoR), does not create a Jeffersonian "wall of separation between church and state," which is also the emblematic metaphor for religion and state relations in modern secular societies. The BoR actually attempts to create what I would call a "flow" or "umbilical chord" between state and religion without establishing a theocracy based on Calvinist principles as the constitution texts of 1961 and 1983 attempted to do.16 In the preamble to the 1996 Constitution there has been a controversial reference to "God" which some people felt excluded persons who did not adhere to any religion. The controversial part read: "May God protect our people. Nkosi Sikelel’ iAfrika....God bless South Africa."17 Persons not affiliated to religion argued that if there was a reference to God there should also have been a reference to some values with which non-religious persons could identify. In this sense the Constitution can be viewed as being biased toward theists.

The clause on freedom of religion, belief and opinion in the BoR states:

 

(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that:

(a) those observances follow rules made by the appropriate public authorities;

(b) they are conducted on an equitable basis; and

(c) attendance at them is free and voluntary.

(3)

(a) This section does not prevent legislation recognizing:

(i) marriages concluded under any tradition, or a system of religious, personal or family law; or

(ii) systems of personal and family law under any tradition, or adhered to by

persons professing a particular religion.

(b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

 

In this section of the BoR, standard freedoms are entrenched. However, when it comes to religion one is only free to hold beliefs, opinions and thoughts. As soon as these freedoms are translated into practice, in the form of religious observances at schools or religion-based family law codes, then such actions are subject to conditions and limitations. It is required that religion in the public domain must comply with administrative procedures such as obtaining permission, comply with a notion of equitable practice and be voluntary. All religious practices in the public space must in addition be "consistent" with the overall thrust of the Constitution and its values. The 1993 Constitution did not explicitly require religious practices to be consistent with the overall constitutional values, but the final text was amended in order to make such a qualification explicit.

A close reading of the BoR discloses a dualistic understanding of religion: 1) religion as belief and, 2) religion as practice. If religion manifests itself as conscience, belief, thought and opinion, in other words as a Cartesian cogito, then every citizen has a right to hold such views. In theory, there appears to be absolute freedom in the exercise of religion is an abstract and unarticulated dogma. Freedom of religion as the expression of pious intentions. It is however, debatable whether an abstract freedom can be termed a "freedom" without its political implications and whether anything in the abstract can be termed "religion." Can one talk about freedom of religion and thought, if one is not free to speak one’s thoughts? Can one talk about religious freedom if one cannot express such belief?18

On the other hand, the expression of the religious practices is subject to the limitation of the "secular" values of the Constitution. What section 15 actually achieves is to affirm abstract freedoms and limit the freedom to practice. Clearly the measure of the limitation is to curb any practice that goes beyond what is "reasonable and justifiable"19 and in so doing to undermine the values of "an open and democratic society based on human dignity, equality and freedom."20 There is obviously a huge gulf between the right to believe and the right to manifest such belief. That space is mediated by the constitutional values of dignity, equality and freedom. A more appropriate title for this section would have been the "limits to freedom of religion, belief and opinion."

This dissonance, or rather paradox between the promise of freedom of religion and the limit on practices occurs because the language on freedom of religion had been borrowed from elsewhere and does not reflect the organic texture of the way in which religion is understood and practiced in South Africa. The rhetorical pedigree of the 1996 BoR is transparent. Its genealogical affiliation is to post-Enlightenment European thought, not post-colonial Africa. The fundamental freedoms of religion in the European context arise out of a quest for freedom from a particular kind of religious oppression and denial. It was also a move towards the plurality of religious beliefs. The same can also be said about the United States. In fact, the disestablishment of religion in the United States was meant to protect religion from state interference and not to create hostility between religion and state.21

It is not very difficult to grasp the presumptions and assumptions the authors of the Constitution make about religion. The working assumption is very much a post-Reformation one, which distinguishes between the public and the private, the secular and the profane.22 In this discourse, religion is primarily a private concern. So what may appear to be the privileging of religion, in the rhetorical phrase, "freedom of religion" actually only means the freedom to practice religion in the realm of the private, not the public. Stated differently, one can say freedom of religion means the restriction and limitation to have jurisdiction in only a narrow set of activities.

What this means is that when religious practices are offensive to the secular constitutional values, but not necessarily devoid of moral insight, the abstract notion of freedom is erased, and a form of civic republicanism would deem these religious acts to be illegal. For Liberals, religious belief worthy of respect depends on its mode of acquisition. From a political point of view if religious belief and practice have the tendency to promote the habits and dispositions that make good citizens or promote the good life, but conflict with some constitutional values, would such religion be deemed offensive in South Africa? Polygyny would be a good example. If this practice which is sanctioned by religion does not inhibit the making of good citizens, but may conflict with an interpretation of gender equality, would polygyny then be deemed offensive on these grounds? Most probably yes, in terms of the liberal doctrine of constitutionalism. The problem raised here is not so much whether society should or should not be protected from offensive and degrading behavior from whatever quarter, including religion. The issue is a more fundamental one: the misrepresentation of religious rights in South African constitutional discourse. It gestures an absolute freedom by the invocation of the phrase "freedom of religion" but does not necessarily fulfill that pledge. At the same time the legal regulation of religion does not necessarily reflect the social practices and expectations of a very diverse religious community.

