Storm and Havoc

Time for more shameless self-promotion, after my rant on Thursday about not being cited by the Québec Court of Appeal. A paper of mine, called “Storm and Havoc: The Rule of Law and Religious Exemptions,” is coming out any time now in the Revue Juridique Thémis de l’Université de Montréal, a mere three years after it started life as my LL.M. thesis. You can download it from SSRN.

Here is the abstract:

Exemptions from laws of general application for members of religious groups are controversial. One reason for this is an exemption seems to elevate those to whom it is granted above the ordinary law, and to make them a law unto themselves. This article examines the theoretical foundation for such claims: the conflict between religious exemptions and the ideal of the Rule of Law, influential accounts of which emphasize the requirement of legal generality. It inquires into the different meanings of legal generality and explains why religious exemptions are problematic from a Rule of Law perspective. It scrutinizes the usual defences of religious exemptions and points out their weaknesses. Nevertheless, it argues that because religious freedom, which exemptions help secure, and the Rule of Law are based on the same philosophical foundation, the dignity of the person as an autonomous moral agent, the relationship between religious exemptions and the Rule of Law is not purely antagonistic. The tension which the critics of exemptions expose is real, but some religious exemptions ought to be granted. The article outlines a framework for deciding when religious exemptions should be granted and when denied, and concludes with some observations on the institutions that can be entrusted with deciding whether to grant an exemption.

And here’s a bit from the introduction (sans footnotes):

The desideratum that laws be general, albeit expressed with varying degrees of strength, is a staple of various accounts of the Rule of Law. One of its best-known formulations belongs to A.V. Dicey, who meant by “the rule of law […] not only that […] no man is above the law, but […] that […] every man […] is subject to the ordinary law of the realm”. Dicey was most concerned with legal privileges for the government and its officials, but his ideal of “legal equality” naturally implies also that no class of private citizens ought to bear burdens or enjoy privileges not imposed or conferred upon others.

However, a law that is on its face the same for all citizens may in fact impose unique burdens on some of them. Those disproportionately affected by the law are likely to demand an exemption from its application. …

Whatever the forum and the circumstances in which a demand [for an exemption] is made, it conflicts with the ideal of the Rule of Law. … However, because the realization of the ideal of the Rule of Law is a matter of degree, and is in any event “just one of the virtues which a legal system may possess and by which it is to be judged”, it may yield to other ideals that we hold dear. …

The question this article sets out to explore is whether religious freedom is one such ideal. In other words, can the claim that conforming to a general law would be an insufferable burden on one’s freedom of religion justify the creation …  of an exemption from that general law in favor of the claimant? Today this issue is perhaps most salient in the context of the larger debate on the role of religion in a democratic, pluralist polity. Yet the fear that religious observance, rooted as it is in strong feelings and commitments, will lead to disrespect for the law and perhaps even a general state of lawlessness is not new. Even supporters of religious freedom have long noted it, as appears from the admixture of trepidation and exhilaration in Lord Acton’s description of “the equal claim of every man to be unhindered by man in the fulfillment of duty to God [as] a doctrine laden with storm and havoc […] and the indestructible soul of the revolution”.

The paper was, needless to say, inspired by the controversy over religion that has been going on in Québec ever since the Supreme Court’s decision in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256. It does not speak directly to the most recent and most shameful version of this controversy, that about the “Charter of Québec Values” and its ban of “conspicuous religious symbols” for public employees. But it does include an argument in defence of religious liberty and of the respect of each believer’s subjective views, which are, I think, quite topical. I might blog in more detail about some of my arguments, but in the meantime, I encourage you to read the whole thing. It is, I am afraid, a bit long, but ― so the anonymous reviewer told me ― a pleasant read.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota