Conscience, Volitional Necessity, and Religious Exemptions

31 Pages Posted: 23 May 2013

Date Written: December 8, 2009

Abstract

Why do we ever grant religious exemptions? Many distinguished scholars and judges have been drawn to the idea that it is conscience that is entitled to special protection, because a person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. The weakness of this justification is shown by examining philosopher Harry Frankfurt’s account of what he calls “volitional necessity,” which clarifies the structure of the argument that invocations of conscience imply. Frankfurt shows that a person can be bound in this way by allegiances that are not moral: volitional necessity can arise from anything at all that a person cares about. Conscience is thus a poor basis for claims upon other people. Accommodation must rather depend on some idea of the value of religion

Keywords: Constitutional Law, Religion Law

JEL Classification: K10, K19, K30, K39

Suggested Citation

Koppelman, Andrew M., Conscience, Volitional Necessity, and Religious Exemptions (December 8, 2009). Legal Theory, Vol. 15, No. 3, 2009; Northwestern Public Law Research Paper No. 13-16; Northwestern Law & Econ Research Paper No. 13-18. Available at SSRN: https://ssrn.com/abstract=2268238

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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