JUDGING RELIGION AND JUDGES' RELIGIONS

Abstract

AbstractIn liberal democracies with religiously diverse populations, it would be surprising and troubling if a judge relied on a religious text or precept to resolve a legal dispute. It would deeply offend principles of religious freedom if individuals were bound by judicial pronouncement to obey the dictates of a faith they do not share. However, some commentators have long claimed that a person's cultural worldview has an impact on the way they interpret laws and facts, and there is some empirical support for this claim. There is thus reason to expect that judges’ worldviews have some effect on their decision-making. I argue that when judges deliberately avoid engaging with their own moral perspectives, they may mask to themselves the impact that such perspectives have on their decisions. The alternative of explicit reference to religious sources in judicial decisions, however, is too problematic for the religious freedom of legal subjects. I argue that judges should instead endeavor to be conscious of the influence their backgrounds have on their decision-making, but suggest that judicial institutions may be resistant to adopting practices that would support such an approach. The article draws on Canadian and American case law to demonstrate its argument but has wider applicability to liberal states.