The Interrelationship between Freedom of Thought Conscience and Religion and The Rule of Law

Giles, Jessica (2023). The Interrelationship between Freedom of Thought Conscience and Religion and The Rule of Law. Journal of Law and Religion, 38(3) (In Press).

Abstract

This article explores the connection between the rule of law and the right to freedom of thought, conscience, and religion (FTCR) from an empirical and theoretical perspective. It posits that the two are not merely interdependent, but that FTCR is foundational for embedding the rule of law. To support this thesis, the article first identifies a conundrum facing states seeking to embed FTCR as a constitutional right. This is that FTCR requires the maximization of an individual’s freedom to follow one’s own ethical framework. At the same time, a state will want to build common consensus to encourage compliance with societies’ core norms. It further posits that a state needs to facilitate FTCR to encourage the exploration of virtue to inform consensus around societies’ common norms. This virtue building role of FTCR gives it its foundational role for embedding the rule of law. This is based on Martin Krygier’s analysis of the sociological conditions necessary to embed the rule of law. Krygier argues that any given society needs to have accepted the norms which lay the ground for more than mere isomorphic mimicry in rule of law implementation. Having explored the theoretical links between FTCR and the rule of law, the article moves on to explore whether the foundational nature of FTCR for the rule of law is born out in practice. A comparison is undertaken of the worldwide rule of law, religious freedom and happiness indexes. The conclusion is that the data demonstrates a strong but not exhaustive correlation. This leads to an intermediate conclusion that global rule of law measures ought to include a weighted measure of religious freedom in any given state. A key problem identified in the theoretical and empirical analysis is that current approaches to FTCR and the rule of law carry a Western bias with an individualistic approach which potentially and ultimately undermines of the rule of law. To address this, the article then explores an expanded theory to support FTCR to bolster its acceptance as universal right. The theory of common grace is proposed, together with Rowan Williams’ other-regarding, communal approach to rights. This is then situated in the framework for plural living together proposed by Herman Dooyeweerd.
This article proposes that Dooyeweerd’s Christian theological approach could be adapted with a plural metanarrative to accommodate dialogue around virtue building and dispute resolution within societies with very different outlooks. This approach would potentially support a universal approach supporting the interconnection between FTCR and the rule of law.

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