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Journal ArticleDOI

Two Concepts of Religious Freedom in the European Court of Human Rights

21 Dec 2014-South Atlantic Quarterly (Duke University Press)-Vol. 113, Iss: 1, pp 9-35
TL;DR: In this paper, the authors consider the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases, and argue that the decisions turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.
Abstract: This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I argue that the headscarf cases turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.

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  • Notwithstanding the voluminous literature devoted to research genres, more investigation needs to be conducted to demonstrate the pedagogical significance of studying linguistic features in relation to communicative functions.
  • Motivated by a concern for the pedagogical applicability of genre analysis, this paper investigates the extent to which results of an analysis may be effectively employed for the second language acquisition of syntactic structures and lexical items commonly found in the Method sections of management research articles.
  • Using an innovative and comprehensible approach to describing the steps under each rhetorical move, I have provided relevant materials that may be usefully exploited in the teaching of the genre specifications of the Method sections of management research articles.
  • Reasons are given to explain why constituent steps should be investigated in sufficient detail if ESP teachers are to provide a pedagogically meaningful model for second language learners in a particular discipline.

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DEPARTMENT OF LAW
EUI Working Papers
LAW 2012/33
DEPARTMENT OF LAW
TWO CONCEPTS OF RELIGIOUS FREEDOM IN THE
EUROPEAN COURT OF HUMAN RIGHTS
Nehal Bhuta


EUROPEAN UNIVERSITY INSTITUTE
,
FLORENCE
DEPARTMENT OF LAW
Two Concepts of Religious Freedom in the European Court of Human Rights
NEHAL BHUTA
EUI Working Paper LAW 2012/33

This text may be downloaded for personal research purposes only. Any additional reproduction for
other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s).
If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the
working paper or other series, the year, and the publisher.
ISSN 1725-6739
© 2012 Nehal Bhuta
Printed in Italy
European University Institute
Badia Fiesolana
I – 50014 San Domenico di Fiesole (FI)
Italy
www.eui.eu
cadmus.eui.eu

Abstract
This paper considers the way in which recent historical work on the history of freedom of religion and
freedom of conscience opens up a new interpretation of the decisions of the European Court of Human
Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly
secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that
seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that
the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I
argue that the headscarf cases turn less on the balance between state neutrality and religious belief,
than on an understanding of certain religious symbols as a threat to public order and as harbingers of
sectarian strife which undermine democracy.
Keywords
freedom of religion, European Court of Human Rights, secularism, public order, headscarf

Citations
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Book
03 Oct 2019
TL;DR: In this paper, Carlo Invernizzi Accetti traces the development of this ideology in the thought and writings of some of its key intellectual and political exponents, from the mid-nineteenth century to the present day.
Abstract: Christian Democratic actors and thinkers have been at the forefront of many of the twentieth century's key political battles - from the construction of the international human rights regime, through the process of European integration and the creation of postwar welfare regimes, to Latin American development policies during the Cold War. Yet their core ideas remain largely unknown, especially in the English-speaking world. Combining conceptual and historical approaches, Carlo Invernizzi Accetti traces the development of this ideology in the thought and writings of some of its key intellectual and political exponents, from the mid-nineteenth century to the present day. In so doing he sheds light on a number of important contemporary issues, from the question of the appropriate place of religion in presumptively 'secular' liberal-democratic regimes, to the normative resources available for building a political response to the recent rise of far-right populism.

54 citations

Book
25 Jul 2017
TL;DR: The Universal Declaration of Human Rights (1948) is widely considered to be the most influential statement on religious freedom in human history as mentioned in this paper, and it has been used as a basis for many international human rights initiatives.
Abstract: Article 18 of the Universal Declaration of Human Rights (1948) is widely considered to be the most influential statement on religious freedom in human history. Religious Freedom and the Universal D ...

28 citations

Journal ArticleDOI
TL;DR: In this article, an approach to human rights and methodological nationalism is proposed to counter and explore alternatives to the prevailing conceptions of human rights, nationalism, and state sovereignty in the discourse on the putative impossibility and insidiousness of religious freedom.
Abstract: Is the institutionalization of religious freedom through human rights jurisprudence simply a means by which the modern nation-state manufactures and regulates “religion”? Is the discourse of religious freedom principally a technology of state governance? These questions challenge the ways that scholars conceptualize the relation between states, nationalism, human rights, and religious freedom. This article forwards an approach to human rights and methodological nationalism that both counters and explores alternatives to the prevailing conceptions of human rights, nationalism, and state sovereignty in the discourse on the putative impossibility—and, by some accounts, insidiousness—of religious freedom. I first explicate the interpretive and contestatory dimensions of human rights discourse concerning religious freedom. I then explore cross-cutting ambivalences within the nationalisms that states need and cultivate in effort to transmute their monopoly upon coercive force (i.e. power) into legitimated authority. I argue that these provide

17 citations


Cites background from "Two Concepts of Religious Freedom i..."

  • ...…guest on M ay 30, 2016 http://jaar.oxfordjournals.org/ D ow nloaded from (and human rights more generally) as, in effect, “poisoned at the root” (Bhuta 2014; Moyn 2014: 63–64, 79–80).4 Such excesses leave little recourse beyond terminal suspicion—if not outright repudiation—of human rights…...

    [...]

