Introduction
What is the extent to which the right to freedom of thought, conscience, and religion and the rule of law are interdependent? Can freedom of thought, conscience, and religion, in fact, be said to be foundational to effective implementation of the rule of law? What is the challenge faced by states seeking to incorporate the right into their constitutional structures? How is this challenge shaped by the very different social and political environments across the world?
The conundrum for states is that freedom of thought, conscience, and religion, as it has been developed in the jurisprudence of national and international courts, seeks to maximize individual freedom. A state however, needs to build consensus for or impose common norms for society—norms that may be in conflict with the ethical frameworks by which individuals may want to live their lives. This disconnect necessitates a form of dialogue around the virtues informing the lives of individuals and those of the communal life of society. Such a dialogue on the virtues upon which individuals and society center their lives provides the foundational link between freedom of thought, conscience, and religion and the rule of law.
One way to consider the rationale underpinning the rule of law is by drawing on Martin Krygier’s sociological approach.Footnote 1 For Krygier, the rule of law is about controlling abusive power and facilitating power that enhances human flourishing. The question when embedding the rule of law is not how far a country complies with a list of attributes of the rule of law. The question is rather about building the type of virtues in society that ensure the rule of law can be embedded. Krygier argues that this needs to be contextualized for different countries, and thus embedding the rule of law will take a different approach depending on the sociological and historical context. I propose that it is this task that requires the operation of freedom of thought, conscience, and religion as a mechanism to facilitate dialogue and virtue building.
Is the theory that freedom of thought, conscience, and religion is foundational for the rule of law borne out in the empirical data? A comparison of the Rule of Law Index: 2021 from the World Justice Project, the Pew Research Center’s data on religious restrictions around the world, and the World Happiness Report 2021 (as an approximation for a measure of freedom of thought and conscience)Footnote 2 suggests that there is generally a link between these three indices. Countries scoring highly on one score highly on the others. There are, however, some outlying results suggesting that a weighted measure of freedom of thought, conscience, and religion be used in the Rule of Law Index. A weighted measure not only would make it possible to measure current state practice but could provide a litmus test to enable international organizations to identify where the rule of law was in danger of being eroded in the future within a given state.
It is not enough, however, to identify the importance of freedom of thought, conscience, and religion for rule of law implementation and the internationalization of the rule of law. A fresh approach is needed to support freedom of thought, conscience, and religion. Indeed, if it is to support the embedding of the rule of law across the world, this critical freedom needs a theoretical basis that is universally acceptable. Such a theory needs to sit within a framework for plural living together that can also find acceptance both within and beyond Western liberal democracy.
In what follows, I align the theory of common grace with the other-regarding community-building rights theology of Rowan Williams. To address the need to facilitate the operation of freedom of thought, conscience, and religion and consequently support the embedding of the rule of law, I offer an analysis of the philosophical political theology of Herman Dooyeweerd.Footnote 3 Dooyeweerd’s Christian metanarrative supporting interactions between different spheres of social organization provides a framework that could equally fit within a plural metanarrative to support the internationalization of the rule of law. I offer a Christian theological dialogic approach—a metanarrative open to discourse with those of other faiths and none.
I believe that a multivalent approach to freedom of thought, conscience, and religion and the rule of law is possible. A theoretical basis for weighing individual, communal, and societal interests to reach consensus at a national and international level strengthens the interrelationship of freedom of thought, conscience, and religion and the rule of law to facilitate the more effective embedding of the rule of law within civil society.
Initial Propositions: Freedom of Thought, Conscience, and Religion and the Rule of Law
The right to freedom of thought, conscience, and religion has won almost universal acceptance around the globe.Footnote 4 This is evidenced by the list of signatories to the International Covenant on Civil and Political RightsFootnote 5 and other international treaties incorporating or supporting the enjoyment of the right.Footnote 6 Even in the early stages, however, incorporation of the right was contentious. This was particularly so within academic circles and within the fifty-seven member states of the Organisation of Islamic Cooperation. It has remained the subject of controversy ever since.Footnote 7 Violations, when they occur, occur both within and beyond countries that adhere to the internationally recognized rule of law framework,Footnote 8 albeit to varying degrees.Footnote 9
The core content of the right has been adjudicated by international, regional, and national courts.Footnote 10 There is some judicial, academic, and international consensus that freedom to choose or ignore a belief system is essential to the right to freedom of thought, conscience, and religion. Freedom from religion is thus an aspect of freedom of religion.Footnote 11 Although, as Paul Cliteur argues, the space for open public debate at the intersection of freedom of thought, conscience, and religion and freedom of speech has become increasingly restricted in the face of “theoterrorism.”Footnote 12 According to Cliteur, Tom Herrenberg, and Bastiaan Rijpkema, freedom from religion thus becomes difficult to enjoy. Thus, fear of the reaction to the exercise of freedom of thought, conscience, and religion prevents the very enjoyment of it.Footnote 13 Echoing the experience in the UK Parliament, Sophie van Bijsterveld traces public nervousness in respect of religion to an earlier stage. She argues that religion “had slowly become a collective blind spot” within a secularized Dutch society. This was before Islam entered public consciousness and reawakened an interest in the “presence of religion.”Footnote 14 Hans-Martien ten Napel, on the other hand, argues that while it seems that more people are secular, there is also more diversity in the significant part of the population that remains religious.Footnote 15 This changing nature of religion in society has existential implications for the operation of freedom of thought, conscience, and religion and its interconnection with the rule of law.
Although there is substantial case law defining freedom of religion as a human right, freedom of thought and conscience are disputed concepts. According to Rafael Domingo, they have in recent years been elided.Footnote 16 The dispute centers, in particular, on whether freedom of thought and conscience are individual subjective notions dependent on genuinely and sincerely held beliefs or they are defined and articulated in the wider context of relationship, a community, or a system of thought.Footnote 17 This is important for the virtue building role of freedom of thought, conscience, and religion for embedding the rule of law. Enabling individuals to explore virtue and exercise agency within their conscience-based communities is equally important as facilitating it for those in faith-based communities.
In practice around the globe are very different constitutional contexts and approaches to public living together within which freedom of thought, conscience, and religion is expected to find its place.Footnote 18 Those states attempting to embed freedom of thought, conscience, and religion can find themselves faced with a conundrum.
The Freedom of Thought, Conscience, and Religion Conundrum
The conundrum that states face regarding freedom of thought, conscience, and religion is the need to maximize individual freedom while also supporting peaceful plural living together built around core consensual norms for society.
Generalizations are difficult in the face of the multiple religions and systems of thought and conscience practiced worldwide. However, it can generally be said that religious and thought systems provide adherents with, among other things, a moral framework according to which they are expected or choose to orientate their lives. Those who are deeply committed to a given faith or belief system are likely to have a strong commitment to the moral framework guiding the behavior of adherents. In some cases, this will be so, even if the commitment puts their lives at risk or leads them to civil disobedience.Footnote 19 John Perry describes this as people of faith “finding themselves subject to multiple loyalties that admit of no harmonization.”Footnote 20 In addition, when the state denies the individual the ability to live according to a specified moral framework different from their own faith norms, it can cause cognitive dissonance for the believer or adherent and could lead the individuals to disengage with public life. Ultimately, such denial of this freedom by the state could cause forms of isolation or ghettoization for faith- or conscience-based groups, especially if the telos of a faith- or conscience-based group may relate to realized or future eschatological benefits. Life holds enhanced meaning for the faithful. Priority may be given to faith-mandated norms, in view of promised future (heavenly) benefits.
The conundrum—needing to mediate between individual freedom and national cohesion—has sociological, political, and legal implications. First, from a sociological perspective, the way a government and the people of any given state mediate religious difference in public life will be contextual. The practical effects of the incorporation of a right to freedom of thought, conscience, and religion will look different in various nation states, while still bearing the hallmarks of a universal right. Second, from a political perspective, a government will be concerned with establishing its own common rules based on a moral framework that accommodates the ongoing operation of government, economic well-being, and peaceful coexistence of those within its borders. The need for minimum rules is bound to come up against faith- or conscience-based norms that may set higher or different standards, this requiring balance between majority-mandated norms and civil society groups’ norms. Third, legally, if a government is to foster pluralism, a set of rules is necessary to establish minimum standards to govern civil society interactions. The process must include capacity for rule setting by civil society groups to enable the practices, traditions, and ethical frameworks of these groups to operate.Footnote 21
This leads to the question of what comes first, freedom of thought, conscience, and religion or the implementation of the rule of law. In theory, the rule of law can provide a secure foundation for the embedding and enjoyment of freedom of thought, conscience, and religion within a nation state. However, without the type of virtue building supported by freedom of thought, conscience, and religion necessary to embed the rule of law in civil society, the rule of law may not be effectively implemented. As I discuss below, on this basis, freedom of thought, conscience, and religion is arguably foundational for the rule of law.Footnote 22
The Rule of Law
The rule of law developed in the writings of great thinkers spanning millennia, with Magna Carta 1215 often cited as the document from which it emerged and Albert Venn Dicey (1835–1922) regarded as its founding father. Constitutional theory supporting the principle is grounded in, among others, the philosophies of Aristotle, John Locke, Montesquieu, F. A. Hayek, and Jacques Maritain. It has found support in modern legal and political philosophy in the works of Joseph Raz,Footnote 23 Jeremy Waldron,Footnote 24 John Tasioulas,Footnote 25 and Martin Krygier. The minimal/formal/thin concept of the rule of law belongs to the Diceyan tradition expounded in modern times, for example, by Joseph Raz and John Tasioulas. It incorporates basic principles for procedural fairness in law making, application, and adjudication. It has increasingly become contested around whether the formal concept of the rule of law is in fact morally neutral, consisting simply of a framework for achieving a variety of goals. Also contested is whether the rule of law should include a substantive account of what law ought to be. Tasioulas argues that a substantive approach results in the rule of law and the notion of legitimacy becoming inappropriately elided.Footnote 26 This raises questions: Does the rule of law encompasses legitimacy? Can a system be legitimate independent of the rule of law?
The substantive account of the rule of law, encompassing a tranche of internationally agreed-upon fundamental human rights, has become the gold standard adopted by Western liberal democracies and by international organizations, including the United Nations. It is this later account of the rule of law that is used in international measures, such as the Rule of Law Index: 2021. These measure state practice against a list of attributes of the rule of law. Raz, supporting an expanded formal, or thin, concept of the rule of law,Footnote 27 argues that substantive approaches are inappropriate because they involve stepping from legal theory into the remit of political philosophy. He argues that this inappropriately necessitates decisions about what constitutes good law.
Raz’s analysis has implications for rule of law implementation in non-Western contexts. For many non-Western states, even for those that adhere to a formal concept of the rule of law, universal human rights norms are aspirational goals. It is a political decision taken in the light of national context about whether and to what extent fundamental rights can be incorporated into national constitutions. For many states, there may be a different approach to public living together that does not accord with the individualistic, and at times litigious, nature of the Western rights culture.Footnote 28 To combine an assessment of formal rule of law requirements with human rights compliance is combining two different aspects of a constitutional structure and governance. If a substantive approach to the rule of law is adopted, as it is within international measures assessing adherence to the rule of law, the method of embedding it necessitates a different and more sophisticated approach. A substantive rule of law is highly dependent on building capacity for the virtues espoused by the rule of law. Freedom of thought, conscience, and religion becomes foundational to any such approach—more so than if one adopts a thin concept of the rule of law.
The substantive, or thick, account of the rule of law, incorporating a tranche of internationally accepted fundamental rights, has been adopted as the gold standard,Footnote 29 including by the United Nations.Footnote 30 It finds support in the work of, among others, Tom Bingham; Lon Fuller;Footnote 31 Ronald Dworkin;Footnote 32 and Waldron.Footnote 33 It incorporates an understanding of law that considers its inner morality (as offered by Fuller), valid social objectives (as offered by Waldron), and adherence to international rights obligations (as offered by Dworkin and Bingham). The content of the rule of law and the way it is embedded within societies has taken on universal significance because globalization has necessitated the removal of elements of policy and decision making to an international level.Footnote 34 Freedom of thought, conscience, and religion thus becomes foundational for the rule of law in both national and international governance. The danger is that the interlinking of the rule of law and freedom of thought, conscience, and religion creates the appearance of a Western approach to international governance, which might do more to divide than unite nation states.
The Internationalization of the Rule of Law and Freedom of Thought, Conscience, and Religion
The internationalization of the rule of law and the incorporation of rights into the account of the rule of law throws the relationship of the rule of law and freedom of thought, conscience, and religion into sharp relief. What proponents of both formal and substantive concepts of the rule of law have in common, according to Tasioulas, is that they seek to “satisfy the desiderata of pluralism and coherence.”Footnote 35 The question is to what extent can both the rule of law and religious freedom be effectively globalized or perhaps universalized as interdependent on each other. This question is particularly relevant given the strong pull from various directions in favor of a “neutral” form of governance.Footnote 36 Where neutrality implies the exclusion of pluralism in public life, the danger is that public memory of virtue becomes lost. The embedding and ongoing operation of the rule of law consequently could become problematic.
Krygier highlights this issue, taking what might be described as a philosophical sociological approach. Krygier envisages the rule of law as a social reality that tempers arbitrary power.Footnote 37 According to Krygier, conceptualizations of the thick and thin rule of law have in common viewing the rule of law as a list of institutional elements relating to creation, adjudication, and implementation of the law.Footnote 38 The substantive conceptualization of the rule of law is reflected in definitions in the Rule of Law Index: 2021, the Rule of Law Checklist from the European Commission for Democracy through Law (Venice Commission), and the definition provided by the United Nations.Footnote 39 Krygier, taking an approach similar to that of Nasser Hussain,Footnote 40 argues that when the rule of law became an export commodity and a measure by which nations would be assessed across the globe, it was assumed that it was in fact appropriate to apply the list of measures from Western liberal democracies into a variety of different contexts. This, Krygier claims, can lead to isomorphic mimicry whereby the form envisaged by the rule of law list is copied. The outcome of the application of these norms and rules, however, can be quite different, depending on how they are embedded. The outcome can be what David Landau identifies as “abusive constitutionalism”—governments use or abuse legal mechanisms and the law in subtle and unsubtle ways to exercise power.Footnote 41 Krygier argues that consequently, law becomes a tool useful to authoritarian regimes in wielding control rather than a tool to prevent abuse and misuse of power. Further, one result of such regimes is a generation of public servants and government officials who insist on adherence to rules without necessarily understanding the rationale behind them. In such instances, power can either become focused in central government or move to other groups within civil society because government does not command the respect of the people.
