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Acta Theologica

versão On-line ISSN 2309-9089
versão impressa ISSN 1015-8758

Acta theol. vol.31  supl.14 Bloemfontein Jan. 2011


Unexamined faiths and the public place of religion: emerging insights from the law



Iain T. Benson

Professorextraordinary, Faculty of Law, University of the Free State, South Africa. E-mail:




The article examines certain key terms, such as "beliefs" and "faith" and how these are understood in relation to the public sphere. It examines some writings of recent popularist authors such as Richard Dawkins and Christopher Hitchens, and is critical of the authors' claims that they do not have faith or beliefs. Drawing on legal decisions in Canada and South Africa the article suggests that this sort of terminological looseness has legal and political implications when it comes to whether or not beliefs of all sorts (religious and non-religious) are treated fairly in the public sphere.
Arguing for a more diverse public sphere, the article cautions that law should give greater attention to principles of modus vivendi rather than "convergence" in which the attempt is to eradicate legally allowable positions from the public sphere and place those who hold them, and their communities, at a disadvantage. The law must not, by inflating its own role, put added pressures on the liberty that accommodation and subsidiarity require.

Keywords: Religion and law, Principles of accommodation, Atheism as a Faith

Trefwoorde: Godsdiens en die, Reg Beginsels van tegemoetkomendheid, Ateïsme as 'n Geloof




The topic of this conference, "Religion, Faith and the Public University" is well chosen because it asks us to consider why "religion" and "faith" are in relation to the "public university" and why "religion" and "faith" are listed separately. It is correct to view religion and faith as different things, though they are often conflated, because while all human beings necessarily have "faith" not all people are religious. This seemingly obvious assertion is, however, one that contains significance for how we discuss religions in relation to the public sphere including public education at all levels.

What is the relevance of faith and religion being discussed in relation to a public university? What is it in the nature of the "public" or how it is currently viewed as "secular" that suggests there is any tension here? Why is religion and/or faith viewed as in any kind of tension with the public university once we have recognized that "faith" (that which we believe in whether scientifically verifiable or not) is part of all human endeavours including higher education? These are some of the questions I seek to address in this paper.



All citizens have beliefs and faith whether or not they are aware what they are. To act is to assume and that assumption is "faith" though that basic insight is often unexamined and missed when faith is used as an equivalent term for "religious belief."1 Another way of putting this is to note that the question is not whether people are believers but what they believe in. There is no good reason to exclude beliefs that come from religious beliefs from access to public goods (such as funding) in favour of those beliefs that come from atheist or agnostic beliefs. For it is prejudice related to the sources and kinds of belief that undergird secularism's attempt to restructure the public sphere on a "material" basis. Yet the hidden assumption in the category of "secular" as it is often used is that somehow religious beliefs are to be stripped out of the public sphere and other beliefs, therefore, are left in.2

A scholar of an earlier generation who spent a good part of his life teaching and working in South Africa, philosopher R.F.A. Hoernlé has also noted that:

every bona fide judgment is characterised by belief... [and] if "faith" is firm belief, conviction of truth, then faith in this context is indistinguishable from knowledge (Hoernlé 1952:55).

For both Newman and Hoernlé, there was a connection between mental judgments and belief and human actions. On a practical level no line should be drawn between belief and actions in terms of faith and all human beings necessarily act out of "faith."

Contemporary atheists such as Richard Dawkins (2007) or Sam Harris (2005, 2007), however, frequently speak as if they "have no beliefs": a position that is nonsensical. The belief that one has no beliefs is, obviously, itself a belief.

Both writers are not alone on their attack on religion and God from what they believe to be a "belief-less" position. Christopher Hitchens, another writer in much the same line has summed up this line of thinking as follows:

And here is the point, about myself and my co-thinkers. Our belief is not a belief. Our principles are not a faith. We do not rely solely upon science and reason, because these are necessary rather than sufficient factors, but we distrust anything that contradicts science or outrages reason. We may differ on many things, but what we respect is free inquiry, openmindedness, and the pursuit of ideas for their own sake. We do not hold our convictions dogmatically (Hitchens 2007:Introduction) (emphasis added).

To claim as Hitchens does, that his belief is not a belief and that the atheistic principles he endorses are not a "faith" is bad philosophy but helpful since it shows rather well how far such thinkers (and they are the intellectual end of what is a very widely representative popular set of misconceptions) have come from their own roots. George Jacob Holyoake, after all, writing in the 19th Century, and the man credited by the Oxford English Dictionary with coining the term "secularism" recognized the more basic truth of the matter when he subtitled his important book on secularism a "Confession of Belief" (Holyoake 1896).

