Freedom of conscience

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Freedom of conscience is the freedom to be able to make decisions and actions based on conscience , free from external coercion. An action or decision free of conscience is based on good and bad and on moral criteria that are binding for the individual. A decision that speaks against one's conscience usually leads to an individual state of emergency ( remorse ).

The legal concept of freedom of conscience

History of the legal term "freedom of conscience"

Freedom of conscience was already contained as a humanistic ideal in Section 144 Sentence 1 of the Paulskirche Constitution and in Art. 135 WRV . Because of its close connection with ideological conviction as a value-building characteristic, freedom of conscience is often located in the vicinity of freedom of belief or religion (in all liberal German constitutions since 1848).

In Germany, the freedom of conscience is a fundamental right and is the fundamental law in Art. 4 granted. Everyone is a holder of fundamental rights . The object of protection within the meaning of Article 4 of the Basic Law is the conviction that one feels absolutely ethical to a certain behavior. Both the formation and the actuation of convictions are protected. The freedom of conscience is related to the freedom of religion, which prohibits the external compulsion to a certain worldview .

Parts of the freedom of conscience can also be found in Art. 1 GG (human dignity), Art. 2 Para. 1 i. V. m. Article 1, paragraph 1 of the Basic Law (general right of personality) as well as Article 5, paragraph 1 of the Basic Law (freedom of expression) and Article 2 of the Basic Law (general freedom of action). The conscience is formed both internally (so-called forum internum ) and made visible to the outside (so-called forum externum ). Members of the German Bundestag enjoy a special freedom of conscience , who, according to the Basic Law, should make their decisions within the framework of the free mandate only on the basis of their conscience without being bound by instructions and orders ( Article 38 of the Basic Law). Within the GG and comparable international and supranational catalogs, freedom of conscience has a high priority, which results from the fact that this basic right is not subject to a legal reservation, i.e. a possible restriction can only be recognized in defense of conflicting rights of third parties.

Encroachments on freedom of conscience

Interventions must always be checked within the framework of practical concordance with other basic rights and within the framework of constitutional principles, since freedom of conscience in German law is only subject to constitutional barriers . The forum internum of freedom of conscience, the inner formation of beliefs about values ​​and beliefs, is resistant to interference, as it is linked directly to human dignity ( Article 1, Paragraph 1 of the Basic Law). In casuistic terms, brainwashing, hypnosis, drugs and similar interventions in the physiological-psychological functioning are prohibited. However, the area of ​​conveying values ​​is problematic. The formation of values ​​by state institutions (schools) cannot be forbidden, but is even necessary, albeit within the framework of the commitment to the free democratic basic order. However, the interventions in the forum externum are particularly important . These are cases in which the person concerned justifies his behavior with reference to his conscience. Freedom of conscience does not only radiate in the public-law area, it also remains significant in the area of ​​private law and develops through the general clauses of private law. This applies in particular to the area of ​​individual labor law when employees are confronted with activities that massively contradict their convictions ( animal experiments , arms production). Here freedom of conscience unfolds its third-party effect. One of the subordinates of freedom of conscience is the right to conscientious objection . In general, freedom of conscience does not provide for any restrictions. Since a relaxation of the right to conscientious objection is difficult to reconcile with Article 19 (2) of the Basic Law, the right to conscientious objection also does not provide for any restrictions.

Basic right of freedom of conscience

No justification is required in order to “redeem” the fundamental right to freedom of conscience, since otherwise the meaning of freedom of conscience would in part become obsolete.

Case group: civil disobedience

It is undisputed that civil disobedience is linked to belief in values ​​other than those represented by the state. However, the case group often overlaps with other basic rights such as freedom of assembly , freedom of expression and general freedom of action. The problem is that civil disobedience often affects not only the state but also other citizens. It is also criticized that the appeal to freedom of conscience to justify political agitation is not sufficient to enjoy the increased protection of Art. 4 GG. On the other hand, pacifist sit-ins, which are based on the models of Mahatma Gandhi and Thoreau , are likely to be regularly protected under Article 4 of the Basic Law.

