November 08, 2009

The Dawn of Weimar Britain: Wake Up and Smell the Coffee!

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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.

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  1. Stephen Clark

    I’m not quite sure where I stand myself. On the one hand, it would be agreeable to have some protection qua vegetarian (my children often had to appeal to the notion of “religion” in order to fend off irritating and maladroit attempts to manipulate them to eat meat); on the other, there are drawbacks to respecting just any “deeply felt belief etc”.

    And on the third hand, in the original case it doesn’t need deeply held environmentalist beliefs to think that the instruction was an extremely stupid one, which ought not to have been given!


    08 Nov 2009, 13:48

  2. Helen Beebee

    I’m not sure where I stand on this issue in general, but this particular case worries me because (as I understand it) it wasn’t Nicholson himself who was ordered to retrieve the Blackberry, but someone else—and this supposedly constituted ‘contempt’ for Nicholson’s views. So there’s a danger now that companies that merely do things that conflict with people’s deeply held convictions are guilty of discrimination, even if they do not require the particular people concerned to do anything that violates those convictions. So for example someone who is against abortion on religious grounds who worked for an abortion clinic (unlikely, I guess, but still) could sue the clinic for, er, carrying out abortions, because this constitutes contempt for their religious beliefs. Or vegetarians could sue companies who sell meat in their canteens (as opposed to making them actually eat it).

    Setting aside the question of whether ‘religious discrimination’ should be expanded to cover non-religious but ‘deeply held’ etc. beliefs, it looks like the judge has seriously misunderstood what the legislation is supposed to be for. Tolerance of people’s religion-based (or not) ethical beliefs isn’t supposed to include imposing those beliefs on everyone else or enshrining them in company policy.

    08 Nov 2009, 15:10

  3. dr zoran mimica

    i have a proof for existence of god, namely if we don’t believe in god than we don’t believe in death and that is absurd. it must be an we creator of death, too and that is god

    08 Nov 2009, 15:48

  4. john

    The law routinely has to deal with the question of what constitutes religion. Although this court’s test is weak, if not unsupportable, you might be interested in examining the rules used by the US IRS to determine whether a church exists, and the conscientious objector cases.

    You might reconsider the problem keeping in mind the distinction between the right to freedom of thought, and the right to behave in any way, including the right to freedom of speech. You will also find it of some benefit to distinguish between negative and positive rights when parsing the problem of the Weimar Constitution. Kelsen’s science of law is part of a complicated discourse about the origins of law/morality, and the extension of correct general principles, such as the protection of minority rights, into the workplace, which is also found in the Universal Declaration of Human Rights, represents the power of the worker in the industrial world, and does not reflect on the basic right of protecting minoroties. Your conception of identity is rather simplistic and does not consider the function of the political/moral/legal entity, whether it is Buddhist and extremely tolerant, or intolerant, as an essential element of identity. Either “man is a political entity” or man makes an agreement with other men as to the constitution, the state of nature, and in thus hierarchies of law are established. In what you call the “liberal democratic state” the hierarchies will be established such that freedom of thought will be protected as a fundamental characteristic of dignity, and will thus be a defining characteristic of “liberal”.

    Having spent considerable time working with IRS rules on churches, i find another very recent decision by the UK courts much more interesting:


    John Lunstroth LLM MPH
    Adjunct Professor of Law
    University of Houston Law Center
    Medicine & Society Program
    University of Houston Honors College

    08 Nov 2009, 17:22

  5. Michael Young

    I notice the judge’s criterion includes an independent normative evaluation of the content of the belief:

    “It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.”

    I’d say that “worthy of respect” rules out a lot, including many paradigm religious views. (For example, the belief in the bodily resurrection of Jesus doesn’t strike me as intrinsically “worthy of respect” because I think it’s false and extremely unlikely to be true, and I don’t know how to “respect” beliefs, as the beliefs they are, which I view in these ways.) But the court recognizes, no doubt, that it needs some way out of privileging especially objectionable beliefs. It’s a real problem if religion is to have a privileged place in law, even if the solution here is ad hoc.

    08 Nov 2009, 18:27

  6. Hugh Willmott

    Steve writes:

    `.. 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..’

    Yes, there is a danger that identity will be manipulated, presented, performed with the intent to achieve some personal or political advantage. But is that per se sufficient to be opposed to `stong identities’. It seems to me that `...I completely disagree with the ruling and the sentiment informing it…’ is itself an articulation of a strong identity, and all the better for it. Strong identities are a precondition of vigorous debate as a basis for collective self-clarification and possible emancipation (hopefully, although collective self-delusion and degeneration cannot be ruled out! – hence the danger).

    There may indeed be good grounds for disagreeing with the judgment but I don’t find the `strong identity’ objection, at least as I have grasped it, particularly convincing.

    08 Nov 2009, 20:09

  7. O Bloody Hell

    I quote from the article:
    However, he [Nicholson] did not believe that climate change was the new religion, because “it is based on scientific evidence, not faith or spirituality”.

    But the article also states:
    Mr Justice Burton outlined five tests to determine whether a philosophical belief could come under employment regulations on religious discrimination:
    * It must be a belief and not an opinion or view based on the present state of information available.

    So it’s clear that Nicholson himself does not believe it meets the judge’s criteria. If it is scientific, then it is based on facts or knowledge currently available, and should be subject to change based on “the present state of information available”.

    Q.E.D.: it’s rather clear that the judge’s ruling was inappropriate and incorrect from Nicholson’s own statement about his own views. Throw the bum out.

    09 Nov 2009, 06:34

  8. O Bloody Hell

    I also think it’s going to make it real interesting when the charges go the other way—what happens when someone refuses to kowtow to green sentiments in the workplace due to deeply held beliefs that green ideas are all a crock of excrement?

    09 Nov 2009, 06:35

  9. Frej Klem Thomsen

    The best way of understanding environmentalism as a philosophy is to consider its normative aspects. True, the scientific facts about climate change and human industry’s influence on same are just that: scientific facts. But the idea that there is a moral imperative to prevent climate change to some, e.g. “the largest possible”, extent, beliefs about who ought to carry the burdens for doing so, and preferences for some types of technical solutions over others on non-instrumental (i.e. efficiency) grounds, might conceivably be said to be part of or form some kind of philosophy.

    It is rather more difficult to see, however, how this differs from political beliefs. Indeed, I think that that is exactly what environmentalism is. Conflating it with religion confuses the issue, but raises two rather more interesting questions:

    1) Why on earth should religious beliefs (or “philosophies”) be given legal protection denied to political convictions? I find it hard to envisage what an argument to this effect could even look like. And the consequences of doing so seem rather absurd, as is well pointed out in the blog. We would normally prefer beliefs to be subject to the kind of reasoned debate that can (at least potentially) inform political discourse, rather than the dogmatic postulating characteristic of religion. Granting religion protections not enjoyed by other types of belief runs counter to this aim.

    2) Why should anybody’s beliefs be grounds for discrimination? The issue of labour-market discrimination is hopelessly confused, essentially because we do not have a firm grasp on, or rather there are very conflicting but non-reflexive underlying beliefs about, the moral duties obtaining in worker-employer relationships. Basically, if we think that employers are free-market agents, who have a right to hire and fire people as they please, then discrimination in hiring-practices is all but impossible (it might occur as epistemic or bias discrimination, but as these can always be restated as preference discrimination, the burden of proof is impossible to lift). On the other hand, if there are moral duties obtaining which limit this “employer-prerogative”, or indeed if no such prerogative exists at all, then these will at the same time constitute the moral limits. On no account do the beliefs of anybody enter the picture (except, possibly, indirectly, as part of the preferences of the employee, and then only on a par with other types of preferences).

    Simply put: the judgement seems to be at once confused about what religious beliefs are and when they deserve consideration.

    09 Nov 2009, 10:26

  10. Stephen Clark

    I suspect the reason for protecting people who might suffer for their “religious” beliefs is just that they will usually be suffering at the hands of people with different “religious” beliefs. In other words, the protection is against “religion” (which may, for these purposes, include militant atheism masquerading as secular rationality). And the reason we want, in general, to do this is that we remember, collectively, what it’s like when people with a particular “religious” ideology start deciding who is or isn’t a good employee or a respectable citizen or a decent parent or whatever on the basis of what other religion they hold on to. The judge didn’t want to be using a simplistic definition of “religion” (for example, that it involves a “belief” in “supernatural powers”) when the real issue was about how best we can manage to live together, without imposing too great burdens of conscience or life-style on each other, and without disparaging the characters and intelligence of people we disagree with. People shouldn’t be sacked for their conscientious choices and personal symbolizing structure when this doesn’t interfere with their doing the job they’ve accepted. Whether this applies in this particular case is perhaps moot.

