Liberty of conscience had become a notion of inalienable right, from which one person cannot surrender it by any means. Furthermore, on RUGGIERO’s The History of European Liberalism freedom of conscience implies, formerly, religious liberty and liberty of thought as part of human’s personality and, latterly, “all that concerns his relations to other individuals: freedom of express and communicate his own thought, personal security against all oppression…”.⁹ Transferring it into legal discourse, we can expose it in freedom of thought account. According to Lucas SWAINE, freedom of thought originates some other liberties, such religious freedom, and freedom of speech or freedom of expression.¹⁰

With these references, we have observed there are two features that would constitute the basis of our concept. 1) the capacity to assume any system of thought, particular ethics, vision or idea about life as well as acting according to that, which reveals human’s nature as a moral and rational agent; and 2) the generic concept which encompasses specific liberties, such the religious or the expression ones. Our aim is to bring the idea that this concept is named either freedom of thought or freedom of conscience while, in Spain, it is also called «ideological freedom» and, despite this, we can uphold a particular use of each one.

Let us put the focus on Italian legal tradition in order to find out if those legal expressions refer to these features. Such reference will also contribute to introduce the notion of religious freedom.

In Italy, some clarifications has contribute to develop this concept. While freedom of thought («libertà di pensiero») would be that liberty which endorses each way and form of thought, we should make use of freedom of conscience («libertà di coscienza») when someone acts according to any thought-system assumed by the individual. They identify the two parts of our previous point «1)» as different freedoms: thinking vs. acting. This distinction corresponds to Italian courts interpretation of Article 9 ECHR.¹¹

Freedom of conscience revolves around beliefs and convictions to define human personality, essential in social relations. Both freedoms, of conscience and religious, protect those acts, behaviours, conducts, which belongs to individual’s conscience, that is, actually, beliefs and convictions.¹²

The French legal tradition has particular features. The right to freedom of thought has its French counterpart in «liberté de pensée». According to this legal system, such liberty lays down the right to determine which content should have intellectual, moral, political and religious thinking. This right has internal and external implications. On the one hand, beliefs and convictions configure the absolute nature of the internal implications. On the other hand, the respect for other rights determines the external dimension and restricts how a person can manifest, or externalise, those convictions or beliefs.¹³

Freedom of conscience («liberté de conscience») appeared expressly in the standards and principles added by the preamble of the Constitution of 1946 first, and subsequently, in a landmark decision by Constitutional Council (71-44 DC). Nevertheless, as PINON explained, ECHR extended the range of constitutional rights. Since the adoption of it, freedom of thought, freedom of conscience and religious freedom («liberté religieuse») have appeared regularly in French legal discourse.¹⁴

French legal system establishes two ways of using these expressions. The first one comes from the Constitution of France (CF). The principle of secularism guarantees equality before the law and non-discrimination on religion or beliefs (Article 1 CF). The protection of both traits would lead to use the expressions of freedom as the capacity to adopt them. The second one derives from the Declaration of the Rights of Man and of the Citizen (DRMC), approved by the National Assembly of France on August 26^th 1789, annexed to CF.

What we have presented as internal and external implications (dimensions, spheres or areas), figures respectively in Articles 10 and 11 DRMC. In Article 10 is set that «No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law». From Article 11, individuals can communicate thoughts and opinions freely through a series of means; such speak, write and print, «but shall be responsible for such abuses of this freedom as shall be defined by law».

As both Articles, 10 and 11 DRMC, has placed us before a legal content that we will elaborate throughout the following sections, we are insisting now on FC. The main reason to do so is to put forward that these rights usually bound public and government authorities.

The Constitution of the Fifth Republic has some references to «public freedoms», all of which can be found in one of the three texts included in the constitutional block: the DRMC, the preamble of the Constitution of 1946 and the Charter for the Environment of 2004. The debates and interpretations of these freedoms allows us to find out wording such freedom of beliefs («liberté de croyance»), even ideological pluralism («pluralisme idéologique»).¹⁵ The concept of public freedoms ties with that right against government interferences or “trumps”, although French constitutional case law and doctrine would force us to clarify the principle of secularism. At least, providing more rigour than a sole mention.

