Thesis (J.C.L.)--Catholic University of America, 1987. / Bibliography: leaves 66-75.

Thesis (doctoral)--Universität, Osnabrück, 2002. / Includes bibliographical references (p. [278]-314) and index.

Thesis advisor: Cathleen Kaveny / This dissertation examines current legal and moral debates about religious liberty and the sanctity of conscience in light of the Christian tradition’s understanding of both. It is important for strong respect for a pluralistic array of consciences to be grounded internally within the Christian tradition, not just based in secular public reason. This dissertation thus develops a Christian understanding of the conscience that can provide this justification, referred to as the “open communitarian conscience.” Specifically, the dissertation analyzes various understandings of the person within the Christian tradition, explores how these have affected political discussions about religious liberty, including sometimes giving support to an excessive individualism, and shows how there are contrasting understandings in the tradition which can be drawn on to better theorize the person’s relationship to her or his communities. It also develops a pneumatological understanding of the conscience to provide theological support for this personalist anthropology and explains how the conscience can be reconceived to better describe the relationship between a person and their moral actions. The dissertation includes a discussion of six key U.S. Supreme Court cases which address issues pertaining to religious liberty and the religious conscience, as well as the Religious Freedom Restoration Act, and suggests how an understanding of the open communitarian conscience might shift Christians’ understanding of how best to protect everyone’s rights of conscience while maintaining the First Amendment’s specific protection for rights of free exercise also. / Thesis (PhD) — Boston College, 2022. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Theology.

This thesis analyses religious discrimination in employment, using an applied comparison of the law in the UK, France and Germany. To this end, the thesis first explores national church-state relations, establishing potential links to religious discrimination at work. The investigation then moves on to the standards set by the Council of Europe and the European Union, against which the law in the UK, France and Germany will be measured against. The final chapter brings together the findings in an overall comparison of the national law, with particular emphasis on the role of church-state relations and impact on religious minorities. The original contribution of this thesis to knowledge lies in the assessment of the topic in the context of three jurisdictions, its interconnectedness with the ECHR and EU frameworks, using the framework of church-state relations. The thesis reveals and explains similarities and differences between the law in the three jurisdictions, as well as the effects on employees practising their religion and underlying attitudes that formed the law. After identifying substantive neutrality as a promising characteristic of church-state models, it was set as a benchmark for assessment throughout the thesis. Themes emerging from the research reflect significant differences regarding religious discrimination in employment in the UK, France and Germany. Particularly striking is the arguably deliberate targeting of, and clearly detrimental impact on religious minorities by means of indirectly discriminating law in France and Germany, as well as some directly discriminating provisions that were enacted in the course of the German ‘headscarf debate’. It is suggested, accordingly, that stereotypical assumptions about ‘otherness’ have influenced legislation, as well as case law, using church-state relations to underscore the decisive arguments. Due to its largely hypothetical nature, the assessment of the domestic laws’ compatibility with European international and supranational legal frameworks result in a number of cautious predictions. Widespread compliance appears fairly likely in relation to the law in the UK, whereas French and German law can be challenged in several regards. Finally, this research contributes proposals aiming at effective solutions for a variety of religious discrimination scenarios pertinent in the UK, French and German work environments.

This thesis examines the Indian system of personal laws (‘the PLS’), under which the state applies a version of religious doctrine to the family matters of citizens whom it identifies as belonging to different religious groups. There has been a lengthy and persistent debate over the PLS, particularly in relation to its discriminatory effects upon women. However, another problem with the PLS has been little commented-upon. Supporters of the PLS emphasise its positive impact on religious freedom to such an extent that there is a pervasive assumption that the PLS is, indeed, good for religious freedom. But there has been surprisingly little critical assessment of the truth of this claim in either academic or political debates. This thesis, a work of applied normative legal theory, attempts to fill this important gap in the literature on the PLS. The thesis addresses the question of how the PLS affects one conception of religious freedom, namely religious autonomy. Its principal findings are that the PLS interferes with the religious autonomy of those subject to it by affecting their religious options (by interfering with their freedom from religion and their freedom to practice religion) and by harming their self-respect (by discriminating on the grounds of sex and religion, and by misrecognising their religious identities). Furthermore, the thesis finds that the PLS cannot be defended in the name of religious autonomy based on the possibility of exit from the system, the advantage of having the ‘option of personal law’, the power it gives people to bind their future selves, the expressive potential of the personal laws, the contribution it makes to membership in a religious community, the contribution it makes to religious group autonomy, or the recognition or validation it provides for religious identities. These conclusions imply that concerns relating to religious autonomy constitute an important set of objections to the PLS. The thesis then considers several reform proposals, including certain modifications of the PLS, a move towards a millet system, ‘internal’ reform of individual personal laws and the introduction of a Uniform Civil Code. It particularly focusses on one reform possibility – religious alternative dispute resolution – which has not been considered closely in the Indian context.

Submitted by Marlene Aparecida de Souza Cardozo (mcardozo@pucsp.br) on 2016-08-27T14:38:09Z No. of bitstreams: 1 Marlene Duarte Bezerra.pdf: 1917770 bytes, checksum: 108a13fe94c7a57ec48df338c1af1349 (MD5) / Made available in DSpace on 2016-08-27T14:38:09Z (GMT). No. of bitstreams: 1 Marlene Duarte Bezerra.pdf: 1917770 bytes, checksum: 108a13fe94c7a57ec48df338c1af1349 (MD5) Previous issue date: 2016-06-10 / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior / In the broad field of law, we delimit for our research the theme of law and religion. The central question is to know whether in the rituals of the current procedural law one can find permanence, similarities and even identity with religious rituals, with special reference to the jury trials. Looking for an answer we made a historical research for anthropological and sociological works which show that law was born from religion and that they remained tied together until modern age with the separation between church, religion and state, and the secularization of society, when law acquired its autonomy in the general practice and procedure. However, despite the separation, the research seeks to demonstrate that the current judicial rituals, especially those of the jury trials in the Brazilian context, still maintain similarities and even identity with religious rituals that since the Middle Age integrated and inspired the practice of law in general and particularly the jury. To elaborate this position a field observation was made in a jury trial, with the aid of theoretical scholars that study religious ritual within the phenomenology of religion and others who support the permanence of religious rituals in the rituals of the legal process / No amplo campo do Direito, delimitamos para nossa pesquisa o tema Religião e Direito. A pergunta central busca saber se nos rituais do direito processual atual podemos encontrar permanência, semelhanças e até identidade com os rituais religiosos, com especial referência ao Tribunal do Júri. Em busca de resposta elaboramos uma pesquisa histórica que mediante referenciais da antropologia e sociologia demonstrou-se que o Direito nasceu no berço da Religião e nele permaneceu até a modernidade com o advento da separação entre Igreja e Estado e a secularização da sociedade, ocasião em que adquire sua autonomia na prática em geral e no âmbito processual. Entretanto, apesar da separação, a pesquisa busca demonstrar que nos rituais atuais do judiciário, em especial nos rituais do Tribunal do Júri, no contexto brasileiro, permanecem semelhanças e até identidade com os rituais religiosos que desde a Idade Média integraram e inspiraram a prática do Direito em geral e peculiarmente no Tribunal do Júri. Para trabalhar esta posição foi feita uma observação de campo em um Tribunal do Júri e se recorreu a teóricos que trabalham a ritualística religiosa no âmbito da fenomenologia da religião e outros que sustentam a permanência dos rituais religiosos nos rituais do processo jurídico

In this thesis it is argued that while the concept of freedom of religion or belief itself is opaque and difficult to define, the right to religious freedom must contain certain basic factors – most importantly the right to individual (religious) autonomy. The individual autonomy approach is seen here as providing the necessary rationale for the protection of freedom of religion or belief. This rationale is not cemented in stone in the practice of the Convention and this has caused the Court to lose its focus on individual freedom. It is a dangerous tendency. It allows the focus to be placed on the role of the State and leaves freedom of religion or belief to be heavily affected by politics and fluctuating social attitudes. In this regard, this thesis looks for the meaning and scope of individual and collective religious autonomy and how it is and ought to be represented in the practice of the European Court of Human Rights. It is the aim of the author to contribute to a clearer and more principled understanding of Article 9 of the ECHR. The right to individual autonomy is thought to be able to provide the necessary focus for the European Court of Human Rights in creating a more robust framework for the protection of freedom of religion or belief different from current Court practice which shows inconsistency in its reasoning and theoretical chaos. This lack of clarity has also contributed to freedom of religion or belief being a relatively weak right. It is explored here as to how the principle of autonomy (as developed in this thesis) relates to other principles provided by the Court, namely the principle of State neutrality, pluralism and the effective protection of rights, but also the margin of appreciation and the autonomy of religious communities. The individual autonomy centred theoretical framework in the first part of the thesis will be engaged to analyse the conflict in the triangle of state-individual-community explored in the second part.

The aim of this thesis is to consider the knowledge and use of law by John of Salisbury, evaluating what he thought law should be, whence it originated and how it related to aspects of society, for example the institutions of the monarch and the church. For this purpose, the main evidence used will be Historia Pontificalis, Policraticus and the large corpus of letters. Chapter One is entitled Types of Law and gives an outline of the main types of law as John saw them. Chapter Two is entitled Canon Law. This chapter is devoted entirely to the study of John's knowledge and use of canon law. In this chapter, consideration will be made to what canon law John appears to have known and how John used this knowledge within his written work. Chapter Three, entitled King and Law, focuses upon John of Salisbury's opinion of the relationship between the monarch and the law. Chapter Four, Theory of Law: Church and King considers John's ideas on the relationship between church and monarch. Attention will also be paid to how he conveyed his ideas during the papal schism and the Becket dispute as well as John's ideas on judges. Chapter Five is entitled Law in Practice: Church and King, whereby analysis will be made of how John sees the monarch's involvement in issues such as church elections.

Cette thèse analyse la portée actuelle des droits humains au sein des groupements religieux à travers la question de la discrimination des femmes dans l’accès aux fonctions cultuelles. Si actuellement, le principe de liberté de religion conditionne l’appréhension juridique du caractère discriminatoire de l’exclusion des femmes de certaines fonctions cultuelles, l’enracinement de l’égalité des sexes dans les sociétés contemporaines amorce de nouveaux traitements et réflexions en ce qui concerne les atteintes aux droits des femmes et les discriminations sexuelles liées au religieux, au niveau du droit positif et dans le cadre des droits internes de certaines religions. / This thesis focuses on the current impact of human rights within religious communities, through the topic of women’s discrimination in access of some religious functions. If the principle of religious freedom conditions the legal understanding of discriminatory nature of women’s exclusion from some religious functions, the implantation of gender equality in contemporary societies initiates new treatments and reflexions about women’s rights violations and gender discriminations from religious, at the level of positive law and of some religious laws.

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