Freedom of interpretation in Islam as a form of freedom of conscience

The religious law of Islam is a differentiated and dynamic system that has continued to develop since the time of Muhammad (approx. 570–632) until today. Many Muslims take it very seriously and use its rules and values ​​as guidelines for their lives. They consider law to be one of the most notable aspects of their religion. The basic source of Islamic law is the Koran . Rules and regulations that are clearly expressed in the Koran cannot be discussed, but must be accepted literally. In a legal question that the Koran does not clarify clearly, one looks at the examples of the Prophet or at his Sunna , which - often translated as "tradition" - describes the way of life of Muhammad. This concept offers possibilities for interpretation and occasionally brings with it conflicts. Historically, there is a certain tendency to view the legal aspects of Islam as the "heart of tradition". A tendency towards freedom of conscience can be seen from the “judgments” of the scholars , al-Ghazali (1058–1111) is mentioned here. Ghazali commented on religious life and declared that “blind worship of the traditions of law and philosophy did not fill the core of religious life, but that faith and piety were more important.” In a certain way, he granted a freedom of conscience derived from interpretation, which gives priority to strict religious observance of regulations.

The most critical approach to the question of freedom of conscience in Islam is ignited by the question of apostasy , the apostasy, which according to Islamic legal opinion is punishable by death . Within the Islamic world, human rights, which are in contradiction to the Islamic legal concept, are currently being discussed. Among other things, it is about what is to be weighted higher, the Islamic legal conception, i.e. the Sharia , or human rights.

Moral theological consideration

In the Bible, the New Testament and in the general interpretation of theological considerations were to the 4th century for the Christianity the dignity of man and the practical charity in the focus of moral action. The Moraltheologie sets the moral claim of the agent and outlines the moral action fields. With regard to freedom of conscience, the agent comes into doubt about right and wrong action, in other words about good and bad. This is also made clear in the New Testament when it says in Paul's letter to the Romans : “The conviction that you yourself must have before God. Good for those who do not need to judge what they think is right. But anyone who has doubts when he eats something is judged because he is not acting from the conviction of faith. "( Rom. 14 : 22-23  EU )

With the announcement by Emperor Theodosius I (379–395) that Christianity would be declared the state religion , the natural moral attitude changed. A rigid concept of truth developed and violent persecution of people of different faiths. The Catholic Church has long resisted absolute freedom of conscience and placed obedience in the foreground. With the emergence of humanism and the later Reformation , freedom of conscience re-emerged.

In 1715, the Lutheran scholar Johann Gottfried Gregorii alias MELISSANTES, in a prince's mirror drawn up on a moral theological basis, in connection with religious freedom, points out that conscience is worth protecting so that one does not violate conscience .

Pope Gregory XVI took the concept of conscience developed for the Catholic Church . (1831–1846) in his encyclical Mirari vos (1832) and Pope Pius IX. (1846–1878) with the encyclical Quanta Cura (1864) and turned against the thinking of the church people on the occasion of the advancing secularization . The first change of direction was announced with Pope Leo XIII. (1878–1903) and his encyclical Immortale Dei (1885). Even if the ecclesiastical magisterium retained priority over absolute freedom of conscience, believers were granted a certain amount of self-conscience.

The Second Vatican Council (1962–1965) was also devoted to the thought of conscience and, with the documents Lumen Gentium (1964), Gaudium et Spes (1965) and Dignitatis humanae (1965), laid the foundation for a new approach that did not lead to any change .

Madness and error

Pope Gregory XVI In his encyclical Mirari vos of August 15, 1832, he dealt with what he saw as the prevailing confusion in church and state and wrote about liberalism and religious indifferentism . The Pope describes the demand for freedom of conscience as madness and pestilential error, he condemned the freedom movement as a “madness of freedom of thought” and denounced the “unlimited freedom of thought and speech” as well as the “desire for renewal”. On freedom of conscience and expression, he wrote:

“From this musty source of indifference to faith flows that foolish and wrong view, better known as madness, of demanding and defending freedom of conscience for everyone. The trailblazer for this utterly pernicious error is this utterly excessive freedom of expression, which is widespread in wide areas to the ruin of the Church and the State. Some insolently claim that it has advantages for religion. Saint Augustine, on the other hand, says what is more deadly to the soul than freedom from error! When every bridle by which people are led on the paths of truth is removed, and thereby their evil-inclined nature plunges into the depths, we see the open abyss of hell, from which the apostle John saw the smoke rising, which the The sun darkened and emerged from the locusts that spread over the entire earth to devastate it18. From this error comes the change in attitudes that lead to the corruption of youth, from which emerges the people's contempt for religion and the most sacred things and laws, and from which come the words of the plague, which are more deadly than for the public community everything else. Experience testifies to what has been known since ancient times. States that flourished through wealth, power and fame have perished from this one evil, which manifests itself in excessive freedom of expression, freedom of speech and the addiction to innovation. "

