Freedom of Religion in the 21st Century : A Human Rights Perspective on the Relation Between Politics and Religion [1 ed.] 9789004304390, 9789004296770

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Freedom of Religion in the 21st Century

Empirical Research in Religion and Human Rights Editor in Chief H.-G. Ziebertz (University of Würzburg) Founding Editor J.A. van der Ven (Radboud University Nijmegen) Editorial Board E.M.H. Hirsch Ballin (Tilburg University) C. Sterkens (Radboud University Nijmegen)

VOLUME 4

The titles published in this series are listed at brill.com/errh

Freedom of Religion in the 21st Century A Human Rights Perspective on the Relation between Politics and Religion

Edited by

Hans-Georg Ziebertz Ernst Hirsch Ballin

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Freedom of religion in the 21st century : a human rights perspective on the relation between politics and religion / edited by Hans-Georg Ziebertz, Ernst Hirsch Ballin.   pages cm. -- (Empirical research in religion and human rights, ISSN 1877-881X ; Volume 4)  Includes bibliographical references and index.  ISBN 978-90-04-29677-0 (hardback : alk. paper) -- ISBN 978-90-04-30439-0 (e-book) 1. Freedom of religion. 2. Religion and politics. 3. Human rights. I. Ziebertz, Hans-Georg, 1956- editor.  BL640.F75 2015  323.44'209051--dc23 2015028923

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1877-881X isbn 978-90-04-29677-0 (hardback) isbn 978-90-04-30439-0 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Introduction vii Hans-Georg Ziebertz and Ernst Hirsch Ballin Notes on Contributors xiii 1 Reflections on the Categorization of International Human Rights 1 Stefanie Schmahl 2 Freedom of Religion and Competing Human Rights Systems 26 Iain Cameron 3 The Quest for Quality of Life The Complex Relationship of Healthcare, Human Rights and Religion 52 Hans Schilderman 4 “La ikraha fi’l-din – There Is No Compulsion in Religion” – Or Is There? 74 Katajun Amirpur 5 Religious Citizens: On the Relation between Freedom of Religion and the Separation of Church and State 92 Ernst Hirsch Ballin 6 Attitudes toward Human Rights and Religiosity among Adolescents in England and Wales Replicating and Extending a Study in Turkey 105 Leslie J. Francis and Mandy Robbins 7 The Influence of the Socio-Cultural Environment and Personality on Attitudes towards Civil Human Rights 130 Alexander Unser, Susanne Döhnert and Hans-Georg Ziebertz 8 Empirical Models of the Relationship between Religion and State in Indonesia How Religious Beliefs Define the Relation between Religion and State 162 Carl Sterkens and Handi Hadiwitanto

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Human Rights and Value Priorities 207 Carsten Gennerich and Hans-Georg Ziebertz

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Women’s Socio-Economic Rights and Religion among Christian, Islamic and Non-Religiously Affiliated Students in England and Wales 239 Leslie J. Francis, Mandy Robbins and Ursula McKenna

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On the Brink of Death Euthanasia from the Angle of Law, Morality and Religion: A Cross-Cultural Perspective 257 Johannes A. van der Ven Index 301

Introduction Hans-Georg Ziebertz and Ernst Hirsch Ballin This book offers a critical reflection on the changed conditions for freedom of religion in the early 21st century, based on empirical evidence and theoretical considerations. What we mean by “changed conditions” requires some clarification at the outset. We do not intend to qualify the importance of freedom of religion, although the ferocity of religious fundamentalism sometimes provokes such responses in political or even academic discourses. For sure, freedom of religion can be abused, just as other fundamental rights like that of freedom of expression, freedom of association or property. However, that issue should be discussed within the framework of fundamental rights and their application or (lawful) limitations. Here we focus on the question of what it means to recognize and enjoy religious freedom under the actual constitutional, political and socio-economic conditions. “Changed conditions” are foremost related to the deterritorialization of community building, apparent in technologies of mobility and communication, and to the continuing worldwide trend of urbanization. Whereas until recently religious communities were – although for a long time not exclusively– related to shared living places and ways of life, migration and the worldwide communication networks have resulted in a continuous, unavoidable, and direct exposure towards others. And whereas until recently orthodox practices could go unnoticed (to the detriment of people whose individual convictions rebelled at the necessity to comply) the daily encounter with – from an orthodox point of view – heretical behavior inevitably raises the question whether diversity should be accepted as a feature of their society, or whether the “reprehensible behavior” should be confronted. The diversity of the present-day world is profoundly different from that in the former multicultural empires, where various religious communities were allowed to live up to their own standards and could safely withdraw from the confrontation with others into their own neighborhoods. The Ottoman Empire allowed various ethno-religious communities to have their own system of family and succession law, the so-called millets. Likewise, the Dutch colonial East-Indian government in present-day Indonesia introduced the system of adat law circles. In both cases, separate jurisdictions guaranteed the conditions of legal pluralism. Although some Canadian authors wanted to perfect multiculturalism with legal pluralism, a system of separate developments within one society appears to be incompatible with growing interconnectedness, intermarriage and mobility. Where such systems still exist, their influence will gradually diminish.

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The dynamics of our times develop in opposite directions. In societies where political power is in the hands of one dominating, religious homogeneous group, the living conditions for minorities often deteriorate. That does not necessarily mean that their religion reveals an intolerant attitude. Often, it is rather the religious card trumped by leaders with political aspirations to unfettered power. The other, in our view more promising approach is that of an amalgamation of religious freedom with the protection of human rights as a whole. Religious freedom must be consistent with a culture of human rights in general, based on unconditional, equal respect for every person’s human dignity. That means in the first place that – although views differ on what contributes to a dignified life – nobody may be discriminated against on the basis of his or her religion, race or gender. In this approach religious freedom is viewed not as a defense of existing positions, but rather as a foundation of someone’s developing self-understanding. Thus, religious freedom should not be pitted against self-deployment, but be understood as an aspect of the way in which people are allowed and encouraged to give shape to their own lives through education, family life and economic activities. In the latter approach, a consistent realization of the international human rights agenda may be expected, notwithstanding differences in speed and emphasis. Stefanie Schmahl argues for continuing support for the indivisibility of human rights. Her observations offer an additional argument for reinterpretation of the freedom of religion in a not overly defensive way, consistent with other human rights. She rejects any hierarchy between human rights, since that would be detrimental to their very idea. On the contrary, they exist in a reciprocal relationship to each other. There is no justification for a priority position of one dimension of rights, not even as a result from a power struggle between defenders of different human rights clusters. Nonetheless, indications for such a struggle can already be detected in political discourses that try to pit freedom of (offensive) speech against freedom of religion and the other way around. Only human dignity might be suited for a position of preeminence in human rights law. Schmahl’s analyses reconfirm the normativity of international human rights. In her view this has to be taken into account in national human rights policy. Human rights literacy, education and public awareness are instrumental in view of this goal. No one is obliged to applaud a dynamic reinterpretation of the freedom of religion, but – not coincidentally – leaders of various faiths view the developing secular culture not as a threat but as a field of activity for religious people. That may encourage the latter, emerging view of religious freedom. It will, nevertheless, be difficult for many believers and religious leaders to find their way between aversion from and inclusion in an encompassing culture of fundamental rights,

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based on the principle of equal human dignity. Constitutional litigation may contribute to this process. Iain Cameron analyses and explains the role of the various domestic and European jurisdictions, including the European Court of Human Rights and the Court of Justice of the European Union. He draws special attention to the function of the latter court – a court that has special experience in the legal areas reflecting present-day economic and social dynamics – in the protection of human rights, since the Charter of Fundamental Rights was included in the eu treaty framework, as of 1 December 2009. The chapter by Katajun Amirpur explains that even in places where traditional interpretations of holy texts prevail, like Iran, emerging religious movements develop their faith in a way more and more consistent with freedom of conscience and social equality. One of the Islamic authors she studied, Soroush, even argues that God wants diversity and difference. “Religious pluralism, then, is Qur’anic.” Here and elsewhere, the practical experience of diversity appears to be a stimulus for further theological and legal study and reflection. The dynamic understanding of human rights is especially important for the interpretation of freedom of religion as a dimension of an encompassing human rights culture. Human rights relate more and more clearly to the lifeplans of modern people. That affects not only the right to family life and privacy, but also the right to education and the citizens’ rights. Hans Schilderman explains with respect to health care that dignity motivates the pursuit of a lifeplan, and that an emphasis on “capabilities” in quality of life safeguards personal autonomy in policies aimed at a fair distribution of care services. He recommends an ethical account of quality of life in a way that addresses both its character as a common good and one of personal interest. This represents a basic condition to interpret not only health and care in terms of human rights, but also in the entirety of human rights. The view that emerges from these and other contributions also affects, in the end, the role of the religious person as a citizen. Ernst Hirsch Ballin warns against a wide application of freedom of religion to any claim about an absolute truth. Ideologies that promote violence at the expense of human dignity do not qualify for protection through human rights. In a commonwealth where people live together under the reciprocal recognition of human rights – a demo­ cratic state under the rule of law – being religious does not diminish one’s rights and obligations as a citizen, nor does citizenship diminish the possibility of hearing a religious call. A religious citizen will have to accept others on an equal footing as persons entitled to the entirety of human rights including the freedom of religion. We conclude that freedom of religion must be redefined in the framework of the constitutions of free, democratic societies governed by the rule of law.

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The entirety of human rights and its dynamics in the interaction between people of various backgrounds – which is a hallmark of the more and more urbanized living conditions of people in our century – will be beneficial to the core meaning of freedom of religion: the transcendental dimension that one may freely accept in his of her life. The empirical papers in this book reflect on different problems with regard to the influence of religious attitudes and practices on attitudes towards human rights. Leslie Francis and Mandy Robbins present their research on the influence of religious saliency and interreligious openness on attitudes towards socio-­ economic rights, several civil rights and rights to life among adolescents in England and Wales, controlled by sex, age, religious affiliation, political preference and personality. They replicate and extend a study by Ok and Eren among Turkish adolescents, thus offering a comparison between two different cultural contexts. A second replication study is presented by Alexander Unser, Susanne Döhnert and Hans-Georg Ziebertz. In a previous book in this series (volume 2, 2012) Ray Webb, Hans-Georg Ziebertz, Jack Curran and Marion Reindl could show in their comparative empirical research among youth in Palestine and Germany that attitudes towards human rights are dependent on religion, ­values and the country of residence. The empirical result of this study is that the socio-cultural context of the respondents matters when they are asked to value statements about human rights. That culture and society have a formative influence is supported by the social theory of human action of Margaret Archer. In volume 3 of this series (2013) Leslie Francis and Mandy Robbins reflected on the theoretical and empirical scope of this research and criticized that it neglects the importance of individual factors. In their study among British youth, both authors stated that personality has major importance for attitudes towards human rights. Indeed, using Eysenck’s personality scale, Francis and Robbins demonstrate that personality influences attitudes towards human rights. However, Francis and Robbins did not include socio-cultural factors. The authors conclude that personality counts, but they have no findings about the relevance of personality compared to socio-cultural factors. Obviously, the question which concepts count more remained unanswered. The present study of Unser, Döhnert and Ziebertz fills this explanatory gap. The empirical analysis includes both socio-cultural attitudes and personality characteristics. The empirical findings confirm the hypotheses that in all measurements the explanatory relevance of the socio-cultural context is strong and that the influence of personality is very low. Carl Sterkens and Handi Hadiwitanto offer empirical data about the different ways in which Indonesian students perceive the ideal relationship between

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religion and state governance. The authors look at the current context of Indonesia, and they reflect on the process of the Islamization of politics in Indonesia, which illustrates the decreasing divide between religion and politics. The authors develop a theoretical structure of state-religion relationships, grounded on a political-philosophical distinction between liberalism and communitarianism – and operationalize this typology in cross-religious comparative measurements. In the empirical analysis, Christians and Muslims are distinguished. An important finding of their research is that adolescents in Indonesia show a clear preference for a cooperation-model between state and religion. Carsten Gennerich and Hans-Georg Ziebertz show in their research how values and human rights are interwoven in the perception of adolescents in Germany. To measure those values, the value theory of Shalom H. Schwartz is applied. The assumption is that attitudes towards human rights are attached to values and that Schwartz’ theory can help to identify the underlying individual value content of human rights. The results show reasonable relations of human rights attitudes with values, e.g. the fundamental right to protect the individual is related to self-transcendence values (i.e. universalism). Rights of freedom of religion and relativism concerning rights to life are related to values of hedonism in contrast to values of tradition. Concerning religious affiliation, Muslim adolescents show a stronger relation to values of conservation than Christians. Leslie Francis, Mandy Robbins and Ursula McKenna present their research on the association between self-assigned religious affiliations (as Christian, Muslim, and unaffiliated) and attitudes towards women’s socio-economic rights among adolescents in England and Wales. Their findings demonstrated that, while religious saliency and interreligious openness both predicted a more positive attitude towards women’s socio-economic rights, after taking those attitudinal factors into account self-assigned religious affiliations (both Christian and Muslim) predicted a less positive attitude towards women’s socio-economic rights. These findings highlight the problem of discussing selfassigned religious affiliations in relation to human rights without at the same time distinguishing the religious saliency of such affiliations. Johannes A. van der Ven reflects on the permission for euthanasia as a special case of right to life. Human life has to be protected under all circumstances, but several societies allow different exceptions. In the theoretical part, the author refers to the Dutch discussion about euthanasia and points out how the legal situation should be understood. He reflects on non-religious and religious arguments for and against euthanasia. In the empirical part of the paper the author analyses data from six countries. Non-religious respondents show the highest acceptance that “mercy killing” should be allowed. Religious

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respondents, distinguished between Christians and Muslims, show less support. With regard to religion, belief in a non-personal God is a positive and belief in a personal God is a negative predictor of the acceptance of euthanasia. Taken together, these empirical studies illustrate how profoundly the actual conditions of religious life interact with the value orientations of believers. This observation underpins our legal and constitutional assessment concerning the understanding of the freedom of religion. From both perspectives, religion is not at all an isolated phenomenon in society, but rooted in an encompassing culture of freedom and concerns a dignified life in freedom.

Notes on Contributors Katajun Amirpur is Professor of Islamic Studies and Islamic Theology, University of Hamburg (Germany). Recent books: New Thinking about Islam. The Jihad for Democracy, Freedom and Women’s Rights (2015), English translation of: Den Islam neu denken. Der Dschihad für Demokratie, Freiheit und Frauenrechte (2013); and Der schiitische Islam (2015). Iain Cameron is Professor of Public International Law at the University of Uppsala (Sweden) and a Member of the Commission on Democracy through Law (Venice Commission), the advisory body of the Council of Europe on constitutional matters. Recent book: eu Sanctions: Law and Policy Issues Concerning Restrictive Measures (2013). Susanne Döhnert is Research Assistant at the University of Würzburg (Germany). Her doctoral thesis focuses on the legitimacy of human rights in international perspective. Leslie J. Francis is Professor of Religions and Education and Director of the Warwick Religions and Education Research Unit, University of Warwick (England). Recent book: Anglican cathedrals in modern life: The science of Cathedral Studies (2015). Carsten Gennerich is Professor of Religious Education at the Evangelische Hochschule Darmstadt (Germany). Recent publication: Empirische Dogmatik des Jugendalters (2010); “An empirical model to reflect on the relation between adolescents’ interpretation of religious concepts and their experiences,” in G. Skeie, J. Everington, I. ter Avest and S. Miedema (eds.), Exploring context in religious education (2013). Handi Hadiwitanto is Lecturer at Duta Wacana Christian University (Indonesia) and PhD candidate at the Radboud University Nijmegen (Netherlands). Recent publication together with Carl Sterkens: “Attitudes Towards Religious Plurality. Comparative Research among Muslim and Christian University Students in Indonesia,” in V. Küster and R. Setio (eds.), Muslim Christian Relation Observed (2014).

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Ernst Hirsch Ballin is Professor of Human Rights Law at the University of Amsterdam (Netherlands) and Professor of Dutch and European Constitutional Law at Tilburg University. Recent books: Citizens’ Rights and the Right to Be a Citizen (2014) and What Form of Government for the European Union and the Eurozone (ed., with F. Fabbrini and H. Somsen, 2015) Ursula McKenna is a Research Fellow in Warwick Religions and Education Research Unit based in the Centre for Education Studies at the University of Warwick, England. She is currently working on the ‘Ten leading Schools: the spiritual influence of Christianethos secondary education’ project. Her most recent book (with J. Miller and K. O’Grady) is Religion in Education: Innovation in International Research (2013). Mandy Robbins is Reader in the Psychology of Religion at Glyndwr University, Wrexham (Wales) and honorary Research Fellow at the Warwick Religions and Education Research Unit (England). Recent publication: “Life in the church,” in G. Smith (ed.), 21st Century Evangelicals (2015); Subjective well-being and psychological type among Australian clergy with Nicole Hancock in Mental Health, Religion and Culture (2015). Hans Schilderman is Professor of Religion and Care at Radboud University Nijmegen (Netherlands). Recent book: The Concept of Religion. Defining and Measuring Contemporary Beliefs and Practices (2015). Stefanie Schmahl is Professor of German and Foreign Public Law, Public International Law and European Law at the Julius Maximilians University of Würzburg (Germany), an Alternate Member of the Management Board of the European Union Agency for Fundamental Rights, and a Member of the Advisory Council to the International Nuremberg Principles Academy. Recent books: Europäisches Recht zwischen Bewährung und Wandel: Festschrift für Dieter H. Scheuing (with P.-C. Müller-Graf et al., eds., 2011); Der Staat im Recht, Festschrift für Eckart Klein (with M. Breuer et al., eds., 2013); un-Kinderrechtskonvention mit Zusatzprotokollen (2013). Carl Sterkens is Associate Professor of Empirical and Practical Theology, Radboud University Nijmegen (Netherlands). Recent books: Religion, Migration and Conflict (with

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P. Vermeer, 2015) and Religion and Conflict Attribution (with F.-V. Anthony and C.A.M. Hermans, 2015). Alexander Unser is Research Assistant at the University of Würzburg (Germany). His doctoral thesis focuses on the impact of social inequality in religious education. Johannes (Hans) A. van der Ven is Professor emeritus at Radboud University Nijmegen (Netherlands) and the founding father of the international empirical research program Religion and Human Rights (2005–2010). Recent book: Human Rights or Religious Rules? (2010). Together with Hans-Georg Ziebertz he edited, in the Brill Series Empirical Research in Religion and Human Rights, Tensions within and between Religions and Human Rights (2012) and Human Rights and the Impact of Religion (2013). Hans-Georg Ziebertz is Professor of Practical Theology/Religious Education at the University of Würzburg (Germany). Since 2012, he is the leader of the international empirical research program Religion and Human Rights. Recent books: Human Rights and the Impact of Religion (with J.A. van der Ven, 2013), Religion and Human Rights. An international perspective (with Gordan Črpić, 2015) and recently, Religionsfreiheit (2015).

chapter 1

Reflections on the Categorization of International Human Rights* Stefanie Schmahl i

The Emergence of Human Rights Protection at the Level of International Law

The emergence of international human rights protection has revolutionized international law (Klein 1997, 23). Until the middle of the twentieth century, it was a fundamental principle of international law that for almost all purposes only States, being subjects of international law, were capable of possessing rights and duties in international law. Individuals had no such rights; rather they were deemed to be mere objects of international law unless (derivative) rights were conferred to them by States (Buergenthal 2012, 1021). Therefore, individuals stepped into the “light of international law” (a formula that as far as can be seen was used for the first time by Störk 1887, 589) only in extraordinary circumstances. For example, if an individual of one State was mistreated by another State in a manner which violated international law, the home State of the injured individual could intercede by way of providing diplomatic protection for that person. This rule, however, only protected the individual against actions by foreign States and it was even discretionary. Each State was free to decide whether to initiate a claim against the possible perpetrator State in favor of one of its citizens on the ground of responsibility of States for injuries to aliens, or diplomatic protection. By contrast, it was not possible for another State to protect an individual from arbitrary interference by his home State. The rights of nationals against their home State, if they existed at all, were governed by the national law of the State concerned. The manner in which a State treated its own citizens was completely a matter of its exclusive internal affairs (Buergenthal 2012, 1022).

