A fresh start I: Education rights in South Africa

In this first part of a two-part article education rights as protected by the South African Constitution are analysed. As background, the education rights protected by section 32 of the interim Constitution and the case law that arose from that provision are discussed. Section 29 of the 1996 Constitution is then discussed with reference to the right to basic and further education, the right to education in the language of one's choice, and the right to private education. Mention is also made of the way in which religious observances maybe conducted in schools. This first part of the article concludes with the observation that the education rights in the Constitution form the basis and the spearhead of the fresh start South Africa has made in education. This revised version was published online in August 2006 with corrections to the Cover Date.     

December dilemmas: The celebration of Christmas in American Public Schools

As contentious as Americans are about prayer 1 and other forms of religious expression in public education, 2 it is amazing to consider the dearth of litigation over a related, complex issue, the celebration of religious holidays, most notably Christmas, in public schools. In fact, while the Supreme Court has addressed Christmas holiday displays on two occasions, and lower courts have examined the appropriateness of Easter as a school or public holiday, there has been no direct litigation on the place, if any, of Christmas in public schools. The question is all the more complex due to the important place that religion has played, and continues to occupy, in American life as educators seek ways to teach students to appreciate diversity in all of its manifestations, including religion. This article briefly reviews the litigation in this area, little of which admittedly involves education, and reflects on the 'December Dilemma' that confronts educators in American public schools.     

Learning under the cross: legal challenges to ‘cultural–religious symbolism’ in public schools

This article examines the nature and scope of the legal challenges mounted against religious symbolism in European public schools. It discusses religion in education and the relationship between Church and State in European societies. The European Court is defining what counts as a religious symbol through a secular lens and while the court upholds the right to hold a religious belief it qualifies this right to manifest belief in public. This article argues that the courts should be more accommodating in their approach towards the public manifestation of religious beliefs and traditions.     

借鉴与完善：遏制宗教极端主义的立法研究

我国打击宗教极端主义的立法不够清晰,限制宗教极端主义思想传播的法律制度落后。同时宗教管理也存在一定的缺陷。因此,须完善我国打击宗教极端主义的立法以及相关制度,要准确落实我国的宗教政策,将宗教限制在私人空间。在公共领域宗教并无自由。我国须加强国家意识和国民意识的教育,并完善打击宗教极端主义的相关立法。应当制定反恐法,将宗教极端主义行为及言论作为反恐法管制的对象之一。完善刑法规范以打击宗教极端主义。应当在刑法中增加“领导、组织宗教极端主义组织罪”、“领导、组织宗教极端主义活动罪”等,并完善互联网的相关立法。     

Using the Wrong Policy Tools: Education,Charity, and Public Benefit

A recent decision on the application of public benefit under the Charities Act 2006 sidestepped the political debate surrounding the charitable status of independent fee‐charging schools. The broader political context nevertheless underscores the legislative reforms, and this article questions whether the new statutory public benefit requirement has utility as a welfare policy tool in the field of education. It examines the public benefit requirement in charity law against the backdrop of government policy towards education and the broader political agenda for a mixed economy of welfare provision, and argues that the difficulties Labour faced in developing its education policies were replicated in the application of the post‐Act public benefit requirement to fee‐charging schools. As a result, achieving broader policy goals for widening educational opportunity through public benefit was almost impossible given the regulatory framework and the principles upon which charity law is founded.     

First amendment values and government participation in the marketplace,fifty years after the Hutchins report

The Hutchins Commission took a favorable view of government speech; Its report recommended that government act as a supplementary news source for the public. This article asserts that the commission was “fighting the last war” by focusing on government restraints on the press, while failing to propose limitations on the government's ability to circumvent the press. With the advent of new forms of telecommunications technology, the government might one day replace the private sector press as the public's primary source for news. This article asserts that the Supreme Court should recognize that the Press Clause of the First Amendment guarantees the existence of the private sector press as an independent, nongovernmental branch of our governance system. Based on a “separation of powers” view of Press Clause values, the article argues that the Court should create a First Amendment “right of reply” to any government dissemination of information to the American public in a manner that circumvents the traditional role of the private sector press.     

Law and the Image of a Nation: Religious Conflict and Religious Freedom in a Brazilian Criminal Case

This article examines a criminal trial in Brazil that touched on the imagined role of religion in public life. The case involved a Protestant minister accused of religious discrimination and of vilipending an image of Nossa Senhora Aparecida, the patron saint of Brazil. The prosecution argued and the court concurred that the minister's iconoclastic verbal and physical gestures endangered the constitutional guarantee of religious freedom. Yet the defense claimed that his actions, stemming from his religious convictions, expressed this same principle of freedom. Different visions of religious free-dom are at stake in the case as well as how such freedom relates to the rights and private lives of citizens. Placed in the history of church-state relations in Brazil, the case raises the problem of interpreting concepts of religious pluralism, religious freedom, and freedom of expression in Brazilian law.     