- Gregory XVI., Mirari vos

State and Church

In the encyclical Quanta Cura of December 8, 1864, with the subtitle "On the errors of time", Pope Pius IX condemns. the freedom of religion and opposed the separation of church and state. At the beginning he goes to the encyclical Mirari vos of his predecessor Gregory XVI. and confirmed his opinion on freedom of conscience and religion. He condemned the so-called innovators as nefarious liars who would attempt to undermine the power of church and state and bring about the separation of state and church. Regarding freedom of conscience, he wrote:

“The laws of the church are only binding in conscience if they are published by the state authority. The orders and decrees of the Roman Popes, which affect religion and the Church, require confirmation and approval, or at least the consent of the state authority ... The Church should not dispose of anything and decide what the consciences of the faithful with regard to the use of temporal things could bind. The church does not have the right to threaten those who violate its laws with temporary sentences. It corresponds to the principles of holy theology and public law, the property right to goods which are in the possession of the church, religious orders and other pious institutions, to the state government and to claim for them. "

- Quanta Cura , Pius IX.

Freedom of religion and conscience

Although in the course of church history the subject of freedom of conscience had been modified in some respects and a path to freedom of religion was also emerging, church teaching had never abandoned the duty of obedience in principle. With the encyclical Immortale Dei of November 1, 1885 Pope Leo XIII. the doctrine of the "True State" summarized in a condensed form. He wrote about tolerating other religions as an evil that one (necessarily) had to accept, but only under certain given circumstances. From religious freedom, i.e. the practice of religion, he transfers to conscience:

"Accordingly, everyone can then think what he wants from religion, accept one at will, or none at all, if none of them suit him. What must necessarily result from this is clear: Conscience is released from any objective law, it is up to everyone whether he wants to worship God or not; a limitless arbitrariness of thought and licentiousness occurs in the publication of opinions. "

- Leo XIII., Immortale Dei

The path to religious freedom emerged from these considerations, but this in turn includes the question of conscience and requires a decision of conscience. Conversely, it can be deduced from this that “religious freedom” is not to be equated with “freedom of conscience”, since religious freedom tolerates the coexistence of different religions.

Christian conscience and salvation

The Dogmatic Constitution Lumen Gentium was passed on November 21, 1964 by the Council Fathers and by Pope Paul VI. (1963-1978) promulgated . For the first time in the history of dogma, the highest church teaching office expresses itself in detail on the Christian conscience. When it comes to questions of religious rights and duties , the faithful were called upon to allow their decisions to be guided by the “Christian conscience”. The following principle must be observed:

“No human activity, not even in worldly matters, can be withdrawn from God's rule. Nowadays, however, it is particularly important that this distinction and harmony shine as clearly as possible in the actions of the faithful, so that the mission of the Church can more fully correspond to the special conditions of today's world. One must certainly recognize that earthly society is rightly assigned to worldly endeavors and is guided therein by its own principles. Likewise, however, that unfortunate doctrine is rightly rejected, which seeks to establish a society without regard to religion and combats and eradicates the religious freedom of the citizens. "

- Lumen Gentium 36, 4

The bringing of salvation is also open to those who “do not know the gospel of Christ and his church without guilt, but who seeks God from an honest heart to actually try to fulfill his will, recognized in the call of conscience, under the influence of grace”. He, too, can “achieve eternal salvation”. ( Lumen Gentium 16)

The moral conscience

In the pastoral constitution Gaudium et Spes (GS), which was passed on December 7, 1965 at the Second Vatican Council, the authors emphasize the importance and prominent position of conscience when they write in the foreword that “man, the one and whole person, with body and soul, heart and conscience, reason and will is the focus of the explanations. " the duty of obedience and the laws of God to be followed are denied. As a result, there is actually no freedom of conscience in the sense of unlimited freedom . Freedom of conscience presupposes a “right conscience; the more this asserts itself, the more people and groups abandon blind arbitrariness and seek to be judged by the objective norms of morality. Not infrequently, however, it happens that the conscience errs out of insurmountable ignorance without losing its dignity. ”(GS 16) Moral norms also become indispensable in the“ promotion of the common good ”, because“ every group must meet needs and legitimate claims other groups, yes, taking into account the common good of the whole human family (GS 5). At the same time, there is also a growing awareness of the sublime dignity that the human person deserves, since it towers above the whole world of things and is the bearer of universally valid and inviolable rights and duties. So everything has to be made available to man that he needs for a truly human life, such as food, clothing and housing, then the right to a free choice of the status of life and to start a family, to education, work, good reputation, honor and to appropriate information; furthermore the right to act according to the right norm of his conscience, the right to the protection of his private sphere and the right to freedom, including in religious matters. The freedom of conscience to choose between “good” and “bad” entails a duty of conscience for the individual. You, the freedom of conscience and the duty of conscience, also require a sense of responsibility and require a Christian upbringing. "(GS 31)