Another feature of the 1996 constitutional text is the complete omission of any reference to "ubuntu", the value of African humanism which constituted one of the philosophical strands that informed the 1993 interim Constitution. In fact the reference to "ubuntu" was a positive feature since it at least acknowledged that African tradition and values would inform the interpretation of an otherwise extremely Eurocentric legal system. The postamble of the 1993 Constitution stated that ". . . there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization." In a major ruling abolishing the death penalty the Constitutional Court in S v Makwanyane made reference to ubuntu as one of the values that informed the BoR. A great deal was made of the positive contribution of indigenous and organic values to the overall legal system. The omission of ubuntu must therefore mean that the Constitution was de-Africanized in the re-drafting process. With that the religio-cultural values of African people are also devalued. Thus the desire to formulate a core legal system which encapsulates the multiple value systems in South Africa was not necessarily accomplished in the final Constitution.

 

METAPHYSICS OF LAW AND RIGHTS

 

Juridical categories, Legendre, tells us do not conceal within themselves their own justification. ". . . [T]hey are juridical categories only because they are founded in, that is to say they refer to, the principle of division from which they spring. The Tiers of juridical categories…the founding Reference…are dealing with the theatrical character of institutions. In every society the basic founding discourse is a celebration, a ritualization, because it is a matter of bringing alive, on a social scale, the representation of the foundations, the representation of that which renders the function of the categories conceivable."23 It appears that society organizes itself on the basis of representation. This representation takes place through theater, as Legendre points out, of which political dramatization, music, song or rituals are the mediums for the enactment of totemic truth. Whether we call it metaphysics, myth or cosmology, even legal systems and legal institutions inhere elements of these hidden components from which they derive their justification. This is what is meant by the French term Tiers, which refers to an external third element that is outside of juridical categories.

Not only is religion an enactment of totemic truth but so is the Constitution. The combination or the tension between religion and political-legal categories enhances the complexity of these truths. While the Constitution is mainly a guide for political conduct and reflects on the authority of legal language, it does introduce religious themes at crucial points, such as the reference to a theism: "May God protect our people" and "God bless South Africa." The ecumenical thrust of the Constitution, for the want of a better term, appears to espouse inclusivity, healing, reconciliation, human dignity, equality, freedom and the redress of past injustices. In other words, in a sense it speaks the language of justice and the theology of reconciliation under the watchful guise of a nondescript theism. But these same terms also have another register of meaning. The terms freedom, equality and openness employed in the Constitution are framed in the language of rights—the language of modern political theory and law. These contending "meanings"—ethical, religious, legal, political or even eudaemonic—are thematic categories that are torn apart by the perplexing difficulty (aporia) that constitutes each of them.

Paul de Man believes a constitutional document, following his close reading of Rousseau’s Social Contract, describes two things: firstly, the ideal state, the constative aspect, and, secondly, the legal acts, which is the performative aspect. The system of relationships that generates the text, not its referential meaning, is what de Man calls, the grammar or logical code of the constitutional text.24 The grammar or logical code of the Constitution is only conceivable by suspending its referential meaning. By this he means the immediacy the code has to a very specific instance and consequence. This is different from Legendre’s term Tiers for "reference" which is a mythical referential point. For this reason, to return to de Man, a law must be written by suspending its applicability to a particular entity; in the same way the grammatical logic of the constitution can only function if its referential consequences are disregarded. Paradoxically we also know that law ceases to be if it is not applicable to particular individuals. It is only when law refers to a particular praxis that the justice of the law can be tested. Justice is always realized in a very particular instance. Yet citizens always desire the well-being of each and everyone, while secretly appropriating the word each for him or herself.

 

There can be no text without grammar: the logic of grammar generates texts only in the absence of referential meaning, but every text generates a referent that subverts the grammatical principle to which it owed its constitution. What remains hidden in the everyday use of language, the fundamental incompatibility between grammar and meaning, becomes explicit when the linguistic structures are stated, as is the case here, in political terms. . . . [T]he incompatibility between the elaboration of the law and its application (or justice) can only be bridged by an act of deceit.25

 

The constative and performative aspects of the Constitution are in permanent tension. In the gap between the grammar of the Constitution and its applications, legal history evolves. New and varied legal acts and interpretations are attributed to the original text by means of the rhetorical figure of metalepsis, the trope that reverses cause and effect through the shuttling of priorities. By means of the rhetoric of metalepsis, current decisions are legitimized as the choices of the legal tradition or as the necessary or correct interpretation of the legal texts. Any legislative text that attempts to reconcile the conflicting requirements of a discourse of politics, justice and truth is prone to such metalepsis.

