Equality Act 2010: Law, Reason and Morality in the Jurisprudence of Robert P. George

Abstract

This thesis provides a critical application of Robert P. George’s views to English equality law. The research question is what George, with his view of religion as a basic human good, might think about the religious liberty cases taken under the provisions of the Equality Act 2010.

In addressing this question, it will be necessary to look at those - to some eyes - irreconcilable tensions which have emerged between laws protecting religious freedom. A number of legal claims have been brought by employees who have been instructed to carry out new legal obligations which they have been unwilling to perform. Questions have arisen regarding the current state of reasonable accommodation and proportionality analysis within indirect discrimination law. To examine these questions, this thesis will be in two parts: first, it will consider Robert George’s distinctive contribution to new natural law theory (NNL) and critically analyse George’s NNL approach that arises from this. To do so the key themes: a) practical reason and b) natural rights, will be considered in George’s work. Second, by reading George’s views on practical reason in line with his approach to natural rights, from this position this thesis will give an applied example of NNL, displaying George’s critique of the relevant equality law and arguing for an innovative understanding and approach to religious equality law. This is in an effort to find whether George’s theory is useful in exploring English religious equality law. By doing so this will reconstruct George’s NNL approach through using religious equality law as an applied example.

This thesis argues that at a time when religious liberty often loses out in a balancing of rights, legitimate interests and protected characteristics, a superior way to approach equality law in this area may be through an application of a modified version of George’s NNL thought presenting religion as a public good. This will emphasise the priority of the good in religious conscience over legal rights within law viewed by George as a public morality. Viewing religion not only as a basic human good but also as a public good could provide the basis for future accommodation towards freedom of religious conscience and solve the tensions regarding the protection of religion or belief at work. Religion and religious freedom will be shown to be a form of flourishing within an understanding of the public good.