Book ChapterDOI
01 Jan 2020
TL;DR: The authors argue that cultural diversity in social life is ubiquitous rather than exceptional, and demonstrate that the organization of cultural diversity has been inextricably tied to the constitution and legitimation of political authority in diverse international orders, from Warring States China, through early modern Europe and the Ottoman and Qing Empires, to today's global liberal order.
Abstract: Understanding how cultural diversity relates to international order is an urgent contemporary challenge. Building on ideas first advanced in Reus-Smit’s On Cultural Diversity (2018), this groundbreaking book advances a new framework for understanding the nexus between culture and order in world politics. Through a pioneering interdisciplinary collaboration between leading historians, international lawyers, sociologists and international relations scholars, it argues that cultural diversity in social life is ubiquitous rather than exceptional, and demonstrates that the organization of cultural diversity has been inextricably tied to the constitution and legitimation of political authority in diverse international orders, from Warring States China, through early modern Europe and the Ottoman and Qing Empires, to today’s global liberal order. It highlights the successive ‘diversity regimes’ that have been constructed to govern cultural difference since the nineteenth century, traces the exclusions and resistances these projects have engendered and considers contemporary global vulnerabilities and axes of contestation.

16 citations

References
More filters
Book
01 Jan 1999

572 citations

Book
Thomas Ertman1
01 Jan 1997
TL;DR: Ertman as discussed by the authors argues that the organisation of local government at the time of state formation and the timing of sustained geo-military competition can explain most of the variation in political regimes and in state infrastructures found across the continent during the second half of the eighteenth century.
Abstract: For many years scholars have sought to explain why the European states which emerged in the period before the French Revolution developed along such different lines. Why did some become absolutist and others constitutionalist? What enabled some to develop bureaucratic administrative systems, while others remained dependent upon patrimonial practices? This book presents a new theory of state-building in medieval and early modern Europe. Ertman argues that two factors - the organisation of local government at the time of state formation and the timing of sustained geo-military competition - can explain most of the variation in political regimes and in state infrastructures found across the continent during the second half of the eighteenth century. Drawing on insights developed in historical sociology, comparative politics, and economic history, this book makes a compelling case for the value of interdisciplinary approaches to the study of political development.

549 citations

Book
01 Jan 1998
TL;DR: This history of 20th-century Europe expands the frontiers of Europe outwards to include not only Portugal and Ireland, but also Eastern Europe and the Balkans as discussed by the authors, and it overturns the conventional myth of Europe as the safe haven of democracy and liberal values and shows how fragile they are.
Abstract: This history of 20th-century Europe expands the frontiers of Europe outwards to include not only Portugal and Ireland, but also Eastern Europe and the Balkans. It overturns the conventional myth of Europe as the safe haven of democracy and liberal values and shows how fragile they are.

370 citations

Book
01 Jan 2001
TL;DR: In this article, the authors discuss the legitimacy of the state and its relation to human rights and politics, including the concept of legitimacy and popular control and the notion of popular control.
Abstract: Preface Introduction Part I. The State: 1.1 Political associations 1.2 Violence, coercion, and power 1.3 The concept of the state 1.4 The concept of legitimacy 1.5 Authority 1.6 Weber's 'modern' state 1.7 History and the concept of the state 1.8 Anarchy and the state 1.9 The legitimacy of the state Part II. Liberalism: 2.1 The context 2.2 Toleration 2.3 Freedom 2.4 Individualism 2.5 Limited, unlimited, and discretionary power Part III. Democracy and Rights: 3.1 Democracy: description and interpretation 3.2 Democracy: evaluation 3.3 Popular control and the state 3.4 Legal rights 3.5 Human rights 3.6 Rights and politics 4. Conclusion Index.

172 citations

Frequently Asked Questions (12)
Q1. What are the contributions mentioned in the paper "Law 2012/33 department of law two concepts of religious freedom in the european court of human rights" ?

This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. 

Freedom of conscience was, unsurprisingly, understood as the cornerstone of this new carapace of institutional and legal limits on secular politics. 

The outcome of any given application of the proportionality and balancing method is deeply context-dependent, a function of stylized facts and interpretive judgments about not only how to accord weight to competing values and interests, but also about whether and in what way the values and interests are competing and in need of balancing. 

Christian politics’ preference for neo-corporatist organic community or the revival of traditional foundations of moral and social authority led it unsurprisingly to flirt with or embrace Fascism and other authoritarian movements against socialism and communism (Kaiser 2007: 60-61). 

But the Catholic Church’s anti-totalitarian turn after 1937, and the exile of prominent inter-war Catholic activists such as Sturzo and Maritain, led to a pivotal change in orientation: “Catholic political refugees came back from Britain and the United States with a changed normative hierarchy in which individual liberty was … more important than before, thus pointing the way towards the more liberal Christian democracy of postwar western Europe. … 

Although inter-war personalist currents were far from committed to democracy, Maritain’s reconstruction of a personalism rooted in prepolitical natural rights also envisioned a Christian democracy in which the preservation of the value of the human person was the guiding ideal of a democratic political order. 

The historicity of contemporary claims of right has become the central theme of a new generation of critical scholarship about one of the most influential global political languages of the last thirty years. 

In the specific instance of freedom of conscience, recent scholarship has revealed two important influences on the formulation of the right as it appears in the Universal Declaration and in the European Convention: Christian personalism, and ecumenical missionary movements. 

In the meantime, the regulations were appealed to the Istanbul Administrative Court, which dismissed the complaint because the regulatory power of the university had been exercised in accordance with the relevant legislation and judgments of the Constitutional Courts and the Supreme Administrative Court. 

She was subjected to disciplinary proceedings and was suspended for a semester in 1999, in part due to her joining a protest against the rules on dress. 

Schmitt’s stylization of the rechtstaat ideal is helpful in grasping the distinctiveness of this thinking (although, as with so much of his argument, the stylization aims partly to exacerbate a perceived contradiction between concepts in order to demonstrate that the ideal is now defunct): 

The requirement that state intrusions on basic rights be calculable, definable and controllable is of course the echo of early doctrines of proportionality, a consequence of the tension between polizei and rechtstaat concepts of the state.