Foundations of Mauritian Law LAWS 1007Y (1)

The terms law and religion denote two complex realms of life that have much shared in
history and continue to intersect in the modern world. In both spheres, personal, institutional,
and textual authorities jostle with each other, and with the norms derived from custom and
convention. Both spheres contribute to the shaping of group identities, the legitimation of power,
and the regulation of society. The core objective of this analysis is to illustrate how a full range
of religious aspects become legally relevant and religious plurality raises new challenges to legal
systems. The challenges posed by the interaction of law and religion in our jurisdiction, and in
international law, are essential challenges raised by an increased respect for the increasing fact of
religious difference within each jurisdiction. The appropriate relationship between religion and
law has been a source of almost continuous debate. This debate frequently moves into the
judicial arena. The areas to be highlighted upon the interaction between religions with law in this
context are religion conversion, marriage and intercultural marriage, abortion, homosexuality,
the wearing of the veil and the death penalty.

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Religious conversion is the experience of one or more of the following phenomena. At the
fundamental level, conversion is the awakening of religious knowledge within a human being
who had previously no belief with religious matters. This awakening to moral and spiritual
realities thus precedes a transformation of lifestyle and thought patterns often taking place over a
long period of time and requiring a significant level of effort and commitment as described in the
spiritual teachings of the world's great religions. This transformation is the first and basic
meaning of religious conversion. In popular usage, religious conversion refers to the adoption of
a set of beliefs identified with one particular religion to the exclusion of others. Thus 'religious
conversion' would describe the abandoning of adherence to one denomination and affiliating
with another. This might be from one to another denomination within the same religion.
The United Nations Universal Declaration of Human Rights defines religious conversion as
a human right: "Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief...." (Article 18) In spite of this some groups
forbid or restrict religious conversion.
Based on the declaration the United Nations Commission on Human Rights (UNCHR) drafted
the International Covenant on Civil and Political Rights, a legally binding treaty. It states that
"Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice..." (Article 18.1). "No one
shall be subject to coercion which would impair his freedom to have or to adopt a religion or
belief of his choice" (Article 18.2).
However, religion has another perception for religious conversion. As the saying goes, The time
when I was converted was when religion became no longer a duty, but a pleasure. This clearly
shows that the moment a person thinks of converting, that very moment shows that the latter is
unfaithful to his former religious group and belief. The preachers of each religious group share
their knowledge and views so as people observe them and follow them. Changing ones religion,
for any reason, would imply being unfaithful towards ones parents, family and those preachers.

Foundations of Mauritian Law LAWS 1007Y (1)

Another point for debate could be inter-religious marriages. An inter-religious marriage is a

marital union in which the partners believe and belong to different religious traditions. Hinduism
declares that there are always innumerate paths to God and that ones belief of perception of God
is an individual matter and best left to the individual to decide his own path. Hindus have never
hesitated to respect the freedom of other faiths to coexist and flourish and so inter-religious
marriages are accepted in Hindu society. On the other hand, Islam allows a man to marry a nonMuslim only if she is Christian or Jewish. However, Muslim women are prohibited by Islamic
law from marrying outside of Islam.
On the other extreme, a civil marriage is the union of two people recognised by state as per the
marriage laws. Marriage is one of the basic civil rights of man, fundamental to our very existence
and survival whether it is a civil or an inter-religious one. United States Federal Laws states that
the word "marriage" means only a legal union between one man and one woman as husband and
wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a
wife. Thus civil marriages in the United States approve inter-religious marriages. If we take the
case if India, there is the Special Marriage Act 1954 which is also available for inter-religious
marriages and does not exempt any community from its provisions. The Hindu Marriage Act
1995 applicable to Hindus, Buddhists, Jains and Sikhs does not allow them to marry outside
these four communities. So, if any member of these communities wishes to marry a person not
belonging to these communities, the only choice available would be the Special Marriage Act
1954.

Foundations of Mauritian Law LAWS 1007Y (1)

Homosexuality is a romantic or sexual attraction or behaviour between members of the same sex
or gender. Since the end of the 19th century, there has been a global movement towards
increased visibility, recognition and legal rights for homosexual people, including the rights to
marriage and civil unions and the introduction of anti-bullying legislation to protect
homosexuals. However, despite the legalization of homosexuality by some jurisdictions, there
are religions who have strongly opposed so.
Homosexuality is considered as the greatest crime, the worst of sins and the most abhorrent of
deeds in Islam and even faces punishment in some Islamic countries such as Saudi Arabia, or
Islamic Republics such as Iran. The mainstream interpretation of Qur'anic verses and Hadith
strictly condemn homosexuality. Homosexual sodomy attracts the same penalties as adultery or
fornication, that is, either stoned or flogged to death, but the exact punishment varies with
schools and scholars.
Christian denominations hold a variety of views on the issues of sexual orientation and
homosexuality, ranging from outright condemnation to complete acceptance. Abrahamic
religions, such as Christianity, traditionally condemn male homosexual behaviour, although
many denominations have instead developed accepting views. Not all members of a
denomination necessarily support their church's views on homosexuality.
Hindu views of homosexuality are diverse. Homosexuality is regarded as one of the possible
expressions of human desire and Hindu mythic stories have portrayed homosexual experience as
natural and joyful. There are several Hindu temples which have carvings that depict both men
and women indulging in homosexual sex. In 2009, The United Kingdom Hindu Council issued a
statement that 'Hinduism does not condemn homosexuality', subsequent to the decision of the
Delhi High Court to legalise homosexuality in India.

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Since Turkeys military rulers in December 1982 imposed a ban on the wearing of the veil, or
hijab, by female students and teachers in state schools and universities, the veils place, propriety
and meanings have been the subject of heated debate. But just as the veil means different things
in different countries, government policy or accepted customs about the veil vary greatly in the
countries around the world. Heres a country-by-country look at the veil and the law in The
United States, France, The United Kingdom and Mauritius:
The United States: The veil has not been an issue in the United States as it has been in Europe.
The First Amendment forbids government from interfering with individuals religious
preferences or dress. Students wear the veil in public schools or state colleges largely without
controversy.
France: Wearing the veil in state schools is banned. Legislation was passed in March 2004
regulating the wearing of signs or dress manifesting a religious affiliation in State primary and
secondary schools. The legislation states: In State primary and secondary schools, the wearing
of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school
rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with
the pupil. The law applies to all state schools and educational institutions, but not to state
universities.
United Kingdom: A tolerant attitude toward students wearing religious signs, especially the
Muslim veil, is giving way to restrictions. In March 2007, Education Secretary Alan Johnson
gave state schools authority to ban the wearing of Muslim veils on safety, security and
teaching grounds. The policy, however, applies only to full-face-covering veils, not to mere
head scarves.
Mauritius is a model to the other countries in the sense that it is a multi-racial country whereby
there is the peaceful co-existence of several religions. No such law that interfere with
individuals religious preferences or dress exists. However, it is to be noted that the prohibition

Foundations of Mauritian Law LAWS 1007Y (1)

to wear the Islamic veil exists among the rules and regulations of a majority of the secondary
schools, be it formal or informal.

Capital punishment is a legal process whereby a person is put to death by the state as a
punishment for a capital offence. Currently Amnesty International considers that most countries
do not practice capital punishment. However, there are still 58 countries where executions take
place, such as the People's Republic of China. As for the European Union member states, Article
2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital
punishment.
In Islam, the Quran considers that life is sacred and everyone has the right to life. Islamic law
(Shariah) states that only two crimes are punishable by death. First intentional murder - it is up
to the victims family to decide. On the other hand, Fasad fil-ardh - spreading mischief in the
land - refers to those crimes that destabilize the society such as apostasy (conversion from Islam
faith to another faith), terrorism, rape, adultery and homosexual behaviour. This is true in Islamic
countries like Yemen, Qatar or Afghanistan.
In Christianity, the death penalty is consistent with Old Testament Biblical teaching which
suggests that God created the death penalty for 36 capital offences like murder and the state acts
as the agent of God, who does have legal power over life and death. But many Christians believe
that God commanded "Thou shalt not kill" (Exodus 21:13), and that this is a clear instruction
with no exceptions. Capital punishment is incompatible with a teaching that emphasises
forgiveness and compassion with the main aim being that life should always be supported.
For Hinduism, capital punishment can be inferred in some religious scriptures such as in
Bhagavad Gita in which it is stated that the death of offenders is necessary. In addition, the
Indian teacher Swami Prabhupada has agreed that capital punishment is necessary for crimes
such as murder. However, Hinduism opposes killing, violence and revenge, in line with the
principle of ahimsa (non-violence).

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Abortion is the termination of pregnancy by the removal from the uterus of a foetus prior
to viability. In countries where abortion is legal, some requirements are sometimes necessary: the
age of the foetus being known, permission of parents in case of a minor daughter, informing
patients of risks and consensus of medical authorities that it is medically or socially important. In
jurisdictions where abortion is banned, it is performed under exceptional cases such as rape,
incest or the threat to the mothers life.
In Islam, views on abortion are based on the Hadith (acts agreed by Prophet Mohammed). The
majority of Muslim scholars permit abortion in special cases and agree that the termination of a
pregnancy after 120 days the point at which, in Islam, a foetus is thought to become a living
soul is not permissible. Several Islamic thinkers contend that in cases prior to four months of
gestation, abortion should be allowed only when the mothers life is in danger, or in rape cases.
For Hinduism, classical Hindu texts strongly condemn abortion. When considering abortion, the
Hindu way is to choose the action that will do least harm to all involved: the mother and father,
the foetus and society. In practice, however, abortion is practiced in Hindu culture in India,
because the religious ban on abortion is often subject to the cultural preference for son leading to
the problem of female foeticide at birth. Some Hindus support abortion in cases where the
mother's life is at imminent risk or when the foetus has a fatal developmental anomaly but it
should be done within three months as now the foetus is supposed to have a soul according to
Hindu scriptures.
For Christianity, early Christian text condemned abortion without distinction and was considered
a sin at all levels. Early church councils punished women for abortions that were combined with
other sexual crimes. The Catholic Church considered abortion as homicide because they were of
opinion that the embryo had a soul from conception. In modern times, the Catholic Church and
most evangelical Protestants accept indirect abortion to save the life of a pregnant woman but
they are mostly against it.

Foundations of Mauritian Law LAWS 1007Y (1)

From the time when religious views were the only law governing the behaviour of their
adherents to now being two distinct normative systems, law and religion have often intersected.
Sometimes both law and religion are interlinked. Intercultural marriages-accepted by Hinduismare good illustrations. Hence two adults from different religions will have no problem to marry
as it will be accepted both legally and religiously. In many situations, law and religion would
directly conflict and would have diverging views. One could be more powerful than the other.
Religion views often take precedence over the law. For example homosexuals are often afraid to
talk openly about their sexuality for fear of exclusion from their religious groups including their
own families and friends even though the law does not object to it in some states. Most of the
time people follow their religion instead of the law. On some other occasions; the law will take
over religion. In the case of the wearing of the veil by women- encouraged by Islam- it is banned
in some jurisdictions and hence religious faithful have no choice but to abide by the law or else
they can be punished legally. It should be noted that a person can do anything prescribed by his
religion as long as it conforms to the law. Moreover if someone wants to change religion, he can
do it legally but most of the time his religion will not permit so. While in some circumstances
their correlation may be uncertain. For example, the death penalty is accepted by some
jurisdictions. Some religious views accept it in exceptional cases such as intentional murder in
Islam and religious views have always been divided. Another good case in point is abortion.
Though some religions have agreed in conformity with some legal systems that it must be used
only in exceptional circumstances, most of the time they will disagree on the loss of a life.
Conclusively, despite their differences, both law and religion has shaped each other and are
doing their jobs.