The Ambivalent Relationship of Law and Freedom of Conscience: Intensification and Relaxation of Conscience Through the Legal System

Abstract

This article will deal with two concepts which deviate somewhat from the traditional problem of freedom of conscience and its relationship to law. These concepts assume a basic right to conscience, not only a right to freedom of conscience, and this article will address “intensification”¹ and “relaxation” of conscience with regard to the situation of the individual within the legal system. Constitutional law, in particular as it concerns basic rights, deals with relaxation of conscience, whereas criminal law is concerned with intensification of conscience which will be described in more detail. Thus, the legal system exhibits an ambivalence towards phenomena of conscience. On the one hand, it is reluctant to interfere with the individual conscience, indeed within certain sets of rules it elevates freedom of conscience to a systematic fundamental law²; on the other hand, it does not recognize the appeal to conscience as a viable defense and places all natural and civil liberties under the proviso of the law.³ The legal system refers to immanent or extrinsic provisos also with regard to conscience.⁴ The proviso of general law against conscience is exempted only in cases where the constitution or the law on a lower level grants conscience a sphere of freedom - be it a general sphere of freedom within the context of human and fundamental rights or a specific one within the context of a legal privilege.