Can Law Avoid Creating Culture and Religion in Its Own Image? The Context for Diversity, Religion and Culture in MEC for Education: Kwazulu-Natal and Others v Navaneethum Pillay: Reflections a Decade Later
Journal for Juridical Science, 2017
23 Pages Posted: 26 Jun 2018
Date Written: 2017
This article reviews the important MEC for Education: KwaZuluNatal and Others v Navaneethum Pillay decision, handed down by the Constitutional Court of South Africa, against reflections regarding law and religion in the ten years since that decision was delivered. It places the decision in relation to scholarly debates about the nature of a diverse society and, in particular, how certain strands of what pass for liberal theory do not, in fact, provide for respect for diversity and difference. In particular, the article reviews various ways in which moves towards homogeneity may employ the language of diversity to achieve their ends against the goals of the South African Constitution, which, properly understood, should maximize genuine diversity and accommodation. The article also discusses briefly the recent decision of Organisasie vir Godsdiens Onderrig en Demokrasie v Randhart et al., which interprets sec. 15(2) of the Constitution as allowing religious observances in public schools as long as such observances are not exclusive and exclusionary. The article supports this interpretation and suggests that the goals sought by the applicant in Organisasie vir Godsdiens Onderrig en Demokrasie v Randhart et al. exemplified the kind of convergence and civic totalism. Also discussed is whether other listed constitutional terms such as ‘culture,’ ‘belief’ and ‘conscience’ should attract the same kind of protections as ‘religion’ and whether there is a risk that, by categorizing the protection of other concepts too broadly, important aspects of religion (for example, that it is not simply an individual, but a communitarian right) might be trivialized. Finally, the article reviews certain developments in other countries (France and Canada) to suggest that how the State is understood in the context of accommodation will vary in relation to how the terms ‘secular’ and ‘diversity’ are defined.
Keywords: freedom of religion, culture, pluralism, diversity, religious education, public education, constitution and human rights, civic totalism, genuine liberalism, Pillay, Randhart
Suggested Citation: Suggested Citation