All 1 entries tagged Justice Burton
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November 08, 2009
Writing about web page http://www.guardian.co.uk/environment/2009/nov/03/tim-nicholson-climate-change-belief
Last week a UK High Court gave the green light for a green activist to sue his employer, who had sacked him for refusing to do an errand because it conflicted with his green beliefs. For intellectual ballast, the judge quoted no less – or, should I say, no more? – than Bertrand Russell’s A History of Western Philosophy, a work whose authoritativeness matches that of Bill Bryson’s A Short History of Everything in the history of science discipline. But that’s not really my point….
My point is to draw attention to the five criteria that the judge offered to expand the definition of ‘religious discrimination’ that may be invoked by others in the future in similar cases:
• The belief must be genuinely held.
• It must be a belief and not an opinion or view based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
Humanism was given as an example meeting the criteria, while belief in a political party or the supreme nature of Jedi knights, from the Star Wars movies, were offered as ones that do not.
The general response to this ruling has been positive, with some lawyers seeing it as opening the door to the re-classification of stances like feminism, humanism and vegetarianism as protected religious beliefs. Even New Atheism might count!
I completely disagree with the ruling and the sentiment informing it. In fact, I published a letter in the Guardian the next day, which said:
Justice Burton’s ruling in favour of a green activist whose beliefs interfered with his job has the potential for becoming an epistemological nightmare. In particular, by raising what were previously treated as ‘political’ and ‘lifestyle’ choices to the status of ‘genuinely held beliefs’, the ruling effectively creates an incentive to be dogmatic in one’s opinions, simply in order to avoid forms of social intercourse that one finds disagreeable. After all, evidence of a changed mind is all that would be needed to lose one the protection afforded by the ruling.
A potential practical consequence of this ruling is complete social and political gridlock. It reminds me of Article 118 of the old Weimar Constitution, the first half of which reads as follows:
Every German is entitled, within the bounds set by general law, to express his opinion freely in word, writing, print, image or otherwise. No job contract may obstruct him in the exercise of this right; nobody may put him at a disadvantage if he makes use of this right.
What’s gone wrong here? Part of the answer lies in how ‘free individuals’ is conceptualised. The Weimar Constitution began with a majority principle based on the idea of a ‘German people’ whose common values uphold the constitution. One of those values, of course, is freedom of expression. But to enforce that freedom, the constitution then needs to allow for ‘minority rights’, whereby individuals with deeply held beliefs are allowed opt-out clauses from certain aspects of normal social life that inhibit their expression; otherwise, the majority principle would prove oppressive. Hans Kelsen, one of the great legal minds behind the Weimar Constitution, justifies all this (though without quite seeing its practical consequences) in On the Essence and Value of Democracy (1929).
In the Weimar period, ‘minority rights’ were normally understood in ethnic terms but of course this was also the time when feminism, vegetarianism, etc. start to be recognized as ‘identity politics’. In any case, the pernicious long-term consequence of this way of thinking about freedom of expression is that it encourages a hardening of one’s sense of identity in order to gain personal and political leverage. Of course, in the case of ethnic identity, such a move can be easily turned against oneself – as the Nazis showed all too well.
My own view is that liberal democratic societies should discourage the formation of strong identities – be they around blood or belief – otherwise they will end up undermining their own principles.