As to "facts" and "reason," well, there again, the new atheists don't really understand what they are writing about. Hitchens cannot prove that God does not exist: he simply takes it as an item of his atheistic faith that God does not. Similarly all the other claims of religion that Hitchens derides. We can say to him: "What, you believe that everything arose from nothing? How can you prove this?" Science can never prove something came from nothing because it cannot measure a change from nothingness to somethingness.

So atheists are men and women of faith in many ways just like the rest of us. Their dogmas are different but they are dogmatic (in that their beliefs emerge from the first principles of their faiths). True, in many things their faiths are different but they are still faiths and their beliefs are still beliefs no matter how much Hitchens and those like him wish it was different. Humans are stuck being believers and that is all there is to it. Being dogmatic does not necessarily mean being rude and it certainly does not equate to understanding what dogma is. That is why so many atheists and men and women on the street, think, like Hitchens, that they don't believe anything: but they do.

An additional insight, relevant here to the observation that human actions are divided now from recognition that human life is necessarily lived with "faith" and "beliefs" is provided by philosopher of science (and language) Michael Polanyi.

Our objectivism, which tolerates no open declaration of faith, has forced modern beliefs to take on implicit forms....And no one will deny that those who have mastered the idioms in which these beliefs are entailed do also reason most ingeniously within these idioms, even while.... they unhesitatingly ignore all that the idiom does not cover (Polanyi 1958:288) (emphasis added).

Perhaps one of the implicit forms or modern "beliefs" is hidden in the idea of the "religious free secular?" That would fit with what the philosophers and theologians have suggested. This is the climate in which people so readily speak and write of themselves being "unbelievers" in a public order characterized by a religion-free (but not, as I have argued, faith-free) public sphere. The public sphere, if the writers quoted are correct, is necessarily a realm of "faith" whether or not such faith draws its inspiration from religious presuppositions.

More recently, philosopher Thomas Langan has written on the idea and importance of the category of "natural faith" which is, as it were, a means of overcoming these dualistic and false constructions to show that everyone is a believer and necessarily has faith of some sort (Langan 1996; Calcagno & Langan 2009). Again, we need to recall that not all faiths are religious faiths.



Law recognizes many things that it does not create though it may, in careful ways, regulate in relation to them. Thus, the fact of the family, of liberty itself and of rights (including religious liberty) is not created by law, they, in a sense, transcend law and are prior to it. This has been recognized by Francis Lyall in the following terms:

As a general statement drawn from the common law, liberty is the basic position in law in Britain. Liberty is not conferred by a legal instrument: it is the normal condition, and infringements on that liberty can exist only as allowed by legislation or case law. Interference with the manifestation of traditional religious belief is therefore something which has to be justified in terms of public order or public good (Lyall 2000:253).3

This realization and the concomitant one that law must recognize its limits, inherent within the ideas of "subsidiarity" and accommodation is currently being challenged in Canada and elsewhere by the idea that law is larger than or prior to what I have described as matters that ought to be immune from complete legal subordination.

Some years ago, a very interesting exchange on this theme occurred between a leading Canadian judge and American political science professor. At a conference co-sponsored by the Centre for Cultural Renewal and the McGill University Department of Religious Studies entitled Pluralism, Public Policy and Religion, the Canadian Chief Justice presented a paper on the importance of conscience and religion. In the course of her remarks, the Chief Justice indicated her thinking at that time with respect to the relationship between law and the "religious citizen". Of particular interest to our examination is how she formulated that relationship:

The modern religious citizen is caught between two all- encompassing sets of commitments. The law faces the seemingly paradoxical task of asserting its own ultimate authority while carving out a space within itself in which individuals and communities can manifest alternative, and often competing, sets of ultimate commitments (McLachlin (2004:16) (emphasis added).4

We need to pay particular attention to the terms "all-encompassing" and "ultimate" here in relation to the law, as well as the fact that it is the law that carves out within itself places for what may be "competing sets of ultimate commitments". In this conception law is "bigger" than religion. The Chief Justice then developed this idea as follows:

I wish to call this tension between the rule of law and the claims of religion a "dialectic of normative commitments". What is good, true and just in religion will not always comport with the law's view of the matter, nor will society at large always properly respect conscientious adherence to alternate authorities and divergent normative, or ethical, commitments. Where this is so, two comprehensive worldviews collide. It is at this point that the question of law's treatment of religion becomes truly exigent. The authority of each is internally unassailable. What is more, both lay some claim to the whole of human experience. To which system should the subject adhere? How can the rule of law accommodate a worldview and ethos that asserts its own superior authority and unbounded scope? ... It is the courts that are most often faced with this clash and charged with managing this dialectic. (McLachlin 2004:21-22) (emphasis added).

