US and UK courts define religion as a belief-system which deals with existential concerns, which ... more US and UK courts define religion as a belief-system which deals with existential concerns, which is separable from politics, and which need not be theistic. Where does this conception of religion come from? To ask this question is to accept that this conception is one among several and that it is historically contingent. Some religious studies scholars trace it to the advent of the Protestant Reformation, when religion became essentially a matter of competing theological propositions. They are half right. My analysis of both John Calvin and Roger Williams shows that those Protestant authors emphasised the view that religion is essentially a belief-system. However, pace these religious studies scholars, Protestantism cannot explain all the four features of the US/UK conception of religion. To explain why religion is separable from politics and need not be theistic we have to factor in liberalism. It is because of the liberal belief in individual rights and in popular sovereignty that early liberals like Roger Williams embraced the separability of religion from politics. Contemporary courts do the same for the same reason. They also reject the view that religion is necessarily theistic given their liberal commitment to ideological pluralism. US and UK courts do not want to treat citizens that subscribe to certain ideologies as second-class citizens simply because those ideologies are not theistic. Consequently, Protestantism is not enough to explain the prevailing legal definition of religion in the US and UK; we also need liberalism.
This paper argues for a theory of the rule of law which is inclusive of sentient non-human animal... more This paper argues for a theory of the rule of law which is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron and Allan, by showing that their theories presuppose that that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals and also certain humans who do not have rational capacities. If we instead view the basic idea of the rule of law as restraining arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether or not endowed with rational capacities, can all be victims of arbitrary power. So we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. The paper sets out such an inclusive theory.
People object to performing their legal duties based on their religious beliefs? Should courts t... more People object to performing their legal duties based on their religious beliefs? Should courts take into account the religiosity of their beliefs when considering whether the exemption should be granted?
Some scholars have argued that the principle of toleration underlines the legal practice of exemp... more Some scholars have argued that the principle of toleration underlines the legal practice of exemptions granted to conscientious objectors. They argue that the principle, which necessarily requires some negative judgement of the objectors, will provide guidance on how such claims ought to be decided. This paper suggests that the practice of conscientious exemptions is neither best explained nor guided by the principle of toleration. The main reason for rejecting toleration is that the law of several liberal states has committed itself to the principle of neutrality towards the content of the beliefs of the conscientious objectors. The paper illustrates the legal doctrine and attempts to morally justify it by invoking two arguments for neutrality: the argument from pluralism and the argument from futility. If the arguments for state neutrality are correct and toleration is and ought to be rejected by the law of conscientious exemptions, then toleration cannot help us determine when and how exemptions should be granted. The paper concludes by suggesting that we ought to look for another grounding principle which is likely to be a cluster of mutually supporting moral values, including respect for state neutrality, autonomy, conscience and well-being.
It is argued that the BMA’s current policy on conscientious objection is not aligned with recent ... more It is argued that the BMA’s current policy on conscientious objection is not aligned with recent human rights developments. These grant to medical professionals a right to conscientious objection in many more circumstances than the three recognised by the BMA. However, this wide-ranging right may be overridden if the refusal to accommodate the conscientious objection is proportionate. It is shown that it is very likely that it is lawful to refuse to accommodate conscientious objections which would result in discrimination of protected groups. It is still uncertain, however, in what particular circumstances the objection may be lawfully refused if it poses risks to the health and safety of patients.
It is argued that a limited number of doctors may rely on article 9 ECHR to claim that they have ... more It is argued that a limited number of doctors may rely on article 9 ECHR to claim that they have a conscience-based right to assist the suicide of their legally competent adult patients who, for reasons of disability, are unable without assistance to put into action a voluntary, clear, settled and informed decision to kill themselves. In Carter v Canada, the Canadian Supreme Court rejected the proposition that an absolute ban on assisted dying was necessary to protect vulnerable individuals from the risks of requesting assisted dying for undue reasons. In Nicklinson, the UK Supreme Court did not substantively address that question and it is possible that it may soon have to address that question again. It is argued that in future litigation the UK Supreme Court should accept that an absolute ban disproportionately interferes with a doctor’s conscience-based right to provide assistance in suicide. The argument relies on Carter and on the fact that a permissive legal regime is already in existence in the UK under administrative law principles.
A liberal polity should take seriously the view that its citizens should not be coerced to comply... more A liberal polity should take seriously the view that its citizens should not be coerced to comply with their legal obligations. It should instead pursue the state of affairs where its citizens pay fidelity to their obligations. The criminal ban of the full-veil in France and the stamp of approval given to it by the ECHR in SAS v France betray this view. France and the ECHR should have allowed full-veil wearers to pay fidelity to their conscience and should have exempted the women from a legal obligation which is counterproductive to its stated purpose of facilitating social interaction.