Krygier, The Rule of Law, and Freedom of Thought, Conscience, and Religion
Krygier builds on Waldron’s concept of the rule of law as a solution concept.Footnote 42 Krygier argues that we need to consider not what the rule of law is, but what problem it is designed to address. He explains that while enabling power is a necessary and positive element of governance, the exercise of arbitrary power undermines the rule of law. The rule of law is a mechanism for tempering arbitrary power. This is not primarily a legal ideal, but a social ideal. The question is, in any given context, what are the sociological and political conditions necessary to think about how one might temper power. The legal implications of this are likely to vary from nation state to nation state, depending on where negative or abusive power lies. Krygier refers to Philip Selznick’s concept of institutionalization,Footnote 43 arguing that those institutions implementing the rule of law need to be infused with the virtues the concept espouses.Footnote 44 Thus, the system does not mimic the rule of law but implements a form of the rule of law that will bring about lasting change in a given national context. Tasioulas echoes this idea when he writes, “securing [the rule of law] is not merely a task for a narrowly political morality, aimed exclusively at officials and institutions, but also for the wider ethos animating the attitudes and conduct of individuals and groups within society more generally.”Footnote 45
At this point a link between the rule of law and the right to freedom of thought, conscience, and religion becomes clearer. If there is to be institutional change supporting the maintenance of the rule of law within a nation state or within international governance structures, there must be social and political acceptance of the underpinning virtues on which the rule of law relies. The conditions for this can exist only where individuals have the freedom to explore ideas relating to faith, conscience, and belief. By this account, freedom of thought, conscience, and religion is not just interdependent with the rule of law, but essential to it.Footnote 46
Arguably, the ability to exercise human agency and autonomy and explore virtue is necessary whether one supports a narrow or substantive concept of the rule of law. Tasioulas, for example, argues that human agency is essential to a narrow concept of the rule of law.Footnote 47 By its very nature, the rule of law addresses subjects as rational agents in the moment of decisions that they take within the formal legal and governance structures established by the rule of law.Footnote 48 Tasioulas adopts an Aristotelian approach, arguing that the application of the principle of equity (in both its philosophical and legal sense) to the resolution of particular legal issues softens the impact of the application of the formal conceptualization of the rule of law. Together they are a means for attaining justice. Thus, even within this more limited understanding of the rule of law, freedom of thought, conscience, and religion would appear essential in order for members of society to be able to develop capacity to exercise agency and to explore principles of equity and justice.
This initial analysis of freedom of thought, conscience, and religion and the rule of law leads to my proposition that freedom of thought, conscience, and religion is foundational for the rule of law. This interconnection requires a stronger theoretical basis to support the ongoing articulation of this essential link. The first step to expanding the theoretical approach is exploration of the empirical data to identify whether state practice bears out the proposed essentiality of freedom of thought, conscience, and religion for embedding the rule of law. In analyzing current trends, we can identify how a theoretical approach might need to respond to them.
Measuring Rule of Law Compliance
If freedom of thought, conscience, and religion is foundational to embedding and sustaining the rule of law, it therefore has implications for the methodological approach used in the tools measuring compliance with the rule of law. For example, weighting would need to be given to freedom of thought, conscience, and religion. Higher levels of freedom of thought, conscience, and religion within a nation state should reflect stronger adherence to the rule of law. A deterioration of freedom of thought, conscience, and religion would signal that the rule of law is being undermined.
The incorporation of fundamental rights into the rule of law by the United Nations and other international nongovernmental organizations has led to incorporation of these rights into measures ranking states’ compliance with the rule of law. What these measures do not appear to do, however, is provide the slightly more sophisticated analysis to assess the extent to which the virtues espoused by the rule of law have been embedded within institutions and civil society. Nor do they identify freedom of thought, conscience, and religion as in any way significant over and above compliance with other fundamental rights. Some outlying cases suggest that a state can have a relatively poor record on compliance with freedom of thought, conscience, and religion but still score relatively high overall on compliance with rights.
If measures of compliance with the rule of law were to include an additional weighted measure to identify the extent to which freedom of thought, conscience, and religion is enjoyed within a state, it would be possible not only to assess current state practice but also to predict direction of movement. Poor performance in freedom of thought, conscience, and religion could indicate that a country was starting to drift from maintaining the rule of law. Enhanced weighting for freedom of thought, conscience, and religion also has implications for the more foundational question, particularly in non-Western cultures, as to whether the conditions in a given nation state were appropriate for embedding the rule of law in its substantive form in the first place. A flag designating the level of freedom of thought, conscience, and religion could signal the need for additional effort to create the conditions necessary to embed the rule of law.
Below I explore the extent to which current empirical data bears out the theoretical propositions on the foundational nature of freedom of thought, conscience, and religion. In the absence of a specific focus on freedom of thought, conscience, and religion within the current Rule of Law Index, I use the Pew Research Center’s data on freedom of thought, conscience, and religion compliance to make a comparative analysis between the two. I use the World Happiness Index as the nearest approximate measure for freedom of conscience.
Empirical Evidence
In the World Justice Project, Rule of Law Index: 2017–18, a pre-COVID-19 pandemic measure of rule of law compliance, 113 countries around the world submitted to an assessment under the rule of law survey.Footnote 49 Each country was accorded a place on the scale of rule of law compliance. However, other sources claim that 57 percent of the world population lives outside the protection of the rule of law.Footnote 50 The more recent 2020 index surveyed 128 countries, applying eight factors and forty-four subfactors drawn from two sources of data collected by the World Justice Project, the aim being to establish the extent to which each country satisfied the chosen indicators for the application and enjoyment of the rule of law.