* This paper was published in German language 2010 under the titel “Überlegungen zur Kategorisierung internationaler Menschenrechte” In: H.-G.Ziebertz (Ed.), Menschenrechte, Christentum, Islam, (27–48) Münster: lit, and has been updated and slightly modified in March 2014 for the English version. The author expresses her gratitude to Mr. Roger Fabry for the translation of an earlier draft. All remaining errors of this final version are mine.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304390_002

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Against the background of the Holocaust, which revealed unprecedented and previously inconceivable levels of savagery and inhumanity, the international community quickly agreed after the end of the Second World War to change the legal situation outlined above. The area of human rights was removed from the domestic jurisdiction (domaine réservé) of the States so that individuals could no longer be injured by the arbitrary exercise of State power by their home State without having recourse (Klein 1998a, 39 and 41). Clear evidence of the salience of this issue is provided by the Charter of the United Nations (un Charter). In the preamble of the un Charter the States Parties reaffirm their “faith in fundamental human rights, in the dignity and worth of the human person”; furthermore Articles 1(3), 55(c) and 62(2) of the un Charter refer expressly to the international protection of human rights. An important indicator of this commitment was later provided by the adoption of the Universal Declaration of Human Rights (udhr), which was enacted by the General Assembly on 10 December 1948 (UN General Assembly Resolution 217 A[III], un Doc. A/811). In spite of its non-binding character as a mere recommendation, it signaled a radical political change. The Declaration is understood not only as the authentic definition and interpretation of the rights which the United Nations and its Member States wished to promote under Articles 55 and 56 of the un Charter. At the same time it was supposed to serve as a legislative program for the world organization. It was intended that binding legal effect would be given to the human rights referred to in the Universal Declaration as soon as possible through the conclusion of (binding) international agreements (Fassbender 2009, 16; Conte & Burchill 2009, 2). However, the development of a single, uniform and legally binding human rights catalogue subsequently failed because of the Cold War and the associated ideological confrontation in human rights matters between the two blocks. Only in 1966, the two sides succeeded finally in adopting two binding human rights conventions, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both treaties came into force in 1976, after having been ratified by a sufficient number of States (minimum: 35 each). Since that time, these two treaties have achieved almost worldwide binding effect due to the high number of  Contracting Parties. Today, the Universal Declaration of Human Rights, together with the two un Covenants, effectively forms what has come to be known as the “International Bill of Human Rights” (Henkin, 1987, 1; Steiner, Alston & Goodman 2007, 133). The tedious and protracted process of drafting and ratification of both un ­Covenants (see Pechota 1981, 32 et seq.; Craven 1995, 18 et seq.) led to a series of parallel agreements and complementary measures in order to speed up the implementation of a comprehensive international human rights regime. Thus,

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in the period subsequent to 1966, a number of additional universal international human rights treaties were concluded under the auspices of the United Nations, such as the 1965 Convention on the Elimination of All Forms of Racial Discrimi­nation, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1984 the Convention against Torture, the 1989 Convention on the Rights of the Child, and the 2006 Convention on the Rights of Persons with Disabilities. At the regional level parallel developments also took place. First in Western Europe with the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR), then later in the (South) American continent with the 1969 American Convention on Human Rights, and finally in Africa with the 1981 African Charter on Human and Peoples’ Rights, regional human rights conventions were drafted and adopted. Overall, the number of legal guarantees that benefit each individual person has grown to such an extent through the constant expansion in the number of human rights treaties that, in the meantime, a certain “degree of saturation” has been reached (Tomuschat 2008a, 195; Fassbender 2008, 7). The most important question today, therefore, is no longer which gaps still exist in the current body of human rights protection that need to be filled. Rather, the present discussion is centered around the pursuit of more effective enforcement mechanisms on the one hand, and the consistent and effective use of the wide range of human rights instruments on the other. Human rights instruments partly overlap on substantive issues, and are even partly based on different assumptions (Klein 1999a, 155 et seq.; Stender 2004). While in recent years various proposals have been made to improve enforcement procedures at the level of the United Nations, and some of these proposals have already been implemented in practice (Schöpp-Schilling 2004a, 183; Schmahl 2012, 392), several problems remain. One is finding a consistent solution to deal with substantive differences in the overlapping human rights instruments. Another is determining which human rights guarantee has, or should have, priority in the hierarchy of norms, and whether human rights are indeed universally applicable. In the following deliberations, an attempt will be made to structure and categorize the substance of the international human rights protection under discussion. ii

Approaches to Categorization of International Human Rights

1 Dimensions of International Human Rights If one attempts to systematize internationally recognized human rights according to their contents, three dimensions (or generations) of human rights

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emerge (Riedel 1986, see also Partsch 1987, 5). The human rights of the “first dimension” are primarily in the tradition of the enlightenment (Hofmann 1988, 843; Oestreich 1978). As “defensive rights” they are conceived to protect the individual’s freedom from State interference, and to guarantee his/her civil and political liberties; these rights are regularly supplemented by the fundamental guarantee of equality or the principle of non-discrimination. First dimension rights are found in most international human rights conventions; pars pro toto reference can be made here to the iccpr, which includes in Part iii first dimension fundamental human rights such as the right to life (Article 6), prohibitions of torture and slavery (Articles 7 and 8) and the right to personal freedom and security (Article 9). Already during the drafting of the Universal Declaration of Human Rights, it was recognized that individual liberties required additional protection via economic, social and cultural rights as a further or “second dimension” (Steiner, Alston & Goodman 2007, 270 et seq.). In contrast to first dimension human rights, these second dimension human rights are supposed to ensure the well-being of people by granting decent living standards, especially in terms of entitlement to benefits and rights of participation in society. The works of various social reformers since the industrial revolution of the 18th and 19th century provided the theoretical basis for this approach (Riedel 1986, 25 et seq.). While first dimension rights are primarily aimed at protecting the civil liberties of the individual against encroachments by the State, social human rights usually contain an obligation for the State to ensure a minimal level of material existence to its citizens. This is why proponents of the traditional liberal economic model have always been skeptical of this approach. Additionally, economically weaker States around the world fear being overwhelmed by such obligations (Odendahl 1996, 898 et seq.). Against this background, the icescr stipulates only a small number of justiciable fundamental rights of immediate application (such as freedom of association under Article 8) but contains a large number of guarantees which are viewed as objectives, statements of intent, or mere aspirations. These promotional rights are limited in the extent to which they can be enforced through the courts. For example, the right to work under Article 6 or the right to an appropriate living standard under Article 11 of icescr may be merely implemented pro­gressively depending upon the resources available to each State. Also Article 2(1) of icescr expressly states that “[e]ach State Party to the present Covenant undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means …”. Thus most of the commitments

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of this instrument are made subject to the general reservation of what is financially and organizationally possible (Conte & Burchill 2009, 3; Klee 2000; Trilsch 2012, 23 et seq.). The “third dimension” of human rights, which has been under discussion since the de-colonialization period of the 1960s, includes human rights which are considered as collective rights. In substance these are solidarity rights (Riedel 1989, 12; Barthel 1991). They include, for example, the right to peace and security, the right to development, the right to a habitable environment and participation in the common heritage of mankind. These rights consist mainly of demands from the less developed upon the developed world (Drzewicki 1985, 26 et seq.). The legal object and functionality of these rights has been considered with skepticism, however, because of the vagueness of their content (Partsch 1986, 153 et seq.; Tomuschat 1982, 85 et seq.; id. 1985, 568 et seq.). There is even uncertainty about who can be the beneficiary of these rights. Regarding this issue, sometimes collective entities (nations or peoples) are discussed as beneficiaries (un General Assembly Resolution 39/11, 1984). Sometimes individuals, in addition to collective entities, are seen as being able to be holders of these rights (un General Assembly Resolution 41/128, 1986). The scope of parties subject to duties, i.e. the duty bearers, is also not easily identifiable. It is unclear, for example, whether States have duties towards their citizens, or whether (“stronger”) States should have obligations toward other (i.e. “weaker”) States (Tomuschat 2008b, 58). In many cases, the realization of these third dimension rights also depends on factors – such as natural disasters – which extend beyond the scope of influence of the States. Taken as a whole, therefore, third dimension rights should not be regarded as genuinely enforceable rights, but rather as “agreed objectives which the international community has pledged to pursue” (Tomuschat 2008b, 59). Nevertheless, they play a role in the international protection of human rights which is not insignificant. The recognition of collective rights does strengthen the protection of fundamental rights and the right to minimum existence afforded to the individual under the first and second dimensions rights (Ipsen 2004, § 48 mn 39). An example for this idea is the right to a habitable and favorable environment. It has become much more important, reflecting a growing environmental consciousness worldwide, so that it has moved very close to becoming part of the individual right to life (Fassbender 2008, 6). The utility and the additional benefit of a division of human rights into different dimensions or generations can be seen in how it serves to reinforce the functionality, purpose, direction and justiciability of individual human rights guarantees. It is not an accident that all United Nations treaty bodies not only

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look at the “duty to respect” but also consider the “duties to protect, to ensure and to fulfill” when performing their monitoring obligations and supervisory roles in the area of human rights (Tomuschat 2008b, 52 et seq.). Of course, dividing up human rights into dimensions results neither in dogmatically discrete categories nor can it be the basis for conclusions on the creation of an objective hierarchy of human rights norms. Human rights cannot be unambiguously put into one of the categories or dimensions. Furthermore, many human rights treaties contain a combination of first dimension and second dimension rights, as is particularly obvious in some of the newer instruments such as the Convention on the Rights of Persons with Disabilities (Schmahl 2007, 528 et seq.). The African Charter on Human and Peoples’ Rights even contains all three human rights categories (Shelton 2002, 937 et seq.). This is the reason why the human rights dimensions can only serve as guidelines in order to determine better the material content and the justiciability of individual rights. Any other categorization or attempt at creating a hierarchy of “groups of human rights” would risk undermining the universal and indivisible nature of human rights, which are mutually dependent and interrelated (Van Boven 1982, 53 et seq.). 2 Universality of International Human Rights? Another important issue related to the structuring of international human rights is the question of whether they have universal validity, or – conversely – are culturally relative. To put it more poignantly: Are cultural differences in the international human rights community of this single world acceptable? a) Widespread Coverage of Human Rights Treaties During the period when international human rights protection was extended after the Second World War, the claim to universality first became manifest (Higgins 1999, 17; Bielefeldt 1995, 589). Not only Article 1(3) of the un Charter, but also the udhr and the two un Covenants on Human Rights (ICCPR and ICESCR) were aimed at the promotion and consolidation of respect for human rights and fundamental freedoms for all people regardless of race, sex, language or religion. In particular the udhr explicitly represents a universal system of human rights, which is clear from the wording of Article 1(1) which states that “[a]ll human beings are born free and equal in dignity and rights”. The two un Covenants on Human Rights also pursue the goal of universal validity of human rights. The preambles of both treaties particularly emphasize the inherent dignity of all mankind. The same can be said for the vast majority of concrete human rights guarantees, which include all individuals,

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regardless of citizenship (see, in particular, Articles 6–12, Articles 14–19, Article 22, and Article 24 iccpr). At first glance, one might be inclined to interpret this commitment to the universal validity of human rights as reflecting a “western” or even “eurocentric” value system, which in 1945 – i.e. before the phase of decolonialization – was still able to prevail among the 51 founding members of the United Nations (Abu-Salieh 1993, 254 et seq.). At the time of adoption of the udhr on 10 December 1948, the United Nations had only 56 Member States (including three African and eleven Asian countries). This constitutes less than a third of today’s number (193 countries). Of these 56 Member States, 48 voted in favor of the Declaration, and eight abstained (abstentions were made by Belarus, Czechoslovakia, Poland, Saudi-Arabia, South Africa, Ukraine, ussr, and Yugoslavia, see Fassbender 2009, 14). In spite of the small number of countries voting for it, of which most were, at that time, necessarily western States, the udhr must be understood as a document that is universally accepted. In any case, the Declaration was subsequently not only confirmed by international court decisions (see, e.g., International Court of Justice, Con­ sular Staff in Tehran, icj Rep. 1980, p. 3, § 91), but also by numerous resolutions of the un General Assembly. In this respect the 1993 Vienna Declaration and Program of Action of the un World Conference on Human Rights and the 2000 Millennium Declaration of the un General Assembly stand out. Both documents make explicit reference to the udhr as the common human rights standard of the international community; also the 2005 UN World Summit Outcome acknowledges the udhr as the cornerstone of human rights in the world. These recurring affirmations of the rights contained in the udhr compensate the under-representation of African and Asian countries in the initial period (Waltz 2007, 799). The two International Covenants on Human Rights, which were ratified in 1966 by 106 States and in the meantime have been adopted by almost all countries around the world, are equally the product of the common conviction of the international community (Tomuschat 2008b, 75). Even if one considers the States which have not ratified the most prominent human rights conventions, some of which may be States where the human rights situation is particularly alarming, we nevertheless seem to be getting closer and closer to the goal of universal validity, without confronting unbridgeable cultural differences (Higgins 1994, 96). Similar considerations apply in relation to human rights treaties that are aimed at protecting special groups, which have also been ratified by many States. The idea of human rights is recognized worldwide and certainly does not represent an expression of cultural relativity.

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b) Selective Acceptance of International Human Rights Guarantees Nevertheless, concerns about the universality of human rights have been expressed repeatedly. The international catalogue of human rights, which appears impressive at first glance, has been relativized considerably, both at the level of the scope of protection, as well as the level of competing legal interests, by reservations and denunciations of human rights treaties as well as through the drafting of vague clauses in need of interpretation. It would, according to some scholars, therefore be illusory to automatically infer the existence of universal human rights standards from the current prevalence of widely adopted human rights treaties (see, e.g., Kempen & Hillgruber 2012, § 58 mn 72 et seq.; Jhabvala 1985, 191; Bedjaoui 1984, 193). It has to be conceded that universality of human rights, which has been highly valued and sought after, does in fact give way in legal reality to regional diversity. As early as the World Human Rights Conference, organized by the United Nations in Vienna in 1993, it became obvious that fundamental differences existed between the various cultural traditions in their understanding of what human rights meant. It was merely possible to agree on a compromise formula, in which the participating States made reference to the universality of human rights, while at the same time emphasis was given to national and regional particularities as well as divergent historical, cultural and religious backgrounds. An almost identical compromise formula can also be found in the 2005 World Summit Outcome. Furthermore, the large number of reservations, with which the States concerned have excluded the application of individual treaty provisions shows how different human rights standards are from region to region. The Con­ vention on the Elimination of All Forms of Discrimination against Women (cedaw) is still the front runner in terms of the sheer number and scope of State reservations (Steiner et al. 2007, 1125 et seq.; Tomuschat 2008b, 76 et seq.). But the content and effectiveness of the other human rights treaties is also often restricted by reservations (Klein 1999b, 110 et seq.). Yet, it can be argued that any reservation to a human rights treaty which is incompatible with the object and purpose of the treaty (cf. Article 19, Vienna Convention on the Law of Treaties [vclt]) is null and void (Giegerich 1995, 713 et seq.; Lijnzaad 1995), resulting in unqualified acceptance of the treaty as a whole (this is the view expressed, e.g., by the un Human Rights Committee, General Comment No. 24, 1994, § 8, see also Schöpp-Schilling, 2004b, 18 et seq.). However, such an approach ignores the legislative intentions of the declarant, as an acceptance with restrictions is not unreserved acceptance (Pellet, 2013, 1081, with further references.). Practice has shown that in such situations, where the intentions of the State making the reservation to a human rights treaty are m ­ isrepresented,

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the State simply denounces the instrument (Baratta 2000, 422; Stahn, 2001, 607 et seq.). Now, one could take the position that the denunciation of a human rights treaty may be regarded as illegal as well, at least in cases where the treaty itself contains no provisions for its denunciation, as for example is the case with the iccpr. When North Korea attempted to denounce the iccpr, its denunciation was rejected by the un Secretary General who referred to the impossibility of denouncing the instrument. The un Human Rights Committee endorsed this view, stating that the population of a State which had at any time ratified the iccpr, could not under any circumstances lose the protection of Covenant rights afforded by that act – not even in the case of succession of States (see un Human Rights Committee, un Doc. CCPR/C/SR.1631/ Add.1 (1997), as well as General Comment No. 26 (61), of 29 October 1997, un Doc. CCPR/C/21/Rev.1/Add.8). This viewpoint indicates some acceptance of the objective effect which emanates from human rights guarantees. It was clearly in light of this development that China entered a bilateral agreement with the United Kingdom to observe the rights protected under the iccpr in Hong Kong after its return to Chinese sovereignty in 1997, although China itself has never been a party to the Covenant (for more details see Klein, 1998b, 165 et seq.). On closer examination, the universal human rights contained in the United Nations conventions simply appear to represent a minimum consensus of the international community. This finding receives support, if one considers the unwritten sources of international law, especially customary human rights law. The process of determining the scope of customary international law requires a high degree of agreement and very wide prevalence in relation to the particular values held, which can only take place via the “international community of States in its entirety”, which means an overwhelming majority of States, transcending ideological, religious, cultural or political differences (as to the prerequisites of the development of customary international law see International Court of Justice, North Sea Continental Shelf, icj, 1969, 43 et seq.; and Inter­ national Court of Justice, Nicaragua, icj 1986, 106 et seq.). The requirement of a common conviction of legal values is even more indispensable with regard to the development of peremptory norms of international law. Here, opinio iuris is the uncompromising rule that actors in international law must comply with certain patterns of behavior in their legal relationships, from which no derogation under any circumstances is possible (Kadelbach 1992, 228). The stock of ius cogens norms in human rights law may therefore be merely a minimum standard. The undisputed rules of peremptory norms of international law include only – besides the prohibition on the use of force – the prohibition on

