scholarly journals Reconciling Pluralistic Democracy and Religious Freedom in European Human Rights Law: A Jurisprudential Balance in Search of Principles

2019 ◽  
Vol 14 (3) ◽  
pp. 169-203
Author(s):  
Roberto Buonamano
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Religious Freedom ◽  
Public Order ◽  
Human Rights Law ◽  
State Neutrality ◽  
European Court ◽  
Margin Of Appreciation ◽  
Minimum Requirements ◽  
The Relationship

Abstract This article examines some of the structural and systemic issues associated with the relationship between pluralistic democracy and religious freedom within the jurisprudence of the European Court of Human Rights. These include the problematic aspects of the doctrine of State neutrality, and the function of secularism in the understanding of “democratic society”. It assesses the principal jurisprudential mechanisms utilised in religious freedom cases—namely, the notion of “public order”, the association of secularism with gender equality, the principles of the “minimum requirements of life in society”, and the margin of appreciation in the context of democratic legitimation. As the article demonstrates, the Court’s approach to negotiating the appropriate balance between pluralistic democracy and religious rights is marred by a reluctance to clearly elucidate the principles involved in the implementation of democratic values under the Convention when considering the means of protecting and limiting the freedom of religion.

scholarly journals Pertinence of a General Prohibition of the Burqa and Niqab in Spain: A Human Rights Perspective

2017 ◽  
pp. 209
Author(s):  
David Fernández Rojo
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Gender Equality ◽  
Religious Freedom ◽  
Public Spaces ◽  
Public Order ◽  
Minimum Requirements ◽  
Local Law ◽  
Full Face ◽  
The Right

<p>The debate on whether to prohibit the <em>burqa </em>and <em>niqab </em>in Spain has been reopened after the recent decision of the Spanish Supreme Court on 14 February 2013. The Spanish Supreme Court held that a municipality could not pass a local law prohibiting the right to wear the full-face veil in public spaces. This article analyzes a conceptual and theoretical framework to establish that the full-face veil qualifies as an external manifestation of the right to religious freedom. Moreover, the pertinence of a <em>burqa</em>-ban in all Spanish public spaces is analyzed and a general prohibition is not found to be a suitable, necessary, and proportional measure to achieve gender equality, public order or «respect for the minimum requirements of life in society».</p><p><strong>Published online</strong>: 11 December 2017</p>

Secularism And Freedom of Religion: The Approach of the European Court of Human Rights

2010 ◽  
Vol 43 (3) ◽  
pp. 611-630 ◽  
Author(s):  
Claudia Morini
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Freedom Of Religion ◽  
The Political ◽  
Modus Operandi ◽  
Competing Interests ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Individual ◽  
The Relationship

This Article focuses on the approach of the European Court of Human Rights, based in Strasbourg, concerning the relationship between secularism and freedom of religion and the application of the “margin of appreciation doctrine.” Through the investigation of the relevant jurisprudence of the Court dealing with religious freedom and the principle of secularism (the Şahin, Dahlab, and Lautsi cases), the Author demonstrates that Court jurisprudence is moving from the application of principles of “pluralist secularism” toward a “fundamentalist approach” to secularism. Having evaluated the modus operandi of the Court in the light of the competing interests at stake, the Author suggests that in deciding cases where secularism and freedom to manifest religion collide, the Court should follow a case-by-case approach primarily aimed at protecting individual liberties and has to consider the political and cultural background of each situation and the effective impact on the State's life of the individual behavior.

Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy

2012 ◽  
Vol 5 (1) ◽  
pp. 2-35 ◽  
Author(s):  
Mohammad Fadel
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Islamic Law ◽  
European Convention ◽  
Political Equality ◽  
The Public ◽  
European Court ◽  
Margin Of Appreciation ◽  
Gender Hierarchy ◽  
Normative Justification

AbstractThe European Court of Human Rights (ECHR), in a trilogy of cases involving Muslim claimants, has granted state parties to the European Convention on Human Rights a wide margin of appreciation with respect to the regulation of public manifestations of Islam. The ECHR has justified its decisions in these cases on the grounds that Islamic symbols, such as the ḥijāb, or Muslim commitments to the shari‘a — Islamic law — are inconsistent with the democratic order of Europe. This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars — Yūsuf al-Qaraḍāwī and ‘Abd al-Ḥalīm Abū Shuqqa — as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective of political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women. This makes less plausible the ECHR's arguments justifying a different treatment of Muslims on account of alleged Islamic commitments to gender hierarchy. It also argues that in light of Muslim modernist conceptions of the shari‘a, there is no normative justification to conclude that faithfulness to the shari‘a entails a categorical rejection of democracy as the ECHR suggested.

Constitutional Law and the Jurisprudence of the European Court of Human Rights: An Attempt at a Synthesis

2001 ◽  
Vol 2 (10) ◽  
Author(s):  
Boštjan M. Zupancic
Keyword(s):  
Human Rights ◽  
Conflict Resolution ◽  
Constitutional Law ◽  
Complete Separation ◽  
Human Rights Law ◽  
Legal Process ◽  
Constitutional Courts ◽  
Resolution Process ◽  
European Court ◽  
The Relationship

There are a few premises underlying this discourse on the relationship between constitutional law and European human-rights law which I should reveal before we explore the relationship itself. I start with a functionalistic designation of the general legal process as being no more (and no less!) than a conflict-resolution process. From this perspective, the most important of my starting premises is what I consider to be an empirical fact, that is to say that the constitutional courts now produce jurisprudence(2) overtly and explicitly transcending the Enlightenment's illusion of complete separation between the competencies of the legislative and judicial branches of power.

scholarly journals Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 198-209
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Complete Picture ◽  
European Convention ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
Religious Clothing

Abstract The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (echr). The ECtHR’s use of the normative MoA often appears to be superfluous as it does not seem to extend past the Article 9(2) echr, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.

Principles of National Constitutionalism limiting Individual Claims in Human Rights Law

ICL Journal ◽  
2013 ◽  
Vol 7 (1) ◽  
Author(s):  
Paul De Hert ◽  
Stefan Somers
Keyword(s):  
Human Rights ◽  
Church And State ◽  
Freedom Of Religion ◽  
Proper Function ◽  
Religious Conflicts ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Treaties ◽  
The Relationship

AbstractThe scope of the fundamental right to freedom of religion has been broadly dis­cussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in inter­national human rights treaties. Does this mean that they are irrelevant in human rights adjudication?This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national consti­tutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.

Limitations on Freedom of Religion and Belief in the Jurisprudence of the European Court of Human Rights in the Quarter Century since Its Judgment in Kokkinakis v. Greece

2017 ◽  
Vol 12 (2-3) ◽  
pp. 174-197
Author(s):  
Mark Hill ◽  
Katherine Barnes
Keyword(s):  
Human Rights ◽  
Religious Beliefs ◽  
Case Law ◽  
Democratic Society ◽  
European Convention ◽  
Freedom Of Religion ◽  
Public Order ◽  
Quarter Century ◽  
European Court ◽  
Margin Of Appreciation

Abstract The manifestation of religious beliefs under Article 9 the European Convention on Human Rights is not absolute but may be subject to prescribed limitations. This article discusses the nature and extent of those limitations, as interpreted in the case law of the European Court of Human Rights from its decision in Kokkinakis v. Greece up to the present. It contrasts the prescriptive text of the Article with its lose and inconsistent interpretation by the Court in Strasbourg. Particular attention is given to the criteria of “prescribed by law”, “necessary in a democratic society”, “public safety”, “public order, health or morals” and “the rights and freedoms of others”. It seeks to divine principles from the varied jurisprudence, particularly at its intersection with the Court’s illusory doctrine of margin of appreciation.

scholarly journals Claims of Religious Morality: The Limits of Religious Freedom in International Human Rights Law

2016 ◽  
Vol 10 (2) ◽  
pp. 341-365 ◽  
Author(s):  
Alison Mawhinney
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Conceptual Status ◽  
European Court ◽  
Freedom Of Thought ◽  
The Right ◽  
Religious Morality ◽  
Historical Treatment

Abstract The right to freedom of thought, conscience and religion is not a constant. As human rights law has progressively acquired a conceptual status as a means of reconciling tensions, the substantive legal content of the right to freedom to manifest religion or belief has widened. This paper argues that the admittance of claims of religious morality within this expanded understanding of the right exposes the conceptual imprecision underlying the right and presents a complex challenge to human rights supervisory bodies to address such claims without undermining their founding objectives. The first part of the paper traces the historical treatment of the right to freedom of religion or belief as a means of understanding its evolving and multifaceted nature. Part II draws on this overview to develop a taxonomy of aspects of the right and, in particular, it suggests that claims of religious morality ought to be viewed and treated as a distinct facet. The final part of the paper examines a group of recent cases before the European Court of Human Rights to explore current judicial responses to such claims and considers the risks posed by claims of religious morality for the contemporary right to freedom of thought, conscience, and religion.

scholarly journals The Qualified Right to Freedom of Religion: An examination of the limitations contained in Article 9 of the European Convention on Human Rights

2020 ◽  
Vol 23 ◽  
pp. 73-99
Author(s):  
Mark Hill
Keyword(s):  
Human Rights ◽  
Religious Beliefs ◽  
Case Law ◽  
Democratic Society ◽  
European Convention ◽  
Freedom Of Religion ◽  
Public Order ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation

The manifestation of religious beliefs under Article 9 of the European Convention on Human Rights is not absolute but may be subject to prescribed limitations. This article discusses the nature and extent of those limitations, as interpreted in the case law of the European Court of Human Rights from its decision in Kokkinakis v. Greece up to the present. It contrasts the prescriptive text of the Article with its loose and inconsistent interpretation by the Court in Strasbourg. Particular attention is given to the criteria of ‘prescribed by law’, ‘necessary in a democratic society’, ‘public safety’, ‘public order, health or morals’ and ‘the rights and freedoms of others’. This article seeks to extract clear principles from the contradictory and confusing jurisprudence, particularly at its intersection with the Court’s illusory doctrine of margin of appreciation.

How Should the European Court of Human Rights Respond to Criticism?

2019 ◽  
pp. 172-180
Author(s):  
Geir Ulfstein
Keyword(s):  
Human Rights ◽  
Decision Makers ◽  
Hostile Environment ◽  
Human Rights Law ◽  
Effective Implementation ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation

This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Europe in an ever more hostile environment. It argues that the Court, in its effective interpretation, should avoid interfering in issues that are not of such a gravity to merit international supervision. In its evolutive interpretation, the Court should also clarify its use of a European consensus and abandon its unfettered discretion in using international legal instruments for this purpose. This could alleviate uneasiness with respect to the ECtHR as an activist Court. Moreover, the Court should treat states equally with respect to benefitting from the margin of appreciation. However, it is also essential for the Court to ensure that deference to domestic decision-makers does not undermine effective implementation of the ECHR.

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