Law here is viewed, frankly and openly, as a "comprehensive worldview" capable of competing with and even encompassing religion. Moreover, law is deemed capable of determining not only what is just but what is "good" and "true". It is able to lay claim "to the whole of human experience".

Whatever else one can say of this, it elevates law to the status of transcendent determinations and therefore judges to the role of de facto clerics. It is starkly at variance with earlier decisions of the court that spoke of its inability to deal with "metaphysical" or "philosophical" matters5 and with the common law tradition in which liberty, not law, is the primary condition in sharp contrast to the quotation from Francis Lyall that began this section.

On the other hand, and with respect, the Chief Justice's formulation tends towards a monistic or totalistic conception and is quite contrary to that kind of political pluralism referred to by other scholars, such as William Galston, in which there is a vision of "social space" and "spheres of autonomy" that must resile from claims to be a comprehensive good. On this reading, the Chief Justice's conception of law asks too much when it views itself as larger than the religious and other conceptions alongside of which it must operate as but one of several ordering frameworks within a constitutional democracy recognizing ordered and interlocking liberties.6

This limitation on the role of law was recognized in her response to the Chief Justice's address by the University of Chicago's Jean Bethke Elshtain, who replied:

Surely, where the rule of law in the West is concerned, there is a great deal about which the law is simply silent: the "King's writ" does not extend to every nook and cranny. Indeed, a great deal of self-governing autonomy and authority is not only permitted but is necessary to a pluralistic, constitutional order characterized by limited government. In other words, the law need not be defined as total and comprehensive in the way the Right Honourable Chief Justice claims (Elshtain 2004:36).

That the Chief Justice of the highest court in a country that prides itself on being open to the "evolutionary" nature of rights jurisprudence could so clearly subordinate religion to law is a very clear sign of the times and shows yet another hurdle to the proper characterization of ordered liberties at the heart of the relationship between religions and the public square. It is not out of place to suggest, with respect, that further evolution in the law is needed - but in a direction that respects the historical relationship between law and what is properly prior to it.



I have written in various ways elsewhere about the work of English philosopher John Gray in relation to different versions of liberalism. Gray has identified what he describes as a version of "liberalism" that poses a threat to genuine liberalism because rather than endorsing living together with disagreement (which Gray calls "modus vivendi") there is a risk of moving towards "one size fits all" or convergence (Benson 2008:298-299 citing Gray 2000:105). Gray says that the future of genuine liberalism will involve turning its face away from the assumption that tolerance will eventually bring us all to agreement (using law as the means of effecting convergence).

If one views this insight of John Gray against the conception of law put forward in her McGill address by the Canadian Chief Justice, one can very clearly see the same choice exists within law as within politics - between "convergence" and "modus vivendi."

What Gray says of liberalism applies to legal conceptions of "diversity" and "equality" and I would like us to keep both political liberalism and legal principles in mind as we consider the appropriate nature of religious inclusivity in the public sphere. Canadian and South African jurisprudence tends to favour both a religiously inclusivist conception of the public sphere (which I shall discuss in a moment) and a plural conception of the public sphere along the lines that Gray urges with reference to modus vivendi. Thus, the Constitutional Court in the Fourie decision wrote that:

[T]here are a number of constitutional provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular texture to the broadly phrased right to freedom of association contained in section 18. Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the 'right to be different'. In each case, space has been found for members of communities to depart from a majoritarian norm.7

Canadian jurisprudence, as well, has acknowledged the concept of diversity within the public sphere and the risk that rank-ordering would pose to sharing that public space. Yet, as I shall argue below, some of the decisions themselves seem to apply the very rank-ordering the Canadian Supreme Court has said it wishes to avoid.

Thus, in the 1994 decision of Dagenais, then Chief Justice Lamer stated that "When the protected rights of two individuals come into conflict...Charter principles require a balance to be achieved that fully respects the importance of both sets of rights." 8 Similarly, in 2001 in a decision involving whether a Christian University, Trinity Western, could maintain a Code of Conduct banning certain conduct including sexual conduct, Justice Iacobbucci, in giving the reasons of t