Among some authors, POULAT explained that the principle of secularism conveys the principles of democracy and both religious and ideological pluralism. It started as assertion of professing different beliefs, particularly religious, but it resulted into that respect that State must display to any intellectual approach, in other words, into a principle of secularism with barely axiological limitations.¹⁶ In any case, this open-scope should not result in the State avoiding its burden on protecting conscience or religious freedom,¹⁷ it is just appearing when any belief, conviction or, as it also happen in Spain, «idéologie» should be guaranteed by public or government authorities.¹⁸

Whilst the recognition of this liberties developed a perfect separation of State and Church powers in France (and in Netherland), the rest of European states were structured through a State model in which, although both functions are divided, there are some combined tasks in selected areas.¹⁹ It is time to consider these other models via Germany.

Legal doctrine has deemed religious freedom («Religionsfreiheit») as umbrella term to encompass freedom of beliefs («Glaubensfreiheit»), freedom of conscience («Gewissensfreiheit») and freedom of thought («Gedankenfreiheit»).²⁰ This assumption stems from framing each liberty, in German legal system, within one concept that would cover them all. That is the reason why it has been understood that religious freedom, and no other liberty, empowers the individual to live, alone or collectively, in accordance with the assumed ideological system or religion and “with no other limitation than public order”.²¹

Taking the Constitution of Germany (CG) into consideration, freedom of faith («Glaubens») and conscience («Gewissens») as well as freedom of ideological and religion confession («religiösen und weltanschaulichen Bekenntnisses») draw Article 4 CG up. We have noted above those liberties mould a fundamental right in a religious manner. Let us see how Germanic academics have grasped this article. So far, just remark that there is a fundamental right to ideological confession in CG, resembling that fundamental right to ideological freedom, which turns up in CS.

To reckon religious freedom as a generic right, we must bring the principle of secularism back, whose primary objective consists in ensuring it. State ought to uphold cultural diversity and individual’s conscience. That is, that compliance links religious freedom with neutrality or respecting any belief taken by the individual.²² At this point, it is also necessary to demonstrate, to exhibit, to express, such belief or religion. As a democratic standard, freedom of expression preserves the manifestation of the human personality in society.²³

At this point, we have noticed religious freedom could be protected both by freedom of expression and by the respect of beliefs or convictions, by virtue of which some other liberties and rights could be limited at the same time.²⁴ The thing protected is religious freedom, not just religion, because no one can intend any religious conception would be exempt from exercising other freedoms,²⁵ e.g. expression itself. On this, the principle of secularism compels the State to protect «public peace», inasmuch as different freedoms can collide.²⁶

All this proves there is a generic concept with an absolute protection to its internal dimension while public order could limit its external one. They use religious freedom as the generic expression, but the CG ensures to have right to freedom of conscience, of faith and of religious or ideological confession. That is why we can assume all of these freedoms could emanate from the same source. However, we will return to this point later.

Now it is interesting to focus our attention on a regulation that has similarities with the Spanish one. We could find some other examples of the concept of ideological freedom beyond Common Law or Continental Law traditions. The reason is UDHR introduced a similar notion of its rights and freedoms everywhere. To touch upon other legal systems could be interesting to reinforce the idea that ideological freedom has a meaning that involves freedom of thought and freedom of conscience similarly. For this propose, Japanese legal system shares more than a generic concept with the Spanish one, such generic-specific scopes. We need to make use of the expressions we have already seen.

From Japanese Constitution (JC) we could detect «religion» in two ways. According to Kôji SATÔ, the first one would be extensive, providing religious freedom as we have already exposed (Article 20 JC), and the second one would be restrictive, representing a sort of principle of secularism, that is, the separation of the State powers from Churches and religious faiths.²⁷ Makoto ÔISHI explained the former way as a “feeling of confrontation towards an absolute being of transcendent nature” and thus without including the notion of deity that Japanese constitutional case law had previously reflected.²⁸

Concerning the concept of ideological freedom, JC embodies «conscience» (ryôshin 良心) and «thought» (shisô 思想) into Article 19. At first, Japanese doctrine wondered about the nature of this article. There were two possibilities: it could protect the very same liberty, which different concepts could structure it (those of conscience and of thought), or it could protect two different liberties, then these two concepts would denote specific scopes of protection. SATÔ distinguished conscience as moral feeling, or the ability to distinguish between good and evil, from thought as the rationality of the human being. Nevertheless, taking into account the scope of protection, this author thereupon considered this article proclaims a right that casts ad intra, the right would ultimately protect one sole scope guaranteeing its immunity, and ad extra, by means of other constitutional freedoms, e.g. religious and academic freedom or freedom of expression or of assembly.²⁹

The concept of ideological freedom figures in both Articles, 19 and 20 JC. As umbrella term through the former, and as its transcendental variation through the latter. This clarification falls into the generic-specific frame.³⁰

In short, we could summarize this section outlining the following points.