Separation of Church from State in the USSR

The present period in the development of society is characterized by a further weakening of the influence of religious ideology upon the public mind and an acceleration of the process of secularization of governmental and societal relationships. At the same time, in many capitalist countries as well as countries liberated from colonial dependence, religion and religious organizations continue to retain very firm positions and exercise a considerable influence upon the shaping of social relations and the content of legal systems. In a number of countries, religion, its canons, and dogmas are the principal source of law. The clerical movement also exercises a serious influence on the character of norms of public law in capitalist countries.     

‘Burqa Avenger’: Law and Religious Practices in Secular Space

The current debate over the hijab is often understood through the lens of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘West’ and a chauvinist ‘religious’ ‘East’. The article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In my analysis, secular’s normative assumptions, played around the control of women’s bodies and the definition of religious symbols in the public sphere, work as a marker of ‘citizenship’ and ‘racialized religious belonging’. Through women’s bodies, western/secular law creates a link between gender, religion, ethnicity and belonging which forms a specific law and religious subject. Thus, secularism emerges not as the separation between private and public, state and religion, but as the reconfiguration of religious practices and sensitivities in the public secular space through the control of the visible.     

Educational malpractice and setting damages for ineffective teaching: a comparison of legal principles in the USA,England and Australia

The extent to which educational institutions and their teachers in the USA, England, and Australia should bear legal responsibility in damages for ineffective classroom teaching is the subject of this article. At the heart of the controversy regarding educational malpractice is the issue of remedies. Federal and state courts in the USA have resisted awarding damages where such an award would appear to sound in educational malpractice. However, although courts in Australia have yet to declare with any degree of certainty, they appear positioned to follow the English approach that ostensibly acknowledges a school's duty of care to provide effective education for all children.     

Character-building and freedom in education

Educators, parents, and policy-makers in the United States, as in other countries, are concerned about the apparent inability of many schools to contribute to the development of character and civic virtue in their pupils. The answer, experience shows, is not for government to require a pedagogy of state-defined character education which, in a pluralistic society, would inevitably create new conflicts. Instead, education policy should take advantage of the growing interest on the part of educators in creating autonomous, distinctive schools, and the continuing interest, on the part of parents, in being able to choose what school their children will attend. Schools which exhibit a distinctive character based upon a shared understanding of the goals of education are effective not only in teaching academics but also in developing positive character traits in their pupils. Charter schools and educational vouchers are two means of encouraging and supporting such coherent schools. The article concludes with a series of policy recommendations designed to balance the autonomy of schools against the need for public accountability. This revised version was published online in August 2006 with corrections to the Cover Date.     

Unsecured lending and the indigenous economy in Australia and South Africa

Consumer credit is closely regulated in both Australia and South Africa. Nevertheless, unsecured lending often results in financial hardship in low‐income communities. One aspect of this picture is the impact of the consumer debt burden on the Indigenous economy, which is disproportionately affected by poverty in both countries. Here we juxtapose the comparative regulatory regimes and then contextualize the law using an inter‐disciplinary account of each Indigenous economy. We find through this law‐in‐context comparison that neither Australia nor South Africa has fully resolved the problem of Indigenous financial hardship. This mutual failure is confirmed by the recent Kobelt decision of the High Court of Australia and the drastic measures enacted in the South African National Credit Amendment Act 2019. One positive lesson that South Africa provides is that accommodating the Indigenous economy in financial regulation can promote and empower that sector.     

中国法学教育沿革之研究

法学教育是法律的基本问题,而法律是宪政的基本问题。在中国传统历史中,“有系统的社会管制”所对应的不是法,而是中国特有的“礼”。１８４０年以前,中国无西方意义上的法学教育;１８４０年至 １９４９年,中国法学教育进入近代时期,从无到有,出现了一个极为兴盛的局面;１９４９年以后,中国现代法学教育从头开始,经历了曲折的发展过程,为适应社会主义市场经济体制的需要,完善我国法学教育事业还任重而道远。     

论南非法律体系的混合特性

南非的法律体系具有混合性特征。除宪法、制定法、普通法外,习惯法也是南非重要的法律渊源。在公法领域,南非法主要受普通法系的影响,而私法领域则主要体现了罗马-荷兰法、习惯法的痕迹。在司法制度上,南非主要沿袭英国的做法。     

法律与宗教关系的多向度追问

作为共同调整人类社会的规范,法律与宗教存在着千丝万缕、多个向度的联系。从目的指向来看,法律与宗教都关心人类生存的方式与意义;从思想和制度角度来看,法律中的许多思想和制度都发源于宗教和宗教规范;从西方法治建设的演进历程来看,西方法治的形成得益于人们从内心真正信仰宗教权威与规范的传统;从功能上来看,法律和宗教都有凝聚和调试社会等功能,共同成为维系社会的纽带。当下中国,深刻认识宗教与法律的多向度关系之于落实依法治国以及正确应对宗教社会问题都具有重大的意义。     

Some Questions Pertaining to the Study of Government in the System of Legal Education

Courses in government represent different proportions of the curriculum in the system of legal education in various countries. In bourgeois states, it is usually only the public (constitutional) law of their own country and so-called "political science," often amounting to several years in the curriculum (as in Canada, Ethiopia, etc.), that are studied as general disciplines. The object of political science includes, specifically, a comparative study of the political and legal systems of the world (sometimes a number of subdisciplines are combined with constitutional law to comprise a general discipline — constitutional law and political institutions, as is the case in France, for example); but, basically, "political science" goes far beyond the confines of the study of government. In the bourgeois countries, the other subjects in the field of government are handled as special or elective courses, but their scope is very limited. Legal education as such, in the system of training personnel for the administration of justice, is limited essentially to the study of legal institutions. Higher educational institutions and departments of political science are used in the USA, England, France, the Federal Republic of Germany, Italy, India, etc., to train higher and middle-rank officials.     

Local Authorities and the Accountability Gap in a Fragmenting Schools System

Reforms to the English education system under the UK's coalition government are building on the so‐called ‘schools revolution’ that previous Labour governments began through legislation increasing both schools' autonomy from local authorities and the system's diversity. Growing numbers of state‐funded schools have converted to academies outside local authority control, particularly since the Academies Act 2010, while opportunities have emerged for ‘free schools’ to be established by various interest groups. The right to establish a school has normative human rights underpinnings, yet the government's policy as a whole is particularly controversial due to the increased risk of social division, instability of local schooling arrangements and significantly reduced local democratic accountability for state funded education. This article questions whether, against a background of three decades of centralising educational reform and a concomitant decline in the role of local (education) authorities, the local public interest in education is being adequately safeguarded.     

American Indian religion in the iron house: searching for ‘some accommodation’

Religious freedom claims by American Indian prisoners are disfavored in law and policy more than most prisoner civil rights claims. This disfavor reflects the continuing influence of the cultural distance between traditional Indians and Christianity – a distance with an unfortunate history from the Indian point of view. The salutary effects of Christian religion within prisons have been assumed for as long as prisons have existed; this assumption is based upon scant evidence. Treating Indian religious expression as inferior to Christian religious expression within prisons is often allowed by law, but it is insupportable in policy without reference to the historical power relationship between Indians and the dominant culture. Indian spirituality, like Christianity, can engage prisoners in the moral discourse demanded by the tenets of restorative justice. Accommodation of Indian spirituality is as much in the public interest as accommodation of religion within prisons at all.     

South Africa's unintended experiment in school choice: how the National Education Policy Act,the South Africa Schools Act and the Employment of Educators Act create the enabling conditions for quasi-markets in schools

School choice is often identified with right-leaning, voucher-happy, market-oriented public school systems like those found in the United States. Thus, the proposition that a social democratic state such as South Africa will offer many primary and secondary school learners far greater choice strikes many as counter-intuitive and implausible. The authors demonstrate that the three major pieces of education framework legislation—National Education Policy Act (NEPA), South Africa Schools Act (SASA) and Employment of Educators Act (EEA)—conspire with recent historical events and deep political and constitutional commitments to create South Africa's unintended experiment in school choice.

The authors emphasize that the legal framework created by legislation and regulation are necessary but not sufficient conditions—they prefer to call them enabling conditions—for the creation of quasi-markets in schools. The generation of quasi-markets in schools depends on several other factors required for all markets. The absence of many of these features in much of South Africa explains why the majority of South African learners do not have access to quasi-markets in schools. The absence of such features is largely a function of apartheid's legacy of deeply entrenched patterns of inequality in primary and secondary schooling.

Having demonstrated that historical, political, legal and economic conditions had the unintended consequence of producing school choice—and that school choice was not the result of the state's adoption of a conscious and deliberate policy—the authors examine the state's response to this de facto policy. The authors remain agnostic as to the desirability of the de facto policy and conclude with an exploration of some of the primary critiques of choice in South Africa. While they dismiss the ‘political’ critiques as largely facile, the available empirical evidence suggests the limited systemic benefits and the potentially deleterious consequences for the poorest of the poor who reside in areas where quasi-markets exist. The state's current ‘conscious’ attempts to re-engineer a modest mixed model, that emphasizes access to existing quasi-markets—and thus exploits superior existing school stock for the benefit of learners from historically disadvantaged communities—and that shifts public resources to those schools in the greatest need, accords with what little we know about the advantages and disadvantages of choice.     

Law,the State,and Public Order: Regulating Religion in Contemporary Egypt

A substantial scholarship has studied the extent to which states across the political and geographic spectrums rely on legal, bureaucratic, and judicial institutions to govern religion. However, a deeper inquiry into the mechanisms through which regulation occurs has yet been achieved. This article foregrounds conversion, understood as mobility between social groups in which belief and sincerity may figure but is not reducible to either, to observe these dynamics. Through an analysis of Egyptian jurisprudence on the right to change religion as well as interviews with complainants and litigators, the article challenges widespread assumptions about who and what constitute the regulatory field. It also shows how religious difference is produced in the legal‐bureaucratic encounter. By accounting for institutions that are not typically considered part of the regulatory field nor thought to be bound by the strictures of legal positivism, this article further occasions a rethinking of the public–private distinction within critiques of secularism.