Colloquia Theologica Ottoniana (Dec 2020)
Instytucjonalizacja konfliktu prawo – sumienie jako współczesne wyzwanie dla systemów prawnych continental law
Abstract
The strongest version of the conscience-statutory law conflict, known from antiquity, is found in the events of the twentieth century. The effects of ethically outrageous political or normative decisions made, for example, by the Nazis or the Soviets, caused huge moral dilemmas. The international community’s account for these decisions and their consequences after World War II inspired the building of a system of human rights in the spirit of international iusnaturalism. This system, respecting the freedom of conscience in the well-known triad of freedom of thought, conscience, and religion, also favoured the positive recognition of the human right to conscientious objection. Recognition of the right to conscientious objection ran from the positive and legal recognition of the freedom of conscience, through the theoretical and legal separation of the right to conscientious objection, to the recognition of this right in a legal institution, known as the conscience clause, which takes the form of a provision allowing the possibility of failure to perform an action due to the so-called motives of conscience. The process of gradual recognition of the right to conscientious objection in the legal order, understood in this way, is defined in this study by the term “institutionalisation of the right-conscience conflict”. This institutionalisation takes various forms and does not always lead to the provision of sufficient legal protection to those wishing to exercise their right to conscientious objection. However, legal recognition of the possibility of non-application of the law in force due to conscientious objection always generates a number of challenges for the coherence of the legal system. In this work, a research task was undertaken using the dogmatic-legal method to answer the question which challenges for the legal systems of Continental law result from the institutionalisation of the law-conscience conflict? The article is divided into two parts, analysing the theoretical-legal and practical-legal consequences of the institutionalisation of the right-conscience conflict and the resulting challenges for the legal systems of Continental law.
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