Conscience A Foundational Right
Freedom of conscience is a foundational right that is absolutely necessary for a liberal democracy. Invocations of the freedom to hold and act upon a dissenting moral or ethical view may be traced through the centuries, from antiquity into the present. Consider those who, because of conscience, refused to bow to a Babylonian idol, or to offer incense to the Roman emperor; in their resistance, we see the precursors to those pacifists who would not bear arms in the conflagrations of the 20th century, or the ethical vegans who will not compromise their diet or lifestyle today. This freedom to defy political or social pressures posits the individual as having the inherent right to hold and practise a belief that is incongruent with the accepted norm.
I argue that freedom of conscience is best understood as a first freedom: a basic building block upon which other freedoms are constructed. Although conscience is frequently subsumed by religion, the two concepts are not the same. Conscience represents an even deeper, inner principle which is accessible to all, regardless of their faith or lack of faith. It is, at its heart, the individual’s understanding of the truth and her responsibility to that truth. This profound and uncompromising allegiance, which supersedes any other commitment, demands accommodation.
Religious Upheaval Leads To Individual Freedom
The teachings of the early Christian church recognized that commitment to moral principles was meant to be voluntary. Faith could not be forced; conscience could not be compelled. Without respect for dissenting or minority beliefs, state coercion and even violence would result: witness the ecclesiastico-political persecution of heretics after Christianity became the official religion of the Roman Empire. When Augustinian monk Martin Luther posted his 95 Theses — objections against the abuses of the church — on a church door in Wittenberg, Germany, in 1517, this act of conscience set ablaze a tumultuous era. Through the ensuing crucible of the Protestant Reformation emerged some of the early efforts to recognize and implement the expansive freedoms we now enjoy.
We may trace the connection between religious upheaval and the eventual recognition of civil liberties through the philosophies of John Locke, often styled as the father of classical liberalism. Locke’s A Letter Concerning Toleration and Two Treatises on Government influenced the passage of the 1689 Bill of Rights, which continues to be recognized in Canadian law today.
While Europe was embroiled in religious conflicts, colonial tensions in North America, along with the repercussions of the American Revolution, contributed to the development of a uniquely Canadian vision for toleration. In particular, the 1763 Treaty of Paris agreement and the subsequent Quebec Act, 1774, gave French Catholics in Quebec unprecedented religious freedom, in order to preserve unity. By the time of Confederation in 1867, the British Parliament was well on its way to expanding its tolerance of all religious and non-religious groups in all areas of society. This gradual evolution of respect and accommodation for conscience formed the legal framework from which Canadian law drew its inspiration.
The Canadian Experience of Freedom
Unfortunately, many now behave as if freedom originated a mere 38 years ago, when the Canadian Charter of Rights and Freedoms was entrenched in April 1982. We would do well to remember that the Charter did not come from nothing: over the centuries, our history and legal tradition developed a tremendous body of law protecting our basic human rights.
First, Canada’s founding document, the Constitution Act, 1867, recognized in its preamble that the new country of Canada would have “a Constitution similar in Principle to that of the United Kingdom,” meaning that all the basic human rights and freedoms guaranteed by the British constitution would also benefit Canadians.
Second, the history of religious turmoil in Europe during the 16th and 17th centuries is also a part of our history. This heritage confirms that — along with other movements, such as the push for civil liberties after the Second World War — it was a religious epiphany that grew into the freedoms we recognize today. In many ways, the progression from religious dissent to political freedom developed out of the pragmatic realization that, to preserve peace, there could no longer be a single orthodoxy.
The growth of toleration has had profound consequences. Once the state protects the blossoming of individual conscience, it simultaneously enables the individual to pursue other endeavours such as freedom of speech, which fosters the discussion of truth; freedom of association, which allows the like-minded to work on common projects; freedom of assembly, which permits citizens to congregate together and debate issues of common concern; and so on, without fear of state reprisal. Thus, it is no stretch to say that freedom of conscience blazed the path in liberal democracies to enable the further development of other human rights. Logically, this position leads to the bold assertion that meaningful manifestations of all other civil liberties would be jeopardized if freedom of conscience were diminished. Indeed, to remove freedom of conscience is to undermine the liberal democratic ideals that support all human rights protections.
If ever there were a candidate for a first freedom — for a freedom that is above all other freedoms — it is the freedom of conscience. That is not to say it trumps all other freedoms in every context, as a type of legal bulldozer; but it is a freedom that cannot be disregarded haphazardly. When we are willing to put political expediency and legal verbosity above conscience in an unmitigated pursuit of power, then the legitimacy and stability of our free society is at risk. Recognizing and respecting freedom of conscience is, therefore, essential for a liberal democracy to flourish.
Barry W. Bussey, PhD, is director, legal affairs at Canadian Council of Christian Charities. The views expressed are personal and do not necessarily reflect those of his employer. This article was published by The Lawyers Daily on August 11, 2020, https://www.thelawyersdaily.ca/articles/20490/blazing-the-trail-prototypical-freedom-barry-bussey