A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights1

Abstract

The article examines the strategies the European Court of Human Rights (ECHR) employs to apply the concept of neutrality in relation to Article 9 (freedom of religion or belief) of the European Convention on Human Rights. Having explored the theoretical background of the concept of neutrality and its specific application in the case law, the authors argue that neutrality is often used to display a bias towards a particular world view or societal paradigm, rather than representing unbiased perspectives of legal reasoning. The article studies the specific justifications for such biased approaches in the context of relevant ECHR cases and argues that in this way neutrality has discredited itself as a credible legal tool and as a form of legal argumentation. Furthermore the difficulty of handling the complexities of Article 9 claims by applying the principle of neutrality has led to a stronger trend of avoiding Article 9 by dealing with Article 9 claims through other Convention articles. Finally the authors discuss possible new approaches to legal reasoning which could take on board the dynamics of freedom of religion or belief through independent reasoning beyond the myth of neutrality.     

Women’s Right to Autonomy and Identity in European Human Rights Law: Manifesting One’s Religion

Freedom of religious expression is to many a fundamental element of their identity. Yet the jurisprudence of the European Court of Human Rights on the Islamic headscarf issue does not refer to autonomy and identity rights of the individual women claimants. The case law focuses on Article 9 of the European Convention on Human Rights, which provides a legal human right to freedom of religious expression. The way that provision is interpreted is critically contrasted here with the right to personal autonomy and identity now developed by that court in interpreting Article 8 which contains a right to respect one’s private life.

Damned if they do,Damned if they don’t: the European Court of Human Rights and the Protection of Religion from Attack

The approach of the European Court of Human Rights to cases of religiously offensive expression is inconsistent and unsatisfactory. A critical analysis of the Court’s jurisprudence on blasphemy, religious insult and religious hatred identifies three problems with its approach in this field. These are: the embellishment and over-emphasis of freedom of religion, the use of the margin of appreciation and the devaluing of some forms of offensive speech. Nevertheless, it is possible to defend a more coherent approach to the limitation of freedom of expression under the European Convention of Human Rights, designed to protect religious liberty in a narrower category of cases.     

The Ukrainian orthodox question in the USSR

Abstract

This research compares the treatment of religion, especially minority faiths, by constitutional courts in Russia and Hungary, with the goal of testing an assumption in the literature that such courts in former communist countries protect human and civil rights, including religious freedom. We found that the ability of constitutional courts to fulfil this function depends on the degree of their independence from governments, with the Hungarian Constitutional Court having offered more effective protection for minority religions than its counterpart in Russia. This outcome in Russia has led minority religions to seek redress with the European Court of Human Rights, where they have experienced considerable success.     

Religion as Politics not Law: the Religion Clauses in the Australian Constitution1

Abstract

The Australian Constitution provides for the protection of religious freedom and prohibits establishment in very similar terms to the United States Constitution. Yet while Australian judges have often stated the importance of religious freedom in a democratic state and have defined religion in a broad, culturally sensitive way, they have taken a narrow approach to the scope of religious freedom and to the meaning of establishment. The end result is that the courts have played very little role in determining the boundaries of acceptable government or legislative behaviour in the regulation of religion. Instead, the key decisions have been left to the political branches of government, which have been given a broad scope of power to engage in all but the most direct and egregious breaches of religious freedom. This article begins with an overview of the history of the drafting of the religion clauses of the Australian Constitution and then gives a detailed analysis of the way in which those clauses have been interpreted by the High Court. It concludes that the approach of the High Court in interpreting the religion clauses narrowly, as a constraint on government power rather than a right, has limited the capacity of the Court to participate meaningfully in the key legal questions around religious freedom. While this approach might have been workable in the past, the growing complexity of regulating religion means that the courts need to be able to develop more sophisticated legal approaches to questions of religious freedom.     

Eine Quadratur des Kreises

In December 2009 the European Court of Human Rights (ECtHR) found in its judgment in the case of M. v. Germany that the retroactive repeal of the 10-year time limit for the first order of preventive detention violated articles 5 and 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It took the German legislator about 1 year to reform the law on preventive detention during which the fate of preventive detainees was debated highly emotionally. Part of this reform is the Law on Therapy and Detention of Mentally Disordered Violent Offenders. It provides the possibility to further detain those persons who would have to be released following the ECtHR judgment. The key element is the very broad criterion ??mental disorder?? which is meant to justify the deprivation of liberty under article 5 § 1 lit. (e) ECHR. However, the attempt to bypass the ECtHR judgment in accordance with the ECHR is unsuccessful: the detention is a violation of article 5 ECHR.     

Le droit de recours en matière d’autopsies médico-légales

The decision to carry out forensic autopsies is frequently made to determine the reasons of the death, especially in cases of non-natural death. In Switzerland, the judge strictly controls the authorisation to conduct forensic autopsies and the possibility to appeal against such a decision remains limited. This article aims to analyse the legal framework that enables appeals against a decision to conduct a forensic autopsy, taking into account the jurisprudence from the High Court of Switzerland (Tribunal Fédéral) and the European Court of Human Rights.     

Religious Hatred Laws: Protecting Groups or Belief?

This article examines the issues raised by recent legislation proscribing incitement to religious hatred. In particular, it examines how far arguments for prohibiting racist hate speech apply also to the prohibition of religious hate speech. It identifies a number of significant differences between race and religion. It also examines several questions raised by the prohibition of religious hate speech, including the meaning and scope of religious identity, why that identity should receive special protection, and whether protection should be directed to religious groups as groups or to their individual members. The central argument of the article is that the distinction between protecting religious groups from vilification and protecting their beliefs and practices from criticism—a distinction on which the British Government placed great emphasis in defending its legislation—is unsustainable. That conclusion is supported by the reasoning of the European Court of Human Rights in cases in which it has upheld the curtailing of freedom of expression for the sake of protecting religion.     

Pakistan Federal Shariat Court's Collective Ijtihād on Gender Equality,Women's Rights and the Right to Family Life

This article argues on the basis of recent case law that the judges of the Pakistan Federal Shariat Court (FSC) have asserted their right to ijtihād and have indeed engaged in collective ijtihād. While in some areas, such as freedom of religion, Islamic law has been interpreted rigidly in a non-human-rights-friendly fashion in Pakistan, in some other areas, the flexibility and pluralism of Islamic law has been used to improve gender equality, women's rights and the right to family life. By using its constitutional powers, with its collective ijtihād, the FSC has been tackling the traditionally illiberal interpretation and application of Muslim laws in these areas. Regardless of the methodology and process of this ijtihādic endeavor, the output shows that the FSC has been either modifying the traditional ijtihāds or coming up with totally new ijtihāds to answer contemporary questions faced by Islamic law. The findings of the article once again challenge the views of scholars such as Schacht, Coulson and Chehata, who have argued that, by the fourth/tenth century, the essentials of Islamic legal doctrine were already fully formulated and that the doctrine remained fixed.     

Religious Freedom in Transition: Spain

Abstract

After a peaceful and well-conducted transition towards democracy (1975–78), the Spanish Constitution was enacted in December 1978. This article starts with the events which led to the Civil War (1936–39) and studies the relationship between the Spanish state and the Catholic Church throughout Franco's dictatorship. This background is necessary for a proper understanding of the current legal framework on religion, which is the main aim of this article. In the light of the pronouncements of the Spanish Constitutional Court (SCC), I analyse the various paragraphs of Article 16 of the Constitution, especially with regard to the position of individuals and communities. I also deal with the relationship between religious freedom and ideological freedom. I offer a critical judgment on the position of the Catholic Church and the other religious denominations which concluded agreements with the Spanish state in 1992. Finally, I highlight current trends, particularly the difficult relationship between the socialist government and the Catholic Church in the last few years. Although the situation had significantly improved by 2007, there are still occasions on which tension between the two institutions is manifest.     

The Headscarf Controversy: A Response to Jill Marshall

This paper argues that Article 8 of the ECHR, as applied to the protection of a person’s right to wear a headscarf, is an inappropriate locus for thrashing out arguments about the right to protection of religious freedom, and that Article 9 allows for a broader legal and political analysis of the multiple meanings and impacts of religion in our lives. However, the law should not prohibit women from wearing the headscarf. Legal regulation of the headscarf should be replaced with robust political debate about the many diverse and intersecting ways in which it is possible to experience womanhood, sexuality, culture, religion, race, nationality and economic security in the twenty-first century.

