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Religion, Legal Scholarship and Christianity

Is Plato the father of philosophy of law? Did the 17th century philosopher, John Locke, bring about the idea of human rights? Were the traditional religions, such as Christianity, truly the cause of wars, and did the religion of secularism truly provide a solution to violence? Must we believe that same-sex-marriages, sodomy and abortion are acceptable because legislation and the courts say so? Should the law be separate from morality? Is the lawyer absolutely bound to the client’s interest and not to the precepts of a higher law? Where does the law come from? From which source do norms receive their validity from?

The answers to these questions are embedded in the realm of each individual’s religion. Religion in this regard, is to be understood as a belief in “something”, from which all else in reality emanates. To many this “something” is God. To others, such as Karl Marx, it is not God but merely matter – we exist because we exist, and there is no other cause that gave rise to ourselves and the world we live in. Adherents to the former view claim that God determines what is right and wrong, while those that adhere to the latter rely on man’s reason to determine the content of the law. Bearing this in mind, it is important that the student of law should also be exposed to the influence that religion has on the law and the lawyer.

The law always originates from religious presuppositions, these being the primary points of departure that determine the individual’s view on what is right and wrong – Is it God, or is it man’s reason and desires?

Students should not only study the rules of law, techniques and court judgments, on how to apply the law successfully, but they should also be introduced to the “deeper” issues regarding the law. The law school has an important role to play in this regard. Legal education should therefore, “broaden” a person. The mere mention of religion in law schools is frowned upon with much discontent; students are being forced to be neutral in their thinking and are rejected for trying to argue against that which confronts their beliefs and values.

Religious neutrality in the law is a myth, because the rejection of religion in the law implies the inclusion of another ideology.

The relationship between religion and the law school must also be understood against the background of the university, especially taking into consideration that the establishment of the university is not only to realise academic freedom, but also to strive towards “critical thought”. In its provision of knowledge, the university must not forsake its duty to enhance and develop the values and beliefs of its students. Knowledge gained at university, should not only be geared towards the development of a specific skill, but must also involve the development of the total person, including their evaluation of spirituality. Not only should a critical mind be cultivated in the university, but also a mind that is steadfast its belief in what is right and wrong, legal or illegal.

In addition, the student’s religious convictions require further development at university level. How can we believe that we are living in an era of supreme intellectualism when our students are limited in the religious dimension? How can liberal democracy live up to its name if students’ religious convictions are limited in tertiary education? If liberal democracy teaches that the religious rights of every individual should enjoy protection, and if liberal democracy supports opposition to intolerance and fundamentalism, then it has to guard itself against becoming the violator of religious rights, intolerance and fundamentalism. This implies that the student of Christian persuasion has the right to be cultivated according to his or her Christian belief. The aim of the South African Constitution is not to have human beings conformed to some fix standard, but to preserve individuality. Paul infallibly declares in Colossians 2: 3-8: “All the treasures of wisdom and knowledge are hid in Christ”. In this regard, Bahnsen comments: “Note Paul says all wisdom and knowledge is deposited in the person of Christ – whether it be about the War of 1812, water’s chemical composition, the literature of Shakespeare, or the laws of logic!” Shouldn’t the law (and the law student) also be included therefore in this equation?

Christianity should have its rightful place among the secular and positivistic religions that dominate our law schools in South Africa. Therefore, it should not only be taught that Plato is the father of philosophy of law; that John Locke gave rise to human rights; that Christianity was the cause of many wars; that secularism counters wars; that same-sex-marriages, sodomy and abortion are valid practices; that morality is not part of the law; and that the client’s interest is the ultimate measure of the attorney. Is Plato clever than God; does the Bible (and not John Locke) not support the protection of fundamental rights; was and is sinful man not the cause of wars instead of Christianity per se (and is secularism not still fraught with actions of violence?); are same-sex-marriages, sodomy and abortion not an abomination in the eyes of God; is morality not part of our Christian faith and therefore of our Christian normative system; and does God’s Will not enjoy preference to that of the client’s interest?

Shaun de Freitas - lecturer of Constitutional Law in the Faculty of Law at the University of the Free State.