Who Should Give Effect to Conscientious Exemptions? The Case for Institutional Synergy

Th is chapter tackles the problem of how to allocate to one or the other institution of government the responsibility of granting conscientious exemptions. It starts by advocating for a particular theory embedded in scepticism about the ability of individual institutions to deal properly with matters of rights. This shortcoming can be partially remedied if institutions work synergistically, each with their particular strengths, to compensate each other ’ s weaknesses. This theory is then applied to the context of conscientious exemptions. To do so, the chapter identifies five salient characteristics of conscientious objections which give
rise to specific institutional problems. It notes that claims of conscientious exemptions are potentially limitless in scope; granting conscientious exemptions may undermine the right of others or the public interest; they may raise issues which require particular expertise; they may require consideration of the sincerity of the objector; and conscientious exemptions may be required from obligations arising from a variety of legal sources.
The chapter analyses each of these features in light of their relevance for the allocation problem. Analysis of each helps to reach the conclusion that no one institution is able to cater adequately for the various issues raised by conscientious objections. Institutions may provide adequate solutions for some of those problems. Courts in determining the sincerity of claimants; the executive to help avoid some conflicts of rights; the legislature to provide clear, although contestable, statements of who is to be exempt through conscience clauses.
Yet, if a holistic solution is to be found to the allocation problem, the best approach is to see institutions engaged in a synergetic effort to respond to the various complex problems raised by conscientious exemptions.