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slavery and slave trade, the prohibition of genocide, the prohibition of torture, the prohibition of systematic racial discrimination, as well as the compliance with fundamental habeas corpus rights (see International Law Commission, Commentary on Art. 26, 2001, 208; and American Law Institute, Restatement Third, paras 702[a] to [f]) i.e., those rights which are very closely linked to the collective survival of mankind and the individual dignitas humana. Rights which extend beyond this short list are discretionary in nature and, in principle, open to varying cultural interpretations. c) Normative Demands for Universality in International Human Rights Nevertheless, these practical findings indicating a lack of universality in human rights guarantees must not be equated with the question of the normative validity of human rights, i.e. with human rights’ claim to universality. Every normative order which issues written rules about how things “should be” must also take on the corrective and educational task of trying to reshape the present by implementing those rules. This is particularly true in the area of human rights, because every individual human right can be traced back to experienced injustice and had to be fought for in a battle against State power (Bielefeldt 1998, 85 et seq.; Haas 2008, 86 et seq.). The argument of cultural relativism is frequently advanced as a pretense in order to defend the established order against change, serving to keep the masters of those countries in power (Shestack 1998, 231 et seq.). Up until moments before the East block collapsed, the socialist image of mankind was still being vehemently held up and defended against the West’s counter-image as the incarnation of evil (see, e.g., Tunkin, 1974, 82). Today not only are nearly all of the former Soviet block States parties to the major international human rights treaties, but they are also members of the European Convention on Human Rights. This illustrates that the differences in approach to human rights which were under discussion earlier were motivated by power-political and ideological views rather than cultural differences as had been suggested at that time (see Klein 1999b, 114; Tomuschat 2008b, 71). In a very similar way, reservations to cedaw, that mainly refer to the prohibition of discrimination against women in marriage, family and inheritance law, are regularly justified by the declarants by reference to cultural and religious practices (Schöpp-Schilling 2004b, 29 et seq., also id., 2007, 148 et seq.). Regardless of the question of whether such vague and extensive reservations are legally admissible (as to this issue see Pellet 2013, 1088, with further references), what becomes clear is that hardly any other question of human rights protection is so heavily burdened with out-dated ideological and patriarchal notions as is the guarantee of women’s rights. This is particularly true for Africa and Asia, but

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also for Europe. All of this is not a question of culturally determined norm relativism but rather much more a question of the openness of societies both to allow changes in their political power structures and to allow themselves to develop (Kälin & Künzli 2005, 34; Dundes Renteln 1990). Thus we now see, for instance, that Europe criticizes practices in other parts of the world, which in times past were common in Europe and have only subsequently been abandoned (Klein 2000, 51). In a certain sense the ambitious concept of human rights stands “cross-wise to all cultures.” (Klein 1999b, 115). It requires from States that they dynamically adapt their legal systems to international standards, rather than insisting upon their traditional value systems and selectively fulfilling their international obligations in accordance with the requirements of their national legal and cultural value systems (Klein 1999b, 110). All the countries of the world can develop the strength to comply with the demand for change, which recurs constantly and must be redefined by each succeeding generation – in an effort to strike the best balance between freedom, equality, and security, or individualism and communitarianism, or moralistic and liberal world views. Particularly in the area of “moral values and beliefs”, which in the European cultural tradition has also gone through a paradigm change in the last 60 years by adopting liberalism, international human rights conventions intentionally give each State a certain amount of leeway to maneuver in consideration of national peculiarities and their gradual change, for example when interpreting the concept of “public morality” (see, e.g., Articles 12 (3), 18(3), 19(3) lit. b, and Article 22(2) iccpr). The European Court of Human Rights (ECtHR) in its case law regularly refers to this discretionary space as “margin of appreciation” (Schokkenbroek 1998, 30 et seq.; Brems 1996, 304). It is applied particularly in situations where the question arises of whether a national restriction of an echr guarantee is “necessary in a democratic society.” This margin of appreciation, which also exists within the frameworks of other major international human rights instruments (see, for instance, with respect to the iccpr McGoldrick 1994, § 4.48), is an explanatory model for the fact that human rights conventions are unable to provide detailed rules which take account of all the various ways of life as well as the ideosyncracies of various national legal systems but at the same time maintain a fixed framework for State behaviors which may be allowed if proportionate to the goals sought. Do International Human Rights Prevail over Other Rules of Public International Law? If one accepts the claim to universality made by international human rights, the question arises whether human rights also take precedence over other rules of public international law. Hierarchies of norms and of sources of law

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are common in all national legal systems. The principle lex superior derogat legi inferiori helps to gain clear outcomes with respect to competing legal positions, holding the higher ranked norm to be effective and to prevail in application over the lower ranked norm (Koskenniemi 1997, 571). Hierarchies of norms generally structure a legal system and protect it from arbitrary changes in the rules at the top of the hierarchy (Shelton 2006, 297). As a rule, constitutional law has precedence over ordinary laws; this differentiation into legal categories follows from the differentiation of legislative power into pouvoir constituant and pouvoir constitué (Klein 2008, 478). It is not easy to find a hierarchy of norms in the international legal order. As in principle all actors are equal in international law, the international legal order does not contain any formal hierarchies of law, which would be comparable to those found in national legal systems (Meron 1986, 3). One explicit exception can be found in Article 103 of the un Charter, which states that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Otherwise within the area of public international law, the concept of hierarchies of norms is sometimes used in international organizations, where the distinction is made between primary legislation and secondary legislation (Suy 1995, 267; Wölker 2007, 42). Yet, a concept of hierarchy of norms could be derived within the international legal order from the particular substantive law qualities of certain norms. What comes to mind here are the concepts of “international public order” or ius cogens, both of which have the aim of guaranteeing the survival of mankind and addressing global problems with shared solutions reached together by the subjects of international law (Tomuschat 2001, 81 et seq.; Charney 1993, 530 et seq.). Much thought has been given to the grounds of validity of peremptory norms in international law (see, e.g., Fastenrath 1993, 307 et seq.; Weiler & Paulus 1997, 558 et seq.; Koskenniemi 1997, 566 et seq., all with further references). Taken all together, the reasoning is rather more ethical or sociological than legal: what we are dealing with is a form of autopoiesis (D’Amato 2005, 349). In Democratic Republic of Congo v. Rwanda (2006) the International Court of Justice (icj) expressly recognized the existence of peremptory norms in international law for the first time, having previously, in the Nicaragua decision (1986), merely pointed to the potentially binding nature of the prohibition of the use of force (see International Court of Justice, Congo v. Ruanda, ICJ Rep. 2006, 126, § 64; Nicaragua, ICJ Rep. 1986, 100, § 190). Aside from the prohibition on the use of force, the existing catalogue of peremptory norms in international law primarily comes from the area

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of human rights. There is, however, no general rule giving human rights norms priority. State practice rather shows the possibility to denounce human rights instruments or to enter reservations when adopting human rights conventions. But it is also difficult to justify giving priority to minimum standards in human rights over other international law norms. If we consider a situation, as could easily exist in a humanitarian intervention, where the prohibition on genocide, which is a peremptory norm of international law, stands in direct competition with the prohibition on the use of force, which is equally ius cogens, there are two norms of equal status, so that the priority of the one over the other norm is dogmatically not justifiable. Instead of giving one priority, what needs to be done is a careful balancing between the two mandatory rules (see Klein & Schmahl 1999, 201 et seq., and also Linderfalk 2013, 599 et seq.). If instead we have a situation, however, where a ius cogens norm is pitted against a dispositive provision of international law – it could be commercial law or international environmental law – then a different outcome might well result. Treaties which conflict with a peremptory norm of international law at the time they are concluded, are void under Article 53(1) vclt. Article 64 vclt stipulates that if a new peremptory norm emerges, existing treaties which conflict with the norm are also void. According to the overwhelming view of academic lawyers, the same also applies to unilateral State acts (see, e.g., Mosler 1980, 19 et seq.; de Wet 2004, 97 et seq.). Of course, the Vienna Convention has so far (as of March 2014) been ratified by only 113 States. Not just a few of the States which are not members of the Convention justify their non-ratification by reference to the Convention’s doctrine of ius cogens as well as to the legal consequences contained in Articles 53 and 64 vclt (see Deleau 1969, 14 et seq.; Czapliński 2006, 85 et seq.). 4 Hierarchy Levels within International Human Rights Law? Perhaps it would be possible to establish a hierarchy of norms within the area of human rights law. Such a hierarchy within the arena of human rights is supported by part of the academic literature, which points to peremptory norms, to non-derogable rights, and erga omnes norms. Although this step seems to make sense at first glance, concerns must be raised about giving priority to certain human rights: First of all, it is important to realize that a hierarchy cannot be created on the basis of formal designation of rights. It is insignificant if a right is designated in the relevant treaties or conventions as a human right, basic right or fundamental human right (Meron 1986, 5 et seq.). Similarly, it is not permissible to undertake a ranking of human rights norms based on checking their dimensions and functions. The history of human rights protection shows that

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every single right, regardless of whether it is an individual or a collective right, regardless of whether it is a defensive right, a right to ­participation, or a right to be treated equally, had to be fought for. Every single right means a victory against State oppression (Klein 2008, 480). It was not an accident that the Vienna Human Rights Declaration and Program of Action in 1993 stressed the indivisibility of human rights. Any sort of recognition that second dimension rights, for example, had priority over first dimension rights would mean the abandonment of the principle of indivisibility. The various different sources of law also provide no support for giving priority to certain human rights. Most human rights are the product of agreement; only very few rights find parallel support in unwritten international law, particularly in customary law. Compared to rules arrived at by agreement, norms from customary law may certainly be better suited to establish themselves as peremptory norms in human rights, because they are the product of a long process of development and reflect widely held legal convictions (see Verdross 1937, 572; Kirchner 2004, 47). Nevertheless, the sources of international law are all equivalent in rank (see Carrillo Salcedo 1997, at 585; Dupuy 1995, 14 et seq.). At such a level where all norms are ranked equally, reference is made to the conflict of laws rules lex specialis derogat legi generali as well as lex posterior derogat legi priori; priority of validity or of application in the form of a lex superior principle can logically not exist (rightly Shelton 2006, 293 et seq.; A. Tahvanainen, 2006, 193; differently Linderfalk 2013, 607 et seq.). Occasionally reference is made to non-derogable rights, in order to provide evidence for the existence of mandatory and thus higher priority human rights norms (see, for instance, the concurring opinion expressed by judge Cançado Trindade to the decision of the Inter-American Court of Human Rights, of 14 March 2001, Barrios Altos, 112; similarly Seiderman, 2001, 66 et seq.; E. Suy 1983, 938). This argument is also not convincing. It is certainly true that all rights, which form part of the minimum human rights standard, may not be suspended even in times of emergency. This is so even if it has never been stated explicitly in a human rights convention that the right concerned is non-derogable as is the case, for example, with the prohibition of racial discrimination. States parties are barred from relying on Article 4(2) iccpr or Article 15(2) echr as a justification, if they violate peremptory norms of international law (see UN Human Rights Committee, General Comment No. 29, 2001, § 12; see also Teraya 2001, 927). The rule, however, does not work in the opposite direction. Some rights are qualified as non-derogable, such as the freedom of religion or the prohibition on imprisonment for debts, although they do not belong to the body of mandatory rights. This can be explained on the basis that it can never be necessary during an emergency to suspend freedom of religion or the prohibition of

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imprisonment for debts, since the suspension could contribute nothing to coping with the emergency situation (see UN Human Rights Committee, General Comment No. 29, 2001,§ 11; consenting Klein 2003, 16). The ius cogens nature of a norm therefore follows from the norm’s contents and protective purpose, and precisely not because of its status as non-derogable law (Karl 2003, 124 et seq.). The erga omnes status of international law norms also does not create a hierarchy within the human rights arena. There is agreement that certain fundamental human rights create obligations vis-à-vis each and every State, and even vis-à-vis the international community as a whole (see e.g., International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, § 155–159, with further references to prior judgments; Ragazzi 1997). If such a right is violated, the erga omnes status becomes operative and all States have authority under international law to take action against this violation. However, this procedural rule only gives authority to act but it does not give priority to the rights and obligations, which have only inter partes effect (Meron 1986, 9; Byers 1997, 236 et seq.) These inter partes norms, too, must in international law be complied with by the parties in exactly the same way as if they were erga omnes norms. If there is a violation, the same actions and countermeasures in international law are available to the parties (Teraya 2001, 935 et seq.; Kadelbach 2006, 27 et seq.). Referring now also to the 2001 Articles on Responsibility of States for Internationally Wrongful Acts, elaborated by the International Law Commission and later approved by the UN General Assembly, which directly address the concept of erga omnes norms in a number of places, nothing exists there which contradicts this view of the matter. At the most, only the existence of erga omnes obligations taken together with ius cogens norms could constitute the basis for a hierarchy of norms in international law (Klein 2008, 482; see also the concurring opinion expressed by judge ad hoc J. Dugard in International Court of Justice, Democratic Republic of Congo v. Rwanda, icj Reports 2006, 126, § 4). With that, a possible primacy within the area of human rights law can only focus on peremptory rules which constitute minimum standards of behavior. This approach is essentially value oriented and is based primarily on the close link between law and ethics (see Shelton 2006, 323; Carrillo Salcedo 1997, 592; Weil 1983, 422). But however accurate this approach may be – does it really give a priority position to a mandatory human rights norm (e.g. prohibition on torture or prohibition on slavery) with the result that the remaining human rights guarantees (e.g. freedom of religion, freedom of assembly, freedom of expression) must completely give way in their normative validity to the mandatory norm? Doubt appears justified here. As explained above, nullity as the consequence of breach of a ius cogens norm, as stated in Articles 53 and 64 of vclt,

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is not universally accepted. If one looks at national level, the situation turns to be even more complicated. For example, Article 25 of the German Basic Law assigns to the general rules of international law, including their mandatory core elements, according to the overwhelming view of constitutional lawyers, only an intermediate position between the German Constitution and ordinary laws (see Schmahl 2011, 284, with further references). Furthermore, the German Federal Constitutional Court held that a German violation of minimum standards of international law only has the result that Germany is obliged to cooperate at international level in order to mitigate the consequences of the violation (Decisions of the Federal Constitutional Court: BVerfGE 112, 1, at 33). There is no suggestion whatsoever in German jurisprudence or legal practice of giving overriding effect to peremptory norms of international law, even if they form part of the core human rights standard. International courts have shown themselves to be equally reserved to ideas of hierarchies of norms (see the in-depth analysis by Shelton 2006, 309–314). Thus the International Court of Justice held that its jurisdiction could not be refused on the basis that the putative breaching State had violated mandatory provisions of international law as the case concerning East Timor (icj Reports 1995, 102, § 29) and the one of the Democratic Republic of Congo v. Rwanda (icj Reports 2006, 126, § 64) show. Even where there are severe systematic breaches of human rights (war crimes, crimes against humanity) the International Court of Justice has recently not accepted setting aside the principle of State immunity. State practice indicates, on the contrary, that according to the Court, there is no rule by which claims of State immunity in proceedings before the courts of a third State, depend on the severity of the alleged offence (see International Court of Justice, Case Concerning Jurisdictional Immunities of the State, Judgment of 3 February 2012, § 93 et seq.). Furthermore, in the Al-Adsani case (European Court of Human Rights, Judgment of 21 November 2001, § 61), the ECtHR did not give a higher priority to the prohibition of torture than to State immunity which was pitted against the right to a fair trial under Article 6 echr. But in other cases the Strasbourg Court has characterized the right to life and the prohibition of torture as “supreme value[s] in the hierarchy of human rights” (see, e.g., European Court of Human Rights, Judgment of 27 September 1995, McCann, § 146, and Judgment of 22 March 2001, Streletz, Kessler und Krenz, § 72, 94). Regarding the prohibition of torture, the Court even held that this right had priority over other customary rules of international law (European Court of Human Rights, Al-Adsani 2001, § 60). Nevertheless, the ECtHR has never used this formula as a reason to avoid the necessary balancing between these rights and other human rights. Thus reference to some norms as having particular

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value hierarchically seems to owe rather more to rhetoric than to normative legal effect (rightly Klein 2008, 486, see also Shelton 2006, 314, with regard to the case law of the icty). Within the framework of the German Basic Law, the only norm which is absolute, and therefore not subject to balancing with other rights, is human dignity. All other fundamental rights or human rights, including the right to life, in contrast, are subject (in varying degrees) to balancing with other rights (Klein 2002, 148). This means that in a case where there is a conflict between the limited right to life, on the one hand, and the prohibition of torture, on the other, which is part of human dignity and is therefore inalienable and absolute, the judicial decision in effect was made a limine in favor of the prohibition of torture by the drafters of the German Constitution. In view of the abstract determination that human dignity would remain inviolable, there is no possibility to conduct a balancing with other rights in individual cases (see, e.g., European Court of Human Rights, Judgment of 30 June 2008, Gäfgen v. Germany, No. 22978/05, § 63). As correct as this decision by the drafters of the Basic Law may have been in view of human dignity, it is equally important to be aware of the dangers which could result from the decision that one human rights norm, in abstracto and a priori, has been given a higher priority than all the others. It would therefore be advisable to be careful in dealing with the idea that a system of hierarchy within the area of human rights law on the international plane would be useful or necessary. iii Summary The considerations presented here do not lay claim to even come close to fully illuminating the issue of the categorization of international human rights law. Some preliminary conclusions can however be drawn: 1. 2.

3.

Universal human rights protection has made great progress during the short time of its existence. It is difficult to imagine that mankind would ever wish to revert to the situation which existed previously. Regardless of the various dimensions and functions, which are inherent in the different individual rights, human rights remain indivisible and exist in a reciprocal relationship to each other. No justification can be made for giving a priority position to one dimension of rights. In spite of the fact that nearly all States have acceded to the major international human rights conventions, the legal reality is that a universality of all human rights does not exist in the sense that a unified

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5.

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value system is recognizable worldwide. At the same time there does exist a core of universally valid and mandatory human rights, which is composed of those rights, like the prohibitions of torture, slavery and racial discrimination, which are very closely linked to the concept of human dignity. A reference to cultural idiosyncrasies is not acceptable where certain ethnic groups are subject to massive discrimination against their will. International human rights serve as a universal guiding principle, upon which national developments in human rights law must orient themselves. A reverse postulate would undermine the normativity of international human rights. The assumption, that universal human rights protection in principle is impossible, receives no support whatsoever – not from empirical evidence, not from any speculations about human nature, and certainly not from anything in human culture. It must be the declared goal of any national human rights policy to harmonize as much as possible the domestic human rights value system with the universal body of human rights protection worldwide. This requires first of all that people are given knowledge about the rights they possess. The keywords are literacy, education and public awareness. The creation of a hierarchy of norms in the area of human rights involves the risk of a reduction in the importance of those human rights that are not part of the human rights minimum standard. The creation of a hierarchy of international human rights should be greeted with restraint and prudence; ultimately human dignity might be suited for a position of preeminence in human rights law.

Bibliography Abu-Salieh, S.A. (1993). Muslims and Human Rights. In W. Schmale (Ed.), Human Rights and Cultural Diversity (pp. 239–268). Goldbach: Keip. American Law Institute (ed.), Restatement of the Law Third, The Foreign Relations Law of the United States (Restatement Third). Baratta, R. (2000). Should Invalid Reservations to Human Rights Treaties Be Disregarded? European Journal of International Law, 11, 413–425. Barthel, A. (1991). Die Menschenrechte der dritten Generation. Aachen: Alano. Bedjaoui, M. (1984). Statement. In R.-J. Dupuy (Ed.), The Future of International Law in a Multicultural World (p. 193). Dordrecht: Kluwer Academic.