Die straf- und standesrechtliche Bewertung ärztlicher Suizidbeihilfe

In a judgement dated 14 May 2013, the European Court of Human Rights (ECtHR) decided that it constitutes a violation of the rights guaranteed by the European Convention on Human Rights (ECHR) if a national legal system does not explicitly clarify the circumstances under which physician-assisted suicide may be granted to people who are not suffering from an irreversible and life-threatening illness. Although the decision was issued against Switzerland and does not unfold any direct effects on those member states which were not involved in the legal process, the statements given by the court broadly affect the interpretation of the ECHR on the national level. Against this background and with regard to the fact that until the present day the question of the admissibility of assisted suicide has not been exclusively answered, the article takes the verdict of the ECtHR as a reason for analyzing the relevant German regulations. It was found that the provisions of the core areas of criminal law leave no doubt as to the impunity of assisted suicide as long as it is granted to someone who is not limited in the ability to judge although a corresponding clarification by the Federal High Court has not yet been issued. However, the canons of professional ethics turn out to be less clear. As the reform of the Model Code of Conduct (MCC) by the Federal Medical Association in 2011 did not solve the question of the admissibility of assisted suicide in a satisfying manner, many regional medical associations refused to implement the relevant section 16 of the MCC. The resulting inconsistency and insecurity in the legal assessment provide further evidence of the need for a uniform federal regulation that identifies reliable criteria for the evaluation of physician-assisted suicide.     

Applying statistics to the gatekeeping of expert evidence: Introducing the Structured Statistical Judgement (SSJ)

Daubert required judges to base their decisions about the admissibility of expert witness testimony in large part on the reliability and validity of empirical observations. Because judges have a wide array of duties and may not be equipped to understand the complexities of statistical analysis, some jurists have recommended that court‐appointed experts assist judges in their gatekeeping function. To assist such experts in scrutinizing empirical papers, we propose a Structured Statistical Judgement (SSJ) that takes advantage of advances in the various statistical methods – such as effect sizes that adjust for error – which have allowed researchers to report increasingly more reliable and valid observations. We also include supplementary materials that court‐appointed experts can use both as a codebook to operationalize the SSJ and as a quick reference that will aid consultation with judges. An initial application of the SSJ examined all 93 empirical articles published in Psychology, Public Policy, and Law and Law and Human Behavior in 2015 and resulted in excellent interrater reliability (π = 0.83; π = 0.95; π = 0.97), at the same time it indicated that a majority of the articles fail to include the comprehensive and transparent statistical analysis that would be most useful to courts.     

Phenomenology of the trickster archetype,U.S. electoral politics and the Black Lives Matter movement

This paper examines the Black Lives Matter (BLM) movement in cultural, historical and relational contexts at the intersection of the U.S. Civil Rights movement, U.S. Civil Rights legislation, the Voting Rights Act of 1965 and reforms thereto in the recent U.S. Supreme Court decision of Shelby County v Holder, 570 U.S.529 (2013). The intergenerational relations between the BLM movement and these ongoing movements for civil and human rights is underscored. In the wake of protests about the sadistic murder of George Floyd, an unarmed African American man, by a Caucasian police officer, the BLM movement has been mischaracterized as an affront to law and order by the Trump-led U.S. administration. The mischaracterization was a re-election campaign effort designed to ignite ‘white fear’, ‘white rage’ and to defend police brutality and systemic racism. Analytical psychology and the phenomenology of the trickster archetype, as amplified from the African-centric perspective in the Yoruba deity Esu-Elegba, are employed to interrogate partisan obstructionist behaviours that assault multicultural democracy in both contemporary U.S. electoral politics and the political economy. The paper concludes with a brief note on the social activism of Fair Fight Georgia and the integration of its agenda into the BLM movement.     

Reinhold and the Promise of a Higher Metaphysics

While Reinhold was no doubt interested in harnessing Kantian practical reason as a rational ground for our fundamental religious convictions, it remains unclear as to whether he reserves any role for theoretical or speculative reason in moral faith, and if so, what. This paper argues that he continues to assign an important role to speculative reason in the establishment and dissemination of a “religion of reason” in his efforts across three major texts of the Jena period (namely, the 1786–1787 Letters on the Kantian Philosophy , the 1789 Attempt at the New Theory of the Human Power of Representation , and the 1790 first edition of Contributions to the Correction of the Misunderstandings of Previous Philosophers ) to outline a “new metaphysics” that accounts for supersensible objects (God, the soul, freedom, and the physical, the moral and the intelligible world) in terms of forms of reason. It shows how Reinhold develops a unified account of speculative and practical reason by extending the former's role to include that of producing ideas that pertain to the practical postulates and narrowing the latter's role to that of imparting objective reality and further content to the ideas.     

