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  • Rafael Domingo (a1)

This paper argues that secular legal systems need a better defined space for freedom of conscience because this important right has been crowded out by both freedom of religion and freedom of thought. Based on the principles of the Protestant Reformation, American constitutionalism expanded the idea of freedom of conscience to the point of making it almost interchangeable with freedom of religion. On the other hand, international law, followed by European constitutional law, reduced the political force of the concept of freedom of conscience by assimilating it to freedom of thought. And yet freedom of conscience cannot be treated just the same as either religious freedom or freedom of thought. By nature, the secular legal systems of political communities are moral, but nonreligious. So morality and religion affect legal systems in different ways. For this reason, freedom of conscience and freedom of religion should be protected using different legal devices. The so-called privilege of abstaining (beneficium abstinendi) best protects freedom of conscience; freedom of religion, by contrast, is appropriately protected by what I call the religious exception (exceptio religiosa). The consequences of applying these legal tools in particular cases, and their proper scopes, depend on the constitutional model of the political community in question. But in general, an increasingly globalized, diverse, and multicultural society demands a wider application of both these legal tools.

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1 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), art. 18; International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102–23, 999 U.N.T.S. 171, art. 18; Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221, art. 9; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (Nov. 25, 1981), art. 1.

2 For an overview of the American experience and its inconsistencies, see Witte, John Jr., and Nichols, Joel A., Religion and the American Constitutional Experiment, 3rd ed. (Philadelphia: Westview Press, 2011), 287–94. See also Nussbaum, Martha, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008);Greenawalt, Kent, Religion and the Constitution, 2 vols. (Princeton, NJ: Princeton University Press, 2006–2009); Koppelman, Andrew, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013).

3 For the difference between action and judgment in relation to freedom, see Arendt, Hannah, Between Past and Future (New York: Penguin Books, 2006), 145–46.

4 On the development of the exemption strategy in American constitutional law, see Greenawalt, Kent, Religion and the Constitution, vol. 2, Establishment and Fairness (Princeton, NJ: Princeton University Press, 2008), 298–51.

5 On the interrelation between the UN and European systems, see Taylor, Paul M., Freedom of Religion, UN and European Human Rights Law and Practice (New York: Cambridge University Press, 2005), 79. See also Doe, Norman, Law and Religion in Europe: A Comparative Introduction (New York: Oxford University Press, 2011), 237–58; Ahdar, Rex and Leigh, Ian, Religious Freedom in the Liberal State, 2nd ed. (New York: Oxford University Press, 2013), 119.

6 See Berlin, Isaiah, Four Essays on Liberty (New York: Oxford University Press, 1969), 121–22.

7 For a general overview of religious rights in the Western legal tradition, see Tierney, Brian, “Religious Rights: A Historical Perspective,” in Religious Liberty in Western Thought (Atlanta, GA: Scholars Press, 1996), 2957.

8 See Witte, John Jr., The Reformations of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (New York: Cambridge University Press, 2007), 170–76; see also McConnell, Michael W., “The Origin and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103, no. 7 (1990): 1488.

9 For a development of these three aspects, see Witte and Nichols, American Constitutional Experiment, 42–45.

10 See McConnell, “Origins and Historical Understanding,” 1421–25.

11 Ibid., 1482, 1488.

12 Calvin, John, The Institutes of the Christian Religion, trans. Beveridge, Henry (Grand Rapids, MI: William B. Eerdmans, 1989), 317.

13 Berman, Harold J., Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Belknap Press of Harvard University Press, 2003), 75.

14 For a good approach to this doctrine of the sovereignty of God, whose best exponent was Johannes Althusius, see Witte, The Reformation of Rights, 143–207.

15 For a deep overview of the history of the idea of conscience, see Taylor, Charles, Sources of the Self (Cambridge: Cambridge University Press, 1989); Ricoeur, Paul, Oneself as Another, trans. Blamey, Kathleen (Chicago: Chicago University Press, 1992); Strohm, Paul, Conscience: A Very Short Introduction (New York: Oxford University Press, 2001). More recently, see Vischer, Robert K., Conscience and the Common Good (Cambridge: Cambridge University Press, 2010), 4872.

16 Cf. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), preamble (“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”).

17 For more about dignity as status, see Waldron, Jeremy, Dignity, Rank, and Rights (New York: Oxford University Press, 2012); Waldron. “How Law Protects Dignity,” Cambridge Law Journal 71, no. 1 (2012): 200–22. For a history of the concept, see Rosen, Michael, Dignity: Its History and Meaning (Cambridge, MA: Harvard University Press, 2012); Schlag, Martin, La dignità dell'uomo come principio sociale (Rome: EDUSC, 2013).

18 See Domingo, Rafael, “The Metalegal God,” Ecclesiastical Law Journal 16, no. 1 (2014): 147–67.

19 This position is defended by any positivistic approach to the law, which tries (ultimately without success) to separate from the legal system any kind of moral element.

20 See Perry, Michael J., “The Right to Religious and Moral Freedom,” in Religion and Human Rights: An Introduction (New York: Oxford University Press, 2012), 269–80; see also Perry, Human Rights in the Constitutional Law of the United States (New York: Cambridge University Press, 2013), chap. 7. For a revisited version of this chapter, see Perry, Michel J., “Freedom of Conscience as Religious and Moral Freedom,” Journal of Law and Religion 29, no. 1 (2014): 2441.

21 In the same vein, see Audi, Robert, Democratic Authority and the Separation of Church and State (New York: Oxford University Press, 2011), 9. For a theistic approach to morality, see Murphy, Mark C., God and Moral Law: On the Theistic Explanation of Morality (New York: Oxford University Press, 2011); Evans, C. Stephen, God and Moral Obligation (New York: Oxford University Press, 2013).

22 Ronald Dworkin's book Justice for Hedgehogs is the most recent important attempt to support morality without religion. Dworkin, Ronald, Justice for Hedgehogs (Cambridge, MA: Belknap Press of Harvard University Press, 2011); see also Dworkin, Ronald, Religion without God (Cambridge, MA: Harvard University Press, 2013), 1021.

23 For a good approach, which I basically share, see Audi, Robert, Democratic Authority and the Separation of Church and State (New York: Oxford University Press, 2011), 936. See also, Audi, Rationality and Religious Commitment (New York: Oxford University Press, 2011), 137–87.

24 Referring to the American experience, Horwitz does well to point out, “In practice courts have little difficulty recognizing genuine religious claims, and the cases raising potentially borderline questions appear to be few and far between.” Horwitz, Paul, The Agnostic Age: Law, Religion, and the Constitution (New York: Oxford University Press, 2011), 193.

25 In this vein, see Fuller, Lon L., The Morality of Law, rev. ed. (New Haven, CT: Yale University Press, 1969), 3394.

26 See Dworkin, Justice for Hedgehogs, 5.

27 On the phenomenon of secularization, see Taylor, Charles, A Secular Age (Cambridge, MA: Belknap Press of Harvard University Press, 2007), and Calhoun, Craig, Juergensmeyer, Mark, and Van Antwerpen, Jonathan, Rethinking Secularism (New York: Oxford University Press, 2011).

28 In this vein, see Habermas, Jürgen, Between Naturalism and Religion: Philosophical Essays (Cambridge: Polity Press, 2010), 120.

29 I develop this argument in Domingo, Rafael, “A New Paradigm for Religious Freedom,” Journal of Church and State 56, no. 3 (2014): 427–53.

30 Religion as a social phenomenon is paradigmatic in America. For an excellent descriptive account, see Micklethwait, John and Wooldridge, Adrian, God is Back (New York: Penguin Books, 2009).

31 For an approach to conscience as a matter of space, see Vischer, Robert K., Conscience and the Common Good (New York: Cambridge University Press, 2010).

32 Cf. Human Rights Committee, General Comment 22, Article 18 (48th Session, 1993), U.N. Doc. CCPR/C/21/Rev.1/Add.4 (1993).

33 I use in part the terminology adopted by Alexy, Robert, A Theory of Constitutional Rights, trans. Rivers, Julian (New York: Oxford University Press, 2012), 120. But that does not mean that I necessarily agree with his constitutional theory. For a deep critique, see Klatt, Matthias, ed., Institutionalized Reason: The Jurisprudence of Robert Alexy (New York: Oxford University Press, 2012). See also the comments and responses of Robert Alexey, A Theory of Constitutional Rights, 319–56.

34 However, freedom of thought is not the first expression of freedom that human beings recognize. In the same vein, “We first become aware of freedom or its opposite in our intercourse with others, not in the intercourse with ourselves.” Arendt, Between Past and Future, 147.

35 See Epictetus, Discourses, trans. Matheson, P. E. (Oxford: Clarendon Press, 1916), IV.I (“That man is free, who lives as he wishes, who is proof against compulsion and hindrance and violence, whose impulses are untrammeled, who gets what he wills to get and avoids what he wills to avoid.”).

36 See Alexy, A Theory of Constitutional Rights, 124.

37 These rights are potentially important ways to protect freedom of thought. For an overview of the current debate about freedom of speech in relation with freedom of thought, see Waldron, Jeremy, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012).

38 In the same vein, see Murdoch, Jim, Protecting the Right to Freedom of Thought, Conscience and Religion (Strasburg: Council of Europe, 2012), 18.

39 Alexy, A Theory of Constitutional Rights, 124.

40 Spaemann, Robert, Persons: The Difference between Someone and Something, trans. O'Donovan, Oliver (New York: Oxford University Press, 2006), 174.

41 On the supremacy of the person, see Finnis, John, “The Priority of Persons,” in Collected Essays, vol. 2, Intention and Identity (New York: Oxford University Press, 2011), 1935; see also Finnis, “The Priority of the Person Revisited,” American Journal of Jurisprudence 58, no. 1 (2013): 4562.

42 For more on the idea of transcendent law, see Brague, Rémi, The Law of God: The Philosophical History of an Idea, trans. Cochrane, Lydia G. (Chicago: University of Chicago Press, 2007).

43 Berlin, Four Essays on Liberty, 125.

44 Papinian, in Justinian, Digest, ed. Mommsen, Theodor and Krueger, Paul (Berlin: Weidmann, 1895), 2.14.38.

45 For more on this argument, see Domingo, Rafael, “A Right to Religious and Moral Freedom?” International Journal of Constitutional Law 12, no. 1 (2014): 226247; see also Perry, Michael J., “A Right to Religious and Moral Freedom? A Reply to Rafael Domingo,” International Journal of Constitutional Law 12, no. 1 (2014): 248–55.

46 See International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Rep. 102-23, 999 U.N.T.S. 171, art. 18, ¶ 3.

47 Mill, John Stuart, On Liberty, ed. Gray, John (New York: Oxford University Press, 2008), 12.

48 For the beneficial influences of religion, see Habermas, Between Naturalism and Religion, 124–25, 209–47.

49 See especially Finnis, John, Natural Law and Natural Rights (New York: Oxford University Press, 2011), 8990.

50 In the same vein, see Greenawalt, Kent, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton, NJ: Princeton University Press, 2006), 137.

51 Mill, On Liberty, 62.

52 See Maclure, Jocelyn and Taylor, Charles, Secularism and Freedom of Conscience (Cambridge, MA: Harvard University Press, 2011), 68.

53 Cf. the new wording of § 1631d(2) of the German Civil Code (BGB) on circumcision of the male child (“Beschneidung des männlichen Kindes”): “In the first six months after the birth of the child persons delegated for that purpose by a religious body too may perform circumcisions according to paragraph 1, if they are especially trained for that purpose and, without being physicians, are comparatively qualified for performing circumcisions.” Bürgerliches Gesetzbuch [BGB] [Civil Code], Aug. 18, 1896, Reichsgesetzblatt [RBGl.] 195, as amended, § 1631d, para. 2. (Ger.) (translation available at

54 The word “privilege” has very different meaning in common law, canon law, and civil law. For a general view see the definition of “privilege” in Garner, Bryan A., ed., Black's Law Dictionary, 9th ed. (St. Paul, MN: West, 2009), 179.

