Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy

1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

El deber de neutralidad religiosa entendido como criterio de actuacion de la actividad de los Estados en la gestion del hecho social religioso, cobra cada vez mayor peso en la jurisprudencia del Tribunal Europeo de Derechos Humanos relacionada con la proteccion del derecho de libertad religiosa y de creencias. Implicito en el articulo 9 del Convenio, la Corte de Estrasburgo ha identificado en este mandato uno de sus principios generales mas sobresalientes. Desde planteamientos cercanos a los postulados del liberalismo clasico, que niega a los poderes publicos competencia para valorar la validez o legitimidad secular de creencias y practicas religiosas, el Estado es percibido por el Tribunal, sobre todo, como un organizador neutral e imparcial de la vida religiosa de la polis y como el garante ultimo del orden publico y del pluralismo. El proposito de esta tesis es indagar, a partir del analisis casuistico de la jurisprudencia de Estrasburgo, en que sentido y con que efectos es interpretado y aplicado el principio de neutralidad en un contexto muy concreto: el que se refiere a la proteccion del derecho de autonomia de los grupos religiosos, tanto en su capacidad para gestionar sus asuntos internos libres de interferencias arbitrarias del Estado; como para desenvolverse con plenitud en sus relaciones externas en el trafico juridico de los paises en los que estan presentes. Finalmente, se trata de buscar responder a la pregunta de cual es la operatividad real de un mandato al que sistematicamente se acude como factor determinante en la gestion de la proyeccion social del factor religioso. Como, cuando y cuanto afecta la actuacion neutral —o no neutral del Estado— a creyentes y comunidades religiosas...

Neutralidad del Estado y protección de la autonomía religiosa en Europa

dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historicalbiographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges. The volume will be an essential resource for academics and researchers working in the areas of law and religion, transnational law, legal philosophy, and legal history.

Christianity and Global Law

ii Acknowledgements iii Chapter 1: Why, What and Who? 1 1.1 Scholarly Grounding: The Why of the Research Project 1 1.1.1 Lay of the Land in the Study of Islam in France and Canada 2 1.1.2 Religious Studies Research Philosophy 10 1.1.2.1 Lived Religion and the Dissolution of Dichotomies 11 1.1.2.2 Making Homes and Crossing Boundaries: Food in Tweed’s Theory of Religion 14 1.1.3 About the Author 17 1.1.4 Scholarly Grounding: Summary 19 1.2 Context/Methodology/Method: The What and How of the Research Project 21 1.2.1 Grounded Theory Methods 23 1.2.2 Spradley’s The Ethnographic Interview 25 1.2.3 Methods Applied 26 1.2.4 Important Terminology 29 1.3 Subjectivity: The Researcher’s Ethnographic Self 33 1.3.1 Ethnographic self as resource 34 1.3.2 Reflexivity/My Ethnographic Self 36 1.4 Summary of the Dissertation 49 PART 1: Everyday Islam in the City of Lights 56 Chapter 2: Colonialism, Immigration, Secularism and Nationalism: The Four Influential Factors of the Parisian Context of Reception 57 2.

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Immigration, Integration and Ingestion: The Role of Food and Drink in Transnational Experience for North African Muslim Immigrants in Paris and Montréal

This article examines the controversies over and implications of the 2010 French ban on the covering of the face. It carries out an internal critique of the new law and, in a broader European context, questions its compatibility with the European Convention on Human Rights. It argues that the ban has strayed away from the confines of laicite by encompassing activities and people who in no way emanate from the State. Far from being a flagship of a secularism ʻa la francaiseʼ or a French way of life, the ban - it is argued - goes against entrenched French legal traditions and unduly conflates the concept of national identity at the cost of individual liberties, thus forgetting the true goal of secularism: the conciliation of different beliefs and values. Assuming that the defence of secularism is nevertheless (for reasons we will explore) upheld by the European Court of Human Rights as a legitimate aim pursued by the law, the French ban it is argued is likely to fall foul of European requirements for lack of proportionality.

Why the French Don't Like the Burqa: Laïcité, National Identity and Religious Freedom

This article explores two recent decisions by the European Court of Human Rights and the French Cour de cassation respectively: SAS v France –a challenge to the French ban on the full-face covering in the public space and Baby Loup –in which a private nursery employee was dismissed for refusing to remove her non-face covering Islamic veil. This article demonstrates that whilst the two decisions share many features, the European Court of Human Rights only offers a semi-support to the French suspicions towards religion. Beyond French borders, the article argues that despite its flawed legal basis (the concept of living together) and its concerning use of proportionality tests, of discrimination protection and of margin of appreciation doctrine, the SAS judgment adopts a balanced approach which may pave the way for a less confrontational method of resolution of majority/minority conflicts over the place of religion in Europe.

Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS

This article examines the controversies over and implications of the 2010 French ban on the covering of the face. It carries out an internal critique of the new law and, in a broader European context, questions its compatibility with the European Convention on Human Rights. It argues that the ban has strayed away from the confines of laicite (the separation of State and religion in the public sphere) by encompassing activities and people who in no way emanate from the State. Far from being a flagship of a secularism—a la francaise—or a French way of life, the ban—it is argued—goes against entrenched French legal traditions and unduly conflates the concept of national identity at the cost of individual liberties, thus forgetting the true goal of secularism: the conciliation of different beliefs and values. Assuming that the defence of secularism is nevertheless (for reasons we will explore) upheld by the European Court of Human Rights as a legitimate aim pursued by the law, the French ban, it is argued, is likely to fall foul of European requirements for lack of proportionality.

Why the french don't like the burqa : laïcité , national identity and religious freedom

Few can doubt that the UK Human Rights Act 1998, in incorporating the European Convention on Human Rights (ECHR) and in particular the guarantee of the right to privacy in Article 8 of the Convention into UK domestic law, and also in requiring the judiciary in s. 6 to have regard to the Convention in developing the common law, is having a considerable effect on the developing protection of human privacy in English common law. This was predicted when the Human Rights Bill was going through its various parliamentary phases by many, including the Lord Chancellor, who described the judges "as pen-poised . . . to develop a right of privacy."' Also predicted was the way the expansion was likely to come about: incrementally and, initially at least, by means of expanding established torts.2 The early judicial decisions that have been handed down since the coming into force in October 2000 of the 1998 Act confirm the above predictions. Arguably, they also display the defects of dealing with new societal problems by putting old torts on the Procrustean bed and stretching them out of shape to meet new requirements. Those who share this view may ask why the richer experience of other systems, in particular that of Germany, France and the USA,

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Concerns and ideas about the developing English law of privacy (and how knowledge of foreign law might be of help)

partitioned by names and subjects. Although it is inevitable that there is some repetition in texts of this kind, the extent of the overlap is not overly wearisome in this textbook. There is little doubt that healthcare is a significant and entirely fascinating field in which to consider the changing social, political, and economic impact of spirituality/religion. Similarly, for those not wedded to the continuing hegemony of the bio-medical model in healthcare, spirituality/religion provides an important lens through which to understand the ways in which we understand health and illness. Despite its failings, this textbook will provide a useful resource for all of those who plough this fertile, interstitial field. Unfortunately, despite its value as a textbook, the cost will, in most cases, prohibit individual ownership. However, every library should have a copy.

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Myriam Hunter-Henin

Papers

Why the French Don't Like the Burqa: Laïcité, National Identity and Religious Freedom

Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS

Why the french don't like the burqa : laïcité , national identity and religious freedom

Concerns and ideas about the developing English law of privacy (and how knowledge of foreign law might be of help)

The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom