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'Public Reason', Judicial Deference and the Right to Freedom of Religion and Belief under the Human Rights Act 1998

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Abstract:

In the UK judicial discourse on freedom of religion and belief under Article 9 of the ECHR discloses a striking disconnect. On the one hand judges acknowledge the unparalleled importance of religion and equivalent belief to those bringing claims. Yet, on the other, judges are often quick to defer to Government and Parliament on the need for curbs on manifestations of religion or belief, resulting in a diminution in the levels of protection afforded to complainants. The reasons for this disconnect and associated deference appear to lie deep within DNA of liberal democracy - particularly in the doctrine of 'public reason', usually associated with John Rawls, whereby law and public policy making must be based on grounds that all reasonable people can comprehend, as opposed to partisan or comprehensive world views. In this regard it is difficult for judges to attach weight to the subjective importance of a person's religious or equivalent belief and, as a consequence, this may lead to such beliefs being easily trumped by competing public goods. Hitherto, this deferential stance has been (relatively) unproblematic. However, that said, if it continues to be evident in the future, fears will increase that judges fail to take religious rights seriously so, given this possibility, we suggest that the use of excessive judicial deference in religious rights cases should be curtailed.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/096157611796769505

Publication date: July 1, 2011

More about this publication?
  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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