The development of the Short Muslim Practice and Belief Scale

The majority of the measures of religious practice and belief found in the literature are for persons of the Christian faith; such measures for Muslims are scarce. As examining the role of religion in relation to alcohol consumption is difficult because of the lack of appropriate measures, in the current study, a brief measure of practice and belief for persons of the Islamic faith was developed. Arab Muslims living the United Arab Emirates and Oman (n = 611) and Asian Muslims living in Malaysia and Indonesia (n = 303) were surveyed. The Short Muslim Practice and Belief scale (Short-MPBS) was subjected to exploratory factor analysis and confirmatory factor analysis. These analyses indicated a 9-item measure with a two-factor structure was a good fit of the data. Internal consistency (α = 0.83) and validity were good. Participants who scored higher on the measure were likely to be lifelong alcohol abstainers.     

Theorizing the (Anglican) lex orandi: A Theological Account

This article investigates the lex orandi, an under-theorized yet central strand of Anglican theological identity. The aim is to provide some theological grounding to the ‘law of prayer’ and is motivated by the question: what, theologically speaking, does the lex orandi do? The first section explores the historical origins of the lex orandi in the Augustinian tradition and then its reception into mainstream Anglican theology. From there, the second section moves beyond Anglicanism by offering a codification of the various operations of the lex orandi, focusing in particular on its role in correcting, communicating and then complexifying Christian belief. The final section explores in further detail the nature of Christian belief as it is re-routed through spiritual practice and takes, as a sort of test case, aspects of the doctrine of creation ex nihilo to display the ‘complexifying logic’ of the law of prayer.     

The use of religion in coping with grief among bereaved Malay Muslim parents

The purpose of this study is to explore the influence of religion on bereaved parents after the death of a child. Literature had attempted to understand how religiosity may influence parental grief both in positive and negative ways. However, this area is scarcely explored in the Malaysian context. This qualitative study involved 11 bereaved parents who lost their children due to accidents (n?=?9) and homicide (n?=?2). Open-ended questions that focused on the importance, activities, and role of religion in the grieving process among Malay parents were asked. According to the thematic analysis, some of the main themes found were that the bereaved parents described religion as a beneficial mechanism in helping them to adapt with their losses through various responses that indicated the perception that religion as a guidance. However, other than the positive impact, religiosity can also lead the bereaved parents to experience negative effects of using religion as a coping strategy. The influence of culture is prevalent in the current study as the theme of mystical belief and paranormal experiences were also reported. This study provides some professional implication from the possible use of religion in intervention.     

Improving Predictive Accuracy with a Combination of Human Intuition and Mechanical Decision Aids

This study examines the intuitive combination of human judgment and mechanical prediction under varied information conditions. As expected, mechanical prediction outperformed human intuition when based on the same information, but a combined approach was best when judges had access to relevant information not captured by the model (information asymmetry). The model was useful for differentiating between the event outcomes (improved slope), while eliminating the bias caused by base-rate neglect. Human intuition was useful for incorporating relevant information outside the scope of the model, resulting in improved slope and reduced judgment scatter. The addition of irrelevant information was detrimental to judgment accuracy, causing an increase in bias and a reduction in slope. These results provide insight intohowandwhencombining mechanical prediction and human intuition is likely to result in improved accuracy.     

Jehovah's Witnesses in Germany: Prisoners during the Communist Era ∗

Abstract

Commentators on religious freedom disagree on the rationale for its protection. This question of why we protect religious freedom is important because it influences the manner and scope of the protection of religious freedom by the state. The legal philosopher Timothy Macklem argues, in line with some fideistic approaches to the study of religion, that the value of ‘faith’– of belief without reason to believe – justifies the protection of religious freedom. This paper offers a critique of Macklem's account. It argues that this account is inconsistent with a correct view of the nature of reasons, that it overestimates the circumstances in which faith is valuable, that it fails adequately to consider the connections between faith and false beliefs, and that its conclusions imply a much weaker protection of religious freedom than is common in liberal states. This paper also indicates aspects of faith that are valuable, beyond those discussed by Macklem. It is hoped that it will contribute to the debate on the value of faith as well as the broader debate on the justification of religious freedom.