First, we have seen the concept of ideological freedom in different legal traditions and we can assert a conceptual equivalence: the rational capacity to form any thought, or to adopt any belief or conviction, pairs with the ability to manifest it; the first enjoys immunity, but public order limits the second one.

Second, religious freedom circumscribes our concept to its transcendental variation.

Finally, despite of that equivalence, we were unable to identify a proper use for «freedom of thought» and «freedom of conscience» expressions. Sometimes one plays as the umbrella term sometimes the other and we have also seen that both set the subject matter of a right, which casts ad intra.

This lack of specificity has stepped into legal field. Given a series of mutual guarantees (to all these liberties; we will see why), there is no confusion with religious freedom due to that conceptual distinction. However, regarding freedom of thought and freedom of conscience, those guarantees contribute to increase confusion without stipulating how to use each expression.

3. THE CONNECTION BETWEEN IDEOLOGICAL FREEDOM AND RELIGIOUS FREEDOM

As we have seen, ideological freedom is a concept related with more expressions than freedom of thought and freedom of conscience. On the normative front, it shares Article 16.1 CS with religious freedom. A quick glance at international standards would show us this relation through Articles 9 ECHR, 18 ICCPR, 18 UDHR or 10 CFREU too.

In this work, we assume that «having the right to ideological freedom» refers to a right different from that «having the right to religious freedom» because each right protects different goods. However similar these goods would be, it is possible to differentiate both terms. Certainly, there is a series of common elements between these two freedoms, which crystalizes into legal field. We must argue during the section that identical guarantees do not generate confusion about if the protection falls to one or another. As this section has tended to focus on describing the general frame of such guarantees, we have paid less attention to a profound researches and doctrinal debates on this subject. To our mind, exposing the former justifies any lack the reader would miss on the latter.

For this purpose, firstly, we will try to explain what this normative connection denotes; secondly, we will expose how the same guarantees can protect different rights; and, finally, we will see how it is possible to differentiate both concepts.

3.1. Normative connection

The articles that we have just indicated depict similarly the connection between ideological and religious freedom. Through the structure of these standards, we can list a series of rights with a common origin. At the sight of commenting Article 9 ECHR, Jim Murdoch pointed out that, among those articles mentioned ab initio, Article 18 of the ICCPR offers the best possible wording about what the normative content of these freedoms is.³¹ That is, this article can be useful to us so as to identify which are the rights connected to the intimate sphere of the individual. By observing how it is composed, we can identify this article is divided in three sections. The first one proclaims these freedoms. In addition, it refers to its scope as the possibility to manifest one’s religion or belief, individually or collectively and publicly or privately. The second one establishes that the individual «internal forum» has protection against others, which allow us to underpin it as a protected area against any coercion. The third point features that manifesting religion or beliefs «may be subject only to such limitations as are prescribed by law and are necessary to protect public, safety, order, health, or morals or the fundamental rights and freedoms of others», which we can abbreviate as «public order clause».³²

It happens in a similar way in Article 16 CS. Ideological freedom (for now we just note that Article 18 ICCPR establishes freedom of thought) and religious freedom appear together in the same article. Thought, beliefs or religion of the individual have protection against coercion. Moreover, there is a limitation of public order. The reason is these articles hint at the common origin of all these freedoms: the personal, intimate, moral sphere of the individual.³³

