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

TLDR: 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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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

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© 2012 Nehal Bhuta
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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

Frequently asked questions

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. 

Q2. What was the key to the new carapace of institutional and legal limits on secular politics?

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

Q3. What is the result of the proportionality and balancing method?

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. 

Q4. What led it to embrace Fascism and other authoritarian movements?

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). 

Q5. What led to the change in orientation of the Catholic Church after 1937?

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. … 

Q6. What was the guiding ideal of a democratic political order?

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. 

Q7. What is the main theme of the new generation of critical scholarship about the history of human rights?

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. 

Q8. What influences have been revealed in the recent scholarship on the formulation of the right?

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. 

Q9. What was the reason why the regulations were dismissed?

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. 

Q10. What was the reason why Leyla Sahin was suspended?

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. 

Q11. What is the purpose of the stylization of the rechtstaat ideal?

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): 

Q12. What is the resemblance of the polizei and rechtstaat concepts?

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.