![]() I probe the question against the background of the debate in South Africa about state regulation of religion, specifically the recent proposal of the South African Commission of Religious Rights that regulatory mechanisms need to be devised in order to prevent harm-doing in the name of religion. This article asks whether the harm principle is sufficiently consistent and coherent to serve as a criterion for protecting or limiting religious rights. Moreover, the principle has been formally used in court cases pertaining to the protection or limitation of religious freedom (Barclay 2020:334 Du Plessis 2016:349). It has been used in human rights jurisprudence to determine the conditions under which the state is justified to coerce persons in order to prevent harm to others (Du Plessis 2016:349 see Holtug 2002:360 see Barclay 2020:346). To this day, the harm principle occupies a prominent place in criminal law theories and liberal political theory (Dripps 1998:3). By using risk as a determining factor, the ex-ante position gives a wider ambit to the harm principle than the ex-post version. The ex-post version holds that coercion is only permissible when it in fact prevents or minimises harm, whilst the ex-ante position posits that coercion is justified only if it prevents or reduces risk (Holtug 2002:359). As a result, the principle has developed into two versions. The harm principle was refined in the 20th century by legal theorists such as Herbert Hart (1907-1922), Joseph Raz (1939-) and Joel Feinberg (1926-2004). In this way, Mill attempted to protect individual autonomy and curb the propensity of the state to unduly criminalise human conduct. To justify prohibition, a wrong act must be connected to bad effects on others (Ripstein 2006:219). ![]() Mill contends that the intrinsic nature of an act, or the intention behind an act, can never serve, on its own, as a sufficient reason for prohibition or criminal sanction. Over himself, over his mind and body, the individual is sovereign. In the part which merely concerns himself, his independence is, of right absolute. ![]() He only purpose for which power can be rightfully exercised over any member of a civilised society, against his will, is to prevent harm to others … The only part of the conduct of anyone, for which he is answerable to society, is that which concerns others. In his much-discussed essay entitled On Liberty (1863), John Stuart Mill (1806-1873) articulates the harm principle as follows: Keywords: religious freedom harm principle Cultural, Religious and Linguistic Rights Commission South Africa religious rights. It calls for a re-evaluation of the harm principle in legal and philosophical discourse and for the development of alternative conceptual tools in human rights discourse to assist in judgements pertaining to the limitation of religious rights. INTRADISCIPLINARY AND/OR INTERDISCIPLINARY IMPLICATIONS: This study brings into dialogue religion, legal philosophy and human rights discourse against the background of the debate in South Africa about state regulation of religion. Moreover, the 1996 Constitution's embrace of dignity as Grundnorm, concomitant with the incorporation of the notion of crimen injuria in South African common law, makes it potentially easy for the state to limit freedom of expression and intervene in religious matters under the guise of the so-called dignitary harms. Although harm is always a consideration in rights discourse, the concept does not lend itself to categorical use or as a trustworthy standard for general limitations on rights. The main thesis presented is that the harm principle is fluid and open to ambiguity. In effect, the Commission employed the harm principle to advocate a general limitation of religious rights. The philosophical and legal plausibility of the concept is discussed against the setting of the South African Cultural, Religious and Linguistic (CRL) Commission's recent recommendations with regard to regulation of religion. This article asks whether the harm principle, as originally formulated by John Mill and applied in religious rights discourse, is sufficiently coherent to be used as a criterion for the limitation or protection of religious rights. Unit for Reformational Theology, Faculty of Theology, North-West University, Potchefstroom, South Africa ![]() Defining harm: The harm principle and religious rights in South Africa ![]()
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