Implicit in the framing of religious rights, is a binarism which contrasts religion versus non-religion, the private versus the public and the secular versus the sacred. In so far as the practices of religion or religious persons conform to the overall values of the Constitution, there is a symmetry in the reason of the individual (logos) and the reason of the state (nomos). The constitutional text makes the assumption that the individual and the state are reconciled in its values and the reason of the law. It may be too early to predict, but there are very few indications to prove that the new Constitution had incorporated the consensus values of the majority community. In making the (false) assumption of the reconciliation of the individual or community with the reason of the law, the Constitutional text arrives at the metaphor of Western metaphysics, logos—the reason of the individual—versus nomos, the reason of the state. Logos-nomos is the name of the reconciliation of self and others. "A perfect harmony is thus attained in the realization that we are puppets of a good puppeteer in whose game we participate (life is a patterned nomological play)."26 In the metaphor of logonomocentrism, "the claim of the unity of self and others in absolute reason of the law" is made.27 Logonomocentrism promises the truth of reason and the reason of law, which are both games of figures and rhetoric. If however there is asymmetry between the practices of religious persons and the reason of the state (nomos), then the only way logonomocentrism deals with these relations is to "other" and delegitimize these as aberrant and illegal.

What the Constitution does is to retain the fiction of the sovereignty of religion, whereas the logic of modernity, and liberalism in particular, had long eroded this in practice. It retains the pretense of this sovereignty by the invocation of the freedom of religion rhetoric. But in reality it is a freedom which finds its limits in the logic of the state.

The problematic part of this kind of constitutional formulation is that it creates the expectation of religious freedom, but in effect allows the state to interfere with religion. There is only one sovereign which is the state, although lawyers would argue that in South Africa the Constitution is sovereign. However, one has to acknowledge that constitutional sovereignty is largely in the service of the state. If one takes the example of religion, then constitutional guarantees for freedom of religion are reduced to the will of the state. Religion in South Africa is without a doubt more vulnerable to legislative and judicial interference than is religion in the US where there is a proverbial wall of separation. The partnership between religion and state in South Africa, as some would describe it, reduces religion to the "junior partner." There are no clauses which protect religion from the caprice of the state. The possibility of religion being co-opted by the state is infinitely more possible, despite the wishes of the authors of the Declaration to the contrary. At least within the US constitutional system, the state is prohibited from supporting any particular religion or legally interfering with religion. In South Africa the state may legally recognize any religion, provided it can justify such procedures to fulfill the requirements of administrative propriety and equality. This opens the way for the co-option of religion and diminishes the possibility for the prophetic voice of religion to be heard in a critique of the state. While it is possible to co-opt religion in the United States, this cannot be done in a legal manner without skillful subterfuge. In South Africa, such co-option can be achieved with Constitutional sanction. In the United States religion would have to translate itself into a secular and pragmatic value and cease to be religion, before it could legally play a role in legislation and the affairs of state. In South Africa values can theoretically be incorporated with their religious peculiarities intact.

 

CONCLUSION

 

South Africa concluded a liberal constitution where religion is subordinate to state authority. The paradox in the South African context is the dissonance between the aspirations of the religious communities and the lack of any legal and political means to realize such goals. At least constitutionally, religion is coerced to operate within the language of rights and will willingly or unwillingly shape a rights-bearing citizen. But religion also sees itself as a normative discourse and the making of a virtuous citizen. The question of duty is an important requirement in a nascent democracy like South Africa with its myriad social and economic challenges. The debate between rights and duty in political culture is far from resolved and remains a contentious one.

The post-apartheid South African state is moving towards a monolithic culture of secular legal morality, if the excision of non-secular values and references in the new Constitution is anything to go by. Inclusivity, transparency and openness does not necessarily mean the possibility of multiple moral references. The Constitution may be tolerant of multiple moral centers, as long as these do not threaten the emerging rights-centered, juro-moral authority. In the final instance the state will dictate its own secular moral register.

The Bill of Rights as part of the Constitution could have been lifted out of any European setting, even though there is great excitement about it being one of the most advanced and liberal documents of its kind. As previously indicated this normative document lacks an indigenous moral foundation and a rootedness in local culture. It is difficult to see how and where the values and culture of the African majority resonate in this text, except through rapid acculturation and subordination to a Eurocentric juristic culture. The BoR has its moral foundations in the universal reason of a rights culture, and its compatibility with a culture that furthers the cause of a disciplined and virtuous citizen is unknown.

The advent of constitutional governance in South Africa is bound to impact on the transformation of religion. It is also heralds the success of the modern state in the grand narrative of cultural transformation accompanied by the rise of modern industrial societies and globalization. Cultural transformation means the decline of religion in industrialized societies and the progressive secularization of beliefs and practices as well as the rationalization of social life. So while pre-modern forms of religion and magic lose their hold over societies, we witness the proliferation of newer forms of religion, religious institutions through mass communications and networks of transmission by means of which commodified symbolic forms, religion included, are made available to larger and greater audiences.

What happens in South Africa, as elsewhere, is that religion is mediated through a range of symbolic forms, in law, politics, economics, culture. Religion as a symbolic form is embedded in structured social contexts involving relations of power, forms of conflict and inequalities. When the social contextualization of religion as symbolic form occurs, it also means that these religious forms become the objects of complex processes of valuation, evaluation and conflict, what J.B. Thompson calls the process of valorization as ideology.28 

 

NOTES

 

1. "The Lost Temporality of Law: An Interview with Pierre Legendre," Peter Goodrich and Ronnie Warrington, trans. Allain Pottage, Law and Critique, 1:1, 1990, 3.

2. Numa Denis Fustel de Coulanges, The Ancient City (New York: Doubleday Anchor, 1956), 186 points out that among the Greeks, Romans and Hindus, law was first a part of religion.

3. Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion, (Atlanta, Georgia: Scholars Press, 1993), p. 6. In Muslim political thought there is an adage which says: "al-din wa’l dawla tawaman—religion and state are twins." Here religion refers to the juro-moral code (law) and the state as the social order.

4. Besides what is happening in the Muslim world, the re-assertion of Hindu fundamentalism in India and with it the Hinduisation of the political and legal order comes to mind as well as the conflict between Buddhist Sinhalese and Hindu Tamils in Sri Lanka’s ongoing civil war.

5. David Chidester, "Authentic Forgery and Forging Authenticity: Comparative Religion in South Africa," Inaugural Lecture, New Series, No. 186, (Cape Town: UCT Printing, 1994), 8.

6. See Mahmood Mamdani, Politics and Class Formation in Uganda, (New York and London: Monthly Review Press, 1976) 83, who shows that religiously based caste associations were the modus operandi for the organization of relations with the state in Central Africa, especially Uganda.

7. Names of church leaders such as the Anglican Archbishop Desmond Tutu, as well as influential members of the Dutch Reformed Church such as Allan Boesak and Beyers Naude, became household names at home and also enjoyed international standing in the world anti-apartheid forums.

8. World Conference on Religion and Peace—South African Chapter (WCRP-SA), "Declaration on Religious Rights and Responsibilities," no date, section titled, "Affirmation."

9. WCRP-SA, Declaration, "Proposed Clause for the Bill of Human Rights."

10. WCRP-SA, Declaration, "We Who Subscribe to this Declaration," (a).

11. WCRP-SA, Declaration, section 1. 2

12. WCRP-SA, Declaration 3. 4 and 3. 5.

13. See Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (Baltimore and London: The Johns Hopkins University Press, 1993), p. 206.

14. Jose Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994), p. 39.

15. Ibid.

16. Gretchen Carpenter, "Beyond Belief—Religious Freedom under the South African and American Constitutions," Tydskrif vir Hedendaagse Romeins-Hollandse Reg, band 58, no. 4, November 1995, p. 684.

17. From the Preamble:

 

"We therefore, through our freely elected representative, adopt this Constitution as the supreme law of the Republic so as to . . .

 

Heal the divisions of the past and establish a society based on

democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which

government is based on the will of the people and every citizen is equally protected by law. . . .

May God protect our people.

Nkosi Sikelel’ iAfrika. . . . God bless South Africa."

 

18. See Etienne Mureinik, "A Bridge to Where? Introducing the Interim Bill of Rights," South African Journal on Human Rights, vol. 10, 1994, pp. 31-48, esp. 34.

19. Constitution 1996, section 36 1, "Limitation of Rights."

20. Constitution 1996, section 39 1. (a) "Interpretation of Bill of Rights."

21. See Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Anchor Books, 1993).

22. See Winnifred Fallers Sullivan, Paying the Words Extra: Religious Discourse in the Supreme Court of the United States, (Cambridge, Mass: Harvard University Press, 1994), p. 37.

23. "Lost Temporality of the Law," pp. 7-8.

24. Paul de Man, Allegories of Reading (New Haven and London: Yale University Press, 1979), 268.

25. de Man, op. cit., p. 269.

26. Costas Douzinas, Ronnie Warrington, Shaun McVeigh, Postmodern Jurisprudence: the law of texts in the texts of the law, (London: Routledge, 1991), p. 91.

27. Douzinas et al., p. 91.

28. John B.Thompson, Ideology and Modern Culture (Oxford: Polity Press, 1990), p. 12.