Law01 – Freedom of thought, conscience and religion in constitutional and international context supporting human and societal flourishing

Supervisors: Jessica Giles and Professor Simon Gardiner (The Open University Law School, Faculty of Business and Law).

Project Description:

The fundamental human right to freedom of thought conscience and religion (FTCR) is foundational to the effective embedding and operation of the rule of law (Somos, 2021; Krygier 2014, 2017, 2018, 2019; Giles 2023). It is also key to human individual, communal and societal flourishing (George, 2021; Chilton and Versteeg, 2020; ten Napel 2017). Individual flourishing since it provides a framework for humankind to freely chose the ethical framework and follow the faith or belief that enables individuals to orientate their lives (Makridis, 2020). Communal because it protects the rights of the individual to meet with like-minded individuals in groups to explore and express faith and belief (Bussey, 2021). Societal because it enables a society to embrace pluralism, this not only protects individual and communal flourishing, but also facilitates the development of plural consensus upon which society crafts laws and lives out its public life. With the increasing internationalisation of aspects of law, in particular the rule of law, FTCR is core to ensuring international legal mechanisms are similarly plurally focussed. Thus, the effective functioning of FTCR impacts both national and international interactions and flourishing and can be engaged as a tool for peaceful plural living together.

Project Aims:

This project call aims to identify the extent to which FTCR can be engaged to foster individual and societal flourishing. It encompasses research from legal and/or interdisciplinary perspectives analysing the operational and/or theoretical integration of FTCR into national and international (constitutional) contexts. It is particularly interested in the intersectionality of FTCR with other rights, for example, women’s rights (Ghanea, 2017), and in interdisciplinary approaches, for example, with religious studies, philosophical, or sociological approaches. It also supports an exploration of the extent to which FTCR impacts societal financial wellbeing (SDG 1). An alternative aim could be the reconstruction of societies that have collapsed due to religious difference (Northern Ireland, Lebanon, (historically) and within Europe) or religion in the process of decolonisation (America and Africa).

Theoretical Perspective/Field:

Research will relate to some or all of the following sustainable development goals: SDGs 1 (no proverty), 5 (gender equality), 10 (reduced inequalities), 11 (sustainable cities and communities), 16 (peace and justice, strong institutions), 17 (partnerships for the goals). This is to bolster society against the type of disintegration in peaceful living together and exclusion of and discrimination against minorities seen elsewhere due to religious difference and polarisation of views (for example, Indonesia (Illyas and Athwal, 2021; Morfit, 1981), Syria, Israel, Myanmar).

Interdisciplinary approaches are welcome, in particular in relation to religious studies, philosophy, theology and philosophical theology. The research will be situated in the field of national and/or international law on human rights.

Potential for Theoretical Contribution:

Although human rights theory is underpinned by a breadth of theoretical perspectives, there is only limited theoretical thought underpinning particular rights, including FTCR and its intersectionality with other rights. In order to strengthen support for a particular right it is necessary to understand the essential role of it within a constitutional framework. Expanding the theoretical analysis of FTCR will not only strengthen the potential for peaceful plural living together but also for embedding and maintaining the rule of law.

Methodology:

The research can encompass a range of methodological approaches, including theoretical human rights-based approaches (for example, Waldron, 2018; Benson, 2021) and/or (theological) philosophical approaches (for example, Allen, 2012; Davis 2006; Hauerwas, 2015; Williams 2019) and/or socio-legal approaches (for example, Cownie, 2018; Bâli and Lerner, 2017; including religion based approaches: Davie, 2015;). Alternatively, an empirical approach can be taken to examine the operation of FTCR in comparative context (for example, World Policy Analysis Centre 2020, Giles ed., 2023, Henrard and Mak, 2014) and/or at the intersection with other rights (for example, Ghanea). Methodologies can include interdisciplinary methods (for example, Hutchinson, 2015, Tobi and Kampen, 2018), doctrinal and comparative approaches (for example, Hunter-Henin, 2015, Henrard and Mak, Giles 2023a), sociology of law approaches (for example, Grim, 2008) or theoretical and philosophical approaches (for example, Nickel, 2024). Empirical methods can include quantitative and qualitative approaches (for example, Pew Research Centre, 2024 and 2024a).

