Freedom and Futures: Personal Priorities, Institutional Demands and Freedom of Religion

Date01 September 2007
AuthorSheldon Leader
Published date01 September 2007
DOIhttp://doi.org/10.1111/j.1468-2230.2007.00660.x
Freedom and Futures: Personal Priorities, Institutional
Demands and Freedom of Religion
Sheldon Leader
n
How should one de¢ne the legitimatereach of individuals’ institutionalobligations in the lightof
their right to freedom of religion? The most divisive settings for this question involve exclusions
fromcertain jobs and schools.At the same time,some fundamental issues of ethics and lawlie in the
background. One of the mostcentral concerns choice. On one approach, if there are other sources
of workor education that do not make the samedemands on the objectorthen she should choose
between conforming and taking up that alternative. On another approach, even if there are such
alternatives, people shouldnot be confronted with such adilemma: they should be entitledto stay
in their preferred institution, which must make its best e¡ort to accommodate them.The con£ict
between these two views arises from underlying di¡erences concerning the nature of free choice
itself; aboutthe obligations borne by institutions in civil society; and aboutbasic rights.The con-
nectionsbetween these notions are investigated,and a way through the disagreementis suggested.
INTRODUCTION
Consider the following hypothetica l situations, drawn from an amalgam of real
cases:
Several Moslemgirls began their studies for the natural sciences diploma last year
at a state school which was highly rated and into which admission was granted o n
a competitivebasi s. At the time they were not particularly interested in their reli-
gion, and signed an undertaking stating that they accepted the school’s require-
ment that they would wear no external signs of religious a⁄liation while on the
school’s premises. The next year, they underwent a change in their religious
beliefs, and decided that they shouldwear a head scarf as a sign of their faith.There
was a private school willing to take them, which was fully funded by local mos-
ques a nd which would cost them nothing. This school also o¡ered a scie nces
diploma, but with less range to its teaching. The girls preferred to stay at the state
school, but were expelled because they insisted on wearing the head scarf. At the
same time, the school refused to admit another girl who had always been of the
same religious conviction and also refused to remove her scarf as a condition of
entry. All complained of a violation of their right to freedom of religion.
1
A Jewish man took a job as a teacher several years ago at a state school of high
academic reputation, which received many applicants for jobs, and with which
n
Professor, Department of Law and Ce ntre for Human Rights, University of Essex.The author is
grateful to AlbertWeale, Aletta Norval, David Howarth, Jason Glynos, and Paul Bou-Habib ^ all
members of the Essex Political Theory Group; and to the anonymous referees of the Modern Law
Review. Hehas also bene¢ted from a critical reading of the argument byFlorence Leader.
1 Si ncethe focus of this e ssayis on the questions of personal a nd social moralitythat are contained in
the legal issues, there will only be a selectivereference to the law for illustrative purposes.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(5) MLR713^730
he considered it an honour to be associated.H is employment was set to run until
he retired. At the time he started work, the man considered himself tobe an athe-
ist. Last year he underwent a conversion, and joined a synagogue that required
him to attend prayers every Friday evening at sundown. The synagogue was also
a⁄liated with a school which o¡ered him a job, doing substantially the same
teaching. He refused the o¡er, preferring to stay on at his original institution. At
the same time, the man asked for permission to leave work an hour before school
closed in order to be at the evening service, andwas turned down. A friend of his
applied for a job at the school, making the same demand to be entitled to leave
early so as to attend services on Friday evenings, and was refused. He was also
o¡ered a jobat the synagogue’s school.The two complained of aviolation of their
right to freedom of religion.
The examplesare designed to raise questions about the legitimacy of breakingan
undertaking freely given on entering into an institution, or the legitimacy of an
individual being asked to give suchan u ndertaking in the ¢rst place, when trying
to gain entry. Deliberately excluded here are situations in which the choice is not
free, in the sense that options are either non existent, or so poor that one is
tempted to say thatthere are no real alternatives for the people making these com-
plaints. The Moslem students could, we shall assume, have found alternative
schools that provided a scienti¢c education of minimally acceptable quality ^
only it was not a level of training that their abilities otherwise ¢tted them to.
Equivalent assumptions can be made about the employees situations. None of
these individuals is presented with the hard choice between having a job per se
and maintaining ¢delity with his faith, or having a scienti¢c education per se and
keeping to the faith.
Assuming that one is freely associated with the institution in question, is
this enough to license the conclusion that the right to freedom of religion
has not been interfered with at all? If so, one does not reach the next stage in rea-
soning about many human rights violations ask ing whether the interference in a
particularcase can be justi¢ed. It is this initial question, about interference, that is
the central concern here.We shall approach it as a matter of social morality, using
the legalprinciples that arerelevantas help to illustratethe argument.We shall also
assumethat the issues are being treated by a community that is itself committed to
respecting right s. Withi n the boundaries of such a commitment, the answers
given by the law do not all line up in the same direction and the diversity re£ects
con£icting intuitive responses to the issue.
TWO CONCEPTIONS OF FREE CHOICE
In deciding whet her or not a human right has bee n interfered with in these s itua-
tions, free choice seems to play two roles. According to one, an individual’s choice
has what can be called a commitment function: one is asked to choose one of
several alternative institutions, such as a particular school or enterprise, and this
preferencesignals a willingness to accept that institution’sdecision about the place
that freedom of religion occupies in its activity. As it was put by one member of
the judiciary, ‘ . . . . a person who voluntarily accepts a regime which leads to a
Freedom and Futures
714 r2007The Author. Journal Compilation r2007 The Modern LawReview Limited.
(2007) 70(5)MLR 713^730

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