Luther's concept of freedom of conscience

According to Luther's interpretation of faith, conscience is bound to the word of God , but it must be correctly recognized by the individual - but not given by an authority . Before the Diet of Worms in 1521, he replied as follows:

“If I am not overcome by testimonies or clear reasons, then I am overcome by the testimonies I have cited, and my conscience is bound by God's word. I cannot and do not want to revoke anything, because acting against my conscience is not safe and is not fairer. God help me. Amen"

- Martin Luther

After the Edict of Worms , Luther went to the Wartburg , and sadness overcame him "because, according to his conscience, he had given in to the advice of his friends too much in Worms and had dampened his spirit". Luther again appealed to his conscience when he rejected a political alliance at the Marburg Religious Discussion . Rather, he asked about the responsibility for the damage it caused and asked: "We would rather be dead ten times than have the awareness that our gospel was the cause of some bloodshed or damage on our account."

Luther clearly differentiates between the necessity of action and the decision of conscience for what is just, he uses the opportunity to be able to decide according to his own conscience. In the concrete practice of Protestantism, this means that the freedom of conscience is dependent on judgment and is reflected in the truth and the good and must not get out of hand in arbitrary decisions.

Tolerance in the tradition of Judaism

The most influential thinker of the Jewish Enlightenment was Moses Mendelsohn (1729–1786), who advocated tolerance , freedom to worship and the abolition of state interference in religious affairs. So he says:

“Does not reward or encourage people to adopt certain theologies. Let everyone who does not disturb the general peace pray to God in their own way. "

- Moses Mendelsohn

In addition to the tolerant coexistence of religions, Judaism developed a freedom of conscience within its religious communities that is supposed to protect the state and the human rights of the individual. Immanuel Kant (1724–1804) was so impressed by Mendelssohn's plea for freedom of conscience and for civic and religious tolerance that he wrote to him: “You have known how to combine your religion [Judaism] with such a degree of freedom of conscience that you can would not have believed and no other can boast of such a thing. At the same time, you presented the necessity of unlimited freedom of conscience for every religion so thoroughly and so brightly that the Church, for our part, will finally have to think about how she can relate everything that can annoy and depress one's conscience from its own [that is, from the Christian religion ] separate. "

The Jewish Enlightenment ( Haskala ) changed the way people lived together, but it also led to internal unrest and disputes over questions of faith. In Judaism , tolerance is essential to ensure the protection of one's own religion . Because only on this basis can it be possible for people with different outlooks on life, worldviews and religions to coexist peacefully.

Web links

Individual evidence

  1. ↑ Freedom of Conscience. In: Legal Lexicon of Lawyers Dr. Koch & Partner.
  2. Marc Röckinghausen: The constitutional protection of the decision of conscience . In: Marcus Freitag, Christoph Giersch (ed.): The conscience, an interdisciplinary approach . Ethics of Public Administration, Vol. 6. Verlag für Polizeiwissenschaft, Frankfurt 2015, ISBN 978-3-86676-421-7 .
  3. Jamel J. Elias: Islam. Herder Verlag, Freiburg im Breisgau 2001, pp. 74f.
  4. Melis Antes: Curie User affections levels , Frankfurt, Leipzig [and Arnstadt] 1715, p 251
  5. Roland Bainton: Martin Luther - Rebel for the Faith. Wilhelm Heyne Verlag, Munich 1980, ISBN 3-453-55104-4 , pp. 184/185.
  6. see Rebel for Faith, p. 195.
  7. See Rebel for Faith, p. 331.
  8. ^ Dan Cohn-Sherbok: Judaism. Herder publishing house, Freiburg im Breisgau 2000, pp. 87f.
  9. Hartmut Kreß: The Reichspogromnacht 1938 - Consequences for Theology, Church and Ethics Today. In: evangelical aspects. (on-line)