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Fassbender, B. (2009). Einführung. In D. van Gunsteren & B. Fassbender (Eds.), Menschenrechteerklärung, Universal Declaration of Human Rights (pp. 1–30). München: sellier. Fassbender, B. (2008). Idee und Anspruch der Menschenrechte im Völkerrecht. Aus Politik und Zeitgeschichte Vol. 46, 3–8. Fastenrath, U. (1993). Relative Normativity in International Law. European Journal of International Law Vol. 4, 305–340. Giegerich, Th. (1995). Vorbehalte zu Menschenrechtsabkommen. Heidelberg Journal of International Law Vol. 55, 713–750. Haas, M. (2008). International Human Rights. Abingdone: Routledge. Henkin, L (1987). The International Bill of Rights: The Universal Declaration and the Covenants. In R. Bernhardt & J. Jolowicz (Eds.), International Enforcement of Human Rights. Berlin: Springer. Higgins, R. (1999). The Continuing Universality of the Universal Declaration of Human Rights. In P. Baehr et al. (Eds.), Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (pp. 17–26). Amsterdam: Royal Netherlands Academy of Arts and Sciences. Higgins, R. (1994). Problems and Process: International Law and How We Use It. Oxford: OUP. Hofmann, H. (1988). Zur Herkunft der Menschenrechtserklärungen. Juristische Schulung, Vol. 28, 840–849. Inter-American Court of Human Rights, Barrios Altos, Decision of 14 March 2001, International Legal Materials 41 (2002), p. 93–112. International Court of Justice, East Timor (Portugal v. Australia), Judgment of 30 June 1995, I.C.J. Reports 1995, p. 90. International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, I.C.J. Reports 2006, p. 126. International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy), Judgment of 3 February 2012, not yet published in the official records of the Court. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, I.C.J. Reports 2004, p. 136. International Court of Justice, Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, p. 14. International Court of Justice, North Sea Continental Shelf Cases, Judgment of 20 February 1969, I.C.J. Reports 1969, p. 3.

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International Court of Justice, United States Diplomatic and Consular Staff in Tehran, Judgment of 24 May 1980, I.C.J. Reports 1980, p. 3. International Law Commission, ILC Commentary on Art. 26 of the Articles on Respon­ sibility of States for Internationally Wrongful Acts, GAOR, 56th Session, Supplement No. 10: Report of the International Law Commission, 53rd Session (2001). Ipsen, K. et al. (20045) Völkerrecht. München: Beck. Jhabvala, F. (1985). The International Covenant on Civil and Political Rights as a Vehicle for the Global Promotion and Protection of Human Rights. Israel Yearbook on Human Rights Vol. 15, 184–203. Kadelbach, S. (1992). Zwingendes Völkerrecht. Berlin: Duncker und Humblot. Kadelbach, S. (2006). Jus Cogens, Obligationes Erga Omnes and other Rules. In Ch. Tomuschat & J.M. Thouvenin (Eds.), The Fundamental Rules of the International Legal Order (pp. 21–40). Leiden: Brill. Kälin, W. & Künzli, J. (2005). Universeller Menschenrechtschutz. Baden-Baden: Nomos. Karl, W. (2003). Menschenrechtliches ius cogens. In E. Klein (Ed.), Menschenrechts­ schutz durch Gewohnheitsrecht (pp. 102–139). Berlin: Berliner Wissenschafts-­Verlag. Kempen, B. & Hillgruber, Ch. (20122). Völkerrecht. Frankfurt a.M.: C.H. Beck. Kirchner, S. (2004). Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System? German Law Journal Vol. 5, 47–64. Klee, K. (2000). Die progressive Verwirklichung wirtschaftlicher, sozialer und kultureller Menschenrechte. Stuttgart/München: Boorberg. Klein, E. (1997). Menschenrechte: Stille Revolution des Völkerrechts und Auswirkungen auf die innerstaatliche Rechtsordnung. Baden-Baden: Nomos. Klein, E. (1998a). Die Erweiterung des Grundrechtsschutzes auf die universelle Ebene: Auswirkungen auf den Grundrechtsschutz in Europa. In K. Kreuzer et al. (Eds.), Europäischer Grundrechtsschutz (pp. 39–54). Baden-Baden: Nomos. Klein, E. (1998b). Some Thoughts on the Legal Status of the People’s Republic of China Relating to the ICCPR. In V. Götz et al. (Eds.), Liber amicorum G. Jaenicke (pp. 165– 176). Heidelberg: Springer. Klein, E. (1999a). Die Rolle internationaler Organisationen bei der Normierung und Durchsetzung der Menschenrechte. In B. von Behr et al. (Eds.), Perspektiven der Menschenrechte (pp. 147–170). Frankfurt: Peter Lang. Klein, E. (1999b). Universeller Menschenrechtsschutz – Realität oder Utopie. In: Europäische Grundrechte Zeitschrift, Vol. 5–6, 109–115. Klein, E. (2000). Schutz von Menschenrechten der Frauen nach dem Internationalen Pakt über bürgerliche und politische Rechte. Studien zu Grund- und Menschenrechten, Vol. 5, 31–51.

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Klein, E. (2002). Human Dignity in German Law. In D. Kretzmer & E. Klein (Eds.), The Concept of Human Dignity in Human Rights Discourse (pp. 145–159). Alphen: Kluwer Law international. Klein, E. (2003). Bedeutung des Gewohnheitsrechts für den Menschenrechtsschutz. In id. (Ed.), Menschenrechtsschutz durch Gewohnheitsrecht (pp. 11–28). Berlin: Berliner Wissenschafts-Verlag. Klein, E. (2008). Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy? Israel Law Review, Vol. 41, 477–488. Klein, E. & Schmahl, S. (1999). Die neue NATO-Strategie und ihre völkerrechtlichen und verfassungsrechtlichen Implikationen. Recht und Politik, Vol. 4, 198–209. Koskenniemi, M. (1997). Hierarchy in International Law: A Sketch. European Journal of International Law, Vol 8/4, 566–582. Lijnzaad, L. (1995). Reservations to the UN-Human Rights Treaties – Ratify or Ruin? Dordrecht: Martinus Nijhoff. Linderfalk, U. (2013). The Principle of Rational Decision-Making – As Applied to the Identification of Normative Conflicts in International Law. Heidelberg Journal of International Law, Vol. 73, 591–614. McGoldrick, D. (1994). The Human Rights Committee. Oxford: OUP. Meron, Th. (1986). On a Hierarchy of International Human Rights. American Journal of International Law, Vol. 80, 1–23. Mosler, H. (1980). The International Society as a Legal Community. Alphen: Sijthoff & Noordhoff. Odendahl, G. (1996). Die sozialen Menschenrechte – ein historischer, systematischer und rechtsvergleichender Überblick. Juristische Arbeitsblätter, Vol. 11, 898–904. Oestreich, G. (19782). Geschichte der Menschenrechte und Grundfreiheiten im Umriss. Berlin: Duncker & Humblot. Partsch, K.-J. (1986). Menschenrechte und „Rechte der Völker“. Eine Standort­ bestimmung. Vereinte Nationen, Vol. 34, 153–160. Partsch, K.-J. (1987). The Enforcement of Human Rights and Peoples’ Rights. In R. Bernhardt & J. Jolowicz (Eds.), International Enforcement of Human Rights (pp. 25–29). Berlin: Springer. Pechota, V. (1981). The Development of the Covenant on Civil and Political Rights In L. Henkin (Ed.), The Covenant on Civil and Political Rights (pp. 32–71). New York: Columbia University Press. Pellet, A. (2013). The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special Rapporteur. European Journal of International Law, Vol. 24, 1061–1097. Ragazzi, M. (1997). The Concept of International Obligations Erga Omnes. Oxford: OUP.

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Riedel, E. (1986). Theorie der Menschenrechtsstandards. Berlin: Duncker & Humblot. Riedel, E. (1989). Menschenrechte der Dritten Dimension. Europäische Grundrechte Zeitschrift, Vol. 16, 9–21. Schmahl, S. (2007). Menschen mit Behinderungen im Spiegel des internationalen Menschenrechtsschutzes. Archiv des Völkerrechts, Vol. 45, 517–540. Schmahl, S. (2011). The General Rules of International Law as an Integral Part of the German Legal Order. In Ch. Tomuschat & J. Verhoeven (Eds.), Comparative International Law Practice in France and Germany (pp. 269–287). Paris: Pedone. Schmahl, S. (2012). Internationales Menschenrechtsregime. In A. Pollmann & G. Lohmann (Eds.), Menschenrechte: Ein interdisziplinäres Handbuch (pp. 390–397). Stuttgart: Metzler. Schokkenbroek, J. (1998). The Basis, Nature and Application of the Margin-ofAppreciation Doctrine in the Case-Law of the European Court of Human Rights. Human Rights Law Journal, 30–36. Schöpp-Schilling, H.B. (2004a). Reform der Vertragsorgane des Menschenrechtss­ chutzes. Vereinte Nationen, Vol. 1/2004, 181–187. Schöpp-Schilling, H.B. (2004b). Reservations to CEDAW: An Unresolved Issue or (No) New Developments. In I. Ziemele (Ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime (pp. 3–40). Leiden: Martinus Nijhoff. Schöpp-Schilling, H.B. (2007). Das Übereinkommen zur Beseitigung jeder Form von Diskriminierung der Frau und sein Vertragsausschuss nach 25 Jahren – Bilanz und Ausblick. In A. Zimmermann & Th. Giegerich (Eds.), Gender und Internationales Recht (pp. 137–169). Berlin: Duncker & Humblot. Seiderman, I. (2001). Hierarchy in International Law. Cambridge: Intersentia. Shelton, D. (2002). Decision Regarding Communication 155/96. American Journal of International Law, Vol. 96, 937–942. Shelton, D. (2006). Normative Hierarchy in International Human Rights. American Journal of International Law Vol. 100, 291–323. Shestack, J. (1998). The Philosophic Foundations of Human Rights, Human Rights Quarterly, vol. 20.2, pp. 201–234. Stahn, C. (2001). Vorbehalte zu Menschenrechtsverträgen’, Europäische Grundrechte Zeitschrift, pp. 607–619. Steiner, H.J., Alston, Ph. & Goodman, R. (20073). International Human Rights in Context. Oxford: OUP. Stender, H. (2004). Überschneidungen im internationalen Menschenrechtsschutz. Berlin: Berliner Wissenschafts-Verlag. Störk, F. (1887). Staatsuntertanen und Fremde. In R.v. Holtzendorff (Ed.), Handbuch des Völkerrechts, Vol. 2 (pp. 585–671). Berlin: Carl Habel. Suy, E. (1983). Droit des Traités et Droits de l’Homme. In R. Bernhardt et al. (Eds.), Völkerrecht als Rechtsordnung, Festschrift für H. Mosler (pp. 935–947). Berlin: Springer.

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chapter 2

Freedom of Religion and Competing Human Rights Systems* Iain Cameron Introduction Human rights have several different dimensions. Theologists usually look at the cultural, or moral dimension. In this article, I examine the issue of competing human rights from a legal perspective. European states which are members of the European Union (eu), are bound by three different sets of legally binding rights catalogues, or “rights regimes”; the Charter of Fundamental Rights of the European Union (“Charter”), the European Convention on Human Rights (echr) and national, constitutional, rights catalogues. Freedom of religion is recognized as an important right and protected by the echr (Article 9), the Charter (Article 10) and almost every national rights catalogue. What then is the problem, apart from the obvious one that the law can say one thing, but the practice at the national level can be quite different? The problem is that freedom of religion can compete with other rights within the same rights regime, and, moreover, competition can arise between the regimes. There is no agreement on universal moral values. Democratic states tend to leave it to the representatives of the people acting in the legislature to resolve conflicts between these values and to balance these values against other public interests. However, for a variety of reasons, constitutional courts also have a role to play in this respect. In a “secular age”, in a state with a heterogeneous population, issues formerly seen as ethical, as a matter for individual conscience, may become legal. A religious minority may feel that its interests have not been sufficiently taken into account by the religious, or secular, majority in  the legislature, and turn to litigation based on constitutional rights to secure these interests (Krishnan and Den Dulk 2002). For European states, the

* This article builds upon an article I published: Cameron, I. (2013). Competing rights? In S. de Vries, U. Bernitz and S. Weatherill (Eds.), The Protection of Fundamental Rights in the eu after Lisbon, Oxford: Hart (181–206).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304390_003

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European Court of Human Rights (ECtHR) and for eu states, the Court of Justice of the eu (cjeu) add a further dimension to this. The complex tripartite relationship between national systems for the protection of human rights, and the two semi-autonomous and complementary European systems is continually developing (e.g. Voßkuhle, 2010). The present article cannot hope to deal with all aspects of this relationship, but seeks only to raise a number of interesting issues relating to it. As the focus is rights competition, I do not claim to give a comprehensive picture of the content(s) of freedom of religion in the three rights regimes, something which is dealt with elsewhere (see for the echr, Evans, 2001). As the article is written largely for non-lawyers, I have tried to simplify legal issues and terminology as much as possible. Treatment of the issue of rights competition involves saying something first, very briefly, about how rights can compete. I then examine, again very briefly, the way in which rights protection is constructed in the three regimes and how each deals with “intra-regime” rights competition. The examples I choose to illustrate constitutional issues, and the rights interaction between eu law, the echr and a national constitution, are mainly taken from the Swedish legal system. I proceed to look at how each regime has dealt with interaction with the other regimes and the issue of “extra-regime” rights competition before turning to the subject of how the regimes may interact in the future. I close with a number of concluding remarks.

How Can Rights Compete?

What do I mean by “competing rights” in a legal sense? Robert Alexy (2002) argues that rights are of a “principle” character, and that one has a competition between them when a situation arises where both are applicable, but one cannot advance both rights simultaneously. A precondition of a competition is that the rights in question are at the same hierarchical level. This is a formal criterion: it is not the same thing as the way that a right is formulated. Some rights competitions might seem easier to solve because one of the rights is formulated in absolute terms. But even with absolute rights, balancing comes in to play, namely at the initial determination whether the absolute right is applicable at all. When competition between rights on the same hierarchical level arises, it is solved in three different ways; subordination of right A to right B, subordination of right B to right A, or balancing of rights A and B.

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A distinction can be made between the situation when a right is subject to limits (such as national security or the prevention of crime), and the situation in which two rights compete. In the former situation, one begins with the right and then subjects it to limits. However, in both cases, there are competing social values (or public goods) to be balanced, e.g. integrity and the fight against crime, or freedom of expression and public order. For Alexy, the “right” is the result of the balancing exercise between these social values. States A and B may both protect “freedom of religion” under constitutional law, but the con­ tent of “freedom of religion” in State A may be very different from that of State B – even if both A and B are democratic “rights respecting” states. The fact that States A and B give different contents to the social values involved is not a problem per se (although it can mean that comparisons between these two states risk being superficial). What is a problem, however, is when the same state is subject to different rights regimes which each might give a different content to a right, and the final word on the content of one or more of these regimes is not under its control. One can call this situation one of competing interpretations of rights, but for reasons that will become apparent, this way of putting it underplays the conflict involved. Alexy’s theory on balancing is not uncontroversial. Habermas (1996), in particular, has criticized it. But he does not contend that his theory describes (or prescribes) how courts other than the German constitutional court (Bundesver­ fassungsgericht, BVerfG) should approach the task. I mention it now only because it puts balancing values at the centre of human rights protection (see also Scanlon, 2002), and as such is a useful introduction to the discussion in the present article.

The Swedish Approach to Dealing with Rights

In Sweden, the courts have historically had a relatively limited role to play in protecting constitutional rights. The chapter in the Swedish constitution (“Instrument of Government”) on fundamental rights and freedoms was added more or less as an afterthought in 1976. There is thus no strong judicial tradition of protection of constitutional rights to which the echr (incorporated in 1995) and the Charter can easily be “fitted in”. There is no constitutional court in Sweden (or in any of the Nordic states). Instead, all courts and (something which is exceptional in international comparison) all administrative authorities, may engage in constitutional review. Until 1 January 2011 this was subject to a requirement that the conflict between a statute, or an ordinance, with the constitution be “manifest” before the

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courts could refuse to apply the statute or ordinance. This “manifest” requirement has now been removed. The legislative process is a crucial part of the system of rights protection (Bull & Cameron, 2015). It is usually open, relatively long and expert opinions are usually taken properly into account. The travaux préparatoires to legislation are usually extensive and provide detailed guidance for the courts. The judges are also involved in the legislative process in that bills are usually sent to an expert body, the Council of Legislation, consisting of a group of senior judges, who examine both the technical drafting aspects, its coherence with other relevant legislation and its constitutionality. In the circumstances, Swedish judges are usually able to trust the “institutional competence” (cf. Gearty, 2004) of the legislator which is almost always in a better position to design systems of legal regulation compared to the type of ad hoc examinations a court is capable of doing. I would argue that even a court such as the cjeu which has extensive expertise to call upon is in a worse position in this regard compared to a properly functioning legislature. What the judges have to do is fine-tune the systems. So far, there has been little tension between the legislature and government on the one hand, and the courts on the other, as to which should have the “last word” on the legitimacy of a particular policy. As explained further below, however, the echr and, now, the Charter, mean that the courts are slightly more often going to be called upon to engage in constitutional review. Government decisions which largely lack rational justification are, fortunately, rather rare in Sweden. The Instrument of Government (ig) 7:2 requires that all government decisions are properly prepared. (It can, however, be noted that the same thing cannot necessarily be said as regards local authorities’ decisions.) In any event, Swedes tend not to be litigatious in public law matters. A recent example of a relatively rare irrational government decision concerned the possibility religious communities have to apply for a financial grant to cover pastoral activities (hfd, 2013, ref. 72). The government refused financial subsidies to the Jehovas Witnesses on the basis that this religious community, by urging its members not to vote, did not respect democratic values (a ground for refusing to make a grant under the Act). The Supreme Administrative Court overruled the decision. It stated that voting is a right in Sweden, not a duty. Thus the Jehovas Witnesses were not refusing to respect democratic values. The rights in ig Chapter 2 can be divided into “absolute”, “strong relative” and “weak relative” rights. Modification of “absolute” rights requires constitutional amendment. Constitutional amendment requires only simple majority but it is a time-consuming process, as it requires voting twice on a bill in parliament, with an intervening general election, and there is a well-established political

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culture of changing the constitution only by consensus. The right of freedom of religion (ig 2:1, 6) is such an absolute right. However, the scope of the right is interpreted very narrowly; basically it covers only prayer in private and the right not to be forced to declare one’s religion. If one wants to manifest one’s religion in some way, this will usually fall within the scope of another right, such as freedom of expression or association (Enkvist, 2013). Thus, it is these rights which contain much of the content of what most people regard as falling within freedom of religion, and these are relative rights are can be restricted by statute, as long as certain material and procedural conditions are fulfilled (necessity in a democratic society etc, see ig 2:20). Traditionally, the freedoms of expression and information have enjoyed particularly strong protection in Sweden. Both of these rights are also mechanisms of political control, and constitutional protection of these rights predates the advent of parliamentary democracy (and so long before 1976, when the other rights were added). Protection of personal integrity was only added to ig Chapter 2 in 2011. As regards the echr, it is incorporated into Swedish law at the level of statute. There is, however, a constitutional provision, ig 2:19, which provides that statutes or ordinances may not conflict with the echr. This gives, in practice, the echr a status between a statute and the constitution. The Charter has, by virtue of section 2 of the Act of Accession to the eu (1994:1500), the status it has under eu law, meaning supremacy over national law, although Swedish acceptance of the supremacy of eu law is itself subject to a so-called “Solange” reservation, expressed in the constitutional provision which authorizes the Act of Accession (ig 10:6). An implicit condition for the courts to show deference to the legislature, when it decides both whether a restriction in a right is necessary, and how to draw balances between competing rights is that there is a fairly high level of rationality in public and parliamentary debate. Sweden has not been totally free from media-fanned moral panics, irrational fears of terrorism, and other causes of repressive criminal and criminal procedure legislation. But, I think it fair to say that – so far – the legislature has deserved the trust put in it: the actual enjoyment of human rights in Sweden is relatively high. As the job of balancing competing interests is done by the legislature, there have been very few cases in which the courts have considered that intra-regime rights competition exists. The paucity of cases can also be partly explained by the need for a concrete dispute to exist (Code of Judicial Procedure, Chapter 13, section 2) before the courts can take up an issue, and the existence of nonjudicial mechanisms of rights protection, in particular the Ombudsman.

