Freedom of Conscience

Several international human rights treaties protect the freedom of conscience as a human right.

For example, Article 18 of the Universal Declaration of Human Rights (UDHR) provides:

“Everyone has the right to freedom of thought, conscience and religion; this right  includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Article 9 of the European Convention on Human Rights (ECHR) provides likewise:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are  necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The meaning and outreach of these provisions are unclear. A very far-reaching interpretation would be that everybody would have the freedom not only to choose whatever religion or worldviews he likes, but also to act in accordance with that religion or worldview. This, however, would imply that the individual conscience would always and everywhere supersede the positive legal order. This would mean that laws would no longer be laws, but mere guidelines. No legal order could function in this way.

Among secularist-minded lawyers, there is therefore a tendency to restrict the freedom of religion rather restrictively, i.e. in the sense of a mere freedom of worship. Where, however, the moral precepts of a religion come into conflict with the positive law, they consider that the positive law must prevail.

Among all religious communities, the Roman Catholic Church is the only one to have developed a doctrine on religious freedom, which is contained in the Declaration “Dignitatis Humanae” that was adopted at the end of the Second Vatican Council. To this day, this is by far the most elaborate text on religious freedom adopted by any religious or secular institution; it must therefore be considered the primary point of reference. However, “Dignitatis Humanae remains controversial in some quarters of the Catholic Church, whereas no other religious community has ever made a comparable statement.

Despite all efforts to frame religious freedom or the freedom of conscience as “rights”, it nevertheless remains a self-evidence that the individual conscience cannot legally supersede the positive legal order if we want that legal order to function.

It therefore seems necessary to draw an important distinction between the moral and the (positivist) legal point of view.

From the legal point of view, the positive law has precedence over the individual conscience. From the moral point of view, by contrast, the individual conscience prevails over the positive law. Indeed,  acting in accordance with one’s conscience is, from that point of view, not only a “right”, but a moral obligation that may, in extreme cases, even require a person to contravene the positive law. The sincerity of a moral conviction is in such cases evidenced by a person’s readiness to accept the (oftentimes disagreeable) consequences of having contravened the law rather than acting against one’s own conscience: a conscientious objector must be ready and willing to accept martyrdom (or at least accept that martyrdom is the right option for him to chose if it were not that he lacked courage…) rather than doing what he considers morally wrong. The classical example for this heroic attitude is Antigone, who buries her brother Polynices in defiance of an order by King Creon to leave the dead body on the plain outside the city to rot and be eaten by animals. A true objection of conscience is therefore always in violation of the positive law of which it exposes the injustice.

The fact that man is capable of discerning good from evil means that he the freedom to choose between good and evil. That freedom, however is a faculty, not a right. From a moral point of view, one has never got a right to do evil, but only the obligation (and hence the right) to do what is good.

Contravening an unjust law and accepting the consequences can be an act of moral heroism. Many unjust laws have been vanquished because courageous people chose to disobey them. Mahatma Gandhi and Rosa Parks are shining examples for such courage. However, the abnormality of an unjust law lies not in the fact that it must be obeyed (for all laws must be obeyed), but that it is unjust. Therefore, it hardly can be said that one has a human right to disobey the law. If any human right exists in that regard, it must be the right to  a legal order in which all laws are inherently just, i.e. compatible with Natural Law.