Legal anthropologists and sociologists of religion increasingly recognize the importance of law in current controversies over religious diversity. Drawing on the case of South Africa, this article explores how such controversies are shaped by contestations over what counts as ‘religion’. Analyzing the historical context and emergent forms of institutional secularity from which contemporary contestations over religious diversity draw, the article explores debates and practices of classification around religion, tradition, and culture, and the ways in which these domains are co-constituted through their claims on the law: on the one hand through an analysis of religion-related jurisprudence; on the other hand through an examination of the debates on witchcraft, law, and religion. I argue that the production of judicial knowledge of ‘religion’, ‘culture’, and ‘tradition’ is tied up with contestations over the power to define the meaning of the domains. In fact, contrary to notions of constitutionality in which rights seem to exist prior to the claims made on their basis, in a fundamental sense rights struggles help to constitute the contemporary human rights dispensation. Against the Comaroffs’ claim that judicialization depoliticizes power struggles, I show that legal claims making remains vibrantly political.
AmoahJewel. 2011. ‘Religion vs Culture: Striking the Balance in the Context of Traditional African Religions in the New South Africa’. In Thomas W.Bennett (ed.)Traditional African Religions in South Africa Law. Cape Town: UCT Press37-62.
AmoahJewel and TomBennett. 2008. ‘The Freedoms of Religion and Culture Under the South African Constitution: Do Traditional African Religions Enjoy Equal Treatment?’Journal of Law and Religion24.11-20.
BurchardtMarian. 2013a. ‘Belonging and Success. Religious Vitality and the Politics of Space in Cape Town’. In IreneBecciMarianBurchardt and JoséCasanova (eds.) Topographies in Faith. Religion in Urban Spaces. Leiden und Boston: Brill165-186.
BurchardtMarian. 2016. ‘ “Public Religion” or State Regulation? Religious Diversity in Post-Apartheid South Africa’. In AndrewDawson (ed.) The Politics and Practice of Religious Diversity. National Contexts Global Issues. New York: Routledge187-204.
BurchardtMarian. 2017. ‘Pentecostal Productions of Locality: Urban Risks and Spiritual Protection in Cape Town’. In AnnaStrhan and DavidGarbin (eds.) Religion and the Global City. London: Bloomsbury78-94.
ComaroffJean and JohnComaroff. 2005. ‘Law and Disorder in the Postcolony: An Introduction’. In JeanComaroff and JohnComaroff (eds.)Law and Disorder in the Postcolony. Chicago, IL: University of Chicago Press1-56.
CowanJane K.2001. ‘Ambiguities of an Emancipatory Discourse: The Making of a Macedonian Minority in Greece’. In Jane K.CowanMarie-BénédicteDembour and Richard A.Wilson (eds.)Culture and Rights: Anthropological Perspectives. Cambridge: Cambridge University Press152-176.
Du PlessisLourens. 2009. ‘Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law’. Potchefstroom Electronic Law Journal12.410-34.
Du PlessisLourens. 2011. ‘The Constitutional Framework for the Protection of Religious and Related Rights in South Africa’. In Thomas W.Bennett (ed.)Traditional African Religions in South Africa Law. Cape Town: UCT Press90-111.
KirschThomas G.2009. ‘Constitutionally Divine: Legal Hermeneutics in African Pentecostal Christianity’. In Thomas G.Kirsch and BertramTurner (eds.)Permutations of Order. Religion and Law as Contested Sovereignties. Farnham: Ashgate165-184.
KoenigMatthias. 2015. ‘Governance of religious diversity at the European Court of Human Rights’. In JaneBolden and WillKymlicka (eds.)International Approaches to Governing Ethnic Diversity. Oxford: Oxford University Press51-78.
MinnaarAnthony. 2003. ‘Legislative and legal challenges to combating witch purging and muti murder in South Africa’. In JohnHund (ed.) Witchcraft Violence and the Law in South Africa. Pretoria: Protea Book House.
Ralushai Commission. 1996. Report of the Commission Inquiry into Witchcraft Violence and Ritual Murders in the Northern Province of the Republic of South Africa. Ministry of Safety and SecurityNorthern Province, Republic of South Africa.
RautenbachChrista. 2010. ‘Umkhosi Ukweshama: Revival of a Zulu Festival in Celebration of the Universe’s Rites of Passage’. In Thomas W.Bennett (ed.)Traditional African Religions in South Africa Law. Cape Town: UCT Press63-89.
RobinsSteven. 2001. ‘NGOs, “Bushmen” and Double Vision: The p khomani San Land Claim and the Cultural Politics of “Community” and “Development” in the Kalahari’. Journal of Southern African Studies27.4833-853.