    09 Nov 2009, 20:26

  11. Martha Sherwood

    As an American I find the court’s conclusion that Green ideology fits the legal definition of religion to be alarming, if only because of a general (in my opinion, mistaken) view, upheld by recent Supreme Court Decisions, that the clause in our Constitution saying that Congress shall make no law establishing a national religion translates into a ban against expressing a religious belief in the classroom (including a University classroom)or indeed in any state-supported forum. According to the very broad definition the British Court adopted, only the most apathetic and anemic expositions of ethics would be permissible on a state university campus.

    09 Nov 2009, 20:28

  12. marion kelt

    The koran states that you may hit your wife for certain offences and it specifies the weapon. genital mutilation of women is illegal here in australia but is still practiced. we have yet to see any prosecutions (as has happened in france). yes, this ruling is a worry.

    10 Nov 2009, 02:41

  13. Trevor Stack

    Interesting article! Religious-secular distinctions are made all the time. Other than asking whether they are valid or not, one might ask what consequences they have. A great deal may hinge on whether something is considered “religious” or not. Please visit for a discussion of Religious-Secular Distinctions – how they are made and why they matter.

    10 Nov 2009, 08:54

  14. Howard Murray

    The goal of all healthy philosophical debate is to expand and clarify ideas. Yes? It is to learn about the true nature of the state of things so that one may comport oneself more appropriately towards the world. That is, if one understands the world more vividly (so that their thoughts reflect the true nature of the world) they MIGHT deal more appropriately with the subject in their on life. Love etc or religious beliefs.
    Identity is the sum collection of our desires, goals, feelings, talents, drives etc. It cannot be denied that these are dynamic, constantly changing, growing, diminishing, refining, pealing away. Thus we are changed also. And if we are to grow, that is to expand on our ideas and become more aptly comported towards the world, than it is necessary that we change. It is therefore a positive thing to have a fluid dynamic identity. That is my first point. Steve Fuller, if I have understood the article, is correct then, at the very least, in admonishing the UK judiciary for encouraging us to form a solid unchanging identity. It would prevent growth. Not only that but the courts, by protecting the rights of those with perfectly determined identities, are turning this absence of growth into a virtue. It is a pat on the back to those who, rather than accepting the anxiety of change in the face of possibilities and challenging their own insecurities, prefer to offer an external deity as the origin of their moral belief.
    It is strength to understand that one is the origin of these beliefs that give our lives meaning. To barricade our beliefs behind the unquestionable label of faith and religion is weak. But that is all to be expected of those who serve our judiciaries.

    10 Nov 2009, 10:29

  15. Chris

    Do you seriously believe the Nazis came to power because the Weimar constitution didn’t allow job discrimination about them??? What a sophism. Maybe you should move to the US and start painting Hitler mustaches on Obama posters.

    10 Nov 2009, 15:44

  16. Tim

    I think your point has merit. When I consider the whole situation, what sticks out to me as most problematic is that this man is able to go to court when he was fired for failing to perform on job he had freely taken. No one forced him to work for an arrogant, domineering boss. The worst part of the ruling, to my mind is the law on which it is based. Businesses ought to have freedom to fire and hire based on people’s beliefs, religious or otherwise, because business is an activity of free people in a free society. People who take up religious beliefs, as this employee did, ought to be expected to reckon within themselves what the social or economic cost will be, and to accept it. That is the mark of a free society. The society in which government inserts itself into social and economic relations as a shield of protection and privelege around chosen statuses, is not a free society, it is a schizophrenic statism.

    10 Nov 2009, 18:48

  17. Jeremy Bowman

    The criteria are conceptually confused, and badly expressed:

    • The belief must be genuinely held.

    Translation: it must be a belief (rather than a verbal or other mere expression of something not believed).

    • It must be a belief and not an opinion or view based on the present state of information available.

    Translation: it must be a traditional sort of belief. (In the present context, ‘opinion’ and ‘view’ are just synonyms for ‘belief’. This criterion is trying to say that “to be religious, a belief must have a religious tradition behind it”.)

    • It must be a belief as to a weighty and substantial aspect of human life.

    Translation: it must give “moral guidance”.

    • It must attain a certain level of cogency, seriousness, cohesion and importance.

    Translation: if it’s mad, it doesn’t count.

    • It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

    Translation: if it’s too unpopular, it doesn’t count.

    10 Nov 2009, 19:24

  18. Benjamin Geer

    I agree with climate scientist Myles Allen’s response to the UK High Court’s ruling:

    The scientific case for human influence on climate is not a political opinion, made stronger simply by lots of people signing up. Nor is it a religious conviction, made stronger, in Mr Justice Burton’s phrase, if it is “genuinely held”. It is based on evidence and understanding that has withstood some of the most intense scrutiny in the history of science.

    10 Nov 2009, 20:00

  19. Jeremy Bowman

    “It is based on evidence and understanding that has withstood some of the most intense scrutiny in the history of science.”

    Apart from testing. Which is the “intense scrutiny” of genuine cience.

    10 Nov 2009, 20:08

  20. Christopher I. Lehrich

    This is extremely interesting to me, as a scholar of religious studies first and a historian of science second.

    One point that ought to be noted here is that, as is also true in the U.S. Supreme Court’s various rulings defining religion, we see a total ignorance of the last more than a century of scholarship on the subject. No serious theorist of religion has accepted, since at least Durkheim’s Elementary Forms (1912) and arguably earlier, that one can define religion solely on the basis of tenets. Further, with the notable and much-contested exception of Sir James Frazer, the notion of faith as essence has been solidly discarded (though admittedly it constantly creeps back in wearing disguises - see J.Z. Smith, “Fences and Neighbors,” Imagining Religion (Chicago: U of C Press, 1982), 1-18). Here, note the first two tests of the belief, which indicate a rough working distinction between faith in the Protestant sense and other types of opinions or beliefs. So at base, quite unsurprisingly, this is a definition which does two things: it establishes that mainline Protestantism is the litmus test for all religion (sola fide, anyone?), and then broadens the conception of what may be believed in. In effect, this is using mainline Protestantism as a prototype, a standard move in English and American high courts - see, for example, J. Z. Smith, “God Save This Honourable Court,” Relating Religion (Chicago: U of C Press, 2005), [I forget the page numbers but it’s the last chapter].

    Hope this helps.

    Chris Lehrich

    12 Nov 2009, 04:08

  21. Christopher I. Lehrich

    A further point. If you run back over the comments thus far posted, you may note that on the whole the various critical points aim squarely at beliefs of one sort or another. If then you follow Professor Lunstroth’s link to the NYT and the article on legal distinctions of who is and is not a Jew, we find the same thing. The distinction in that case is very sharp, indicated by the division between the school in question and the family; the former insist on a division of descent, ethnicity, race, etc., and the latter on “beliefs.” Note that the article’s author, like the court, at base presumes the insistence on belief.

    I quote, with added emphases:

    ‘The case rested on whether the school’s test of Jewishness was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M considered himself Jewish and practiced Judaism.

    ’ “The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act,” the court said. It added that while it was fair that Jewish schools should give preference to Jewish children, the admissions criteria must depend not on family ties, but “on faith, however defined.”

    The effect of this ruling is in essence to support in law a near-equation of “religion” with “faith.” This equation, of course, was one of the central theological arguments made by Martin Luther, contrary to Catholic doctrine of the day (and incidentally to Jewish law). A very interesting discussion of this problem as it arises in religious studies as an academic discipline - but also in law and public policy - is Talal Asad, Genealogies of Religion.

    12 Nov 2009, 04:26

  22. Kay zum Felde


    I think this is indeed comparable with the freedom of speech discussion. You cannot simply say anything you want without consequences. Freedom is good as long as it not destroys the freedom of someone else.

    Best Kay

    13 Nov 2009, 12:42

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