This post is part of an intermittent series on Canada’s freedom of conscience. The next post in this series is The confused Canadian approach to conscience.

One’s conscience is received by legal institutions and ethicists alike as the centre for moral decisions, yet the freedom to have a conscience is often interpreted in terms of religious belief. This interpretation is, of course, borne from conscience’s long association with religion: Canada’s governors were, for example, instructed to ‘permit Liberty of Conscience, and the free Exercise of all such modes of Religious Worship as are not prohibited by Law’.[1] This executive prohibition also found legislative expression[2] and is now ensconced in the Canadian Charter of Rights and Freedoms, which guarantees ‘freedom of conscience and religion’.[3] International law disentangles these concepts somewhat. The United Nations’ Universal Declaration of Human Rights tells us that

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.[4]

The rights created by this section situate conscience between reason and belief and provide details about the social circumstances in which conscience may be expressed. The conscience is, in the United Nations’ formulation, a faculty far broader than mere religion, yet it nevertheless remains framed as a type of belief.

            Recent inquiries into freedom of conscience respond to legislative and constitutional ambiguity with forward-looking teleology and wistful reverse engineering. Freedom of conscience is understood as a synonym for minority beliefs that may be individually protected from the majority’s will;[5] conscience is mentioned in the same breath as its erstwhile cousin—religion—because the two are so closely associated.[6] One position looks to protect the individual because individuality is important; another attempts to homologize individual beliefs, thus creating categories that may be governed.[7] Such homology leads scholars to reject protection of conscience because, like religious belief, conscience implies favouring a minority by exempting or accommodating minority groups.[8] The resulting appreciation for conscience is confused because its social phenomenon is very distinct from an individual’s feeling.

            A more progressive strain in the literature theorizes conscience as first an individual phenomenon, then as a collective endeavour. Authors in this strain emphasize the emotional bonds that create community, although some scholars frame these bonds in rational terms to curry favour from their peers.[9] Conscience is, in this strain, a ‘relational’ faculty that allows ‘interpersonal moral accountability’.[10] It is, in other words, a socially recognized ability to act on one’s beliefs, to the extent that those beliefs concord with civil order.[11]

            The approaches, of course, admit of more views than can be described. The debate about legal recognition of conscience is self-referential, so it carries authors’ convictions with each volley.

            Largely absent from the debate, perhaps because conscience is such a rooted issue, is a deeper examination of a faculty that is itself the starting point for an entire branch of English law. Conscience is discussed in stale terms. It represents a passage through which moral decisions are made, but it is itself an unknown bridge between the ability to reason and more common urges. The contemplative and active lives are once more pitted against each other. Descartes’ rational Renaissance association of thought and existence articulates the issue. The mystery of faith is slowly eroded in favour of empirical observation; any faith’s underlying faculty, however, transcends these mysteries. Ecumenicism encourages transcendence. Civil society is apparently less receptive. This claim obtains from either branch of scholarly theorizations of conscience as societal good or personal right. Indeed, categorizing conscience in these terms misses its point. Conscience endures in any circumstance. It eschews regulation. The faculty is incapable of encapsulation in a self-referential system like law.

            The freedom of conscience is powerful because it is incapable of definition; its social and legal importance must be explored with an eye toward these attempts at understanding the concept. The subtle transmutation of conscience from liberty to freedom is an intellectual-historical development that must be understood prior to a full discussion of conscience as it may be applied to contemporary life: subjects exist without restraint or are released from those bonds. Attention to judicial opinions and academic musings will tease out the development. Those latter musings are subject to the above-mentioned division. Some scholars are individualist, while others look beyond those boundaries. Once the movement from liberty of conscience to the freedom to hold conscience is discerned, the need for a more careful, humanist study of this faculty becomes plain.


THE NEXT POST IN THIS SERIES IS THE CONFUSED CANADIAN APPROACH TO CONSCIENCE.


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[1] Arthur G Doughty & Duncan M McArthur, eds, Documents relating to the constitutional history of Canada, 1791-1818, Early Canadiana Online 9_03421 (Ottawa: C.H. Parmelee, 1914) at 26, 45; Sovereign, Copy of the royal instructions to the Right Hon. C. Poulett Thomson when appointed Governor General of Canada, Early Canadiana Online 9_01287 (London: HMSO, 1840) at 17; Papers relating to Lower Canada viz. 1. Copy of the instructions given to the Earl of Gosford when appointed Governor of the Province of Canada. 2. Copy of any part of the Commission of the said Earl which has been omitted in the Commission issued to the Earl of Durham. 3. Copy of a letter from Lord Glenelg to the Earl of Durham, dated the 21st of April 1838, Early Canadiana Online 9_01454 (London: HMSO, 1838) at 12.

[2] An Act for the better and more effectual Establishment of the Church of England in this Island, 1802 [XLIII Geo III] SPEI, c 6, s 2; An Act for preserving the Church of England as by Law established in this Province, and for securing Liberty of Conscience in matters of Religion, 1786 [XXVI Geo III] SNB, c 4, s 5.

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (UK) 1982, c 11, s 2(a).

[4] Universal Declaration of Human Rights, UN GA Res 217/A 1948, s 18.

[5] Marie A Failinger, “Wondering After Babel: Power, Freedom and Ideology in US. Supreme Court Interpretations of the Religion Clauses” in Rex J Ahdar, ed, Law and Religion (Aldershot: Ashgate, 2000) 81 at 94.

[6] Kathleen A Brady, “Foundation for Freedom of Conscience: Stronger than You Might Think Symposium: Religious Liberty in America and Beyond: Celebrating the Legacy of Roger Williams on the 400th Anniversary of His Birth” (2004) 10:2 Roger Williams U L Rev 359–384 at 382; Peter Bowal, “Freedom of Conscience and Religion Feature on Religion and the Law” (2005) 30:3 LawNow 18–21.

[7] Michel Foucault, The Birth of the Clinic, translated by A.M. Shridan (New York: Routledge, 1973) at 196; Michel Foucault, The Birth of Biopolitics, translated by Graham Burchell, Michel Senellart, ed (New York: Palgrave Macmillan, 2008) at 300–304.

[8] Richard J Arneson, “Against Freedom of Conscience” (2010) 47:4 San Diego L Rev (2010 Editors’ Symposium) 1015–1040 at 1024.

[9] Howard Kislowicz, Richard Haigh & Adrienne Ng, “Calculations of conscience: The costs and benefits of religious and conscientious freedom” (2011) 48 Alberta Law Review 679–714 at paras 27, 35.

[10] Robert K Vischer, Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge: Cambridge University Press, 2010) at 74.

[11] Mary Anne Waldron, Free to believe: rethinking freedom of conscience and religion in Canada (Toronto: University of Toronto Press, 2013) at 227.

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