The Case for Religious Inclusivism and the Judicial Recognition of Associational Rights: A Response to Lenta
Iain T. Benson
University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law; Miller Thomson LLP, Canada
Constitutional Court Review, Vol. 1, p. 297, 2008
Jurisprudence in South Africa and Canada has been developing in a way that privileges individual religious autonomy over the communal dimension of rights to religious freedom and practice. In this paper, the intersection between law and religious freedom in both of these countries is explored. A reductive, anti-religious conception of the secular has taken hold in modern jurisprudence, limiting society’s ability to adopt an inclusive and tolerant pluralistic model. The Courts in South Africa and Canada are exhorted to address the communal nature of religious belief and reject the individualistic approach that has dominated their jurisprudence thus far. This paper also considers the problem of how to define religion, arguing that a minimum quorum of sincere believers united in a religious community is necessary to attract religious rights protections.
Number of Pages in PDF File: 16
Keywords: Canadian Constitutional Law, Canadian Charter of Rights and Freedoms, Section 2(a) Freedom of Conscience and Religion, Religion and the Law, “Religion of one”, Minimum standards, Definition of religion, Communal dimension of religion, Association, definition of secularism, definition of secular
JEL Classification: K12, K39, Z12Accepted Paper Series
Date posted: August 6, 2010 ; Last revised: August 8, 2010
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