Individual Right as Property of The Right Holder

A third individualistic justification for religious freedom in liberal theory is offered by libertarian-liberal theory. It is based neither on the importance of individual critical capacity nor on a principle of equal religious liberties, but rather is rooted in the principle of minimal intervention by the state, as the perceived danger to liberty emanates from the state. This strand of liberal thinking is notably expressed by Nozick in his development of Lockean liberalism.

Although Nozick's theory is based on individualistic principles that put indi­vidual choice above all other aspects of religious freedom, his theory ends up protecting the group over the individual. In his view, although the framework of the state is libertarian and laissez faire, individual communities within it need not be. Many communities may choose internal restrictions that the libertarian would condemn if they were enforced by a central state apparatus. In a free society, people may contract into various restrictions that the government may not legiti­mately impose on them.

Nozick's theory emanates from a perception of rights ownership that implies that rights can be waived at will. Locke (whose ideas form the foundation of Nozick's theory) saw rights as non-alienable, so that no one can contract away his rights. Nozick's reading of Locke as an ultra-libertarian may be wrong on the issue of ownership and waivability of rights. Nozick believes personal religious freedom is owned by the individual, and can be used by him in any way he wishes, includ­ing by giving this right away. However, from our previous reading of Locke, it can be seen that according to Locke's view personal religious freedom is not absolutely waivable. At the least, it appears that under a Lockean analysis an individual cannot waive unto the group his right to make his own choices in matters of reli­gion, especially not to a group whose governing principles compete with the liberal state, such as the Catholic Church. Rights cannot be sold or bargained away like property, as an individual cannot sell his freedom away to become a slave. Even in a proprietary model of rights, a different relation between the right holder and the right is possible. For example, Waldron supports the understanding, based on the philosophy of Locke and Thomas Jefferson, that rights are not owned but held in trust by the right bearer.

Nozick argues that if one contracts into the community one buys the whole 'package'. But the reality, especially in the case of religious communities, is more complex. An individual's affiliation with a religious community may be a product of circumstance, of deep-rooted belief, or of choice. In some cases, an individual may not effectively be able to leave - his or her home, family, and social connections belong to the religious community. In other cases, an individual may not want to leave. It is precisely because of the importance of religion to the person that one should not be made to choose, on an all or nothing basis, between belong­ing to a religion and enjoying basic rights.

Nozick's approach results in harming individual freedoms. This radical liberal approach, which is generally perceived as ultra-individualistic, achieves a similar outcome to the communitarian approach, in contrast to other liberal approaches. Allowing people to contract away their freedoms unrestrained gives more power to the underlying forces operating in the community at the expense of individual liberties. Even the contractual argument - that members choose voluntarily to belong to a community and so have waived their right - is misleading. Often people are born into a community and face costly (not just economic) barriers of exit. This analysis of Nozick's argument shows that ultra­liberalism in fact diminishes the aggregate freedom of individuals rather than enhancing it.

If freedom of action and freedom of contract are the fundamental principles underlying religious freedom, and the state should not intervene in the exercise of this right, as the libertarian approach claims, then people are to be respected in their choice of living in communities that do not uphold principles of religious freedom. If we accept that it is illegitimate for the state to intervene in the functioning of religious communities, then we must also accept that it will also be illegitimate for international law to intervene. But, as I have argued, these assertions, based on a fiction of contractual freedom, must be criticized. This approach will have practical legal implications regarding restrictions imposed by religious communities on their members, in particular restrictions on women's rights, analysed in Chapter 4.

Thus, liberal thought propounded important justifications for religious free­dom: that of rational criticism, that of equality in according liberties, and that based on a principle of non-intervention of the state. This last basis will be criti­cized in subsequent chapters.