Impact:

The intended impact of the theoretical research will be to better inform approaches to law creation and implementation at national or international level and/or to engage with national and international policy making groups, in particular from a plural perspective. For example, a proposal for approaches on how to better integrate differing religion-based views to build consensus around international law, or to provide plural approaches to underpin the rule of law in multiple different contexts could aim to engage with the UN Office for Human Rights or International Non-Governmental Organisations working on the rule of law. At a national level it could look to engage with the Equality and Human Rights Commission or the All Party Parliamentary Group on International Freedom of Religion or Belief, alternatively with other national or international NGOs.

The impact of empirical approaches will be to better inform policy making in respect of the impact of religion on national and international law and the manner in which policy and law makers might be encouraged to engage with religion. The aim being to highlight the importance of the religious or conscience-based voice and to encourage a plural approach to strengthen peaceful living together. Qualitative and/or quantitative empirical data will be collated to form an impactful database supporting a thesis on new approaches to law.

References:

Allen, Paul L, Theological Methodology: A Guide for the Perplexed (London: T & T Clark, 2012)

Bâli, Asli Ü and Lerner, Hannah, ‘Designing Constitutions in Religiously Divided Societies ‘ in Asli Ü Bâli, and Hannah Lerner, eds., Constitution writing, religion and democracy (Cambridge: Cambridge University Press, 2017).

Bussey, Barry ‘Human Dignity Found in Religious Community’ in Barry Bussey and Angus J L Menuge eds., The Inherence of Human Dignity. Law and Religious Liberty Volume 2 (London: Anthem Press, 2021): 115-145, 115-116

Benson, Iain T, ‘Pluralism in Islam, Roman Catholicism, Judaism’ in W Cole Durham Jr and Donlu D Thayer, eds. Religion, Pluralism, and Reconciling Difference (Abingdon: Routledge, 2019).

Chilton, Adam and Versteegk Mila, How Constitutional Rights Matter (Oxford: Oxford University Press, 2020): 7-12.

Cownie, Fiona and Bradney, Anthony, ‘Socio-legal Studies. A challenge to the doctrinal approach,’ in Dawn Watkins and Mandy Burton eds., Research Methods in Law (Abingdon, Oxon: Routledge, 2018).

Davie, Grace, Religion in Britain: A Persistent Paradox, 2nd ed., (Hoboken, New Jersey: Wiley Blackwell, 2015).

Davis, Stephen T, Christian Philosophical Theology (Oxford: Oxford University Press, 2006)

George, Robert P, ‘Religious Liberty and Human Good’ in Barry W Bussey and Angus J L Menuge, eds., The Inherence of Human Dignity. Law and Religious Liberty. Volume 2 (London: Anthem Press, 2021): 107

Ghanea, Nazila, ‘Women and religious freedom. Synergies and opportunities’ (Washington: United States Commission on International Religious Freedom, 2017), accessed 10 September 2024, https://www.uscirf.gov/sites/default/files/WomenandReligiousFreedom.pdf.

Giles, Jessica, ‘The Interrelationship between Freedom of Thought, Conscience and, Religion and, The Rule of Law’ Cambridge Journal of Law and Religion 38, No.3 (2023): 376-402: doi:10.1017/jlr.2023.28.

Giles, Jessica, ed. ‘The Law and Religion Cases Catchwords List’ (The Open University Law School, 2023.) DOI: https://doi.org/10.21954/ou.ro.0001724e.

Grim, Brian J, ‘Religious Freedom: Good for what ails us?’ The Review of Faith & International Affairs 6, No. 2 (2008): 3-7.

Hauerwas, Stanley, ‘How to think theologically about rights’ Journal of Law and Religion 30 No.3 (2015).

