What do Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, other leading cases from the USA, Canada, and the UK, and Teresa Bejan’s concept of ‘mere civility’, teach us about free speech and toleration? This article seeks to answer that question and suggest a path forward that allows people with deep disagreements about fundamental social and moral issues to live peaceably together despite their differences. This article defends two primary claims: First, ‘mere civility’ is complimentary to a broader legal argument for protecting the freedom of all members of a society to espouse and live out their views within the context of the public square and marketplace; and Second, compelling speech (or agreement) under the guise of civility endangers liberty and genuine equality. When freedom is properly protected, ‘mere civility’ is the natural result, while attempts to achieve something more than ‘mere civility’ invariably jeopardize freedom.
{"title":"Masterpiece Cakeshop and the Foundations of Free Speech and Toleration","authors":"Jeremy D Tedesco","doi":"10.1093/ojlr/rwaa024","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa024","url":null,"abstract":"\u0000 What do Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, other leading cases from the USA, Canada, and the UK, and Teresa Bejan’s concept of ‘mere civility’, teach us about free speech and toleration? This article seeks to answer that question and suggest a path forward that allows people with deep disagreements about fundamental social and moral issues to live peaceably together despite their differences. This article defends two primary claims: First, ‘mere civility’ is complimentary to a broader legal argument for protecting the freedom of all members of a society to espouse and live out their views within the context of the public square and marketplace; and Second, compelling speech (or agreement) under the guise of civility endangers liberty and genuine equality. When freedom is properly protected, ‘mere civility’ is the natural result, while attempts to achieve something more than ‘mere civility’ invariably jeopardize freedom.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"271-287"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa024","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41724883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In two recent cases, one in the USA and the other in the UK, courts have considered conscientious objection claims made by cake bakers who objected to providing a cake for the celebration/advocacy of same-sex marriage. I will argue that the issue in these cases is not the reasonable balance between the individual’s religious interests and the interests or rights of others in the community but is instead whether the individual’s religiously based objection should be viewed as an expression of personal religious conscience or as a (religiously grounded) civic position or action that falls outside the scope of religious freedom protection. In determining whether a conscientious objection should be viewed as a personal/spiritual matter or instead as a civic/political position, two factors are relevant. The first is whether the individual is being required to perform the particular act (to which she/he objects) because she/he holds a special position not held by others. The other factor is the relative remoteness/proximity of the act that the objector is required to perform from the act that she/he considers to be inherently immoral. The more remote the legally required action, the more likely we are to regard the objection as a political position.
{"title":"Conscientious Objection and the Politics of Cake-Making","authors":"R. Moon","doi":"10.1093/ojlr/rwaa013","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa013","url":null,"abstract":"\u0000 In two recent cases, one in the USA and the other in the UK, courts have considered conscientious objection claims made by cake bakers who objected to providing a cake for the celebration/advocacy of same-sex marriage. I will argue that the issue in these cases is not the reasonable balance between the individual’s religious interests and the interests or rights of others in the community but is instead whether the individual’s religiously based objection should be viewed as an expression of personal religious conscience or as a (religiously grounded) civic position or action that falls outside the scope of religious freedom protection. In determining whether a conscientious objection should be viewed as a personal/spiritual matter or instead as a civic/political position, two factors are relevant. The first is whether the individual is being required to perform the particular act (to which she/he objects) because she/he holds a special position not held by others. The other factor is the relative remoteness/proximity of the act that the objector is required to perform from the act that she/he considers to be inherently immoral. The more remote the legally required action, the more likely we are to regard the objection as a political position.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43199433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Religious Freedom Under Scrutiny. By Heiner Bielefeldt and Michael Wiener","authors":"Jessica W. Giles","doi":"10.1093/ojlr/rwaa002","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa002","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42460664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In order to meet the demands of modern life and its complexities, Muslim scholars developed in the 20th century a new instrument of Islamic legal finding, namely al-ijtihād al-jamāʿī [collective independent legal reasoning (ijtihād)]. The latter serves at present as a basis for the technical work within various institutions of contemporary Islamic law, in particular the fiqh academies. This article examines collective ijtihād as a newly developed concept of modern Islamic Law. By focusing on discussions among contemporary Muslim scholars about this concept, I aim to outline certain theoretical characteristics and a methodological framework for collective ijtihād. Furthermore, this article describes positions taken by Muslim scholars concerning the legitimacy and the probative value (ḥujjiyya) of collective ijtihād.
{"title":"Evolution of Islamic Law in the 20th Century: The Conception of Collective Ijtihād in the Debate Between Muslim Scholars","authors":"A. Makhlouf","doi":"10.1093/ojlr/rwaa019","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa019","url":null,"abstract":"\u0000 In order to meet the demands of modern life and its complexities, Muslim scholars developed in the 20th century a new instrument of Islamic legal finding, namely al-ijtihād al-jamāʿī [collective independent legal reasoning (ijtihād)]. The latter serves at present as a basis for the technical work within various institutions of contemporary Islamic law, in particular the fiqh academies. This article examines collective ijtihād as a newly developed concept of modern Islamic Law. By focusing on discussions among contemporary Muslim scholars about this concept, I aim to outline certain theoretical characteristics and a methodological framework for collective ijtihād. Furthermore, this article describes positions taken by Muslim scholars concerning the legitimacy and the probative value (ḥujjiyya) of collective ijtihād.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"157-178"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42194007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ktunaxa Nation v British Columbia: Sacred Sites and Saving Graces","authors":"James Hickling","doi":"10.1093/ojlr/rwaa006","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa006","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41391791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Two recent judgments of the Court of Justice of the European Union (CJEU) raise fundamental questions about the relationship between European Union Law and German religious constitutional law. This article outlines the German constitutional context for the law of labour relations within religious associations before considering those judgments in detail. The article argues that in its approach to religious occupational requirements and loyalty obligations the case law of the CJEU risks bringing about a fundamental change in German religious constitutional law. This is in breach of the terms of membership of Germany in the European Union and contrary to European law itself.
{"title":"Is German Religionsverfassungsrecht under threat from the European Union?","authors":"P. Unruh","doi":"10.1093/ojlr/rwaa016","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa016","url":null,"abstract":"\u0000 Two recent judgments of the Court of Justice of the European Union (CJEU) raise fundamental questions about the relationship between European Union Law and German religious constitutional law. This article outlines the German constitutional context for the law of labour relations within religious associations before considering those judgments in detail. The article argues that in its approach to religious occupational requirements and loyalty obligations the case law of the CJEU risks bringing about a fundamental change in German religious constitutional law. This is in breach of the terms of membership of Germany in the European Union and contrary to European law itself.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"1-27"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61387306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
High-profile litigation in various jurisdictions has drawn attention to situations where conflict arises between the requirements of anti-discrimination law and the religious beliefs and practices of individuals and organizations. Although these disputes reflect genuine disagreements, this article argues that, in addition to litigation, other facets of the relationship between faith and anti-discrimination law need to be considered. Taking Catholic Social Teaching as a case study, the article explores anti-discrimination law through a theological lens. In this example, it identifies significant common ground where religious beliefs are congruent with anti-discrimination law, even if areas of divergence are also present. The article concludes that further exploration of law and theology could make a contribution to fostering a more constructive relationship between faith and anti-discrimination law.
{"title":"Bridging a Divide: A Faith-Based Perspective on Anti-Discrimination Law","authors":"M. Bell","doi":"10.1093/ojlr/rwaa020","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa020","url":null,"abstract":"\u0000 High-profile litigation in various jurisdictions has drawn attention to situations where conflict arises between the requirements of anti-discrimination law and the religious beliefs and practices of individuals and organizations. Although these disputes reflect genuine disagreements, this article argues that, in addition to litigation, other facets of the relationship between faith and anti-discrimination law need to be considered. Taking Catholic Social Teaching as a case study, the article explores anti-discrimination law through a theological lens. In this example, it identifies significant common ground where religious beliefs are congruent with anti-discrimination law, even if areas of divergence are also present. The article concludes that further exploration of law and theology could make a contribution to fostering a more constructive relationship between faith and anti-discrimination law.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"56-78"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47976842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I argue that within contemporary liberal theory and case law is a relativistic conception of conscience, a conception which has the effect of obscuring the significance of conscience and downplaying the importance of conscience rights. The article focuses in particular on the right to conscientious objection. After outlining a representative cohort of cases from within contemporary liberalism concerning conscientious objection I analyse Cardinal Ratzinger’s (Pope Emeritus Benedict XVI) ‘dictatorship of relativism’ critique for its cogency as a response to these cases. I contend that although the ‘dictatorship of relativism’ critique is almost always understood in a univocal manner it is in fact comprised of two logically distinct arguments. One of these is found fundamentally flawed while the other is deemed promising yet in need of supplementation and defence. This I attempt via an analysis of the understanding of conscience present within contemporary liberal case law and theory. I go on to claim that contemporary liberalism, in part due to its problematic understanding of conscience, is often insufficiently respectful of an important principle of conscience rights protection when it dismisses claims of conscientious objection. The final part of the article is an attempt at explaining the paradox of a liberalism which readily justifies significant restrictions on conscience rights. I end by concluding that one version of the ‘dictatorship of relativism’ critique, suitably clarified and supplemented, is basically sound and poses a very serious challenge to contemporary liberalism.
