Inaug.-Diss.--Göttingen. / Lebenslauf. "Verzeichnis der benutzten schriften": p. v-ix.

Thesis (J.C.L.)--Catholic University of America, 2003. / Includes bibliographical references (leaves 56-73).

Thesis (J.C.L.)--Catholic University of America, 2003. / Includes bibliographical references (leaves 56-73).

Thesis (J.C.L.)--Catholic University of America, 2003. / Includes bibliographical references (leaves 56-73).

Thesis (Ph.D.)--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law, 2013. / Conflicts of rights involving the freedom of religion should be approached on the basis of a close examination of the proper competence of law and religions. This examination begins by asking what questions law and religion are best suited to answer in a post theocratic age that views constitutional laws as operating under and within the conditions of diversity and pluralism. An analysis of religious employer exemption cases in two jurisdictions, South Africa and Canada, shows that certain contemporary “liberal” approaches fail to accord sufficient respect to associational diversity. An historical view of the relationship between law and religion, reviewing both “the goods of religion” and “the limits of law” suggests that contemporary liberalism tends to diminish the role of religions and religious associations giving too much power to the State and/or the Courts with a corresponding failure to let religions play the role within culture that their proper jurisdictions, correctly understood, admit and that an open culture requires. The analysis shows that the Canadian and South African courts have, in some cases, explicitly but more often implicitly, stepped into the role of answering metaphysical, philosophical and theological questions for which they are not suited. This problem -- erroneous jurisdictional extension by law -- is the use of law by equality activists who wish to force homogeneous conceptions such as “equality” or “non-discrimination” on all aspects of society, including religious associations, irrespective of whether those subordinate groups should be accorded the respect entailed by the principle of diversity- - a respect already allowed for in the laws related to religious employer exemptions. The arguments defending these practices inappropriately extend the ambit of law into theology and therefore away from its proper role as recognized within history, sociology, anthropology, psychology and theology. Moreover, they take liberal theory in an illiberal direction - a direction that should be rejected in favour of a conception of deep diversity. It is concluded that with a legal presumption in favour of associational diversity and the use, in adjudication of rights conflicts, of the “oculus” (that is, explicitly seeing issues that involve religious associations from the perspective of the religious association) a fairer treatment of diversity and difference can occur in constitutional democracies. An approach to rights adjudication based on this presumption and informed by this attitude will promote greater diversity and better “fit” with the principles of “pluralism”, “multiculturalism”, “diversity” and “accommodation” that underlie the modus vivendi rather than a “convergence” approach to liberalism and accord better with constitutional rights and freedoms taken as a whole.

No description available.

This thesis argues that the current Canadian approach to freedom of religion is inconsistent with Canada’s approach to multiculturalism. It begins by placing Canada’s multiculturalism legislation into the broader intellectual context of the leading political theories on the governance of diverse populations. It then examines the Canadian case law regarding freedom of religion, arguing that the prevailing rights-based approach produces consequences inconsistent with Canada’s legislated commitments to multiculturalism. It posits that the individualism of rights-based analysis, the pressure to frame religion in pre-defined ways, and the tendency of courts to speak in the language of tolerance are all troublesome. Further, it argues that when disputes are framed in terms of rights, meaningful dialogue is less likely and compromises are difficult to achieve. It then proposes an alternative, “difference-based” approach to disputes involving religion, which provides a framework more consistent with Canada’s multicultural ideals.

This thesis addresses numerous key points on the application of the margin of appreciation principle in relation to Article 9 (2) of the European Convention on the Protection of Human Rights and Fundamental Freedoms ('Convention').1 In general terms, the margin of appreciation doctrine means that the State is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative, or judicial action in the area of a Convention right.2 The margin of appreciation is given to Contracting States to allow variation amongst them in terms of interpretation of the rights guaranteed.

This thesis addresses numerous key points on the application of the margin of appreciation principle in relation to Article 9 (2) of the European Convention on the Protection of Human Rights and Fundamental Freedoms ('Convention').1 In general terms, the margin of appreciation doctrine means that the State is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative, or judicial action in the area of a Convention right.2 The margin of appreciation is given to Contracting States to allow variation amongst them in terms of interpretation of the rights guaranteed.

This thesis argues that the current Canadian approach to freedom of religion is inconsistent with Canada’s approach to multiculturalism. It begins by placing Canada’s multiculturalism legislation into the broader intellectual context of the leading political theories on the governance of diverse populations. It then examines the Canadian case law regarding freedom of religion, arguing that the prevailing rights-based approach produces consequences inconsistent with Canada’s legislated commitments to multiculturalism. It posits that the individualism of rights-based analysis, the pressure to frame religion in pre-defined ways, and the tendency of courts to speak in the language of tolerance are all troublesome. Further, it argues that when disputes are framed in terms of rights, meaningful dialogue is less likely and compromises are difficult to achieve. It then proposes an alternative, “difference-based” approach to disputes involving religion, which provides a framework more consistent with Canada’s multicultural ideals.