Henrard, Kristin and Mak, Elaine, ‘The Use of Consensus Arguments in Transnational Juridical Decision-Making: Confirming or Jeopardising Universal Human Rights’ (2 June, 2014) Available SSRN, accessed 10 March, 2024, https://ssrn.com/abstract=2444682 or http://dx.doi.org/10.2139/ssrn.2444682.

Hunter-Henin, Myriam, ‘Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ Oxford Journal of Law and Religion 4, No. 1 (2015): 94-118.

Hutchinson, Terry, ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law’ Erasmus Law Review 8, No. 3 (2015): 130-138.

Ilyas, Mohammed and Athwal, Rayvinder, ‘De-Radicalisation and Humanitarianism in Indonesia’ Social Sciences 10, no.3, (2021): 87-104.

Krygier, Martin, ‘Inside the Rule of Law’ Rivista di Filosofia del Diritto III, no.1, (2014): 77-98, 82-83, 86-88, 96

Krygier, Martin, ‘Tempering Power,’ in Maurice Adams, Anne Meuwese, and Ernst Hirsch Ballin eds., Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge: Cambridge University Press, 2017): 34-59, 47-49, 55-59;

Krygier, Martin and Adam Winchester, Adam, ‘Arbitrary Power and the Ideal of the Rule of Law’ in Christopher May and Adam Winchester eds., Handbook of the Rule of Law (Cheltenham, England: Edward Elgar, 2018): 75-95, 86-88, 94-95.

Krygier, Martin, ‘The Challenge of Institutionalisation: Post-communist “Transitions”, Populism and the Rule of law’ European Constitutional Law Review 15, No. 3 (2019): 544-573, 553-554, 573.

Makridis, Christos Andreas, ‘Human Flourishing and Religious Liberty: Evidence from over 150 Countries’ PLoS One 15, No.1 (2020), accessed 10 September 2024: e0239983

Morfit, Michael ‘Pancasila: The Indonesian State Ideology According to the New Order Government’ Asian Survey 21, No. 8, (Aug 1981): 838-851.

ten Napel, Hans-Martien, Constitutionalism, Democracy and Religious Freedom. To Be Fully Human (London: Routledge, 2017).

Nickel, James, ‘Human Rights’ The Stanford Encyclopedia of Philosophy (Fall 2021 Edition), Edward N. Zalta ed., accessed 20 March, 2024, URL= https://plato.stanford.edu/archives/fall2021/entries/rights-human/.

Pew Research Centre, ‘The Global Religious Landscape: Religious Composition by Country’ (Washington: Pew Research Centre, 2012), accessed March 20, 2024, https://assets.pewresearch.org/wp-content/uploads/sites/11/2012/12/globa....

Pew Research Centre, ‘Religious Restrictions Around the World’ (Washington: Pew Research Centre, 5 March 2024), accessed 10 September, 2024, https://www.pewresearch.org/religion/interactives/religious-restrictions....

Somos, Mark ‘Virtue’ in ed. Randall Lesaffer and Janne E Nijman The Cambridge Companion to Hugo Grotius. Cambridge Companions to Law (Cambridge: Cambridge University Press, 2021): 91-117, 113.

Tobi, Hilde and Kampen, Jarl K, ‘Research Design: the methodology for interdisciplinary research framework’ Quality and Quantity 52 (2018): 1209-1255.

Waldron, Jeremy, ‘Human Rights: A Critique of the Raz/Rawls Approach’ in Adam Etinson ed. Human Rights: Moral or Political? (Oxford: Oxford University Press, 2018).

Williams, Rowan, ‘Religious Liberties and the Need for Moral Universalism’ in Carla Ferstman, Alexander Goldberg, Tony Gray, Liz Ison, Richard Nathan, Michael Newman eds., Contemporary Human Rights Challenges: The Universal Declaration of Human Rights and Its Continuing Relevance (London: Routledge, 2019): 141–147

World Policy Analysis Centre. ‘Constitutional Equal Rights Across Religion and Belief’ Fact Sheet (2020), accessed 20 March 2024 https://www.worldpolicycenter.org/constitutional-equal-rights-across-rel....