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The Approach of the ECtHR to the Protection of Rights under the echr

Like the Swedish courts, the European Court of Human Rights (ECtHR) only takes up concrete disputes, brought by an actual (or at least, potential) victim. The ECtHR determines only the declaratory issue of whether or not the echr has been breached, and if it has, what, if any, compensation the victim should obtain. Exceptionally, the ECtHR can indicate other specific or general measures it considers necessary to comply with its judgment. There is no formal rights hierarchy set out in the echr. Having said this, the ECtHR has repeatedly referred to certain rights, to life, freedom from torture and slavery and from arbitrary arrest and detention (Articles 2, 3, 4 and 5) – as containing “core rights”. Moreover, in practice, a hierarchy exists in that the ECtHR’s backlog has forced it prioritize among applications (cf. ECtHR’s Priority Policy). Rights set out in echr are formulated differently. A few are expressed in absolute terms, others in relative terms. Within the latter category, some such as Articles 8–11 (privacy, religion, expression, association/assembly) are subject to specific limitation clauses, similarly but not identically worded. When the ECtHR has been faced with a situation in which two rights have been said to compete, it has sometimes employed the principles of lex specialis (one right is determined to be the most relevant) and sometimes interpreting one right together with another, e.g. freedom of religion in the light of freedom of association (e.g. Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, 2008). On occasion it has ruled that speech or other actions, allegedly motivated by religious feeling, violates the underlying values of the Convention and so is not worthy of protection (e.g. Gündüz v. Turkey (No. 2) (dec.), 2003 (hate speech), Hizb Ut-Tahrir and Others v. Germany, 2012 (hate speech), Campbell and Cousins v. uk, 1982 (corporal punishment of children)). The more common approach, however, with speech issues is to draw a balance within the framework of Article 10. For example Giniewski v. France (2006) concerned a journalist who had published an article in which he considered that certain doctrines of the Catholic Church had “prepared the ground in which the idea and implementation of Auschwitz took seed”. The ECtHR found that his conviction for defaming a group of persons on grounds of their membership of a religion was a violation of Article 10. The limitation clauses to the rights set out in Articles 8–11 include the “protection of the rights and freedoms of others”. This enables the ECtHR to factor in the interest in, e.g. protecting personal integrity when dealing with freedom of expression, or vice versa, without having to find an explicit competition between these two rights.

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Article 9 is not the only right in the echr under which freedom of religion issues can arise. Other particularly relevant articles are Article 14 (prohibition of discrimination) and Article 2, Protocol 1 (the freedom to educate children in accordance with one’s religious and philosophical convictions), although “freedom” is misleading, as the Court considers that obligatory school attendance (backed by heavy fines on parents) is not a violation of the article (e.g. Konrad and others v. Germany, 2006).

The Approach of the cjeu to the Charter

The Charter (oj 2000, C364/01) consists of five sections, and contains a large number of rights in fifty articles, civil, political, economic and social. The Charter does not exhaust the catalogue of eu rights. There are obviously many rights at the level of regulations and directives, but there are also other rights at the same “constitutional” level, i.e. in the eu treaties, particularly against discrimination and regarding data protection. Both of these categories of rights can have impact on religious freedom. In addition to legally binding rights, the eu has also adopted guidelines in certain areas (such as foreign policy) with implications for religious freedom (e.g. the eu Guidelines on the promotion and protection of freedom of religion or belief, adopted at Council meeting 24 June 2013). The Charter is an ambitious document compared to the echr, and many national rights catalogues. The method of drafting, a convent consisting of national delegations of parliamentarians, favoured “rights inflation”. The Charter groups rights together under different abstract headings, but does not provide for a formal hierarchy between them. The Charter contains a general limitation clause (Article 52). Article 52(1) provides “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others”(for discussion, see Peers, 2004). One of the controversial issues during the drafting was whether Christian values should be explicitly mentioned in the preamble of the Charter (e.g. Schlesinger & Foret, 2006). In the end, this was not the case. However, as was famously remarked, while God never made it to the Charter, the Devil is definitely in the details. This can be seen inter alia in the fact that the Charter applies not only to eu institutions, but also to the member states when acting within the scope of eu law (Åkerberg Fransson, 2013). As the boundaries of

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eu law are indeterminate, so too are the boundaries of the Charter. The two primary types of the latter situation are where a national body acts as the agent of the eu (Wachauf, 1989) and where a national body acts under national legislation which derogates from an eu norm (Ellinki Radiophonia Tileorassi, 1993). But for the Court of Justice of the eu (cjeu) to rule that a national law cannot be applied because it is in violation of the Charter of Fundamental Rights of the eu would be controversial; the cjeu would be seen as acting as a kind of supreme court of Europe. (e.g. Weiler, 1998) Constitutional review of national law is the function of national constitutional courts, with the ECtHR serving as a “back-up” (see further below). But national constitutional courts cannot annul eu legislation for violation of the Charter. As only the cjeu can perform this function, this ruling is less controversial, even if it obviously entails a reprimand of the eu legislature, which depending on the circumstances, can be the Commission and/or the Council or the Commission, the Council and the European Parliament. Neither type of ruling is likely to be particularly common (for an example of the latter, Digital Rights Ireland and Seitlinger and Others, 2014). Unlike the ECtHR, the cjeu has a legislative will to discern. However, the eu negotiating process means that the end result can be vague, deliberately or by default. This tends to give the cjeu considerable influence over the content of secondary legislation when this comes to be interpreted and applied. Unlike the Swedish courts and the ECtHR, most of the work of the cjeu when it comes to interpreting rights is done in the form of (abstract) preliminary rulings. However, the preliminary ruling does not determine the case which “returns” to the national legal order for resolution. At the time the Charter was made binding law, the Member states attempted to limit the potential for the Charter to be to expand eu competence (Article 6 of the teu provides in relevant part that: “The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.” See, however, the Åkerberg Fransson case (2013), which found – to many member states’ surprise – that tax matters could fall under eu competence, and so the scope of the Charter rule on ne bis in idem). Moreover they limited the interpretative power of the cjeu concerning the vaguer rights set out in the Charter. Article 52(5) provides that “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality”.

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Specific eu legislation may have to satisfy other standards set out in the treaties, subordinate legislation and the general principles of eu law developed by the cjeu. Thus, the cjeu’s protection of important values is not limited to those set out in the Charter. See, in particular, as regards religious discrimination, the eu Directives on the Prohibition of Discrimination, 2000/43/EC and 2000/78/EC.

The Approach of the ECtHR to National Protection of Rights

How has the ECtHR handled the issue of reviewing national balancing of competing rights? The echr is a minimum standard of rights protection (Article 53). It is complementary to the national mechanisms. Procedurally this is reinforced by the requirement that national remedies be exhausted before recourse is allowed to the ECtHR. Although the ECtHR frequently emphasizes the subsidiarity principle, the task of the ECtHR is to determine in a concrete case whether the respondent state fulfills the minimum standards of the Convention. It thus measures national law against an international law standard. In doing so, the ECtHR follows the traditional international law principle that national law, even national constitutional law, does not justify non-compliance with international obligations (Article 26, Vienna Convention on the Law of Treaties, 1969). However, the Convention system is a mix, at times an uneasy mix, of international court dispensing individual justice to complainants and a constitutional court dealing with classes of dispute. Its constitutional nature has grown in recent years (e.g. Greer, 2006; Bates, 2010). Part of the reason for this is that the echr is incorporated into the national law of the 47 contracting parties. The ECtHR has made it clear that a corollary of the exhaustion of domestic remedies rule is that the ECtHR expects that is possible for a complainant to be able to raise the substance of a Convention issue at the national level. For the above reasons, and because there is often a material overlap between constitutional and Convention rights, the ECtHR is continually being put in the position of “reviewing” national courts’ rights balancing exercises. Unlike a national constitutional court, the ECtHR has no legislature as a counter-part. The ECtHR does not have one national will to discern and so it is not easy to determine the “right” level of what is called “counter-majoritarianism” (going against the will of the political majority). The potential scope for “interference” by the ECtHR in states’ domestic policies is huge. It tries to steer a course between subsidiarity and intervention to uphold minimum European standards. Its activities are against the backdrop of 47 different legal cultures (several of them with major structural failings from the perspective of the

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Rechtsstaat). States with poor human rights records have tended to regard the echr as a vitally important safeguard of human rights (when it rules against other states) and a collection of irritating, unaccountable and ignorant foreigners (when it rules against one’s own state). The ECtHR examines national law as part of the context of the case. The mechanism the ECtHR applies when it wants to avoid conflicts with national rights conceptions is the margin of appreciation (e.g. Christoffersen, 2009). Generally speaking where the Court finds a “common European conception” this in general justifies a narrow margin of appreciation. The Court is not usually sympathetic to arguments that “everyone else has got it wrong”. The question is whether the ECtHR shows special respect for constitutional rights provisions or the judgments of constitutional or supreme courts interpreting constitutional rights catalogues. The evidence is not consistent. There are cases where violations have been found anyway (e.g. Demir and Baykara v. Turkey, 2008. This is also an example of Charter influence on content of an echr right, below. See further Wizerkaniuk v. Poland, 2011 and the ECtHR’s initial rejection of the BVerfG’s approach to balancing integrity/expression in Von Hannover v. Germany, 2004 (later “clarified” in Von Hannover (no. 2) v. Germany, 2012)). On the other hand, there are cases, interestingly, several involving freedom of religion, in which the constitutional nature of the restriction appears to have been weighed in (Leyla Sahin v. Turkey, 2004 (Turkish constitutional requirement of secularism and ban on wearing headscarfs at university), Dogru v. France and Kervanci v. France, 2008 (läcité and ban on wearing headscarfs at schools), A, B and C v. Ireland, 2010 (constitutional rights of the foetus/ unborn child, where the Court also referred to a “firmly held” moral view amongst the population in Ireland), Lautsi and others v. Italy, 2011 (display of crucifix in public schools)). The ECtHR has stated that when it comes to the questions of finding whether there is a right at national law (Roche v. uk, 2005, para. 120), and of balancing rights, it should usually defer to the views of the national authorities (Axel Springer ag v. Germany, 2012). As regards balancing freedom of religion in particular, the ECtHR decided early on that Article 9 protects the organised life of a religious community, and the state is under an obligation to refrain from arbitrary interference in their internal affairs. The problem is that the community in question may require its members to limit other rights they might have, e.g. to private life. The Court initially ignored this but in later cases it has at least required national courts to take due account of the competing rights involved. In Obst v. Germany (2010), the communications director of the Mormon Church had been dismissed for having an extramarital affair. The Court found no violation of Article 9.

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By contrast, in Schüth v. Germany (2010), where the organist in a Catholic Church had been dismissed from employment for having violated employment regulations (he had separated from his wife and started to live with another woman), the Court found a violation (for discussion of these and earlier cases see Leigh, 2012). In Sindicatul “Păstorul cel Bun” v. Romania (2013), the government had refused to register a trade union for priests. The Court found no violation of Article 11 (freedom of association) on the basis of the competing interests of the religious community to organise itself (in the other words, to organise itself as a hierarchical structure, with lower clerics subordinate to disciplinary etc. functions of bishops). Crucial to such a balancing exercise is the freedom to leave the religious community in question, and form a new one. Eweida and Others v. uk (2013) concerned disciplinary measures against employees for wearing religious symbols (the cross) at work or refusing to perform duties they considered incompatible with their religious beliefs (including, in one case, refusing to register partnerships of same-sex couples). The Court found a violation only in one of the applications. The Court confirmed that states had a wide margin of appreciation when striking a balance between competing Convention rights, and in the context of protecting health and safety in a hospital setting. In S.A.S. v. France (2014), the Court controversially accepted the French ban on wearing religious face covering in public on the – very dubious in my view – basis that this was justified in order to protect interaction between individuals and so the “rights and freedoms of others” (for a discussion, see Hunter-Henin, 2015).

National Protection of Human Rights and the Role this Gives to the echr and the ECtHR

Every European state, apart from the uk, has a national catalogue of rights. The incorporated echr is thus meant as a complementary system of protection in every state apart from the uk. The incorporated convention has only the status that national law gives it and in most cases, this means an ordinary statute. Thus, a national court will usually have to prefer a constitutional right over a Convention right, if there is an irreconcilable conflict between these (e.g. the judgement of the BVerfG 111, 307; Swedish Supreme Administrative Court RÅ 2006, ref. 87). The actual impact the incorporated echr has on the national legal order varies considerably, depending upon a number of different factors (see generally the essays on reception in Keller & Stone Sweet, 2008; for the position in Sweden, see Cameron & Bull, 2014). Basically, the national legislator and/or the

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national courts have to take the echr and ECtHR judgments seriously for it to have a real impact in national law. The Swedish courts usually faithfully attempt to “interpret in” the requirements of the echr into national law. However, as mentioned earlier, they are reluctant to engage in constitutional review. Where a litigant wishes to argue that Swedish law as such is contrary to the echr, the Swedish courts want “clear support” for this in ECtHR case law. This is seldom forthcoming, one notable exception being nja 2005 s. 805 where an evangelical pastor was acquitted of the crime of incitement to hatred (which was ­otherwise proven) on the basis that his highly insulting words (against homosexuals) were uttered in the pulpit and were thus entitled to a special protection for religious speech. Rights are defined in abstract terms and, precisely because of the restraint exercised by the ECtHR through the margin of appreciation, there may be little guidance for a national court in a concrete case from the ECtHR’s case law as to whether the Convention forbids, or permits, or obliges, a given law or practice. At the same time, the national court is supposed to (and will want to) decide the case and solve the problem, without having to let it go to Strasbourg. Thus, a national court often has a large measure of discretion in how it uses the incor­ porated Convention, especially in new situations. In countries where the constitution and the legal culture gives judges considerable power the Convention can give them a weapon to go against the will of the national legislature or executive.

The Role National Protections of Constitutional Rights Play under the Charter

The Charter, like the echr, is meant to be a minimum level of protection not to be interpreted as restricting or adversely affecting human rights binding upon the eu or all the member states by virtue of international agreements (including the echr) or by the Member States’ constitutions (Article 53). However the position of the cjeu is that national law, including constitutional law safeguards for human rights (Melloni, 2013), is subordinate to eu law and that only the cjeu may set aside eu law. National rights on the other hand serve as inspiration for the cjeu in developing the content of the general principles of eu law. Whereas the cjeu initially referred to the common constitutional traditions of the member states, in the Omega case it accepted a restriction on freedom of establishment based on a specifically German conception of human dignity (Omega, 2004, paras.

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37–38). In this respect one can also note that teu Article 4(2) requires the Union to respect the Member States “national identities, inherent in their fundamental structures, political and constitutional”. The Charter contains an explicit provision designed to minimize conflicts between Charter articles and national constitutional rights, namely Article 52(4) which provides that “In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.” However, how this is to be interpreted is up to the cjeu. Like the ECtHR, the job of the cjeu is to evaluate whether national law meets other standards, in this case, the standards of eu law. At least before the Charter entered into force, the starting point of the cjeu when it comes to national rights protection has been that restrictions in the four freedoms and other requirements of the internal market must be justified, but that protection of fundamental rights is a legitimate basis for restriction of a fundamental eu freedom (Eugen Schmidberger Internationale Transporte und Planzüge v Republik Österreich, 2003, para. 75). Thus, the cjeu has begun in the opposite direction from either the ECtHR or a national court exercising a power of constitutional review. Moreover, as Peers (2004) notes, the structure of reasoning of cjeu regarding limitations in human rights is not the same as that of the ECtHR (beginning with accordance with the law and followed where applicable with a two or three pronged proportionality test). Both of these courts start from the human right and then determine whether a public good, e.g. free movement of services, justifies a restriction in the right in the circumstances. One can note in this connection that cjeu judgments have, even more so than ECtHR, affected the national constitutional balance of power. This is because the cjeu has made it clear that a national measure (even one protecting human rights) involving a restriction in an eu freedom must be subject to national judicial review. National law within the scope of eu law restricting a Charter right must also be subject to national judicial review.

The Role the Charter and the Protection Afforded by the cjeu Plays in the echr and Vice Versa

For the ECtHR, the Charter plays several roles. First and foremost, it is serves as the mechanism of protection of rights at the eu level, making it – hopefully – unnecessary for the ECtHR to intervene. The ECtHR signaled in the Bosphorus Airways case (Bosphorus Hava Yollari Turizm ve Ticaret AS v. Ireland, 2005) that this situation holds “so long as” the eu guarantees an equivalent level of rights

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protection. This is favourable to the eu, but the ECtHR has been “in” the area of eu law on a number of occasions – apparently to the irritation of at least some of the judges in the cjeu (M.S.S. v. Belgium and Greece, 2011; Michaud v. France, 2012). But the ECtHR case law is not only negative for the cjeu. It has had inter alia the positive effect of forcing the eu member states to accept an expansion of cjeu competence to deal with the specific issue of targeted sanctions adopted under the cfsp (a gap in protection which would otherwise have “let the ECtHR in”). In fact, the interplay between the cjeu/ECtHR and their respective human rights catalogues works on several levels. The Charter has already had other important effects in the case law of the ECtHR. It has served as an aid to interpretation of the Convention and as an inspiration to change its earlier practice so as to harmonise echr protection levels with that of the Charter (e.g. Demir and Baykara v. Turkey, 2008 (right to take collective action), Zolotukhin v. Russia, 2009 (ne bis in idem), examined further below, Schalk and Kopf v. Austria, 2010 (right of single sex couples to marry) and Bayatyan v. Armenia, 2011 (conscientious objection to military service)). As regards the role the echr is likely to play in the Charter before and after eu accession to the echr, as with situation as regards national constitutional rights, in addition to the “minimum protection” rule in Article 53, the Charter contains an explicit provision designed to reduce conflicts between the echr and Charter articles. Article 52(3) provides that “In so far as this Charter contains rights which correspond to rights guaranteed by the [echr] the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. As the text of the echr is vague, the commentary to the Charter moreover makes it clear that the ECtHR’s interpretation of the echr should prevail. The cjeu has – broadly – adapted its case law to take divergent case law of the ECtHR into account. The cjeu corrected its case law on asylum to bring it (to some extent) in line with the M.S.S. case, see N.S. and M.E. and Others (2011), accepting that structural deficiencies in one state can justify not sending back asylum seekers to the state of first entry (under the Dublin Convention). In Tarakhel v. Switzerland (2014), the Grand Chamber of the ECtHR used a more demanding test, requiring states to look at the circumstances of each individual case. There has been some speculation that this case contributed to the subsequent negative opinion of the cjeu in the accession issue (below). The relationship between the two courts is not without tensions. This is illustrated in particular by the ECtHR case law on asylum. Certain southern eu member states are overburdened with asylum seekers. The conditions in which these

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are held, particularly Greece, but also Italy, are often appalling. The eu principle of “sincere cooperation” means that member states ought to be able to rely upon administrative decisions taken in other member states. This in turn means assuming that basic Rechtsstaat protections are in place and functioning in other eu states. But in some eu states and in some matters, they are not. This is obviously a very large question. I content myself with mentioning the criticism of the eu Commissioner for Human Rights of particularly Romania and Bulgaria for their treatment of their Roma population, and the Venice Commission criticism of the Hungarian government for having weakened important Rechtsstaat safeguards (independence of the judiciary, free speech). The fact that the ECtHR has occasionally pointed out the elephant in the room has apparently annoyed judges in the cjeu who perhaps consider that the eu project is being threatened. The cjeu delivered an advisory opinion in December 2014 that the draft treaty produced to enable the eu to ratify the echr, and so become “externally” bound by it, could not serve as a basis for ratification (Opinion 2/13, 18 December 2014). For the member states this came as a surprise. What comes across strongly in the – in my view weak – legal reasoning of the cjeu is its major reluctance to submit to even the minimal external scrutiny and control the ECtHR would exercise. The cjeu appears as a jealous god. As Walther Michl put it: the cjeu is saying to the member-states: thou shalt have no other courts before me (see this and other – almost universally negative – commentary from bloggers at verfassungsblog, de). Still, the advisory opinion does not change the material position: the echr continues to bind the eu as part of the general principles of eu law. The cjeu will continue to apply the echr. The advisory opinion simply perpetuates for the foreseeable future the existing procedural problems; an individual cannot bring a case directly against the eu before the ECtHR, and the eu Commission cannot intervene in proceedings before national courts involving claims that national law, based on eu law, violates the echr.

