Storm and Havoc: The Rule of Law and Religious Exemptions

47 Revue Juridique Thémis de l'Université de Montréal 247 (2013)

71 Pages Posted: 25 Oct 2013

Date Written: October 23, 2013

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.

Keywords: Rule of Law, religious exemptions, religion, freedom of religion, generality, dignity

Suggested Citation

Sirota, Leonid, Storm and Havoc: The Rule of Law and Religious Exemptions (October 23, 2013). 47 Revue Juridique Thémis de l'Université de Montréal 247 (2013). Available at SSRN: https://ssrn.com/abstract=2344494

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

HOME PAGE: http://doubleaspect.blog

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