Disobedient subjects – constructing the subject, the state and religion in the European Court of Human Rights (original) (raw)
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Promoting Peace, En‘forcing’ Democracy? The European Court of Human Rights’ Treatment of Islam
Center for Human Rights Studies, 2016
Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere is, for many Europeans, associated with emergent or conservative societies, whereas secularism is equated with modernism and seen as an indispensable component of modern governance. Recently, both domestic and European Court of Human Rights (ECtHR) case-law has highlighted the obvious tensions that arise in the manifestation of religion in the European public sphere. While Article 9 of the European Convention on Human Rights affords everyone the right to freedom of thought, conscience and religion (while allowing for certain limitations as imposed by domestic authorities), in matters related to religion, ECtHR has adopted a deferential attitude towards domestic authorities in the determination of the parameters of this right. This is reflected in the fact that it was not until 1993, some thirty-five years after the Court commenced operating, that a violation of Article 9 of the Convention was found. The Court’s jurisprudence on the Article is therefore somewhat troubling and nowhere is this more aptly illustrated than in the jurisprudence relating to the wearing of the Islamic headscarf. Recent case-law in fact suggests that in that the wearing of the headscarf is viewed both as being incompatible with the principle of gender equality and in direct opposition to the principle of secularism. Through the lens of recent Article 9 jurisprudence, this paper will assess the trends emerging in the European Court’s consideration of Islam. Discussion of relevant cases will include Dahlab v. Switzerland, Karaduman v. Turkey, Leyla Şahin v. Turkey, Refah Partisi (The Welfare Party) and Others v. Turkey as well as analysis of cases occurring at the domestic level, most notably the Teacher Headscarf Case of the German Constitutional Court and the English decision of R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School. This paper also seeks to challenge the ECtHR reasoning in the area of expression of religion (and particularly where that religion is Islam) by analysing the question of religion in the public sphere in the broader European context. There is in fact increasing evidence to suggest that Europe is undergoing a period of de-secularisation, a reality routinely ignored by the European Court of Human Rights.
The Religious and the Secular in European Human Rights Discourse
In this article, I present a way to approach the notion of religion in human rights law that works on the assumption that the concepts 'religious' and 'secular' are interrelated. The approach is used to study the reasoning of the European Court of Human Rights. I offer an explanation of criticised trends in the Court's case law regarding freedom of religion or belief that are not so easily understood unless we recognise that notions of religion are linked to specific albeit sometime unspoken normative ideas about society and political governance, and vice versa. When something is denoted 'religion', certain things are ascribed to it and it is ascribed a place in society. A study of notions of religion will tell us how society is imagined and authority to be distributed in this society. Moreover, I maintain that the essential parameters for the Court's reasoning have a history that precedes the founding of the Court itself. The historical background of prevalent reasoning is not always taken into account. However, in order for us to understand the logic of contemporary legal argumentation, to get at that which forms 'silent' parameters for how religion and society is envisioned, we should study the historical grammar of concepts. In this article, I present such an historical outlook and I conclude that what we find when reviewing the case law is indirect evidence of a view of faith that can be classified as an 'enlightenment figure' and which developed concurrently with a particular vision of the modern liberal 'secular' state.
The debate over the Muslim headscarf has become an arena of fervent discussion in Europe. Much of the debate reveals an attempt to explain the issue in binary terms, between modern, ‘secular’, universal and ‘religious’, traditional, local values. In this context, the hijab has become the symbol and mirror of the so called ‘clash of civilisations’. Through the analysis of two cases sentenced by the European Court of Human Rights (ECHR), my argument is that the passionate debate over the veil is a false one as the hijab emerges as a visible symbol of a clash between two legal-political systems, similar but contingently dissimilar: in fact, both Islamists and liberals aim at establishing a singular, universal (positivized) law within the same territory through women’s body. Thus, what the analysis of the ‘hijab cases’ reveals, is not only the emergence of a specific fixed and monolithic Christian/secular/liberal law’s subject, but also that the universality of western thought has precluded the possibility of imagining different forms of humanities and, along with it, a legal pluralism able to deal with a new multi-religious Europe
Religion & Human Rights, 2006
Discussions about the relationship between 'religion' and 'human rights' often focus on the problems that arise from 'religion'. Within a European historical perspective this is understandable since one of the most important aspects of the historical development of the 'human rights' tradition in the Europe has been the struggle for the right not to believe.However, the concept of the 'secular' is also not unproblematic. Thus this article explores the contested relationship between 'human rights' and 'religion' by bringing into focus also the relatively hidden factor of the 'secular'. This is done by exploring the forms of secularity exemplified in the traditions and approaches that are found in the USA, France, Turkey, the Netherlands and India. Finally, reference is made to traditional Islamic models for integrating cultural and religious plurality, before concluding with some discussion of the thought of Marc Luyckx ...
In this article, I explore what kind of individual is presupposed and promoted as the subject of the right to freedom of religion in Article 9 of the European Convention on Human Rights. I question the distinction made between freedom of religion and the right to manifest religion in the context of the so-called headscarf cases. I argue that making such a distinction is only possible if it is based on a particular understanding of an individual who, on the one hand, is capable of perceiving religion as something that can be protected as a lifestyle or as a background that can be entered or exited and who is required to submit to certain putatively secular rules, on the other. In order to do this, I outline the application of the distinction by the European Court of Human Rights and discuss whether it is an appropriate tool to approach the religious subjectivities of women wearing the headscarf for religious reasons. I then try to unearth the relationship between the doctrine of secularism and the conception of religion that is embedded in Article 9.
The politics of European human rights culture
The Lawyer Quarterly, 2017
The issue of religious symbols in the public space has given rise to widespread debate on the scope of freedom of religion and of the State’s neutrality in various countries around the world. Over the years, it has become a source of vigorous legal and political controversy. In Europe in particular, this question chiefly concerns the wearing of headscarves. Bans (often formulated as either bans on headgear or as general bans on religious symbols or dress) have been introduced by many countries and in many areas of life. Islamic dress tends to be commonly perceived (at least in the west) as being associated with the subordination of young girls and women and the perceived link with what is commonly termed “Islamic fundamentalism”. The wearing of religious symbols has been discussed both from a socio-political as well as legal perspective. These developments, particularly attempts to change a cultural reticence to publicly express faith into a legal obligation to refrain from religiou...
The principled slope: religious freedom and the European Court of Human Rights
Religion, State and Society, 2017
This contribution examines four cases, Dahlab v. Switzerland, Şahin v. Turkey, SAS v. France and Ebrahimian v. France, handed down by the European Court of Human Rights (ECtHR) between 2001 and 2015. The ECtHR has increasingly prohibited women from wearing the headscarf and face veil in public spaces. I argue that the rationale used to support these limitations has progressively moved away from an adjudication of harm and evaluation of the facts, to emphasising general principles and creating vague new legal concepts. This trend is problematic because appealing to general principles lessens the requirement of member states to present a fact-based case that carefully weighs trade-offs on key issues such as religious freedom vis-à-vis diversity and pluralism. This tendency also makes it easier for the Court to expand the already widening application of the margin of appreciation to states.