New Year; New Ideas – Contemplating the Fundamental Freedom of Conscience

Adam Strombergsson-Denora and Rebecca Jaremko Bromwich

It is a fresh, new year. The dawn of 2023 marks a milestone in an increasingly secular age in Canada. As we step across the threshold of 2023, more of us than ever before in Canada are commemorating our life landmarks in entirely secular ways. In this blog, we suggest that the increasingly secular character of our society renders “freedom of conscience" an under-explored Charter right whose time has come. We specifically contend that legal scholars and jurists would be wise to spend time this winter reflecting on how relational metaphors in poetry and music can inform our understanding of conscience.

Section 2(a) of the Canadian Charter of Rights and Freedoms assures Canadians the right to freedom of “conscience and religion”. A good deal of jurisprudence has developed in relation to the religious freedom dimension of this right, with very little having been decided in respect of freedom of conscience. The exception to this is a criminal case, R v Morgentaler, where it was held a woman’s decision whether to bear a child is a matter of conscience.[1]

Demographically, a large and growing number of Canadians do not identify with any religious faith. As of 2021, Statistics Canada reported that approximately 12.6 million people, comprising than one-third of our country’s population, identified with no religious affiliation, or held a secular perspective on religious faith, identifying as atheist, agnostic, or humanist. The proportion of the population that does not identify as religious has more than doubled in the last 20 years, rising from 16.5% in 2001 to 23.9% in 2011 and to 34.6% in 2021.[2] For those Canadians who identify with no religion, the right to freedom of conscience is likely be particularly relevant. Accordingly, in this paper, we explore relational metaphors for understanding what is meant by freedom of conscience, with a view to suggesting poetic relational metaphors, a “harmony of the soul”, is a means by which the right to freedom of conscience can be developed and deployed in future litigation as a notion to express the deeply held morality, views and ethics of those not identifying with organized religion.

For instance, the Indian Supreme Court’s appreciation for dharma, and dharma’s potential to bind members of a society through ‘relational metaphors rather than an ideology of individualism,’ may carry one key for judicial recognition of conscience.[3] The Court commented on the social importance of dharma through Justice Ramaswamy, who said that:

Dharma is a word of wide meaning as to cover the rules concerning all matters such as spiritual, moral and personal as also civil, criminal and constitutional law, it gives the precise meaning depending upon the context in which it is used.[4]

This description may well apply to conscience, if conscience may be taken to suffuse one’s life in what has been described as a ‘harmony in the self’.[5] The definition accorded to dharma promotes such harmony across social modes. Individual and collective rules are captured in Justice Ramaswamy’s definition. Conscience’s focus on internal harmony implicates all that which affects such harmony. Such a wide definition makes conscience’s legal application understandably difficult. Metaphors that promote this harmony with reference to human regulation are the kind of relational exercise that properly recognizes conscience.

However, our Canadian legal system, which at present focuses on objective standards, does not possess endogenous language with which to code relational metaphors. Richard Hooker (1554-1600), an Anglican divine writing about the religious and civil polity of Reformation England, proposes a view of harmony that inspires language with which law may deal with conscience. He describes the act of signing psalms during church service:

Touching musical harmony whether by instrument or by voice, it being but of high and low in sounds a due proportionable disposition, such notwithstanding is the force thereof and so pleasing effects it has even in that very part of man which is most divine, that some have been thereby induced to think that the soul itself by nature is, or has in it harmony.[6]

This musical metaphor used to describe the soul is an example of a relational metaphor, for Hooker discloses a means of achieving personal harmony by participating in a cosmological music.[7] Law is not a musical institution; its literary mode is, however, evocative of similar bouts with conscience. An author, according to Aristotle and Longinus, creates harmony by attaining high speech: a poetic form that bowls listeners over by appealing to their emotions. This measure of speech serves as a yardstick for the relational metaphor.[8]

The relational metaphor the mystic quality of conscience while opening onto a lexicon able to describe that mysticism in non-denominational terms.[9] A non-denominational lexicon for conscience stems from the philosophic and literary inheritance of Aristotle’s and Longinus’s musings about poetics, respectively entitled the Poetics and Peri hypsous.[10] Classical theories of rhetoric and poetics transmuted to a theory of rhetoric divorced from aesthetic; the art of persuasion no longer existed in contiguity with the emotions evoked by ‘high’ or beautiful speech.[11] For such time as the two were harnessed in tandem, they offered a means through which those privileged souls—ones that we so heartily encourage today—to disappear not into God, but into their communities.[12]

Harkening unto the earlier similarities is useful for judges and arbitrators, whose roles sometimes call upon them to appreciate and practise rhetoric and high speech. Two threads may be pulled in this regard: litigants bring matters of conscience before decision-makers; these deciders, however, are also subject to their conscience and to the relational metaphors that may be baked into conscience.

Not just our Charter freedom of conscience, but also judicial conscience, is situated in the relational web. The means with which a relational metaphor may be appreciated derive from literary criticism—criticism that harkens unto ancient modes of poetics and rhetoric. This fact is forgotten in the eighteenth-century turn from poetics to aesthetics. The concepts continue to inform decision making affecting and flowing from conscience.

Aristotle’s and Longinus’s views of poetics alongside show that poetics quietly subsists in discussions of morality, religion, and conscience. Poetics also exists in legal-theoretical discussions of judges and judging. The judge or arbiter occupies a poetic role through which relational metaphors are crafted; rhetors describe only part of the image. Indeed, poetics is itself as a modality of language provides a relational metaphor that can be used by judges to better understand and resolve disputes relating to conscience.

As we move forward into this new year, emerging into an ever more secular age, we suggest lawyers would be wise to spend time reflecting on what constitutes conscience, and what makes our conscience ours, and free, in reading poetry, and listening to music.

[1] The only Charter case even mentioning the s. 2(a) right to freedom of conscience is R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385. In R v Carter, 2015 SCC 5, conscience is mentioned but not specifically connected to s. 2(a) of the Charter. (Factum of the Interveners Catholic Civil Rights League, Faith and Freedom Alliance and Protection of Conscience Project at para 33); See also 2015 SCC 5 (Factum of the Intervener the Canadian Medical Association) (The Canadian Medical Association did not refer to section 2(a) of the Charter of Rights and Freedoms, but did state the importance of physicians being able to follow their conscience. [2] Statistics Canada, 2021 Census [3] Shri AS Narayana Deekshitulu vs State of Andhra Pradesh & Ors, 1996 AIR 1765 [Shri A.S.]; Arti Dhand, “The Dharma of Ethics, the Ethics of Dharma: Quizzing the Ideals of Hinduism” (2002) 30:3 The Journal of Religious Ethics 347–372 at 368. [4] Shri A.S., supra note 1. [5] James F Childress, “Appeals to Conscience” (1979) 89:4 Ethics 315–335 at 318. [6] Richard Hooker, Of the laws of ecclesiastical polity. Book V, Arthur Stephen McGrade, ed (Oxford: Oxford University Press, 2014) c 38 (p. 101). [7] W J Torrance Kirby, Richard Hooker, reformer and platonist (Aldershot: Ashgate, 2005) at 30. [8] Sallie McFague, Metaphorical Theology: models of God in religious language (Philadelphia: Fortress Press, 1982) at 129, expresses a similar, though theological, appreciation for Christian metaphor; vide. Nancy R Howell, “Gordon Kaufman: A Theological Journey from Agency to Creativity” (2008) 29:1 American Journal of Theology & Philosophy 34–43 at 40. [9] I resist the term “secular” because it is itself too definite a view of belief: Michael Kaufmann, “Locating the Postsecular” (2009) 41 Religion & Literature 68–73 at 68–9. [10] The ascription of the work in question to Longinus is doubtful, but I nevertheless use the name for ease of reference. See: W Rhys Roberts, “The Greek Treatise on the Sublime: Its Authorship” (1897) 17 The Journal of Hellenic Studies 189–211. [11] Robert Doran, The Theory of the Sublime from Longinus to Kant (Cambridge: Cambridge University Press, 2015) at 15–16. [12] I review the neo-platonist means through which such disappearance may be accomplished in: “Diotima’s Scaffolding: Marvell’s Politics and the Neoplatonic View of Love in the Mower Poems and ‘The Definition of Love’” (2019) 4:2 Marvell Studies 1–27.