Factors Indicating and Encouraging Rights Competition

Why should there be any competition between the courts responsible for applying their respective human rights catalogues? Simply put, it is because these courts were established to do different things; and thus will use their respective rights catalogues in different ways. A constitutional/supreme court protects the rights of the citizen against encroachment, the ECtHR is to give an international “second opinion” on the need for a particular national measure

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restricting rights, and the cjeu was established to safeguard (which can mean promote) the constitutive eu treaties. A right expresses a community standard, and different political communities have different standards. As Weiler (1998) puts it, they establish “fundamental boundaries”. Ascertaining the relative weight of two opposing rights involves looking into substantive moral justifications. Moreover, the political functions a right serves in one system may argue for giving it preference over another right. One sort of restriction in a right might be regarded as acceptable by the majority in one eu state, indeed, desirable, whereas in another it is regarded by the majority as unacceptable. There is undoubtedly a large measure of agreement in eu states on the content of “core” rights framed in unconditional terms, such as the prohibition of torture or the death penalty. But there is considerable evidence that there are significant differences among the populations in eu states as regards the values which underlie relative (limitable) rights. For example, the sociological data contained in the World values survey is graphically demonstrated in simplified form in the so-called InglehartWelzel Cultural Map of the World (worldvaluessurvey.org). All the Nordic states (together with the Netherlands) are placed in a “modernist” group with high “scores” both on feelings of security (the population is not so worried about the state, or other threats) and on rationality/secularism (traditional religious and family values are not regarded as so important). This data must naturally be used with caution, but it can provide important clues as to why states with different “scores” draw different right/restriction balances, and why states with similar “scores” can draw similar balances. In any event, I think that, despite the existence of some genuine common European values, it is clear that there are “fundamental boundaries” between eu states, and that these concern whether something is to be seen as a right at all, the content of certain rights balances, and which organ of the state has primacy to draw these balance (the courts/parliament). To illustrate this with a further example relevant to freedom of religion: states for historical, cultural and other reasons, organize the delivery of social welfare services in different ways. Some states, such as the Nordic states, emphasize the role of the state and more or less exclude other actors. Other states give a much greater role to civil society (in particular, the charitable work of churches) and/or the family (see, e.g. for the – special – Swedish context, Trägårdh & Wallman Lundåsen, 2013). The second point concerns to what extent these fundamental boundaries should continue to exist. In other words, how willing should the ECtHR and the cjeu be to impose minimum European standards notwithstanding contrary

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positions taken on rights by national legislatures and national supreme/constitutional courts? Here one can draw an analogy with rights protection in federal systems. Where a court exercising a power of constitutional review in such a system is seized of the issue whether the legislation or practice of a component state violates the federal legislation or practice, it has several possible alternatives. It can decide that the federal legislation or practice sets a uniform standard that has been violated, or not violated. Or it can decide that the federal legislation or practice sets a minimum standard that has been violated or not violated. Subsidiarity/ local democracy argue in favour of minimum standards and thus varying levels of rights protection. The interest (economic and social) the eu has in encouraging freedom of movement is often seen as pushing for harmonized standards. E.g. Eeckhout (2002, 972) posed the question whether the moving citizen triggers the application of the Charter, while noting that the concept of limited powers operates against this. However, the freedom of movement which a citizen possesses within the Union does not necessarily mean that uniform standards should apply. Indeed, freedom of movement can be used to justify differential standards, on the basis that you are free to move somewhere else where the level of legal protection better corresponds to your own values. For example, a highly divisive issue in us politics, with a strong connection to religious beliefs, has been abortion. The us Supreme Court in the famous case of Roe v. Wade (1973), ruled that states’ laws must allow abortion at least in certain circumstances. This judgment has been repeatedly challenged in us state legislatures, and there are considerable variations between the us states as to how they deal with abortion. By contrast, the ECtHR long managed to avoid ruling about the issue of whether the echr requires states to permit abortions. In Tysiac v. Poland (2007) it stated that a state must not make it impossible, in practice, to obtain an abortion in circumstances when the law itself provides for this possibility. In A,B and C v. Ireland (2010), the ECtHR had to face the issue head on. But even  such a case where one would have thought that only a yes/no answer was  ­possible, the majority of the ECtHR managed to find some form of ­compromise. The ECtHR found a violation of Article 8 in that the Irish legislature had – still – not clarified the relatively restricted situations in which the Irish Supreme Court had indicated that abortions could be legal under the constitution. This meant a disturbing lack of legal certainty for many people, the women involved most of all, but also medical staff. However, on the central issue of whether the Convention requires states to allow certain abortions, the majority of the ECtHR invoked the freedom of movement Irish women have

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under eu law to seek abortions in other states (i.e. the uk) as a reason for not finding the Irish prohibition of abortion as being in violation of Article 8. The abortion issue under the echr refuses to go away. pace resolution 1763 (2010) encourages states to recognize a right of conscientious objection for hospital staff. Sweden, amongst a few other states, does not recognize this. Regardless of one’s views about the merits of these particular judgments (the old remark about “an activist court is a court with which one disagrees” seems particularly pertinent here), it is easy to hold in principle that the ECtHR as a half-international, half-constitutional court should accept relatively wide divergences between European states when it comes to balancing rights (c.f. Mowbray, 2010). The ECtHR is not in the business of creating a union of states. It is in more in the nature of a “rationality check”. Where one underlying moral or political justification has been totally ignored by the national government or legislature, then there can be a value in a European arbiter saying: you should have factored in this justification too. But where the legislator has already weighed the two justifications it is more difficult to see what the ECtHR can or should add. The S.A.S. v. France judgment can be seen as an example of this “hands off” approach. On the other hand, as the dissenting opinions in this judgment make clear, the reasonableness of the weighing process (the rationality of the decision in the French Assembly National) can undoubtedly be questioned. As already noted, the ECtHR accepts in principle that it should defer to national balancing exercises, but only when these have been performed in accordance with principles laid down by the ECtHR. Thus, it always has the option of examining the balance drawn and the process of drawing it. The more its willingness to delve anew into the facts and circumstances of each case, the more likely a situation of rights competition will arise. It is even less likely that the cjeu, the guardian of a proto-federal system, will be willing to accept a simple “rationality check” function, and the sort of divergences an international court can and should accept. One can of course envisage varying degrees of federalism, depending not on whether the right in question can be seen as part of the “core” of personal integrity but rather on how well-established eu norms are in the area in question (Eeckhout, 2002, 976–977). Weiler’s proposed solution is that, in the more controversial area of cjeu review, review that has the (indirect) effect of making member states’ legislation in violation of Charter rights inapplicable, the cjeu should only apply the minimum echr standard. Personally, I think there is no guarantee that the majority of judges (7 in a 13 judge chamber) will stand on the side of human rights when these are seen as blocking eu legislation promoting more

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effective economic integration. As mentioned, the Melloni case (2013) shows that the cjeu will not allow individuals to use national constitutional rights standards to challenge eu norms. My third point relates to the issue as to whether the Charter standard can ever fall below the minimum echr standard. The Kadi case (Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 2008, concerning eu implementation of un Security Council targeted sanctions) illustrates that the eu legislator can indeed legislate in violation of the echr. Of course, a ruling to this effect is not necessarily negative, long-term, for the competence of the eu legislator. For example, in Digital Rights Ireland and Seitlinger and Others (2014), the cjeu annulled the data retention directive (which required states to retain teledata records and make these available to for law enforcement purposes) because it contained insufficient safeguards for personal integrity and so violated the principle of proportionality. While this is in one sense a welcome judgment, it is not simply a defence of human rights. It also pushes in the direction of more competence for the eu. The directive was deliberately designed so as to leave great discretion to the national legislature in implementing it (and building in the necessary safeguards to national law). The cjeu judgment means that the eu legislator should set out much more detailed and extensive safeguards in a new directive, thus decreasing the discretion of the national legislature. By interpreting a Charter right extensively, the cjeu will not fall foul of the equivalent minimum echr right unless the ECtHR considers that there is a competing echr right, and the ECtHR balances these two competing rights differently. This appears to be one of the reasons why the cjeu rejected the draft agreement on the accession. There are no rights in the echr which are not also in the Charter, it is the balance between competing rights which is the issue. Fourthly the Charter has a greater potential to be used at the national level to challenge national law compared to the echr. This is because eu law has a stronger status in the national legal order compared to the echr. Moreover, under eu law, any national court may refer a case to the cjeu and the national supreme court(s) must do so. Thus, although the national supreme or constitutional court may have engaged in a first balancing exercise, the cjeu will likely get “second bite” at any case involving eu law, including eu fundamental rights, before the ECtHR gets it. Moreover, if the eu becomes, formally speaking, a party to the echr, the cjeu would have the right to rule on all such cases before they go to the ECtHR (see the Accession agreement in ce document 47 + 1(2013) 008rev2, 2013). On the one hand, this gives the cjeu freer

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hands. On the other, it means that it must act with less guidance from the ECtHR, something which may make it more difficult to apply Weiler’s proposed solution to the legitimacy problem, namely that the cjeu should not apply more than the minimum – echr – standard.

Means of Avoiding Competition

The most obvious reason why clashes can be mostly avoided between national supreme/constitutional courts within eu states, the ECtHR and the cjeu is that none of these courts is interested in conflict. For example, the BVerfG has gone out of its way to stress the openness of the German rights regime to interpretation in an eu and echr conform way (see e.g. the approach of the BVerfG to the ECtHR judgment in Von Hannover v. Germany, 2004 in the “Caroline ii” case, 2008). The BVerfG has stressed that there is always a duty to take an ECtHR judgment into account and if at all possible to apply it. As already mentioned, the cjeu has – so far – taken ECtHR case law into account. The ECtHR for its part, has so far granted the cjeu something larger than a margin of appreciation. The prime means of avoiding or minimizing the resultant problems is “dialogue” (Torres Pérez, 2010). I would say that dialogue in good faith means that the cjeu judges must accept that dialogue is not, or not simply, the opportunity for the cjeu to warn off, or admonish, the ECtHR or national constitutional courts. How will a good faith dialogue work in concrete terms? To begin with, the ECtHR has annual meetings with the national supreme and constitutional courts on the one hand and the cjeu on the other, where relevant (controversial, or potentially so) cases are chosen by the two sets of courts and discussed. Bilateral “dialogue” in the ECtHR is provided by the presence of the national judge in any case. After accession, the same would apply for the eu. The ECtHR can also either explicitly reconsider or “clarify” a judgment in a later case on the basis of clarifications given subsequently by a national court (the part of the judgment in Osman v. uk, 1998, which was troublesome for the uk, was reconsidered in Z and others v uk, 2001. An example of clarification is Von Hannover (no. 2) v. Germany, 2012). There is, moreover, a procedural mechanism for ensuring a particular degree of respect for provisions of national law regarded as of special importance, namely the possibility of referral, or appeal, of a chamber judgment to a Grand Chamber of the ECtHR (consisting of 17 judges). An example of this is the Lautsi case, concerning the obligatory crucifixes in Italian schools (a requirement of the Lateran Treaty

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of 1923, to “compensate” the Vatican for their loss of influence over teaching). A unanimous chamber found a violation of Article 9 in that this did not respect non-Christians’ freedom of conscience. Eight states, all of which give a privileged position to one church, and several other interveners, including the Holy See, filed amicus curiae briefs in the appeal. The Grand Chamber reversed the chamber judgment. A final procedural mechanism is provided by the new Protocol 16 (not yet in force), which allows national supreme or constitutional courts to request a non-binding advisory opinion from the ECtHR. Ultimately, a recalcitrant national supreme/constitutional court can engage in “dialogue” with the ECtHR by noting that there are problems with applying an ECtHR judgment, or even explicitly stating that it will not do so (e.g. the position of the uk Supreme Court in R. v. Horncastle and Others, 2009). It might seem strange to call this “dialogue”. But the case which the national court refuses to follow will probably be from another state, and thus, the national court will have considerable discretion in “translating” it to the national context. If the ECtHR left a margin of appreciation, this will give even more room for maneuver. It is only if the national court refuses to follow an earlier ECtHR judgment which concerns the same state and an identical fact situation that we can speak of a conflict between the two courts. And if we really accept the principle of “multilevel protection” of rights in Europe, then any court in the system, including the ECtHR, could have “got it wrong”. In this respect, an essential part of the ECtHR’s modus vivendi with national courts, including national constitutional courts, was the casuistic nature of its judgments, leaving considerable room for maneuver in similar but not identical cases. But for a variety of reasons, in particular the need to provide better guidance to national courts, the ECtHR practice is changing. It spells out more often the consequences of its judgments, either generally for all states, or specifically for the respondent state. The cjeu, for its part, has also had a modus vivendi with national courts by producing a preliminary ruling which allows the national court considerable freedom of interpretation when the case returns for decision. Formally, of course, a preliminary ruling does not determine the case (even though, in the past, the specificity of its ruling meant that it occasionally come very close to doing so). A Delphic preliminary ruling can also result from an inability to agree a consensus judgment. Either way, the cjeu avoids conflicts with national courts, and hopefully preserves its own legitimacy. The interesting question here is whether dynamics of the Charter, or more generally the postLisbon process of European integration, will act to make the cjeu less willing, or able, to be vague when vagueness is a virtue.

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Here I can urge caution. In constitutional review, going against the expressed will of the legislature, any court must be in a position to reason convincingly. The form of cjeu judgments is badly adjusted to adjudicating on human rights issues as these allow no separate or dissenting opinions. While this form is perhaps correct for issues of economic integration, it is inappropriate as a means of determining human rights matters, which often concern hotly contested moral or political controversies. The experience of both national constitutional courts and the Court shows that dissenting and separate opinions facilitate the evolution of human rights: it becomes an open and dynamic process. Moreover, judgments which do not have to build in widely differing views can be more principled and less of a compromise (Fredman, McCrudden & Freedland, 2000, 186). The cjeu is also engaged in a form of abstract review. In constitutional review, the biggest infringement of legislative competence tends to be an abstract review which results in the conclusion that a law is compatible with the constitution if it is interpreted in a particular way. This is because it closes off political room for maneuver more than a simple “cassation”. Another method of avoiding conflicts is preventive checks. The Council of Europe states are supposed to build in a proper system of pre-legislative scrutiny against the echr, but it is only a minority which do this adequately (see generally the essays in Keller & Stone Sweet, 2008). For the courts in Sweden and other states giving primacy to the legislative process as regards drawing the “big balances” between competing values, there is little guidance to be found in the travaux préparatoires if and when a supranational court, the ECtHR or the cjeu, (re)interprets a right after the legislative process is concluded and this reinterpretation is raised in litigation at the national level. The implications for these states are that both the Charter and the echr must be explicitly and properly integrated into the legislative process as much as possible, as otherwise the national courts will feel obliged to protect these. Even then, some conflicts are still likely to arise. As far as the eu legislative process is concerned, this is an article in itself. Suffice it to say here that the transparency of this has been much improved since the Lisbon treaty entered into force (November 2009). Moreover steps have been taken to institutionalize “impact assessments” and to “mainstream” human rights into this process (Commission 2010; Wetter, 2013).

Concluding Remarks

The modus vivendi between the national supreme and constitutional courts, the cjeu and the ECtHR used to be relatively simple: the national courts knew

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best about national law, the cjeu best about eu law and the ECtHR knew the Convention best. Each could legitimately defer to the other when touching upon their specialist areas. Now, with the Lisbon treaty, a very powerful court, the cjeu, has its own legally binding Charter of rights to apply. All the courts can say now that they are experts in human rights. The co-existence of different levels of rights protection in Europe means that there is the possibility for a minority group, including a religious minority, to “lift” an issue to another level, beyond the national. Institutional and other factors will make some rights competition inevitable, and this is likely to increase in the future. Such conflict is not necessarily a negative thing, as particularly the asylum cases before the ECtHR show. But all the courts will have to become be better at developing principles of self-restraint, indicating in a coherent fashion when, and to what extent, they are willing to intervene when, exceptionally, they draw balances differently. Still, a degree of perspective is in order. The major threats to human rights protection in Europe do not come from the co-existence of different levels of protection, each with its own court, anxious to defend its own turf. It comes from governments and legislatures driven by populism, and prejudice, and from indifferent or overworked and underfinanced bureaucracies. The existence of the CJEU and the ECtHR can and should stiffen the resolve of national courts to intervene against these threats to human rights. Bibliography A, B and C v. Ireland. App. No. 25579/05 (ECtHR, 16 December 2010). Åkerberg-Fransson. Case C-617/10 (CJEU, 7 May 2013). Alexy, R. (2002). A Theory of Constitutional Rights (transl. J. Rivers). Oxford: OUP. Axel Springer AG v. Germany. App. No. 39954/08 (ECtHR, 7 February 2012). Bates, E. (2010). The evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights. Oxford: OUP. Bayatyan v. Armenia. App. No. 23459/03 (ECtHR, 7 July 2011). Bosphorus Hava Yollari Turizm ve Ticaret AS v. Ireland. App. No. 45036/98 (ECtHR, 30 June 2005). Bull, T. & Cameron, I. (2015). Legislative Review for Human Rights Compatibility: A View from Sweden. In M. Hunt, H.J. Hooper & P.W. Yowell (Eds.), Parliaments and Human Rights: Redressing the Democratic Deficit. Oxford: Hart Publishing. Cameron, I. & Bull, T. Sweden. (2014). In J. Gerards & J. Fleuren (Eds.), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis. Antwerp: Intersentia.

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Campbell and Cousins v. UK. App. Nos. 7511/76 & 7743/76 (ECtHR, 25 February 1982). Caroline II. 1 BvR 1602/07A (BVerfG, order of 1st Senate, 26 2008). Christoffersen, J. (2009). Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the ECHR. Dordrecht: Nijhoff. Commission of the EU, Com (2010) 513 final, Strategy for the Effective Implementation of the Charter of Fundamental Rights. Council of Europe (2013, June 10). Draft Accession Agreement (Fifth Negiotiation Meeting Between the CDDH Ad Hoc Negotiation Group and the European on the Accession of the European Union to the European Convention on Human Rights). CE Document 47 + 1(2013)008rev2. Council of the European Union (2013, June 24). EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief. Retrieved from http://eeas.europa.eu/ delegations/fiji/press_corner/all_news/news/2013/eu_guidelines_on_the_promotion_ and_protection_of_freedom_of_religion_or_belief_%28june_24_2013_fac%29.pdf. Demir and Baykara v. Turkey. App. No. 34503/97 (ECtHR, 12 November 2008). Digital Rights Ireland and Seitlinger and Others. Cases C-293/12 and C-594/12 (CJEU, 8 April 2014). Dogru v. France and Kervanci v. France. App. Nos. 27058/05 & 31645/04 (ECtHR, 16 December 2008). ECtHR. (n.d.). The Court’s Priority Policy. Retrieved from http://www.echr.coe.int/ Documents/Priority_policy_ENG.pdf. Eeckhout, P. (2002). The EU Charter of Fundamental Rights and the Federal Question. Common Martket Law Review, 39, 945–994 (972). Ellinki Radiophonia Tileorassi. Case C-260/89. [1993] ECR I-2925. Enkvist, V. (2013). Religionsfrihetens rättsliga ramar [The Legal Framework for the Protection of Religious Freedom]. Uppsala: Iustus. Eugen Schmidberger Internationale Transporte und Planzüge v. Republik Österreich. Case C-112/00. [2003] ECR I-5659. European Commission (2010, October 19). Strategy for the Effective Implementation of the Charter of Fundamental Rights by the EU. COM(2010) 573 final. Evans, C. (2001). Freedom of Religion under the European Convention on Human Rights. Oxford: OUP. Eweida and Others v. UK. App. Nos. 48420/10 et al. (ECtHR, 15 January 2013). Fredman, S., McCrudden, C. & Freedland, M. (2000). An EU Charter of Fundamental Rights. Public Law, 178 (186). Gearty, C. (2004). Principles of Human Rights Adjudication. Oxford: OUP. Giniewski v. France. App. No. 64016/00 (ECtHR, 31 January 2006). Greer, S. (2006). The European Convention on Human Rights: Achievements, Problems and Prospects. Cambridge: CUP. Gündüz v. Turkey (No. 2) (dec.). App. No. 59745/00 (ECtHR, 13 November 2003)

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Habermas, J. (1996). Between Facts and Norms. Cambridge: CUP. Hizb Ut-Tahrir and Others v. Germany. App. No. 31098/08 (ECtHR, 12 June 2012). Hunter-Henin, M. (2015). Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS. Oxford Journal of Law and Religion, 4, 94–118. Keller, H. & Stone Sweet, A. (2008). A Europe of Rights: The Impact of the ECHR on National Legal Systems. Oxford: OUP. Konrad and Others v. Germany. App. No. 35504/03 (ECtHR, 11 September 2006). Krishnan, J.K. & Dulk, K.R. den (2002). So Help Me God: A Comparative Study of Religious Interest Group Litigation. Georgia Journal of International and Comparative Law, 30, 233–276. Lautsi and others v. Italy. App. No. 30814/06 (ECtHR, 18 March 2011). Leigh, I. (2012). Balancing Religious Autonomy and Other Human Rights under the European Convention. Oxford Journal of Law and Religion, 1, 109–125. Leyla Sahin v. Turkey. App. No. 44774/98 (ECtHR, 29 June 2004). M.S.S. v. Belgium and Greece. App. No. 30696/09 (ECtHR, 21 January 2011). Melloni. Case C-399/11 (CJEU, 26 February 2013). Michaud v. France. App. No. 12323/11 (ECtHR, 6 December 2012). Michl, W. (2014, December 23). Thou shalt have no other courts before me. Verfassungsblog. Retrieved from http://www.verfassungsblog.de/thou-shalt-nocourts/#.VWckyc-qpBc. Mowbray, A. (2010). A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights. Human Rights Law Review, 10, 289–317. N.S. and M.E. and Others. Cases C-411/10 & C-493/10 (CJEU, 21 December 2011). Obst v. Germany. App. No. 425/03 (ECtHR, 23 September 2010). Omega. Case C-36/02. [2004] ECJ I-9609. Opinion 2/13. (CJEU, 18 December 2014). Osman v UK. App. No. 23452/94 (ECtHR, 28 October 1998). Peers, S. (2004). Taking Rights Away? Limitations and Derogations. In S. Peers & A. Ward (Eds). The European Union Charter of Fundamental Rights, Oxford: Hart Publishing. R. v. Horncastle and Others. [2009] UKSC 14. Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria. App. no. 40825/98 (ECtHR, 31 July 2008). Roche v. UK. App. No. 32555/96 (ECHR 2005-X). Roe v. Wade. 410 US 113 (1973). S.A.S. v. France. App. No. 43835/11 (ECtHR, 1 July 2014). Scanlon, T. (2002). Adjusting Rights and Balancing Values. Fordham Law Review, 74, 1477–1486. Schalk and Kopf v. Austria. App. No. 30141/04 (ECtHR, 24 June 2010).

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Schlesinger P. & Foret, F. (2006). Political Roof and Sacred Canopy?: Religion and the EU Constitution. European Journal of Social Theory, 9, 59–81. Schüth v. Germany. App. No. 1620/03 (ECtHR, 23 September 2010). Sindicatul “Păstorul cel Bun” v. Romania. App. No. 2330/09 (ECtHR, 9 July 2013). Tarakhel v. Switzerland. App. No. 29217/12 (ECtHR, 4 November 2014). Torres Pérez, A. (2010). Conflicts of Rights in the European Union. A Theory of Supranational Adjudication. Oxford: OUP. Trägårdh, L. & Wallman Lundåsen, S. (2013). Social Trust and Religion in Sweden: Theological Belief Versus Social Organization. In J. de Hart, P. Dekker & L. Halman (Eds.), Religion and Civil Society in Europe. New York / Heidelberg / London: Springer. Tysiac v. Poland. App. No. 5410/03 (ECtHR, 20 March 2007). Von Hannover v. Germany. App. No 59320/00 (ECtHR, 24 June 2004). Von Hannover (no. 2) v. Germany. App. Nos. 40660/08 & 60641/08 (ECtHR, 7 February 2012). Voßkuhle, A. (2010). Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund. European Constitutional Law Review, 6, 175–198. Wachauf. Case 5/88. [1989] ECR 2609. Weiler, J.H.H. (1998). Fundamental Rights and Fundamental Boundaries. In The Constitution of Europe. ‘Do the New Clothes have an Emperor’ and Other Essays on European Integration. Cambridge: CUP, 102–129. Wetter, A. (2013). Making EU Legislation in the Area of Criminal Law: A Swedish Perspective. Doctoral dissertation. Uppsala: Uppsala University, Law Faculty. Wizerkaniuk v. Poland. App. No. 18990/05 (ECtHR, 5 July 2011). World Values Survey (n.d.). Inglehart-Welzel Cultural Map. Retrieved from http://www .worldvaluessurvey.org/wvs.jsp. Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities. Joined Cases C-402/05 and C-415/05. ECR [2008] I-06351. Z and Others v. UK. App. No. 29392/95 (ECtHR, 10 May 2001). Zolotukhin v. Russia. App. No. 14939/03 (ECtHR, 10 February 2009).

chapter 3

The Quest for Quality of Life

The Complex Relationship of Healthcare, Human Rights and Religion Hans Schilderman

Human Right to Health and Care

There is basic agreement over the fact that health should be regarded as a human right. The right to health has been positively formulated and codified as a human right in various international treaties. The Universal Declaration of Human Rights (1948) affirms (article 25, 1) that ‘everyone has a right to a standard of living adequate for the health of himself and his family, including food, clothing, housing, and medical care and necessary social services.’ In more comprehensive terms, the International Covenant on Economic, Social and Cultural Rights (1966) says that (article 12, 1) States Parties recognize ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, followed (article 12, 2) by several ‘steps to be taken by the States Parties…to achieve the full realization of this right’. In various other treaties the right to health is referred to as well, such as in the International Convention on the Elimination of All Forms of Racial Discrimination (1963), the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and in the Convention on the Rights of the Child (1989). At regional levels, a human right to health is also emphasized, such as in the European Social Charter of 1961, the African Charter on Human and Peoples’ Rights of 1981 and in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (ratification in 1999). In addition, the human right to health has been proclaimed by the Commission on Human Rights and further elaborated in the Vienna Declaration and Programme of Action of 1993 (who 2002, 10). While these codifications seem to demonstrate a consensus over the right to health, important remarks need to be made. This positive and direct formulation of health as human right, needs to be distinguished from its indirect or ‘negative’ relevance, as is the case when the infringement of other human rights have health consequences or appeal to health rights implicitly, as in the prohibition of torture, violence or harmful traditions. A health right can be implied positively as well, as in rights to education, privacy or social security. This has special relevance for health care, where specific rights have been formulated as well, such as in the human right to a standard of living as in the article 25 of the Universal Declaration of

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Human Rights, just mentioned, and in the International Covenant on Economic, Social and Cultural Rights, article 11. These remarks clarify that the right to health is not meant to indicate a right to health per se, but refers to an obligation of effort to realize the highest attainable standards of health care. This latter norm has been codified as well, particularly in the International Covenant on Economic, Social and Cultural Rights (adapted in 2002). More specifically, this care for health was operationalized in the comment on the icescr as care that should be available (sufficient and functional), accessible (non-discriminatory, in reach, affordable and informed), acceptable (ethically, culturally and socially), and of good quality (medically and scientifically sound) (General Comment, 14). John Tobin has pointed out that unlike the recent efforts of codification suggest, the right to health has been implicit in a perennial tradition not only of ongoing care practices, but also of obvious public incentives stemming from – and appealing to – social, religious and state responsibilities. In fact, the norm of ‘highest attainable care standard’ clarifies that the right to health cannot be seen apart from the more intrinsic obligations of health care. Tobin offers four observations that clarify this. Firstly, the right to health appeals both to factors maintained by the person and to facilities offered by the state. Secondly, it cannot be formulated in terms of pathologies alone, but requires an account of social and contextual factors of health as well, especially in as far as it affects the social functioning of the person. Thirdly, the right to health must be evaluated in relationship to a number of freedoms that are affected by its function or dysfunction. Fourthly, the indicated criteria of this care standard enable a practical and manageable responsibility for states; thus there is an explicit role of public health in delivering the right to health (Tobin 2012, 121–174). Tobin offers strong historical evidence for the case that the right to health came to be recognized in close consideration of the state’s responsibility to protect that right by providing for public care services. Instrumentalist views that limited care to charity aimed at the sick and poor, grew into socialliberal convictions that stately guaranteed facilities aiming at the highest health standards would contribute to a world of peace and security (Tobin 2012, 14–43). These observations clarify that a right to health cannot be seen apart from the right to healthcare as a shared responsibility of the state and of collective accountability in governance. On the basis of this insight, legislation was initiated regarding a number of public issues that invoked this right to health and care. In fact, litigation in these matters advanced an actual correspondence of health improvement by appealing to the ‘highest attainable standards of health’ (Cabrera & Ayala 2013). Litigation is but one condition to turn health rights into practice. Other incentives that support a rights-base for

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healthcare are legal and policy reform in public health at the national levels, the support provided by civil society and community engagement, and global health governance that fights prevalent inequalities in health and care by means of political strategies (Friedman & Gostin 2012; Gostin 2012). Based on the recognition that health care rights have an implicit but perennial history, some additional and more philosophical remarks need to be made as well. Health is a significant value in life and a basic good in society; a disposition that is easily considered crucial for the pursuit of all other ends. In that sense one can maintain with Rawls that health is a primary good, a good that we may think of as to be equally and fairly distributed. A primary good can be defined as a basic expectation in a life-plan; a thing ‘a rational man wants whatever else he wants’ (Rawls 1999, 79). However, since health is also a natural good, it complicates the responsibilities of any party to fairly distribute it. For one thing, health as a natural disposition is basically confronted with pain, disease, suffering and death as its equally natural counterparts that – at least to considerable extent – are eventually out of reach by human interventions. Religions have a reflective specialty in dealing with these ‘negatives’ of natural goods. Thus Augustine of Hippo regards it as evil in his ‘privatio boni’ concept of this negative. He says: ‘For the Omnipotent God, whom even the heathen acknowledge as the Supreme Power over all, would not allow any evil in his works, unless in his omnipotence and goodness, as the Supreme Good, he is able to bring forth good out of evil. What, after all, is anything we call evil except the privation of good? In animal bodies, for instance, sickness and wounds are nothing but the privation of health. When a cure is effected, the evils which were present (i.e., the sickness and the wounds) do not retreat and go elsewhere. Rather, they simply do not exist anymore. For such evil is not a substance; the wound or the disease is a defect of the bodily substance which, as a substance, is good. Evil, then, is an accident, i.e., a privation of that good which is called health. Thus, whatever defects there are in a soul are privations of a natural good. When a cure takes place, they are not transferred elsewhere but, since they are no longer present in the state of health, they no longer exist at all’ (Enchiridion iii). From this Augustinian perspective, health is not only a natural good but also one of divine intention and opposed to an accidental category of evil, with obvious concomitant spiritual responsibilities in taking care of health and of countering disease and suffering. This excurse demonstrates that health and care are linked to religious motives and motivate respective institutional responsibilities, as can historically be illustrated in the evolving ties between religion and care in early Christianity (Ferngren 2009). It also demonstrates that the ‘right to health’ should be regarded from the perspective of its effort to preserve or heal it while acknowledging that the claim of health rights ultimately fails in the recognition that

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life is finite. Health is not equally distributed and cannot be fairly assigned to each and every one, while healthcare at least in principle can, as for instance in duties of the state to allocate health services by accounting for justified care claims of individuals. Difficulties however amass in the various strategies that follow from the recognition that unlike health, healthcare is a social good that competes in its satisfaction of other goods and is confronted with the intricacies that various strategies imply in accommodating a fair distribution of these facilities and services (Daniels 1979).

Quality of Life in Healthcare

There is another issue that we are confronted with in clarifying the relationship of religion, care and human rights. It manifests itself in the changing definitions of health. In popular language use, many definitions of health will do to indicate what is lacking as soon as sickness, disability or handicaps appear. Ever since Hippocrates confronted ancient concepts of health as a divine gift with his rational and in a sense professional account to improve health, definitions of health came to be discussed in terms of goals of medical progress, which turns the issue of health in one of cure and care. Nowadays, generic notions of health are hard to define. In view of the national differences regarding healthcare policies and services, it seems next to impossible to offer global definitions of health. Mostly quoted is the traditional definition of the ‘World Health Organization’: ‘a complete state of physical, mental and social well-being, and not merely the absence of disease or infirmity’ (who 1948). In 1984, this definition was modified, allowing more control of those affected over health determinants: ‘The extent to which an individual or a group is able to realize aspirations and satisfy needs, and to change or cope with the environment; health is a resource for everyday life, not the objective of living; it is a positive concept, emphasizing social and personal resources as well as physical capabilities’. Compare that to: ‘A sustainable state of equilibrium of harmony between humans and their physical, biological and social environments that enables them to coexist indefinitely and to lead a socially and economically productive life’ (Kirch 2008, 515). In allowing for more contextual and especially personal and social elements in the definition of health, other notions such as ‘well-being’ and ‘wellness’ came to be regarded as equivalents. ‘Quality of life’ is one more way of defining health positively, in support of more or less regulative aims of health care. It is here, whenever health is conceptualized in terms of life quality, where complexity increases and debates arise. Theories of quality of life have been elaborated in various disciplines and

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cover many fields of investigation. Quality of life is being studied at the individual and pragmatic level, as in empirical measures of patient wellbeing that are employed in diagnostic tests or clinical trials (Oksuz & Malhan 2006; Walters 2009), but also at community levels that reflect shared care policies, as in assessing best practices of ‘livability’ of cities or social thriving (Sirgy et.al. 2011), and finally also at the level of state, where various welfare characteristics indicate flourishing levels of nations (Hagerty et.al. 2002). Quality of life thus acts as a universal commonplace that suggests a shared consensus over lifegoals that are simultaneously universal in scope and pragmatic in use. In fact, the extensive elaboration and enormous public impact of this latter conception is actually of a rather recent date. Armstrong and Caldwell hold that the idea of ‘quality of life’ in its wider public expression gained a stronghold during the 1970’s. At that time, social and political policy-problems surfaced that captured the public discussion in which the term ‘quality of life’ offered a mediating concept that connected the idea of social and technological progress as it was fuelled by the success of the welfare state on the one hand, and its inevitable consequences, such as overpopulation, pollution and cyclical economic crises on the other hand. In this public discussion, quality of life acted as a set of standards, criteria and norms that could be utilized as bargaining chips in arriving at a consensus over these public issues. At this phase of initial elaboration the term could still be considered a rhetorical device in public discourse. However, the notion of life quality got a strong political and professional impetus in dealing with these issues. This proved to be particularly so in healthcare, where the idea of quality of life enabled a positive formulation of end-goals in medicine that were not from the outset tributary to a vocabulary of pathology. As technological progress in medical science advanced, it contributed to the use of the term quality of life in three distinct ways. One refers to the inevitable clinical success that advance in technology rendered to treatment outcomes. The medical profession could translate this success in terms of patient’s benefits regarding quality of life improvement, thus avoiding a technical vocabulary of diseases and disorders that their patients were suffering from. Secondly, patients consequently identified this success as a right to treatment labelled in terms of an envisioned improvement of their lives. The moral code of clinicians to improve their patient’s wellbeing could be perceived as an ethical right to be entitled to the quality of life that the treatments and therapies gave rise to. Finally, quality of life offered a measure proper to the experience of care effects and the evaluation of rehabilitation programmes. The increasing prevalence of chronic illness and old age, and thus prolonged or even life-time care, can be considered a successful result of the medical battle against life-threatening diseases. Thus quality of life offered an outcome measure, even in those clinical

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situations where medical treatment and cure were not envisaged (Armstrong & Caldwell 2004). Even if life quality proved to offer an excellent opportunity to redefine health in terms of public care policies, its theoretic validity and pragmatic reliability in clinical practice remains vague or at least strongly debated. In a minimal form, life quality is taken as wellbeing or happiness. However, these alternative terms that emphasize personal experience are only seemingly less complicated. Any appeal to more objective notions usually fails as soon as it turns out that ‘experienced life quality’ includes a host of diverging perceptions and contextual constraints that are in turn not easily validated by a measurement of the corresponding concepts. That being said, it can be observed that quality of life measures in fact have gained a prominent role in medicine and health care. Tributary to that is that the idea of life quality stems from a dissatisfaction with the symptom-oriented approaches that include morbidity and mortality as the negative indicator of health. The attempt to define quality of life in positive terms assumes a set of conditions that are required for optimal functioning. Usually the more objective approaches that search for universal needs, contextual constraints and opportunities, clash with the more subjective stance that allows for personal evaluations within the life course of an individual (Browne et. al. 1997). By now, a host of research instruments exists that ranges from generic to highly specific domains, and it is prevalent both in qualitative and quantitative research that includes measurements at the individual, generic or comprehensive level (Ripley 2003). For instance, the World Health Organization defines quality of life in rather broad terms as: ‘Individuals’ perception of their position in life in the context of the culture and value systems in which they live and in relation to their goals, expectations, standards and concerns’. It subsequently distinguishes in its WHOQOL-100 on mental health a hundred items ordered in domains of physical health, psychological health, and level of independence, social relationships, and spirituality/religion/personal beliefs (who 1997). Other conceptions emphasize temporal aspects. Thus, the value assigned to the duration of life is highlighted, as it is modified by the social opportunities, perceptions, functional states and impairments that are influenced by disease, injuries, treatments or policy (Patrick and Erickson 1993). A more utility based definition states the QUALYconcept that estimates the effect of an intervention aimed at life prolongation. It calculates quality adjusted life-years in a ratio of time gain and value, ranging between 1 (perfect health) and 0 (death), which is generally used to determine costs saved for a particular health care intervention or therapy and subsequent allocation of healthcare resources (Kirch 2008, 1223–1224). Finally, a more integrated approach by David Phillips argues in favour of an ecological