The «intimate sphere» of the person links both freedoms. The relevance of this sphere lies in the axiological basis, which stems from human dignity and free development of the personality. In PÉREZ LUÑO’s approach, human dignity is the center point to all faculties, all of which constituted to recognize and to affirm the moral dimension of the individual.³⁴ What is more, human dignity would allow justifying a freedom of a public nature and explaining that some rights related to individual privacy could limit the intervention of public authorities. Spanish Constitutional case law has reflected this limitation. Spanish Constitutional Court (SCC) explained that legislator has a delimited margin for acting. A limited margin defined by those rights “that belong to the person as such and not as a citizen […], those that are essential for the guarantee of human dignity, in accordance with the Article 10.1 of CS, and the foundation of the Spanish political order”.³⁵

In short, among the rights that arise from individual’s intimate sphere, we especially find guarantees for exercising public liberties. These articles have a common minimum and it explains why to proclaim them together. Next, we are deepening on such guarantees.

3.2. Two types of guarantees

Two dimensions are the common basis of ideological freedom and religious freedom. The first one consists in the individual, or internal, projection and the second one in its external. Each dimension configures a source of specific guarantees.

On the normative front, this double dimension is expressly included in Article 2 of the Spanish Organic Law 8/1980, of Religious Freedom (LOLR), which only regulates religious freedom. The protection of the «internal dimension» is based on the immunity of the individual’ beliefs. It lists a series of specific assumptions, those where this protection plays, such as professing, or not professing, free-chosen religious beliefs or practicing worship acts. Indeed, these guarantees operate against coercion similarly as Article 16.2 CS, the article that proclaims together ideological and religious freedoms.

In respect of the «external dimension» guarantees, we must understand them as the ones related with expression, with manifesting thoughts, beliefs or convictions. In LOLR, public order appears again as the order defined by law, that is, by the rights and freedoms recognized in any legal relationship. With this baseline, such guarantees submit the exercise of these freedoms to a right-weighting or legal ponderation.

It is also interesting to highlight, from LOLR, that religious freedom admits collective exercise, a collective variant with regard to churches, confessions and religious communities which have power to exercise a fundamental right (Article 16 CS) and to establish their own organizational structure (Articles 2 and 6 LORL).

This variant must be understood according to «non-confessional principle» (the principle of secularism in the Spanish legal system), also called the principle of neutrality, and its constitutional interpretation. Given a margin to the State to cooperate with the Church and other religious confessions, there must be “a positive attitude regarding the collective exercise of religious freedom. The principle of neutrality in Article 16 CS […] prevents any kind of confusion between religious and state functions […], thus introducing an idea of non-confessional or positive secularism”.³⁶

This collective exercise has led to some constitutional scholars to assert that religious freedom, and not the ideological one, gives reason to the structure of the Article 16 CS.³⁷ This affirmation stems from the fact that Catholic Church holds broad powers despite the normative separation of the powers. These powers come from the Agreements between the Holy See and the Spanish State, of January 3, 1979, while other religious entities do not hold such powers. Hence, they observed that the collective exercise of this fundamental right is limited to a preferential treatment of the Catholic Church, albeit the principle of neutrality disposes a positive attitude of the State towards any entity.³⁸

The collective exercise feature on Spanish regulation, but we cannot affirm that constitutes a specific guarantee to protect these freedoms or to establish a conceptual distinction between ideological and religious freedom. That is because the exercise of ideological freedom is also collective. It may seem strange to say so, but it is only necessary to bring up some examples in which a group of people is organized in line with a particular ideology or ethics, such the cases of the so-called «trend companies»³⁹ or political parties. Actually, different thought-traits determine the guarantees (those traits that make up ideology, a particular ethics, beliefs, convictions, religion…). The guarantees protect its collective exercise, e.g. to declare the immunity of the intimate sphere or to prepare the ground for the classic rights-weighing when manifesting thoughts concur with the exercise of other identically legitimate rights and freedoms, as we saw previously.

Then, concisely, the guarantees of ideological and religious freedoms arise from the two typical dimensions of thought: internal, where the rational activity of the individual takes place; and external, where it happens to manifest it. The external dimension could stretch a collective exercise of the right and we saw that its regulation took place on the account of religious freedom.