US and UK courts define religion as a belief-system which deals with existential concerns, which ... more US and UK courts define religion as a belief-system which deals with existential concerns, which is separable from politics, and which need not be theistic. Where does this conception of religion come from? To ask this question is to accept that this conception is one among several and that it is historically contingent. Some religious studies scholars trace it to the advent of the Protestant Reformation, when religion became essentially a matter of competing theological propositions. They are half right. My analysis of both John Calvin and Roger Williams shows that those Protestant authors emphasised the view that religion is essentially a belief-system. However, pace these religious studies scholars, Protestantism cannot explain all the four features of the US/UK conception of religion. To explain why religion is separable from politics and need not be theistic we have to factor in liberalism. It is because of the liberal belief in individual rights and in popular sovereignty that early liberals like Roger Williams embraced the separability of religion from politics. Contemporary courts do the same for the same reason. They also reject the view that religion is necessarily theistic given their liberal commitment to ideological pluralism. US and UK courts do not want to treat citizens that subscribe to certain ideologies as second-class citizens simply because those ideologies are not theistic. Consequently, Protestantism is not enough to explain the prevailing legal definition of religion in the US and UK; we also need liberalism.
This paper argues for a theory of the rule of law which is inclusive of sentient non-human animal... more This paper argues for a theory of the rule of law which is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron and Allan, by showing that their theories presuppose that that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals and also certain humans who do not have rational capacities. If we instead view the basic idea of the rule of law as restraining arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether or not endowed with rational capacities, can all be victims of arbitrary power. So we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. The paper sets out such an inclusive theory.
People object to performing their legal duties based on their religious beliefs? Should courts t... more People object to performing their legal duties based on their religious beliefs? Should courts take into account the religiosity of their beliefs when considering whether the exemption should be granted?
Some scholars have argued that the principle of toleration underlines the legal practice of exemp... more Some scholars have argued that the principle of toleration underlines the legal practice of exemptions granted to conscientious objectors. They argue that the principle, which necessarily requires some negative judgement of the objectors, will provide guidance on how such claims ought to be decided. This paper suggests that the practice of conscientious exemptions is neither best explained nor guided by the principle of toleration. The main reason for rejecting toleration is that the law of several liberal states has committed itself to the principle of neutrality towards the content of the beliefs of the conscientious objectors. The paper illustrates the legal doctrine and attempts to morally justify it by invoking two arguments for neutrality: the argument from pluralism and the argument from futility. If the arguments for state neutrality are correct and toleration is and ought to be rejected by the law of conscientious exemptions, then toleration cannot help us determine when and how exemptions should be granted. The paper concludes by suggesting that we ought to look for another grounding principle which is likely to be a cluster of mutually supporting moral values, including respect for state neutrality, autonomy, conscience and well-being.
It is argued that the BMA’s current policy on conscientious objection is not aligned with recent ... more It is argued that the BMA’s current policy on conscientious objection is not aligned with recent human rights developments. These grant to medical professionals a right to conscientious objection in many more circumstances than the three recognised by the BMA. However, this wide-ranging right may be overridden if the refusal to accommodate the conscientious objection is proportionate. It is shown that it is very likely that it is lawful to refuse to accommodate conscientious objections which would result in discrimination of protected groups. It is still uncertain, however, in what particular circumstances the objection may be lawfully refused if it poses risks to the health and safety of patients.
It is argued that a limited number of doctors may rely on article 9 ECHR to claim that they have ... more It is argued that a limited number of doctors may rely on article 9 ECHR to claim that they have a conscience-based right to assist the suicide of their legally competent adult patients who, for reasons of disability, are unable without assistance to put into action a voluntary, clear, settled and informed decision to kill themselves. In Carter v Canada, the Canadian Supreme Court rejected the proposition that an absolute ban on assisted dying was necessary to protect vulnerable individuals from the risks of requesting assisted dying for undue reasons. In Nicklinson, the UK Supreme Court did not substantively address that question and it is possible that it may soon have to address that question again. It is argued that in future litigation the UK Supreme Court should accept that an absolute ban disproportionately interferes with a doctor’s conscience-based right to provide assistance in suicide. The argument relies on Carter and on the fact that a permissive legal regime is already in existence in the UK under administrative law principles.
A liberal polity should take seriously the view that its citizens should not be coerced to comply... more A liberal polity should take seriously the view that its citizens should not be coerced to comply with their legal obligations. It should instead pursue the state of affairs where its citizens pay fidelity to their obligations. The criminal ban of the full-veil in France and the stamp of approval given to it by the ECHR in SAS v France betray this view. France and the ECHR should have allowed full-veil wearers to pay fidelity to their conscience and should have exempted the women from a legal obligation which is counterproductive to its stated purpose of facilitating social interaction.
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