The Case for Religious Inclusivism and the Judicial Recognition of Associational Rights: A Response to Lenta

Constitutional Court Review, Vol. 1, p. 297, 2008

16 Pages Posted: 6 Aug 2010 Last revised: 8 Aug 2010

Iain T. Benson

University of Notre Dame Australia; University of the Free State - Faculty of Law, Department of Public Law

Date Written: 2008

Abstract

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.

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, Z12

Suggested Citation

Benson, Iain T., The Case for Religious Inclusivism and the Judicial Recognition of Associational Rights: A Response to Lenta (2008). Constitutional Court Review, Vol. 1, p. 297, 2008. Available at SSRN: https://ssrn.com/abstract=1654410

Iain Tyrrell Benson (Contact Author)

University of Notre Dame Australia ( email )

29 Shepard Street
Chippendale, Sydney 2008
Australia

University of the Free State - Faculty of Law, Department of Public Law ( email )

Bloemfontein
South Africa

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