O pojęciu granic wolności sumienia i wyznania

Abstract

In the article, the author makes an attempt to outline problems relating to the limits of the freedom of conscience and religion. An analysis of existing legał constructs reveals a difference between two strategies of excluding certain types of behaviour from adeąuate protection which should otherwise be guaranteed on the basis of the freedom of conscience and religion. The first of these strategies relies on introducing into the legał system some prereąuisites, the occurrence of which would in certain circumstances prevent the addressees of the law from the exercise of their freedom of conscience. Such prereąuisites are often referred to as ‘limits of the freedom of conscience and religion’. The other strategy is based on the assumption that certain areas of human activity cannot be regarded as free exercise of the freedom in ąuestion. The author maintains that - contrary to conventional legał terminology- in the former case, what is really meant are not limits but limitations of freedom, while limits as such should rather be derived directly from the adopted definition of freedom. Thus, legał restrictions are introduced not only through limitations clauses but also by manipulating the scope of freedom itself. This phenomenon is often overlooked in the theory of law, even though it has recently gained new implications in view of two noticeable developments. One of these developments entails denying non-religious (secular) beliefs the same legał protection which is applied in the case of religious convictions; the other relates to measures taken against minority religious denominations often disparagingly labeled as sects. Furthermore, the article delineates the social significance of limits of non-legał character.