Restoring Freedom of Conscience

Journal of Law and Religion 30.2, 2015, 176-193

27 Pages Posted: 12 Mar 2017 Last revised: 15 Mar 2017

See all articles by Rafael Domingo

Rafael Domingo

University of Navarra - School of Law

Date Written: March 7, 2017

Abstract

This paper argues that secular legal systems need a better defined space for freedom of conscience because this important right has been crowded out by both freedom of religion and freedom of thought. Based on the principles of the Protestant Reformation, American constitutionalism expanded the idea of freedom of conscience to the point of making it almost interchangeable with freedom of religion. On the other hand, international law, followed by European constitutional law, reduced the political force of the concept of freedom of conscience by assimilating it to freedom of thought. And yet freedom of conscience cannot be treated just the same as either religious freedom or freedom of thought. By nature, the secular legal systems of political communities are moral, but non-religious. So morality and religion affect legal systems in different ways; for this reason, freedom of conscience and freedom of religion should be protected using different legal devices. The so-called privilege of abstaining (beneficium abstinendi) best protects freedom of conscience; freedom of religion, by contrast, is appropriately protected by what I will call the religious exception (exceptio religiosa). The consequences of applying these legal tools in particular cases, and their proper scopes, depend on the constitutional model of the political community in question. But in general, our globalized, diverse, and multicultural society demands a wider application of both these legal tools.r Abstract Body]

Keywords: freedom of conscience, freedom of religion, freedom of thought, accommodation, exemptions, public morality

Suggested Citation

Domingo Osle, Rafael, Restoring Freedom of Conscience (March 7, 2017). Journal of Law and Religion 30.2, 2015, 176-193, Available at SSRN: https://ssrn.com/abstract=2929114 or http://dx.doi.org/10.2139/ssrn.2929114

Rafael Domingo Osle (Contact Author)

University of Navarra - School of Law ( email )

Universidad de Navarra
Campus Universitario
Pamplona, Navarra 31009
Spain

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