What South Africa Doesn’t Need in a New Chief Justice: One Who Will Bring Religion into the Public Sphere

Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame

South Africa’s young democracy is in crisis. Riots and looting, high unemployment, charges of corruption and cronyism against the former president, and an inability to transform the economy to make it more equitable, have all led to people losing faith in the government. Despite those challenges, the legal system has remained in relatively high regard. The courts, and in particular, the Constitutional Court, have distinguished themselves by administering justice in a manner consistent with the values of the new Constitution, as well as international human rights norms. By recently ordering the arrest and imprisonment of former President, Jacob Zuma, for contempt of court, the Constitutional Court has sent the important message that the law will be applied in an impartial manner and that no one is above the law.

However, for people to retain their faith in the legal system, and in the Constitutional Court in particular, the justices themselves must be above reproach and must conduct themselves in a manner that sustains confidence in the Court. To do so, at a minimum, they must comport themselves with the Code of Judicial Conduct, which requires judges, among other prohibitions, to refrain from being involved in any political activity, any activities which practice discrimination, or which call their impartiality into question. Generally, this has been the case, even while justices have come and gone. The Constitutional Court justices are appointed for twelve year terms and not for life, unlike the justices of the U.S. Supreme Court. But recent speeches and comments by the current Chief Justice, Mogoeng Mogoeng, have posed a threat to the credibility of the Court and its members.


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Mr. Justice Brian Walsh, the Natural Law, and Irish Catholicism

Dr. David Kenny is Associate Professor of Law and Fellow at Trinity College Dublin

Ask any lawyer, judge, law student, or legal academic in Ireland to draw up a list of Ireland’s great judges, and one name is guaranteed to appear: Mr. Justice Brian Walsh. Sitting on the Irish Supreme Court in the heyday of its activist period in the 1960s, 1970s, and 1980s, Walsh’s fingerprints are on many of the Court’s most important and innovative constitutional judgments [1]. A pioneer of unenumerated (or implied) constitutional rights—recognizing, amongst other things, a trailblazing right to privacy—Walsh’s innovative jurisprudence was transformational in Irish constitutional law.

A friend and correspondent of famed U.S. Supreme Court Justice William Brennan [2], Walsh—alongside colleagues like Seamus Henchy and Cearbhall Ó Dálaigh—developed Irish constitutional jurisprudence in a manner not dissimilar to the Warren Court in its heyday. His influence echoes still, even after more cautious courts in the 1990s and 2000s resiled from some of the more innovative elements of this period of constitutional expansion. Perhaps, as leading academic and current Supreme Court Judge Gerard Hogan has argued, Walsh’s constitutional vision, even if a good reading of the text, was simply too radical for judges largely wedded to the common law tradition [3].


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Taking Judges’ Religion Seriously: Some Reflections Based on U.S. and Italian Cases

Adelaide Madera is an Associate Professor of Canon Law and Law and Religion, Department of Law, University of Messina

In a 1952 landmark decision, delivering the opinion of the U.S. Supreme Court, Justice Douglas asserted: “We are a religious people whose institutions presuppose a Supreme Being.” This and other cases, where a U.S. judge refers to religious arguments while shaping a judicial decision, raise a question about the relationship between religion and the judiciary.

It goes without saying that in a democratic and pluralist state judges are not allowed to rely on their religious tenets to “resolve legal disputes.” However, some commentators argue the “inevitability of subjectivity,” namely, the unavoidability of judges who are not able (even unintentionally) to leave their religious, moral, political views at the threshold of the courtroom. Psychological literature also demonstrates the connection between “religiosity (the quality of being religious) and personal values” which affect subconscious processes underlying judicial reasoning. Besides, some scholars refer to various reasons why religious values may be of some help in judicial decision-making, specifically in deciding “ethically difficult cases,” such as the death penalty, where, as Guido Calabresi shows, judges may face the “tragic choice” between  one’s conscience and the rule of law.


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