Defining harm: The harm principle and religious rights in South Africa

Abstract

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. 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. In effect, the Commission employed the harm principle to advocate a general limitation of religious rights. The main thesis presented is that the harm principle is fluid and open to ambiguity. 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. 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.

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. 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.