Academic

Calo on Religious Pluralism & the European Court of Human Rights

By Lawrence Solum

Zachary R. Calo (Valparaiso University School of Law) has posted Pluralism, Secularism and the European Court of Human Rights (Journal of Law and Religion, Vol. 26, p. 101, 2010) on SSRN. Here is the abstract:

Beginning with its seminal 1993 decision in Kokkinakis v. Greece, the European Court of Human Rights has defined religious pluralism as an essential good of the liberal democratic society. Yet, in subsequent decisions traversing a range of legal issues [e.g. Sahin, Dahlab, Bayatyan, and Lautsi], the Court has rendered decisions facially at odds with the goal of advancing religious pluralism. This paper is concerned with assessing the discontinuity between the Court?s high embrace of normative religious pluralism and its failure to consistently realize this ideal in practice.

The paper argues that the Court has failed to consistently render decisions in accord with the norm established in Kokkinakis because it has embraced a mode of secular legal logic which treats public religion as a problem to be managed rather than as an essential feature of a healthy democratic society. As such, pluralism does not serve to free religion to participate in the cultivation of public meaning but rather becomes a potential threat to a settled secular order. The Court?s tepidness in advancing pluralism might thus be understood as part of an effort to control the meaning of the public in a way the preserves the predominance of a European secular story.

The Court?s difficulties with pluralism, this paper also argues, reveal deeper problems with the liberal account of human rights. Beginning with Rowan Williams?s claim that ?legal universalism is a negative thing,? this paper offers an account of pluralism based in post-secular theological claims. The establishment of religious pluralism, it is argued, will require more than a commitment to pluralism as toleration or agnostic difference. It will require a rethinking of the relationship between the universal and the particular within human rights norms and, above all, the opening of human rights conversations to religious traditions.

Full post as published by Legal Theory Blog on February 09, 2011 (boomark / email).