Church law as a ius sui generis in South Africa : a reformed perspective

["Thesis (Ph.D. (Ecclesiology))--University of the Free State, 2014","Church and state -- South Africa","Church orders","Church","Ecclesiastical law","Self-rule of the church","Religious rights","Religious freedom","Religious doctrine","Legal status of churches","Ecclesiology","Ecclesiastical authority","Common good","Constitutional adjudication","Doctrinal entanglement","Church-state relationship","Church law","Church autonomy"]

Van Staden, Johannes Hendrik ; ["Strauss, P. J."]

University of the Free State

Others  :  http://scholar.ufs.ac.za/xmlui/bitstream/11660/2201/1/VanStadenJH.pdf

瑞士|英语

来源: University of Iowa

【 摘 要 】

English: The church-state relationship in South Africa was severely challenged in the wake of the 1994 constitutional dispensation. An analysis of the relationship between the church and the constitutional state reveals the unique position of church law in terms of the church's self-understanding and the possibilities of the self-rule of the church, within the context of entrenched religious rights and a sound church-state relationship. This study sets out to contribute to a framework of understanding that provides the impetus necessary for the autonomy of the church in South African society, notably of the churches of Reformed descent and theology. Major events in the general history of the relationship between church and state, church-state relationships in other legal systems, and the relationship between the church and the judiciary in South Africa, have shaped church governance and influenced the self-expression and legal status of churches. The study investigates the impact of these influences on church law. The right to freedom of religion (buttressed by related rights and the diversity demands of a pluralistic society), as a quintessential fundamental right, essentially warrants a strong presumption in favour of the church. To disregard the uniqueness of church law may even be contra bonos mores. The pertinent issue is the status of church law as a ius sui generis and the freedom of religious institutions (including churches) to promulgate and enforce their own rules, standards, and regulations. The influence the inimitability of church law has on churches' right to regulate their own affairs pertaining to focus areas such as doctrine, offices, authority of church assemblies, ecclesiastical tribunals, property, membership, discipline, and labour relations is examined in this study. Internal arrangements contained in church books of order ought to survive constitutional analysis �?provided they conform to the church's own tenets and are officially endorsed. The legal position of churches in South Africa and the consequence of this position in terms of the Constitution were reviewed critically and the content, application, and limitation of religious rights, as far as these issues pertain to church law, were explored and evaluated. It is shown that the state and civil courts should not become entangled in matters of religious doctrine. The concept of 'doctrine should of necessity be extended to include interpretation of church orders and constitutions, and indeed be construed to include the whole body of established church law. The courts, in general, must accept the church's analysis of its own statutes and the state should not be involved in matters of church law at all, owing to the contiguity between doctrine and church order. As the church is the embodiment of exercised fundamental rights, church law is shown to be an interest worthy of protection. The doctrine of positive neutrality is considered as a feasible model for a sound church-state relationship. Churches have both rights and responsibilities vis-àvis the state, while the state's minimum duty towards the church is to afford it ample opportunity to function without being burdened by limitations and coercion relating to its core tenets and practices. The courts and authorities need to be mindful of the church's self-understanding as elucidated by its self-definition in terms of the Bible and its settled tenets. Churches, as associations sui generis, have a reciprocal duty to act within the dictates of human dignity, public policy, and the law, while maintaining the right to claim their Biblical-prophetic autonomy and constitutional sanction. In drawing all the observations and conclusions together it is revealed how church and state can exist complementary alongside each other �?each sovereign in its own domain �?pursuing the same goals of advancing justice and the common good.