Religion, morality, justice with Law - Block 1 Year 1 notes Intro to law
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Course
Introduction To Law (LAW1011A)
Institution
University Of The Witwatersrand (wits)
Study/lecture notes on law and religion, law and morality, and law and justice, formal equality and substantive justice, legal theories, natural law approach.
LAW AND RELIGION
The law is a set of norms distinguishing good from bad.
A norm is a rule regulating human conduct.
Not all norms are legal rules.
The various normative systems that influence our lives and determine our conduct include:
- Religion
- Individual morality
- Community mores
*It is important to always define before you continue: define law, religion, morality etc
Associated with the belief in powers that are superior to man or belief in a higher being.
E.g., A Christian would find religion from the bible
In religion it is said that the power that controls humans will also dictate the rules that humans
must abide by. The rules that come from the religion, is the rules that are followed by the
people of a particular faith.
Religion determines the relationship between an individual and a supreme being.
For someone adhering to African religion, it lies in customs handed down, rituals, objects, and
dances.
The ultimate sanction for non-compliance with religious norms is usually varying forms of the
burning fires of hell.
Religion is often an emotional subject and can lead to extreme views.
This also applies to the relationship between religion and law.
THE RELATIONSHIP BETWEEN LAW AND RELIGION:
Sometimes the law can equal the laws of religion, sometimes they can be completely separate,
although it may be hard to see this. Other times you can see quite a close link between them
because you can actually trace the roots of law back to old customs which in turn are largely
based on religion.
E.G., the ancient civilizations where the king was also the high priest, so the leader in law was
then also the religious leader.
- in Egypt the pharaoh was considered a divine being.
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, Still today, there are many societies that do equate the law with religion, the religious rules are
in fact the law as well.
There are also states that are secular in nature- the law is not the same as the religion.
- In a particular religion to lie would be a sin, but in law it is not a crime.
There is the opinion that religion and law should be mutually exclusive
- This is the secular approach to law
- To them religion is a personal matter, only concerned with the individual’s private
sphere of conscience.
- It determines an individual’s destiny after death
Western (liberal, secular) state is based on a distinction between state authority and religious
authority. It is not the task of the state to enforce religious norms or convictions on its citizens.
However, religious freedom must be made possible by the state, allowing each individual to
exercise a free religious choice.
But in other respects, you would find that there is an agreement between law and religion.
E.G., in a particular religion it might be a sin to murder somebody, but then also in terms of law
it is a crime. There is an agreement with this.
- religion and law should have the same content
- African law and religion are inextricably linked to one another.
- this also appears in Islamic fundamentalist religious states, where law and religion are
equated. The Quran dictates that theft is an offence; an offender’s hand must be cut off.
- in a fundamentalist state, the law applies this religious rule as part of the law of the land.
*even in secular states you can see the roots of religion within the law somehow. Its very often
that you can trace the roots back to a particular religion (or a few religions).
Where secular states do operate, it is important for the law in those states to protect an
individual’s right to practice their religion.
- In south Africa, we operate as a secular state and so for us the law is sperate to
religion.
- You will see in the constitution there is a protection for an individual’s right to follow
a religion of their choosing.
- Where there is a conflict between the law and a particular religious belief, the law will
always prevail.
- Christian education case
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