The data sources for the 2020 Rule of Law Index were a general population poll and a qualified respondents’ questionnaires survey. The data sources included marginalized members of society. The 2020 surveys reflected perceptions of the general public and legal practitioners and experts on the operation of the rule of law. The focus was on policy outcomes, namely whether there was cost-effective access to courts and public services and whether crime control was effective.Footnote 51
The rule of law is defined in the World Justice Project from the perspective of outcomes that the rule of law brings to a society. The index ranks countries from 0 to 1, with countries at the lower end of the scale going into the “red” and countries at the higher end of the scale in the “green.” In the 2021 report, Denmark, Norway, and Finland sit at the top of scale; Denmark with a score of 0.9. The Democratic Republic of Congo, Cambodia, and Venezuela sit at the bottom; Venezuela with a score of 0.27.Footnote 52 Countries are also grouped into low, lower middle, upper middle and high-income countries.Footnote 53 When a comparison is made between the Pew Research Center data on the enjoyment of religious freedom and the 2020 global rule of law report, the correlations between government restrictions on religious freedom when compared to the rule of law index were not as straightforward. For example, at least two governments (India and Indonesia) registered as imposing high levels of government restrictions on religious freedom and very high levels of social hostilities toward expression of religious freedom in the Pew Research Center’s study on religious freedom. This compared to a better performance on the Rule of Law Index (India ranked 69th of 128 with a score of 0.51 in the rule of law index and Indonesia ranked 59th of 128 in the rule of law index with a score of 0.59). Similarly, France registered moderate to high social restrictions on religious freedom and moderate government restrictions,Footnote 54 whereas it ranked 20th on the Rule of Law Index with an overall score of 0.73. In practice, therefore, it can be said—on the basis of measures encompassed in this article and subject to the limits of the methodologies used in those studies—that the application of the rule of law is not an absolute guarantee that a state will demonstrate a commitment to religious freedom.Footnote 55 It also indicates that the rule of law measure is broad enough to enable a state to avoid adherence to one or more fundamental rights without its overall score being negatively affected.
It is not possible, based on the empirical data within one report, to predict correlative trends because the methodological approach takes a snapshot in time of rule of law compliance. To track the correlation between rule of law and freedom of thought, conscience, and religion overtime, the methodology and analysis used by the rule of law index would need to expand. A rule of law index incorporating enhanced freedom of thought, conscience, and religion review would need not only to adjust the weight given to freedom of thought, conscience, and religion but also to explore the extent to which deterioration in freedom of thought, conscience, and religion was a significant indicator for future deterioration of compliance with the rule of law. Incorporating a freedom of thought, conscience, and religion weighting into the rule of law measure would obviate the need to compare two different reports. This is important because the Pew Research Center measures restrictions on religious freedom, whereas the international right to freedom of thought, conscience, and religion guarantees both freedom of thought and conscience and religious freedom. A measure of rule of law that adopts the theoretical proposition that freedom of thought, conscience, and religion is foundational would need to use a methodology that incorporates a means to measure both freedom of thought and conscience and freedom of religion.
Another current measure that might inform the interaction between the rule of law and freedom of thought, conscience, and religion in the absence of a new type of rule of law methodology proposed above is the World Happiness Report. Empirically, however, this comparison creates an even more complex picture. The analysis becomes more complex, particularly, in the survey taken during the COVID-19 pandemic. Theoretically, the happiness of a population could be one of several indicators of the levels of rule of law and freedom of thought, conscience, and religion in a country. The freedom to pursue one’s own earthly and heavenly life goals in accordance with one’s beliefs ought to result in the recording of high levels in the World Happiness Index. However, there is no essential link between freedom of thought, conscience, and religion, application of the rule of law, and general happiness in current measures. However, there is data supporting the thesis that the three are interlinked.
A country can rank high in the World Happiness Index without necessarily providing religious freedom for its citizens or adhering to the rule of law.Footnote 56 Compare, for example, select rankings from the World Happiness Report 2021 and the Rule of Law Index: 2021 as presented in table 1.Footnote 57
Table 1. —Comparison between happiness and rule of law rankings
Conversely, a country may support religious freedom but rank less favorably on the rule of law index and the happiness index. Peru is an example of such a country. According to the Pew Research Center’s data, Peru has consistently demonstrated low social hostility toward religious freedom and low government restrictions on religious freedom, placing it high in a ranking of countries supporting religious freedom. In the Rule of Law Index: 2021, however, Peru ranked 87 of 139 with an index score of 0.49; in the World Happiness Report 2021 it ranked 63 of 149.Footnote 58
It is possible to tentatively deduce, based on the current international measures, that based on a snapshot in time, freedom of thought, conscience, and religion, the rule of law, and general happiness are usually, but not necessarily, interdependent. It is perhaps important not to be distracted by exceptions to the general impression, as much as it is possible to gain an impression in comparing three different indexes. Several countries indicate a high score on the rule of law, religious freedom, and happiness indexes. It can be concluded that, while empirically neither the rule of law nor religious freedom appears to be an absolute prerequisite for the other, there is evidence of correlation between them in the majority of cases.
These reports demonstrate some interesting and perhaps surprising results. It is necessary to bear in mind that for many, faith, or the exercise of one’s conscience (freedom of thought, conscience, and religion), is not about material wealth or positive emotion (happiness) but about experiencing a peace that comes from a deep belief and commitment, together with a sense of belonging to a community. This can often involve self-denial and sacrifice. Ultimately for some, it involves martyrdom. For some faith or conscience would be a priority over and above wealth and transitory happiness. It could be argued that the exercise of faith, belief, and conscience would encompass something more akin to eudemonia, living a human life well, in the Aristotelian sense. This might include a broader concept of well-being and human flourishing, alone and in community. This broader understanding of happiness informing a measure of freedom of thought, conscience, and religion could inform the methodology used to assess freedom of thought, conscience, and religion within a rule of law measure.
International measures indicate that a country can protect freedom of thought, conscience, and religion absent strong adherence to the rule of law and conversely a country can demonstrate strong adherence to the rule of law without fully protecting freedom of thought, conscience, and religion. Nevertheless, the data does tend to support the theoretical proposition that there is an interdependence between the rule of law and freedom of thought, conscience, and religion.
To support both the theoretical and empirical foundational nature of freedom of thought, conscience, and religion for the rule of law, below I identify a stronger theoretical basis to support the foundational role of freedom of thought, conscience, and religion for the rule of law in an international context.
Freedom of Thought, Conscience, and Religion: Theoretical Underpinnings
As noted above, a substantive conceptualization of the rule of law encompassing core human rights lies open to accusations of a Western approach. This poses problems for the internationalization of the rule of law. Both within international rule of law measures of national state practice and in the synthesizing of rule of law with public international law practice. It is proposed that this could be avoided where the debate around compliance with the rule of law incorporated a full and open debate as to the political and moral theory supporting rights. Taking a multivalent approach to building consensus would avoid polarization of views on rights theory and support the incorporation of rights within the rule of law.
A plural debate would facilitate a more open and nuanced approach to embedding the rule of law as required by Krygier’s account. It would also create an equitable discussion whereby Western and non-Western approaches could mutually inform each other. There is, for example, a richness of approaches toward public living together evident in non-Western contexts. Here the Asian and African approaches to community, tribe, and family come to mind. In these contexts, duty is as strong or even stronger a concept than is the concept of individual rights. There is much in these communal approaches that counters the strong individualistic approach that has given rise to criticisms of Western rights cultures.Footnote 59 The danger is that if non-Western approaches to public living together are not accounted for in informing both rights and freedom of thought, conscience, and religion, then embedding the rule of law becomes difficult in a national context, and synthesizing the rule of law with public international law becomes highly problematic. A multivalent, dialogic approach to rights theory could address this issue.
Existing rights theory tends to focus on rights as a group, rather than on justification of individual rights to support their specific role in a constitutional structure. In view of the discussion on the interconnectedness of the rule of law and freedom of thought, conscience, and religion, below I offer a theoretical foundation of freedom of thought, conscience, and religion based on the theory of common grace, which supports a multivalent plural approach to building a consensual freedom of thought, conscience, and religion theory. This is combined with the other-regarding theology of rights proposed by Rowan Williams.Footnote 60 I suggest these Christian theological approaches because they have a theological metanarrative that is open to other faith and non-faith-based approaches. By their nature, they are supportive of a plural approach and so will tend to be supportive of the rule of law.
Just as the rule of law is often expressed as a list of attributes expected of a legal system, so, according to Waldron, are human rights often defined in positive law terms, by ostension.Footnote 61 Political expediency can often result in the exclusion of a tranche of moral rights from enforceable hard law.Footnote 62 Waldron argues that consequently, to seek to find one single source of rights is misguided.Footnote 63 Waldron points out that while we might recognize the moral underpinnings of rights, we should acknowledge them in their legal frameworks for what they are, the result of policy and political decisions. What is perhaps helpful is to identify, as Waldron does, that rights frameworks account for both moral and political arguments.Footnote 64
This conceptualization of rights informs a theory of freedom of thought, conscience, and religion as a legal, political, and sociological tool interconnected with the rule of law.
Sociological Implications of Changing Religious Practice for Freedom of Thought, Conscience, and Religion Theory
From a sociological perspective, contrary to the anticipation of Enlightenment thinkers, religion has continued to thrive. According to sociologists of religion, however, the practice of religion has changed. There is lower attendance at forms of communal and public worship for some faith groups and a higher reliance on interpersonal relations to support religious belief and practice. Robert Putnam and David Campbell describe the phenomena of unattached belief, and Grace Davie writes of vicarious religion.Footnote 65 Thus, practice of religion is either a matter of individual choice (rather than communal practice) (as offered by Putnam and Campbell), or religion operates communally through the leadership and practice of a select few (as offered by Davie). According to Jonathan Fox, both within and outside the American and European context, religion per se and religion in its entanglement with government, shows no sign of abating.Footnote 66
It is perhaps consequently inevitable that while there is some ongoing recognition and acceptance of the private good that is understood to flow from freedom of thought, conscience, and religion, the public good is less well understood. A theory supporting freedom of thought, conscience, and religion as both a human right and a right foundational to embedding the rule of law needs to account for this changing religious practice. It also needs to account for higher levels of systems of conscience developed on a non-faith basis and articulate the public as well as private good it supports.
Political Implications of Changing Religious Practice
From a political perspective, freedom of thought, conscience, and religion faces increasing resistance from various quarters.Footnote 67 Cécile Laborde argues that the public good that is thought to flow from religion has become contested as the political philosophy underpinning liberal democracy has moved from a predominantly religiously plural understanding of public living together, to a conceptualization of public living together as a space in which it is possible to take a “neutral” stance vis-à-vis religion.Footnote 68 Consequently, religion is not uniquely singled out, but is one among several potential ethical frameworks within the liberal egalitarian approach.
If society adopts a multivalent approach to consensus building to establish core societal norms then Labordes’ analysis is not problematic as it might otherwise be. However, the creation of a neutral space that excludes systems of thought, conscience, and religion from public debate is problematic because the public exploration and articulation of virtue then necessarily occurs in something of a vacuum. There could consequently be a breakdown in moral consensus, as identified by MacIntyre.Footnote 69 The issues facing plural living together in a Western democratic context can be juxtaposed against non-Western approaches that can challenge pluralism from different perspectives.Footnote 70
Ultimately, as Stanley Hauerwas observes, governments can become the body that is looked to in order to establish the moral compass and framework for civil society to live together.Footnote 71 This can result in a self-perpetuating lack of capacity building among the population for peaceful plural living together under the rule of law. A theory of freedom of thought, conscience, and religion therefore needs to account for the importance of each aspect of the right and the capacity-building among the population for articulating the ethical views espoused by the religion or belief informing societal consensus over common norms. Accepting multivalent reasoning to build consensus around the right’s core content addresses this because it incorporates various religious- and conscience-based approaches to build a universally applicable right supportive of embedding the rule of law.
Moral Implications of Changing Religious Practice
From a moral perspective, the individualism within religious practice identified by Davie and Putnam and Campbell together with the disaggregation of religion into its constituent parts to justify its place within a liberal democracy (as offered by Laborde) may paradoxically be a consequence of enshrining fundamental rights into legally enforceable mechanisms in the absence of corollary duties. Criticisms have been raised from various quarters on this ground.Footnote 72 From a moral perspective, rights individualism is not only corrosive of the concept of duty but also can undermine a sense of community. Because community building is essential to civil society building and to individual human flourishing, any rights theory that is to find universal acceptance needs to account both for the concepts of duty and community.
Similarly, individualism has had an impact on human capacity for exploring virtue. Despite the changing nature of religious practice, the memory of the virtues underpinning the operation of the rule of law in the West may nevertheless be relatively strong due, perhaps, to the influence of those who exercise vicarious authority (as offered by Davie). However, accepting Davie’s analysis, the situation is precarious because the trust between those whom faith leaders represent and those who accept their lead may, for any number of reasons, be broken. In the absence of trustworthy leadership, society needs individuals with capacity to step in. A vicarious approach to leadership creates an overdependence on law and leaders as society’s moral compass. This is coupled with decreasing understanding of concepts of equity and the exercise of discretion. The courts become adjudicators of disputes that might otherwise be resolved within the community. Vicarious religion also leads to a lacuna in skills and capacity for decision making.
Ultimately, individuals need to engage as moral agents in civic life. Otherwise, civic life becomes a form of strict rule implementation in the absence of an understanding as to why the rule exist. This can lead to forms of unquestioning obedience to governing authorities. Engagement in public life needs to be more than the assertion of legal rights under the supervision of the judiciary. In such a case, both the rule of law and freedom of thought, conscience, and religion could imperceptibly become lost to priorities set by leadership and the judiciary at any given point in time. From a moral perspective, the theory of freedom of thought, conscience, and religion therefore needs to account for the importance of both the individual and communal aspects of plural living together. It also needs to encompass human potential for agency in developing capacity to explore virtue.
Theoretical Thoughts on Freedom of Thought, Conscience, and Religion Together with the Rule of Law
It has been argued that from a sociological, political, and moral perspective freedom of thought, conscience, and religion, as a legal right, requires a multivalent theoretical approach. Support for its universal application needs to account for the concept of duty and the idea of the role of communities within civil society. To create an environment for its ongoing enjoyment freedom of thought, conscience, and religion needs to support individual capacity to explore virtue. An underlying rationale on this basis would provide a strong link with the intersection between freedom of thought, conscience, and religion and the rule of law.
Elsewhere, I explore the theory of common grace as a rationale underpinning freedom of thought, conscience, and religion.Footnote 73 This account identifies a multivalent dialogic approach to freedom of thought, conscience, and religion based in the theory of common grace, and it invites dialogue with other faiths and thought systems to build consensus around the theoretical grounding of the right.
The Theory of Common Grace
The theory of common grace recognizes that the trinitarian God (Father, Son, and Holy Spirit), as a God of love, empowers all humankind by His grace. This gives all individuals the capacity to be other-regarding. It is distinguished from saving grace, which is the act of God in the life of an individual who commits their life to Christ. Saving grace has soteriological and realized eschatological impact.
Nicholas Needham explains the operation of grace as follows: “common grace and saving grace correspond to two communities—namely, civil society on the one hand, and its visible manifestation in the state; and on the other hand, the church. … These two communities are not set against each other as alternatives … all Christians … are in fact simultaneously in both communities. I am a member of the church, the community of saving grace, by my credible profession of faith in Jesus Christ. I am also a citizen: a member of civil society, the community of common grace.”Footnote 74 Needham thus proposes that the community of common grace (civil society) will be greatly advantaged by the activity of saving grace (the church), in particular, by the church supporting and aiding the state to be a just social order.Footnote 75
According to the theory of common grace, the exercise of conscience is possible due to the operation of God through the Holy Spirit.Footnote 76 The theory is in turn based on the theory of the total depravity of humankind that establishes that without God humankind would be as wicked as they could be, but that God acts to restrain that wickedness. This is not by controlling, but by acting in cooperation with humankind. This means that moral acts of conscience might be undertaken.Footnote 77
In its pneumatology, the theory of common grace perceives a double operation of the Holy Spirit. The Holy Spirit acts in a redemptive and soteriological capacity to save individuals to a redeemed and eternal life. It thus works regeneratively during an individual’s lifetime and at the point of death. This aspect of the operation of the Holy Spirit is the saving grace of God. In addition, the Holy Spirit acts in a collaborative or renewing capacity in the lives of those who have not committed their life to Christ. This facilitates the development of a moral life.Footnote 78
Kuyper explored the notion of the restraining effects of common grace and the ability of unbelievers to perform both acts of civic good and demonstrate skills and achieve accomplishments.Footnote 79 The theory of common grace is not totally at odds with the major alternative views that explain God’s attitude toward creation and humankind, namely general revelation, natural law, and natural theology.Footnote 80 The theory of common grace is, however, distinctive in its starting point, namely the total depravity of humankind at birth. It also perceives that God engages with humankind through the power of the Holy Spirit on an ongoing and cooperative basis.Footnote 81
Categorical statements about exactly how common grace operates—in particular, those that might appeal to the theory of human rights law and its intersection with the rule of law—are difficult because of the different methodological approaches to the disciplines of law and theology.Footnote 82 This intersection of law and theology supporting a plural theoretical rationale for freedom of thought, conscience, and religion thus requires a fresh methodological approach that is comfortable with the synthesis of theological and legal methodology, whereby legal methodology is accepting of the more apparently subjective theological approach.
The reformed position is that common grace is the Holy Spirit’s operation in or cooperation with humankind: there is an extent to which everyone can experience an aspect of spiritual life and know something, even if an individual does not acknowledge how they know it or the source of that knowledge. Epistemologically everyone may well be perceiving facts or know things through the same empowering spirit. This is so even if the operation of common grace has a distinct effect from the work of the Holy Spirit experienced by those benefitting from saving grace.Footnote 83 The difference is perhaps one of degree and willingness (or lack thereof) in acknowledging the sovereignty of the Trinitarian God.
The point at which the theory of common grace interlinks with human rights law and freedom of thought, conscience, and religion is in the capacity of all humankind to understand and exercise agency in respect of a universal moral law.Footnote 84 This emphasizes human solidarity and a universalizing metanarrative possible through the endeavors of human rationality.Footnote 85 The implications are that (1) there is a universal moral standard that can consensually inform international human rights laws; (2) the voice of those from all faith traditions and none are important in discerning that metanarrative and in informing law creation and adjudication based on plurally informed universal norms; and (3) discernment and dialogue are necessary to reaching consensus on universal legal norms.Footnote 86
This brings reformed theology to the point where, as Mouw’s critique of the theory of common grace explains, it needs to decide the extent to which it is accepting of natural theology and plurally informed approaches to public living together, or whether it will stick with “Christian particularities” as its focus.Footnote 87 He writes, “If God cannot operate with more than one ‘ruling passion,’ then it would indeed be folly for Christians to attempt to do so; but if God is committed both to the election of individuals to eternal life and to a distinguishable program of providential dealings with the broader creation, then it is quite fitting for us to feature a similar multiplicity in our own theologies.”Footnote 88 Mouw’s analysis thus demonstrates, in principle, the potential for a multivalent theoretical basis for freedom of thought, conscience, and religion, the effect of which is a plural civil society.
If, as Reformed theology proposes, God’s spirit does indeed work in the lives of all humankind in respect of civic life, the need to account for plural voices encompassed within freedom of thought, conscience, and religion is of utmost importance.
The underlying rationale proposed above, grounded in the theory of common grace, accounts for a multivalent approach to freedom of thought, conscience, and religion theory. It does not account for the need to emphasize community and duty in the face of the individualism of modern rights theory. Such an approach is identified in the theology of rights proposed by Rowan Williams.Footnote 89 Williams’s faith–based theology of rights sits well in a multivalent context because it has the potential to align with other faith-based and non-faith-based approaches.
Williams undertakes a sophisticated analysis of rights as relational and communal, building on the critique of Oliver O’Donovan,Footnote 90 echoing Emmanuel Levinas’ concept of the otherFootnote 91 and Nicholas Wolterstorff’s bestowal of worth.Footnote 92 Williams grounds rights in the idea of relational justice. Acknowledging the tensions within Christian and Islamic theology in relation to the individualistic legal concept of bearers of human rights capable of making legitimate claims, Williams proposes a middle way. He identifies the manner in which the human rights, written into international instruments after World War II, have become entitlements belonging to each individual giving rise to the freedom to exercise a claim against others. The individual is perceived of as a consumer and the state as producer within the model of the market state. Williams’s response is not to argue for the abolition of rights, but to explore the medieval concept of right or jus which, he explains, was about balanced reciprocity and essentially relational. Right was not about immediate happiness or temporal satisfaction nor was it a list of entitlements. The classical theological approach was based on mutuality and an understanding of both the individual and the community. Williams points to Article 29 of the Universal Declaration of Human Rights:
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1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
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2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society.
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3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.Footnote 93
Article 29 stresses that duties are the corollary of rights.Footnote 94 This leads Williams to locate the tranche of rights protected within the Universal Declaration of Human Rights as encompassed within the idea of the world community and social balance and harmony.
It is here that a more universal approach to rights starts to emerge, particularly in terms of embedding the rule of law in cultures that are predominantly communal in their approach to public living together. According to Williams this communal approach is built up by the self-giving of members of a community.Footnote 95
Williams continues his analysis, exploring the medieval concept of jus, arguing that humans are agents within the context of a universal order and as such are created as an act of God’s self-giving. Each agent is a unique point of creativity and has a role in contributing to the building up of other agents. Human rights are about “a shared discernment as to how the distinct gift of each is respected, nourished and equipped.”Footnote 96 Echoing Krygier’s observations on embedding the rule of law through developing the capacity to explore virtue, Williams argues that what rights implementation requires is cultural skills “a habitual mode of seeing another as occupying a place comparable to your own … sharing a twofold positioning in relation to the creator and the rest of an inter-woven system.”Footnote 97 It is in the recognition of the other and the community in which legal rights are located that rights themselves become morally and religiously sustainable.Footnote 98 Williams urges a move from the idea that the state is a provider/supplier, and the populace is the client, to a thicker experience of social collaboration. This involves deeper levels of mutuality and responsibility while holding in tension the need to protect individuals from human rights abuses.Footnote 99
Because it addresses the essential communal aspect of freedom of thought, conscience, and religion, this deeper mutuality and responsibility more fully informs not only human rights in general but freedom of thought, conscience, and religion in particular. This communal approach highlights that the exercise of freedom of thought, conscience, and religion is empty in the absence of religious and conscience-based groups. Their role in civil society stems from both their existence as groups of mutual support and loci for human flourishing. It is, however, the role of religious and conscience-based groups in virtue formation and public discourse that links freedom of thought, conscience, and religion as foundational in nature for the rule of law. This is because these groups have a role in ensuring that government policy does not move too far from the lived reality of peoples’ lives and in speaking truth to power when policy making may take a nation in a misguided direction.Footnote 100 In Krygier’s terms, religious and conscience-based groups are able to engage in tempering abusive power.
Williams’s theological communal approach to rights explores the idea that the (Christian) church is the locus of all human right, in that in its practice it gives to humans that which is due, namely forgiveness, restoration, and the ability to serve one another rather than oneself alone. For the Christian, participating in the holy sacrament of Communion enables members of the Christian community to serve and recognize their duty in relation to others. It enables them to facilitate the flourishing and agency of others, to hold others in “loving attention.” This he describes as “the freedom to share or bestow what is most proper to us, that is divine creative engagement.” Justice and rights require a moment in the social debate, an interaction and communication between individuals because rights have meaning in community.Footnote 101
Where does this leave those who do not partake in the sacrament(s) of the Christian faith? I propose that the answer can be found first in the moral/legal dichotomy identified by Waldron. Some aspects of a faith-based approach will speak to those within that faith. Other aspects will have universal significance. A Christian account of rights both speaks powerfully to the Christian community in respect of its public engagement. It also contains aspects that can powerfully inform multivalent dialogue. The Reformed theory of common grace, explained above, would suggest that a Christian resource for living an other-regarding empowered public life is found in communion and that different resources exist in other communities to do the same.Footnote 102 The core ideas of other-regarding and community can be drawn from other theological and philosophical accounts to align with Williams’s theological account, to create an expanded metanarrative informing freedom of thought, conscience, and religion. It is these concepts that are likely to facilitate consensus building around the rationale for freedom of thought, conscience, and religion from elsewhere.
What brings the proposed underlying rationale of freedom of thought, conscience, and religion and the rule of law together is found in the dialogic communal approach. This has the potential to increase capacity for the exercise of human agency and the exploration of virtue. This addresses the need for a dialogic and communal approach to embedding the rule of law as identified by Krygier. It will be feasible only if individuals and civil society groups can develop another regarding capacity in order to contribute to the implementation of the rule of law. This capacity building is supported by freedom of thought, conscience, and religion and involves a contribution from a plurality of voices (the theory of common grace).
This approach is not without its challenges. The danger of such an approach is that dialogically embedding the rule of law could cause the process to descend into cultural relativism. Paul Cliteur and Afshin Ellian argue that this may ultimately result in there being no meaningful base line or moral framework supporting a nationally or an internationally agreed framework for the rule of law.Footnote 103 This points back to the conundrum I identify above: how does society reach a consensus around common norms for public living together in circumstances which support individual and communal flourishing?Footnote 104 Added to this is the concern that if freedom of thought, conscience, and religion is indeed foundational to embedding the rule of law, then it is necessary to identify a mechanism to address the delicate balance between individual and communal freedoms. It is also necessary to address how disputes between different civil society groups might effectively be resolved.
Political and legal philosophers have addressed plural living together from various perspectives.Footnote 105 Hans Martien ten Napel and Iain Benson support a social pluralist approach.Footnote 106 Ten Napel undertakes a sophisticated analysis of the interconnection between constitutionalism, democracy, and the rule of law, which leads to an anthropological approach to the interconnectedness of the operation of these mechanisms on grounds that they together allow citizens to become fully human.
The logic of a social pluralist approach such as that of the philosophical theology of Herman Dooyeweerd has much to offer. It is not the only or definitive system relevant to supporting social pluralism—Dooyeweerd himself identified his philosophy as opening a discussion moving forward rather than defining the basis for civil society interactions—but Dooyeweerd’s theological philosophy of civil society interactions has the potential to appeal to theological and non–faith-based ethical frameworks. While Dooyeweerd’s theological philosophy of civil society interactions is grounded in the Christian theological tradition, it supports pluralisms in civil society interactions because it supports the variability in the analysis and definition of social structures and their interaction.Footnote 107 At the same time, Dooyeweerd posits that there are key structural principles that remain invariant (immutable) over time, despite the historical contextualization of other aspects of a given social structure. This view distinguishes Dooyeweerd’s thought from that of Talbott Parsons, Niklas Luhmann, and Nicholas Wolterstorff, who regard social interactions and social structures as situated in current context.Footnote 108 Jonathan Chaplin has proposed an anthropological reformulation of Dooyeweerd’s structural principles, identifying that “normative design of social structures emerges out of a normative conception of the human person.”Footnote 109 Consequently, “[n]orms for social structures are then seen as arising out of the functional capacities of a complexly articulated human nature … as these manifest themselves in particular historical conditions.”Footnote 110 An anthropological approach to social pluralism could accommodate current human rights theory more comfortably given its focus on human dignity as a grounding narrative. Thus taking an anthropological approach might facilitate the integration of the resolution of rights claims onto the conceptual framework of sphere sovereignty.
The Christian theological metanarrative for social pluralism, whether grounded in the order of creation (as described by Dooyeweerd), human nature (as offered by Chaplin), or God’s grace (as I offer elsewhere), could adopt a plural approach. Doing so would entail adopting the mechanisms proposed by Dooyeweerd for the interactions (interlacements) within and between social structures and lifting this to the higher metanarrative level to engage faith based and non–faith-based actors in building consensus around societies core norms.
Thus, I propose that Dooyeweerd’s theory of interactions between civil society groups can be plurally reenvisioned to provide a nuanced approach that could be acceptable to other religions and conscience-based groups. It could support embedding the rule of law in a national and international context. It would support dialogue in relation to freedom of thought, conscience, and religion and the rule of law. I expand upon this below.Footnote 111
Dooyeweerd’s theological approach and the existence of a theological metanarrative distinguishes it from the social systems theories of sociologists Talcott Parsons and Niklas Luhmann.Footnote 112 Parsons and Luhmann approach the analysis of civil society interactions from a sociological rather than theological perspective. They describe social interactions and do not provide the type of ethical framework for social interactions proposed by Dooyeweerd. In Luhmann’s case, there is an absence of a metanarrative. Below I propose that building a plural metanarrative into Dooyeweerd’s theory could provide the type of grounding necessary to support civil society interactions for the type of capacity building necessary to embed the rule of law.
The Freedom of Thought, Conscience, and Religion Conundrum: Maximizing Freedom
Dooyeweerd, professor of law and jurisprudence at the Free University of Amsterdam between 1926 and 1965, developed a reformed theological approach to the organization of government and public life based on the concept of sphere sovereignty. The concept of sphere sovereignty builds on the theological tradition of John Calvin (1509–1564), Johannes Althusius (1557–1638), Guillaume Groen van Prinsere (1801–1876), Friedrich Julius Stahl (1802–1861), and Abraham Kuyper (1837–1920).Footnote 113 Dooyeweerd conceptualizes society as spheres or groups of interests within which individuals interact independent of government regulation or control. Government intervention is acceptable when it is necessary for administering justice, protecting the welfare of those who would otherwise be in need, and coercing contributions for the sake of national unity.Footnote 114 Beyond its role in relation to justice, public welfare, and national cohesion, the sovereignty of the state is limited.
For Dooyweerd and the theologians who preceded him, absolute sovereignty rests in the Trinitarian God.Footnote 115 The individual, as the image bearer of God, has the capacity to contribute to and collaborate toward the common good within their particular spheres of interest. Government constitutes a sphere in and of itself. Each sphere has its particular focus or common goal toward which members orientate their rule and decision making.Footnote 116
Sphere sovereignty characterizes the individual as entitled to and capable of agency. The role of the state is to create an environment conducive to the exercise of that agency within a framework for plural living together. Sphere sovereignty could thus be said to have anticipated the interrelationship of the right to freedom of thought, conscience, and religion and the rule of law. This is so even though modern society is differently constituted to that into which Dooyeweerd was writing.Footnote 117 Nevertheless, the theoretical approach proposed by Dooyeweerd has potential because it reemphasizes the importance of communal aspects of public living together and lays the foundations for a more complex plural public life.
As a theory of society, sphere sovereignty anticipated the synthesis of fundamental rights and the rule of law proposed by jurists such as Tom Bingham.Footnote 118 The concept emphasizes the need to temper state sovereignty and foster human agency in its account of plural public living together. In his sophisticated analysis of the interaction of the spheres, and with foresight that anticipates the rights clashes arising from modern-day rights frameworks, Dooyeweerd proposes a mechanism of “enkaptic interlacement.”Footnote 119
Dooyeweerd’s theory of enkaptic interlacement is a complex system exploring the principles and functions definitive of various civil society spheres.Footnote 120 He proposes that to decide priorities in public life, it is necessary, first, to understand the nature of the sphere or activity. Once this is understood, it is then possible to analyze and articulate its interaction with other types of spheres or activities. So, for example, if there is a clash between interests relating to family life and those relating to business or economic life, it is necessary to consider not just the particulars giving rise to the clash of interests but also the broader implications of resolving a situation.
In the modern human rights context, Dooyeweerd’s theory of enkaptic interlacement could thus provide a sophisticated tool for understanding the broader implications of the narrow issues that tend to arise in freedom of thought, conscience, and religion litigation.Footnote 121 It could provide a mechanism for articulating the societal priorities that are, under the common law tradition at least, left to judges to identify as they resolve rights clashes on a case-by-case basis. This could be undertaken in some form of human rights commission or alternatively modelled on an expanded version of William Temple’s theory of middle axioms.Footnote 122 The overarching aim of such a system is not only to protect individual rights and protected characteristics, but to guard against the erosion of plural public living together, an essential aspect of the rule of law and freedom of thought, conscience, and religion. Chaplin explains that “the full significance of human persons [for Dooyeweerd] can never be exhausted either in their position as a member of a communal whole or in their status as discrete individuals.”Footnote 123 It is this aspect of Dooyeweerd’s philosophy that directly addresses the conundrum outlined in this article. In developing a mechanism to seek to contextually explore the balance between individual and universal needs it speaks powerfully into the problems highlighted with rights theory and consequently with their incorporation into the rule of law.
Sphere sovereignty presupposes a substantial public consensus around society’s minimum rules applicable to everyone. It also requires building the capacity of individuals to live with substantial differentiation in public life and to be able to resolve clashes of interests as they arise. Dooyeweerd’s approach to enkaptic interlacement requires an ability to understand and articulate both public virtues and the value to be attributed to them so that those responsible can make choices conducive to human flourishing. It is also in line with the broader public consensus or metanarrative for public living together.
To facilitate such plural living together it would be necessary not only to encourage debate amongst decision makers but also to build capacity amongst individuals to undertake and articulate such debate. Perry argues that, in the light of complex interactions in respect of different aspects of modern life and the multiple ethical frameworks at work, reinvigoration of the capacity for rhetoric is needed.Footnote 124 An increased capacity for rhetoric would need to be combined with a deeper understanding across society of the various ethical frameworks and the traditions (moveable rules that enable faiths to enculturate over time) of faith- and conscience-based groups.Footnote 125 It would then be possible to envisage an increased capacity for plural peaceful public living together, developing capacity for the enjoyment of freedom of thought, conscience, and religion and embedding the rule of law.
The combination of the articulation of public virtues informing different spheres of activity and an ability to discern relative importance between them (as offered by Dooyeweerd), together with an understanding of the extent to which any given faith, belief, or conscience group was able to adapt over time (as I offer elsewhere)Footnote 126 and the capacity for articulating this through rhetoric (as offered by Perry)Footnote 127 within a constitutional system designed to foster engagement, debate, and articulation of virtues (as offered by Temple)Footnote 128 could provide the nuanced approach necessary to both resolve public difference and create a solid foundation for embedding freedom of thought, conscience, and religion and fostering plural public living together under the rule of law.
Conclusion
Freedom of thought, conscience, and religion is foundational for embedding the rule of law from a theoretical and empirical perspective. Krygier’s sociological analysis of the rule of law posits that embedding the rule of law requires the development of virtue within a society to accommodate the operation, institutionalization, and administration of the rule of law. Freedom of thought, conscience, and religion is foundational to the rule of law if capacity to undertake discourse around virtues relevant to a given society is to take place. On this basis, I propose an expanded theory to support freedom of thought, conscience, and religion as a foundational right for the rule of law. The expanded underlying rationale for freedom of thought, conscience, and religion is based on the theory of common grace, supporting a multivalent approach to building consensus. Combined with Rowan Williams’s other-regarding community-building rights theory, this expanded theory for freedom of thought, conscience, and religion within the social pluralism of Dooyeweerd could provide a framework for exploring a multivalent approach to embedding the rule of law at a national and international level.
Acknowledgments
My sincere thanks to Professor Paul Cliteur, Leiden University, for his comments on a draft of the text. Also, to the editorial team at the Journal of Law and Religion for their helpful comments. Any errors are my own.
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