55 E.g., beneficium divisionis, beneficium cedendarum actionum, beneficium excussionis personalis, beneficium inventarii, or beneficium competentiae. For a general explanation of privileges in Roman Law, see Buckland, W. W. and Stein, Peter, A Text-Book of Roman Law from Augustus to Justinian (New York: Cambridge University Press, 2007), 449–50, 693. See also Kaser, Max, Das römische Privatrecht, vol. 1, Das altrömische, das vorklassische und klassische Recht (Munich: Beck Verlag, 1971), 211, 664–66, 733–74.

56 For an explanation of this specific privilege, see Nicholas, Barry, An Introduction to Roman Law (Oxford: Clarendon Press, 1975), 238, 240–41. See also Kaser, Das römische Privatrecht, 1:714–15, and Mousourakis, George, Fundamentals of Private Roman Law (New York: Springer, 2012), 296, 298, 303. Roman legal sources refer to the privilege as a beneficium, Ulpian, in Justinian, Digest,, but also as a ius, Gaius, Institutes, 2.159, facultas, Gaius, Institutes, 2.160, or potestas, Gaius, in Justinian, Digest,

57 For a partial attempted reconstruction of the edict Si suus heres erit (§ 209–10) with the announcement of the privilege, see Lenel, Otto, Das Edictum Perpetuum, 3rd ed. (1927; repr. Aalen: Scientia, 1956), 418–21.

58 See ibid., 418n8.

59 For a brief, general but sound overview of the civil procedure in the Roman classical period, see Johnston, David, Roman Law in Context (New York: Cambridge University Press, 2007), 112–32.

60 For an overview, see Greenawalt, Free Exercise and Fairness, 49–67.

61 For a comparative approach to different applications of this privilege, see Navarro-Valls, Rafael and Martinez-Torrón, Javier, Conflictos entre conciencia y Ley: Las objeciones de conciencia (Madrid: Iustel, 2012). For an American overview, see Vischer, Robert K., Conscience and the Common Good (New York: Cambridge University Press, 2010), 125302.

62 In the same vein, see Rhonheimer, Martin, The Common Good of Constitutional Democracy, ed. Murphy, William F. Jr. (Washington, DC: Catholic University of America Press, 2013), 118.

63 See Horace, Carmina, 3.2.25 (“Est et fideli tuta silentio merces.” (There is likewise a reward for loyal silence.)).

64 See Alexy, A Theory of Constitutional Rights, 151.

65 In the same vein, Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1999), 324.

66 See Maclure and Taylor, Secularism and Freedom of Conscience, 99 (“Since granting an accommodation modifies the terms of social cooperation and the distribution of resources, the petitioner must justify his request; in other words, he is faced with the obligation of public justification.”).

67 The religious exception is very far from becoming a matter of selective application of the principle of toleration to the conscience of only religious believers, which Brian Leiter is right to say would be “not morally defensible.” Leiter, Brian, Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2013), 133. In my opinion, toleration is not the best justification for the ideal of religious freedom, as Leiter suggests. Religious exceptionalism cannot be understood just as a matter of toleration but as a matter of individual freedom within a political community, which is by definition nonreligious.

68 In this vein, see Waldron, Jeremy, Law and Disagreement (New York: Oxford University Press, 1999).

69 In this vein, but applied to the conscientious exemptions, see Nehushtan, Yossi, “What Are Conscientious Exemptions Really About?,” Oxford Journal of Law and Religion 2, no. 2 (2013): 393416.

70 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

71 In Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), the U.S. Supreme Court allowed closely held for-profit corporations to be exempt from federal government regulations requiring employers to cover certain contraceptives for their female employees. This case represents the first time that the Supreme Court recognized a for-profit corporation's claim of religious belief, but it is limited to closely held corporations under the 1993 Religious Freedom Restoration Act.

72 The Ciceronian phrase is “silent enim leges inter arma” (in times of war, the laws fall silent). Cicero, Pro Milone, IV.11.

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