3.3. Conceptual difference

After having been exposed the common nexus and its guarantees, now it is time to fall on the concepts of ideological and religious freedom. Even though it is usual to assume that each one is conceived as an autonomous right, authors like CAVAS MARTÍNEZ stated that the common point of them lies in ideological freedom, a «complex» right, in his words, which is composed of the rights to freedom of thought, freedom of conscience and religious freedom.⁴⁰

Accepting this position, we assume religion as a subtype or category of ideology. On the other hand, if we assume each freedom is a particular concept, despite the internal forum nexus, we must conceive religious freedom as the transcendental dimension of that individual intimate sphere. It would represent a freedom that structures faith as a substantial content for the individual. That is why its external manifestation exhibits variety,⁴¹ that is, individual, collective, public, and personal, through preaching, worship, teaching or observance⁴². Religious freedom establishes a consonance: the individual acting in accordance with a faith and its postulates, and is the reference standard to those who decide to live adopting a religious theory or morality.

By considering that both freedoms, ideological and religious, come from the individual’s internal sphere, we should assume transcendental dimension would play as particular stage of a generic freedom that encompasses all rational activity. We could even agree with the previous two positions, as they would be compatible. In other words, albeit each liberty would hold its own specific object, it is possible to describe the ideological one as generic and the religion one as particular. We would identify the as the transcendental area of the intimate sphere.

At this point, we must differentiate these objects with greater precision. Therefore, we need to refer to «idea» and «belief». As defined in SCC case law, a «belief» lato sensu, religious or not religious, is any conception of the world that the individual may have as long as it is rooted in the thought in such a way as acting is conditioned by it, whereas an «idea» means a mental picture of the world made by the subject.⁴³ In this way, SCC has indicated two things: those ideas and beliefs that go beyond a religious dogma fit in autonomous thinking and that dogma, when it constitutes beliefs basis, constitutes the object of religious freedom.⁴⁴ Similarly, a previous study of ECHR case law would lead us to prove the direct connection between acts, or omissions, and beliefs, convictions or a faith precept that obligates the believer to behave according to it.⁴⁵

In conclusion, individuals can adopt ideas in order to form thoughts or opinions related to any subject, and they can also have convictions or beliefs, based or not on a precept of faith, that lead them to behave in accordance with that system of principles. While all this can be the object of ideological freedom, only beliefs based on a faith dogma belongs to religious.

4. IDEOLOGICAL FREEDOM, FREEDOM OF THOUGHT AND FREEDOM OF CONSCIENCE

Through the connection between ideological and religious freedom we have seen that law protects several elements of thought, all of which gives form to the individual’s rational activity. Among these elements, we have been able to differentiate any idea that the individual assumes in his particular conception of life from those others that that assume as a dogma and pivot on the axis of faith. We have come to this point through the study of legal guarantees, from which we have considered the internal and external dimensions of thought and appreciated their objects. We could have done it through studying the different elements that make up thought, but then having had inferred a legal frame for each element to evaluate them later and finally concluding in one sense or another.

In this section, we intend to defend that we cannot reach the same conclusion via studying the guarantees of ideological, of thought and of conscience freedoms. However, we are defending it is possible to establish a conceptual distinction between them. This would lead us to opt for a particular use of each expression. Here, we will follow the previous methodological path to show the following topics. 1) A different normative relation, since we are facing equivalent rights proclaimed in similar precepts and not in the same norm, and how the SCC assumes this link between them. 2) The impossibility of distinguishing concepts legally despite being stablished specific guarantees such as conscientious objection. 3) Finally, the convenient use for each term through invoking Isaiah BERLIN’s two concepts of liberty.

4.1. Normative connection and SCC interpretation

The normative link between these expressions comes from another connection, that between fundamental and human rights. Ideological freedom takes part of this link because it is the right proclaimed in Article 16 CS. In this way, the Spanish Constitution contains the fundamental right to «ideological, religious and cult freedom». At the international level, its correlative is the right to «freedom of thought, conscience and religion», since treaties and international standards ratified by Spain shows these wording, as proclaimed in Article 9.1 ECHR (and identically collected in articles 10.1 of the CFREU, 18 of the UDHR and 18.1 of the ICCPR).

Given this relationship, we can affirm prima facie that «ideological freedom» finds its correlative in «freedom of thought» and «freedom of conscience» in the international legal field. Hence, in legal discourse, courts use any of them indistinctly. For instance, the Spanish Supreme Court Decision (SSCD) has used them in this way: