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Oh my Gad! Chief Justice Mogoeng wants to mix religion and law

For many who spent their childhood in Pretoria, they’ll remember all too well the threats parents wielded to curb errant behaviour. They would temper a lust for misadventure with the threat of the stout school in Hammanskraal. A hint of madness would be tempered with the threat of Weskoppies in Pretoria West. And any bent towards immorality would be cause for evoking the wrath of the hereafter. The triad of stout school, Weskoppies and religion were enough to induce generalised anxiety disorder (Gad) in many an ungovernable child. Chief Justice Mogoeng Mogoeng, like a parent of yesteryear, has invoked one leg of this trinity, religion, as being necessary to cure our society.

Mogoeng spoke of the role of religion in law on May 27 2014 at a Stellenbosch University conference: “Law and Religion in Africa: The Quest for the Common Good in Pluralistic Societies.” In his speech (as excerpted in this video clip) Mogoeng says that all manner of ills would be “turned around significantly if religion were to be factored into the law-making process”. The chief justice is very diligent about enumerating the many possible ways in which this infusion of religion into law could go wrong. But I think he misses the pith of this prickly problem.

Religion is often, if not always, premised on “received knowledge”. There is nothing intrinsically wrong with received knowledge because many a scientific discovery has been inspired by such moments of lucidity. But there is a difference between received knowledge as an inspiration and received knowledge as law. The law, more so in a plural society such as ours, is meant to foster harmonious co-existence. In order to achieve this harmonious co-existence, you need to be sensitive to evidence regarding the condition of citizens. This sensitivity to your citizens means that the law in turn needs to be sensitive to evidence — so that it can better foster this co-existence. Received knowledge as law tends to become dogmatic for the simple reason that unless another prophet (of sufficient standing) receives a software update, then that law keeps running on the old version. In short, law as received knowledge becomes resistant to evidence.

The law is a study in human reasoning. In order for human reason to have any credibility in mediating our common condition, it needs to be sensitive to evidence. So any system of reasoning that is resistant to evidence is hostile to the type of human reasoning that can foster harmonious mutual existence. In addition, such a hostile system is problematic because it co-locates power with prophets and not human reason.

Secondly, it is obvious that many of our moral systems and even legal systems derive from Judeo-Christian edicts. I think it is erroneous to think that Judeo-Christian edicts pre-date morality or hold a monopoly on morals. Religion does not hold the copyright to goodness.

Thirdly, law is derived from many sources. Making religion the sole source is undesirable. An example is positive morality. Positive morality is the way people in present day conduct life. South African jurisprudence invokes positive morality. This was seen in the case of Bhe and Others vs The Magistrate, Khayelitsha and Others. In this case the Constitutional Court had to decide on customary law succession. In particular, decide whether black, African women could also inherit the estate and not just men. Instead of just on relying customary laws edicts, as they were, the Constitutional Court invoked positive morality and said the law had become “ossified”. Justice Pius Langa, penning the majority opinion, said the following about this customary practice: “The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.” This ruling demonstrates the use of alternative sources by the court. Chief Justice Mogoeng’s appeal to religion as a primary source is out of kilter with the history of the court.

The problem I suspect Mogoeng is trying to solve is how to get people to internalise the Constitution, defer to it and become living manifestations of its spirit. But instead of seeking ways to inculcate this manifestation, he seeks that thing which many people already embody and seeks to infuse that into the law. The rationale is that by infusing this (religion) into law then people will revere the law and hence help our society prosper. This is a little bit like how Silicon Valley technology companies operate. Instead of building a service from scratch and engendering devotion to it, they buy a company that already commands that devotion and hope that devotion is transferable. So Chief Justice Mogoeng is trying to be Facebook to the Instagram that is religion.

Carl Jung in his 1958 book The Undiscovered Self laments the communism hysteria that had gripped Europe. He said that American smugness at the communism zealotry was misplaced and that the issue both sides missed was asking the question: What exactly is that evolutionary psychological mechanism that results in people outsourcing their thinking to an external force (eg ideology, God etc). What mechanism causes people to trust another so wholeheartedly? In Jung’s estimation this need and ability to trust is the problem. Hence Mogoeng’s call to religion is not the core problem but rather it is this need to outsource human reason to an external enforcer. This need to subvert reason by inculcating submissive obedience is problematic.

Twitter: @melomagolego