Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle
Author: S de Freitas
Affiliations: B Proc LLB LLM LLD, Professor of Public Law, University of the Free State, Adjunct Professor of Law, School of Law, University of Notre Dame Australia (Sydney)
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 435 – 454
The South African judiciary supports the protection of the autonomy of religious associations. The “avoidance of doctrinal entanglement” principle accompanies this protection, which means that the judiciary is markedly hesitant to entangle itself in the essential doctrine held by the members of a religious association. The application of this principle has recently been criticised for purportedly resulting in religious practices being adjudicated separately and in some way shielded from constitutional scrutiny, while all cultural practices are expected to be imbued with a constitutional ethos. In response, it is argued that the “avoidance of doctrinal entanglement” principle is nothing more nor less than the commitment of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) to the protection of fundamental beliefs (whether religious or non-religious) and its concomitant ideals towards the advancement of diversity. The said principle should therefore not be understood as presupposing that the right to freedom of religion be prioritised above that of the right to freedom of culture. The Constitution, as is the case with the right to freedom of religion, expects the judiciary to protect freedom of cultural practices where such practices are reasonable and in accordance with the public order. To argue that the “avoidance of doctrinal entanglement” principle should be ousted will bode unfavourably not only for the protection of the right to freedom of religious associations but also for the protection of cultural practices and consequently for the advancement of diversity.