Towards the core of conscience : a study on conscientious objection in the workplace under the freedom of thought, conscience and religion

Abstract

This thesis is concerned with the protection of conscientious objection in the workplace under the freedom of thought, conscience and religion, particularly as protected in Article 9 of the European Convention on Human Rights. Specifically, the aim of this thesis is to try to identify particular norms under the freedom of thought, conscience and religion as apply to instances of conscientious objection in the workplace, defined as instances of irreconcilable conflict between an individual’s fundamental moral precepts and an otherwise applicable work duty. In order to identify such norms, this thesis considers three case studies: first, the jurisprudence of the European Court of Human Rights concerning Article 9 rights in the workplace context, second, approaches to conscientious objection in the healthcare profession, and third, approaches to selective conscientious objection in the professional military. Having identified some tentative norms under the freedom of thought, conscience and religion as apply to conscientious objection in the workplace, this thesis concludes by considering whether the norms identified are ‘rules’ or ‘principles’ according to the distinction articulated by Robert Alexy in A Theory of Constitutional Rights. This thesis argues that correctly identifying the applicable norms as either rules or principles enables a more coherent legal framework for approaching instances of conscientious objection in the workplace to be constructed. Moreover, it is suggested that identifying particular norms as either rules or principles allows for a reconceptualization of the freedom of thought, conscience and religion based on an inalienable core of ‘rules’ surrounded by a more general principle. It is argued that such a conceptualization addresses at least some of the criticisms which have been voiced regarding the traditional forum internum/externum (or belief/practice) construct of the freedom of thought, conscience and religion.