UNIT 1.5
RELIGION AND THE LAW
Explain and evaluate in detail whether neutrality exists in the context
of the law. You may refer to your own examples. [15]
Under the Theme of religion it is important to address the relationship
between the LAW, RELIGION and NEUTRALITY. The fundamental norms
that we find in the legal system such as the various human rights and
common law principles as well as numerous legislation are based on some or
other religion. For example, if I have to interpret the clause in the Constitution
of a State that merely says: “Everyone has the right to life” I would soon find
out that my religios loyalty will assist me in determining the interpretation of
this clause (1). An example of an act or statute that is based on some or other
religios perspective is for example, legislation that has a pro-choice or pro-life
stance regarding the legality of abortion (1).
The religious foundations of laws can be extended to the judiciary, because
the judiciary has to interpret the various laws, rights and so forth. Courts rely
on specific perspectives in many of their decisions, which deep down shows
an affinity to some or other religious perspective. For example a strictly
positivistic approach or a natural law approach emanates from some or other
religious foundation (1).
Therefore if we say that the law of the land and the institutions that deal with
this law have religious foundations then it cannot be inferred that the law, the
judiciary, and the legislature are neutral, the reason being that they do exhibit
loyalty to some or other religious point of departure (1). Objectivity and
neutrality in the law, the courts and the legislature are therefore non-existent
(1).
To illustrate the myth of neutrality, lets refer to an example:
Let us assume that: individual X only likes view A and individual Z only likes
view C. too individual Y, views A, B and C are equally nice. Let us assume
that the individuals in the above diagram are judges and that the views
represent the legality of abortion. View A represents the view that abortion is
never allowable. View C represents the view that abortion is always allowable.
View B represents the view that it would be possible to allow abortion under
certain circumstances but not others. Bearing this in mind, let us assume that
judge X supports the view represented by view A. Judge Y supports the views
represented by B, and Judge Z supports view represented by C (1). Firstly,
can one deduce from this that each of the judges applies a certain religion
regarding their views?....yes one can because each has a foundational point
of departure on what the status of abortion should or ought to be (1).
Secondly, can judge Y state that he is a neutral in the sense that in some
cased abortion ought to be allowed and in other cases it ought not to be
allowed? No because Judge Y’s view differs from that of Judge X and Y’s
views (1).
1
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