{"title":"Liberal Relativism’s Challenge to Conscience Rights","authors":"T. Finegan","doi":"10.1093/ojlr/rwaa010","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa010","url":null,"abstract":"\u0000 I argue that within contemporary liberal theory and case law is a relativistic conception of conscience, a conception which has the effect of obscuring the significance of conscience and downplaying the importance of conscience rights. The article focuses in particular on the right to conscientious objection. After outlining a representative cohort of cases from within contemporary liberalism concerning conscientious objection I analyse Cardinal Ratzinger’s (Pope Emeritus Benedict XVI) ‘dictatorship of relativism’ critique for its cogency as a response to these cases. I contend that although the ‘dictatorship of relativism’ critique is almost always understood in a univocal manner it is in fact comprised of two logically distinct arguments. One of these is found fundamentally flawed while the other is deemed promising yet in need of supplementation and defence. This I attempt via an analysis of the understanding of conscience present within contemporary liberal case law and theory. I go on to claim that contemporary liberalism, in part due to its problematic understanding of conscience, is often insufficiently respectful of an important principle of conscience rights protection when it dismisses claims of conscientious objection. The final part of the article is an attempt at explaining the paradox of a liberalism which readily justifies significant restrictions on conscience rights. I end by concluding that one version of the ‘dictatorship of relativism’ critique, suitably clarified and supplemented, is basically sound and poses a very serious challenge to contemporary liberalism.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"79-104"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45869916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Negative Aspect of the Freedom to Manifest Religion or Belief in the Educational Context in Greece","authors":"C. Roberts","doi":"10.1093/ojlr/rwaa007","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa007","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"208-211"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48856223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses the regulation of artificial intelligence from a Jewish perspective, with an emphasis on the regulation of machine learning and its application to autonomous vehicles and machine learning. Through the Biblical story of Adam and Eve as well as Golem legends from Jewish folklore, we derive several basic principles that underlie a Jewish perspective on the moral and legal personhood of robots and other artificially intelligent agents. We argue that religious ethics in general, and Jewish ethics in particular, show us that the dangers of granting moral personhood to robots and in particular to autonomous vehicles lie not in the fact that they lack a soul—or consciousness or feelings or interests—but because to do so weakens our own ability to develop as fully autonomous legal and moral persons. Instead, we argue that existing legal persons should continue to maintain legal control over artificial agents, while natural persons assume ultimate moral responsibility for choices made by artificial agents they employ in their service. In the final section of the article we discuss the trolley dilemma in the context of governing autonomous vehicles and sketch out an application of Jewish ethics in a case where we are asking Artificial Intelligence to make life and death decisions. Our novel contribution is two-fold; first, we bring a religious approach to the discussion of the ethics of Artificial Intelligence which has hitherto been dominated by secular Western philosophies; second, we raise the idea that artificial entities who are trained through machine learning can be ethically trained in much the same way that human are—through reading and reflecting on core religious texts. This is both a way of ensuring the ethical regulation of artificial intelligence, but also promotes other core values of regulation, such as democratic engagement and user choice.
{"title":"From the Tree of Knowledge and the Golem of Prague to Kosher Autonomous Cars: The Ethics of Artificial Intelligence Through Jewish Eyes","authors":"N. Goltz, John Zeleznikow, T. Dowdeswell","doi":"10.1093/ojlr/rwaa015","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa015","url":null,"abstract":"\u0000 This article discusses the regulation of artificial intelligence from a Jewish perspective, with an emphasis on the regulation of machine learning and its application to autonomous vehicles and machine learning. Through the Biblical story of Adam and Eve as well as Golem legends from Jewish folklore, we derive several basic principles that underlie a Jewish perspective on the moral and legal personhood of robots and other artificially intelligent agents. We argue that religious ethics in general, and Jewish ethics in particular, show us that the dangers of granting moral personhood to robots and in particular to autonomous vehicles lie not in the fact that they lack a soul—or consciousness or feelings or interests—but because to do so weakens our own ability to develop as fully autonomous legal and moral persons. Instead, we argue that existing legal persons should continue to maintain legal control over artificial agents, while natural persons assume ultimate moral responsibility for choices made by artificial agents they employ in their service. In the final section of the article we discuss the trolley dilemma in the context of governing autonomous vehicles and sketch out an application of Jewish ethics in a case where we are asking Artificial Intelligence to make life and death decisions. Our novel contribution is two-fold; first, we bring a religious approach to the discussion of the ethics of Artificial Intelligence which has hitherto been dominated by secular Western philosophies; second, we raise the idea that artificial entities who are trained through machine learning can be ethically trained in much the same way that human are—through reading and reflecting on core religious texts. This is both a way of ensuring the ethical regulation of artificial intelligence, but also promotes other core values of regulation, such as democratic engagement and user choice.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":"132-156"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49539000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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