Control and Conscience: Positivist Approaches to Religion in India and South Africa

AuthorKelvin Ma
Control and Conscience: Positivist Approaches to Religion in
India and South Africa
Kelvin Ma*
Legal positivism and religion are sometimes seen to be mutually
exclusive. This Article begins with a challenge to this belief on a
theoretical basis, demonstrating that morality exists in positivism but
also raises doubts over the viability of fixing inherently flexible religious
laws in time via codification. This is developed with a study of India and
South Africa, two diverse jurisdictions which have attempted positivism
in different ways, namely codification and accommodation. In analysing
the approaches and outcomes in both countries, it comes to the
conclusion that positivism is ultimately possible and the answer lies in
the more implicit attitude adopted by South Africa. Codification as seen
in India faces the theoretical and practical issue of fixing flexible
religious and customary practices in time, whereas accommodation
strikes a balance between flexibility of religion and the maintenance of
the authority and integrity of positive law.
Legal positivism and religion are sometimes considered mutually exclusive.
One appears to be indifferent to values of morality, while the other is
inseparable from them. This view is enthusiastically supported by Lord Justice
Laws.1 He states that the role religion plays in the law amounts to the control of
thought and action and thus the law should be independent of it. This Article
seeks to counter this view with the assertion that positivism does offer a viable
approach to religion. This will be explored on two fronts. Firstly, discussion will
revolve around the theoretical question of whether it is possible, or even
preferable, to fix religious law in time, with evolvement only permitted through
the avenue of statutory amendment. Secondly, the practical examples of
incorporating religion and customary law in the common law jurisdictions of
India and South Africa will be analysed and presented as evidence of successful
* Kelvin Ma is a second year LL.B undergraduate at SOAS, University of London.
1 Laws LJ, ‘Law and Religion’ (2010) 62 South Carolina Law Review 471, 478.

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