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model that takes the social community into account. It leads him to the following definition: ‘Quality of life requires that people’s basic and social needs are met and that they have the autonomy to choose to enjoy life, to flourish and to participate as citizens in a society with high levels of civic integration, social connectivity, trust and other integrative norms including at least fairness and equity, all within a physically and socially sustainable global environment’ (Phillips 2006, 242). While all of these definitions include valuable characteristics, both in terms of conditions and aims of life quality, they also demonstrate a still unsatisfied academic and professional need to have clear-cut and more or less objective definitions that are conducive for health care interventions at professional and policy levels, that guide interventions and enable sound evaluations. Thus, the quest for end-goals of healthcare in public health policies that facilitates discriminatory decisions in clinical practice still remains a desideratum for the upcoming years. For all that, the discussion in healthcare is characterized by a normative aim as well. The generic term ‘quality of life’ is an evaluative category that implies positions of various stakeholders in healthcare. In between these positions, the patient’s own health assessment is gaining ever more relevance and attention, reflecting a growing emphasis on autonomy in promoting health concerns. What is often noticed only in passing is that patient’s actual influence regarding their own health and care goals assumes visions of the good life, requires balancing of rights and duties, and appeals to self-determination in morally complex clinical issues. If the patient is not to be regarded a passive individual undergoing care or a powerless object of health-policies, the moral aspects of life quality in healthcare require explicit consideration. In other words, the concept of life quality demands an ethical account of its definition as well. There is a basic problem to address here, that relates to the attuning of generic or public conceptions of life quality and those of a personal or private nature. Ethically, the question is how to attune life quality as a common and primary good shared by all – or most – members of a community, to the morally felt and pursued quality of life of an individual. In the terms of John Rawls that he developed in his theory of justice, the issue is one of congruence: if people have a conception of life quality as a justified common good in a well-ordered (ideal) society, they should be taken as rational agents who pursue this conception in their own lives according to a life-plan. A life-plan can be taken as a schedule that hosts the primary goods that a person values, including the activities that are needed to realize the corresponding aims over a lifetime. It includes a hierarchy in which personal goods feature as well, but self-evident grounding notions remain that link public and private conceptions of life quality. These basic characteristics of a life-plan can be defined as the pursuit of

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talents, guarantees of personal autonomy, integration in a community, and unity of the self (Rawls 1999, 347–396; Friedman 2003). In order to elaborate the concept of quality of life as embedded in a life-plan, several questions need to be formulated. First, what motivates the moral pursuit of life quality in a life-plan? Secondly, how can quality of life be fairly integrated in the social setting of healthcare while leaving personal autonomy intact? Thirdly, how can the unity of the self be maintained when the life-plan is affected by conflict or tragic suffering? Answers to these questions will be probed by elaborating three corresponding concepts. Dignity is a foundational concept that relates the teleological aspect of this perspective (‘good life’) to human rights, while the idea of justice relates to the observed problem of just distribution in public health, and ‘tests’ this ethical aim of dignity. The term prudence refers to the necessity to judge over quality of life in circumstances of conflict, antinomies or tragedy. For each of these concepts, the potential function of religion in supporting this ethical perspective of the life-plan will be indicated.

Dignity in Quality of Life

What motivates the moral pursuit of quality of life in the setting of a life-plan? This is a question that can be understood from a teleological perspective in ethics that emphasizes a natural cause or final aim that defines quality of life. Usually, Aristotelian and Epicurean traditions of the good life are contrasted in their different views of and ways to attain a highest good in life. The Aristotelian paradigm has flourishing (‘ευδαιμονία’) and virtue of character (‘ἠθικάς ἀρετὴ’) at focus. It aims for contentment and spiritual growth guided by acquired wisdom (‘φρόνησις’) and balanced perception (‘μεσότης’). The notion of quality of life refers to an activity (task, skill, virtue) of self-transcendence in the orientation towards a highest good (Baracchi 2008, 90–95; 301–305). The Epicurean paradigm of life quality in contrast, strives for happiness, pleasure and stimulation. It aims for equanimity (‘αταραξία’) and absence of pain (‘ἀπονία’) (Woolf 2009). Its orientation is not towards one highest good, but towards a multitude of purposes that can differ between persons and situations, and furthermore vary according to the character of desire: natural and necessary; natural but not necessary; or vain and empty (O’Keefe 2010, 111–127). This traditional frame for the discussion of the good life reflects different orientations towards the definition of the good life, the means of their pursuit and the uniqueness of their foci. However, one wonders to what extent the formulated aim(s) crystallize a univocal moral concept of quality of life in the setting of a life-plan. In search of such a founding concept, human dignity is

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often referred to, since it is historically regarded a disposition that values a moral agent or moral patient as one with an innate and inalienable worth (Lewis 2007, Reis Monteiro 2014, 199–326). The origins of the dignity motive can be located in what Giovanni Pico della Mirandola in the 15th century held as the defining human characteristic, namely man’s dependency on will and decision in its self-definition. In similar vein well known, Immanuel Kant formulated the human characteristic in the 18th century as categorical imperative to treat humanity, whether in one’s own person or in the person of another, always at the same time as an end and never simply as a means. This defines man in terms of dignity: end in itself (‘Würde’) as distinguished from the kingdom of ends (‘Preis’, ‘Wert’). Dignity has since then been widely accepted as common ground, and underpins human rights in its features to offer a legitimation for the equality of persons, to define man’s unique qualities, and to assess man’s absolute worth (Kateb 2011). This intrinsic Kantian notion of dignity should be distinguished from the Hobbesian variant that simply holds that dignity depends on the assessment of needs and judgments by others, thus implying that dignity equates with public worth or social status. It also should be contrasted however, with the Stoic (‘Ciceroian’) view of dignity as personal evaluation and attribution of achieved excellence. Clearly, only the intrinsic version of dignity counts as foundational since it meets the axiological criterion of the ability to act as the value that consistently grounds other values (Sulmasy 2008; 2009, 326–331). This Kantian notion of dignity offers a proper bedrock to avoid subjective interpretations of the foundation of international law and can act as restructuring criterion, as is argued by Capps (Capps 2009). The concept of dignity is focal to moral issues in healthcare, since it prominently features as grounding concept in bioethics (Lanigan 2008). In the setting of a life-plan, the foundational or legitimizing function of dignity as a normative definition of the human condition, needs to be more clearly distinguished from its descriptive or agency related meaning. Lennart Nordenfelt distinguishes four concepts of dignity with this in mind (Nordenfelt 2004). The first one is the basic principle of dignity which Nordenfelt calls ‘Menschenwürde’. Like in the Kantian concept, dignity is an inherent dimension of value pertaining to all persons regardless of their attributes and that clothes them with an innate entitlement to respect. This inherent dignity acts as a basis for other human rights and cannot be taken away. He distinguishes this from other types of dignity that vary among people and circumstance. A dignity of merit depends on status attributes. This status is formal if ascribed on the basis of social class or established positions, and informal when acquired because of one’s achievements. With this dignity of merit, persons can distinguish themselves among others and thus may be entitled to – and gain control of – an

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awarded status. This notion matches the Hobbesian variant mentioned before. Next, a dignity of moral stature can be established that depends on persons’ virtues, their character and their moral deeds that do not install rights but do command respect. Here, a person installs himself as a moral agent to himself, which shows in sensed self-respect. This notion more or less reflects the Stoic variant. And finally, Nordenfelt distinguishes a dignity of identity where worth is connected to one’s physical autonomy, personal history, community and other extra-psychological qualities that nevertheless identify a person as one invested with a unique contextual position. It is the form of dignity that identifies who we are; not so much what we are. The distinction between these four notions of dignity is crucial in the assessment of quality of life in healthcare since it represents different moral claims in a life-plan. In assessing quality of life, dignity may in some cases apply to human rights, whereas in others they refer to social or personal evaluations. These latter evaluations may be normatively charged by all means, and even be justified, but in many cases may not apply to the fundamental underpinning value of human dignity in constitutional terms. The intrinsic version of dignity is not without religious significance. Thus, there is an ethically significant analogy between the intrinsic concept of dignity and the Biblical metaphor of ‘imago Dei’. The image of the God metaphor has its roots in the creation theme in which human autonomy is related to the autonomy of God. This relationship contains a double moral appeal, namely to understand human dignity in terms of Gods will, and – from this transcendent perspective – as summoning to guarantee the dignity of each other. As such, the ‘imago Dei’-metaphor acts as a legitimation – not a substitute or condition – for the intrinsic notion of dignity. Its application can contribute and has contributed as a counter concept in the discourse of human rights issues (Van der Ven 2004, 265–303). To the extent that dignity is foundational to the institution of human rights, it has special relevance to the freedom of conscience and religion as well. As mentioned, Giovanni Pico della Mirandola stresses freedom of will, the religious foundation of which he locates in creation where God entrusted man with abilities to fully reflect on His creation and to find his own destiny within it (Pico Della Mirandola 1998, 4–6; Sudduth 2008). This right to think freely, and to entertain philosophies of life, religious ideas and hold positions of conscientious or religious beliefs not only flows from human dignity, it also installs and expresses it in a variety of traditional, ritual and narrative forms that appeal to it. This is to say that the concept of human dignity as a foundational value cannot abstain from its practice in daily life in order to be understood and experienced as such. The concept of life quality as a notion based in self-reflection and self-evaluation exactly clarifies this. Worldviews and religions can be considered to have a specific competence in clarifying the

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unbreakable link between the ultimate value of human dignity on the one hand and the actual experience of life quality, especially in such circumstances when people are subjected to pressures of suffering and enduring pain.

Justice in Quality of Life

How can quality of life be fairly integrated in the social setting of healthcare while leaving personal autonomy intact? This question can be answered from a deontological perspective that stresses the agency character of ethics, dealing with right or wrong from a rule oriented view, while invoking duties of individuals under the heading of universal norms that are endorsed on rational grounds. In terms of quality of life, the issue here relates to the efforts to distribute quality of life in a fair way, while leaving the dignity and autonomy of individuals as pursued in a life-plan, intact. This can be rephrased in a simple question: ‘What does a life worthy of human dignity require?’ (Nussbaum 2011, 32). Amartya Sen has developed a theoretical framework for the ‘materials of justice’ in which advantages and disadvantages of a person can be assessed in this respect. Sen criticizes Rawls’ theory of justice in the latter’s claim that only one unique set of principles for justice is reasonable, as emerging from the imagined ‘original position’ of rational impartiality. Instead, Sen argues for a non-transcendental view of justice, and one that more closely connects its institutional (justice) and personal (fairness) characteristics (Sen 2009, 11–12; 52–72). Sen’s approach of justice starts with basic questions, such as ‘what is a person and what does she or he do?’ and ‘what is she or he is able to achieve?’ The first question relates to functionings, the latter to capabilities. Functionings are things that a person may value in doing or being, among which health features alongside for instance safety and education. Capabilities refer to the freedom to enjoy these functionings in view of a life-plan, that is, to pursue aims one has reasons to value. Functionings and capabilities are related by agency. Agency is the actual ability to develop and pursue capabilities and thus change ones condition. Thus, people employ resources by investing (converting) them in order to have them available as means to pursue objects of value, and these availabilities (capabilities) can be enacted (chosen) to relate them to envisaged functionings. Quality of life should be evaluated according to the extent of freedom that people have to pursue the functionings they value (see Fig. 3.1). Sen’s formal theory is normative; its aim is not to explain but to evaluate different conditions that people are in, while evaluating their life from the core-value of human dignity. The theory clarifies that it is not simply the availability of resources that defines fair distribution of means to reach quality of life, but that people differ in their opportunities, abilities and choices to

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resources means to achieve

preferred functionings

conversion

capabilities freedom to achieve

choice

achieved functionings achievement

Figure 3.1  Adapted and simplified version of i. Robeyns ‘Stylised non-dynamic representation of a person’s capability set and her social and personal context’ Robeyns, I. (2005). The Capability Approach. A theoretical survey. In: Journal of Human Development, vol 6, no 1, 98.

realize life quality. If human dignity is to be focal in quality of life, a person’s actual ability to do the different things that she or he values doing, should be awarded a central role. Argued in this line of reasoning, primary goods are not valuable in themselves, but only in their capacity to support one’s pursuit of what is considered to be of value. This emphasis on the freedom to choose and to achieve should be integrated in any theory that deals with a fair distribution of these goods in view of a just society (Sen 2009, 231–317). However, Sen’s theory brings to the fore an issue of selection: which capabilities are central in reaching quality of life? Martha Nussbaum proposes ten capabilities that express social justice and allow to define certain threshold norms that offer constitutional guarantees for life quality. Most of the capabilities that she mentions (life, bodily health, bodily integrity, consciousness, emotions, practical reasoning, affiliation, ecology, play, and environmental control) have explicit relevance for health and healthcare (Nussbaum 2000, 77–80). The proposed list contains abstract capabilities that need operational criteria to be practically employed in dealing with quality of life estimates (Robeyns 2006; Alkire 2008). What has to be noted as well, is that the list contains competing capabilities that not only require operationalization of their threshold, but also of choice, and often so in tragic conditions where the norm of equality – implied in social justice – can hardly be met (Nussbaum 2011, 36–42). According to the capability approach, the ends that define quality of life should be understood in terms of people’s capabilities to function in such a way that they are able to pursue the life they value. Health is such a capability, and in fact most of the capabilities in Nussbaum’s list bear explicit relevance to health. The attempt is to allow evaluation of any intervention or policy in healthcare from this normative idea of justice, and do so in terms of

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their impact on people’s capabilities. It should assess the availability of means and resources and explore the relationship with other capabilities to arrive at a balanced view of life quality. This avoids both a utilitarian approach to justice in terms of allocation of means and resources only, while it also rejects a sole dependency on mental state for evaluating quality of life (Robeyns 2005). In many traditional healthcare policies, health is considered a utilitarian factor, be it in terms of input as in the sense that it generates wealth (economic growth and increase of human capital), or in terms of output when investment in healthcare promotes its end-goals (prevention, decrease of disease, flourishing). Instead, a capability approach of health accounts for a process of generating health that includes ‘conversion factors’ that clarify how individuals value and transform health inputs (resources) into health outputs (valued functionings). In doing so they are confronted with deprivations, such as those linked to failing resources, irrational application of these resources to arrive at valued functionings, or the limitations that the process of choice represents in view of the inability to realize all capabilities. Especially health can be considered to be at the heart of interlocking deprivations in the attempt to realize a balanced quality of life (Ariana & Naveed 2009). The liberal type of theory that the capability approach presents, emphasizes the ability and freedom of choice in realizing quality of life. In the modern welfare-state, health is an important if not defining characteristic of life quality. In the rise of the welfare state, lack of health represents one of the deficiencies in the ‘fatal triad’ of illness, poverty and ignorance the battle of which fuelled the rise of the welfare state in order to arrive at collectively organized and obligatory national provisions for healthcare. In the view of De Swaan, this accounts for an increase in civilization, in which forms of care that formerly were religiously and church supported, gradually grew into more professional and state regulated provisions. These were based on anonymous forms of solidarity that no longer depended on intimate or interpersonal trust relationships but were far more explicitly based on professional expertise and division of labour (De Swaan 1988). However, in fact nations differ in the cultural assumptions and social arrangements for healthcare. The welfare state does not refer to an internationally coherent system of health provisions and care facilities, and its discussion is partly driven by the crises that it experiences in western countries (Hill 2013). The growth of welfarestates varies according to various political economies that represent socialdemocratic, corporatist or liberal regimes that each pursue different policies with regard to welfare, of which health is a crucial aspect (Esping-Andersen 1990; 1999). Empirical research indicates that especially in Europe, the format

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of the welfare state is changing, and increasingly displays a variety of patterns that depend on national tradition, regional differences, and supranational policies that all affect the distribution of responsibilities among state, market and family (Schubert et.al. 2009). In the political setting of nationally differing healthcare services, churches can be considered supranational normative organizations with an ancient caring concern for the ‘fatal triad’ that De Swaan refers to. Against the different national structures of public healthcare, religions are present at levels of state, community and family. This can be regarded a position between public (or state-run) and private (or commercial) healthcare. In principle, this offers a mediating faculty in addressing issues of justice in quality of life. In view of the fact that capabilities represent freedoms to be and to act, they appeal to the freedom of thought, conscience and religion and to invest the social and cultural capital in which these human rights are expressed. Religions and life philosophies turn the available capital into objects of experience and agency by clothing them in symbolic and ritual form while stressing their moral significance. Religions represent institutional structures, cultural styles, social networks, and spiritual beliefs and practices that offer normative support for a life-plan and enable public accountability of freedoms to do so (Schilderman 2011). In terms of the capability approach, religions offer support in converting resources into capabilities and advice in selecting of preferred functionings in view of the good life. They represent do’s en don’ts in dealing with available resources and represent registers of ‘preferred functionings’. In social life, this normative function is not necessarily beneficial. Depending on their historical and legal function at national levels, religions can promote or harm the availability of capabilities and choice of functionings, thus supporting the obligations of justice or undermining them.

Prudence in Quality of Life

How can the unity of the self be maintained when the life-plan is affected by conflict or tragic suffering? Up until now, the ethical characteristics of quality of life in healthcare have been defined in terms of the founding value of human dignity and in a just distribution of healthcare that leaves individual autonomy in the human capacity to strive for the good life intact. But, in what sense can patient’s quality of life morally inform actual priorities and decisions in the life-plan, especially when the enactment of this plan is affected by intricacies of conflicting options, or by structural boundaries of suffering? By definition, this question cannot be answered in clear-cut terms, since the capability

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approach takes into account individual varieties in investing resources and in making choices in view of the good life. What is more, clinical diagnostics and interventions in healthcare have become ever more complex due to technical progress and a concomitant dependency of interdisciplinary professionalism. Even when information is available and alternatives are clear, moral choice is often intricate, as the many issues in bio-ethics illustrate. Thus core skills need to be at the centre of attention, since they enable ways of dealing with basic problems in the life-plan, while addressing capabilities that enable an appeal to human dignity. As a basic moral skill, prudence candidates. Prudence refers to the moral capacity to govern and discipline oneself by the use of reason, especially in circumstances that are marked by contingency, that is, by uncertain or highly variable conditions. Whenever concerns of different stakeholders are in play, these circumstances must be weighed to define a problem and address it in a proper way. Especially when options in life-plans clash, be it inwardly in terms of mental tensions, or openly as social conflicts, prudential assessments, decisions and actions are crucial. Prudence (lit. ‘foreseeing’ or ‘looking ahead’) thus requires a capacity to judge, in taking note of the issues under discussion from the perspectives of the implied stakeholders, but also with a view to settle the issue at hand for the immediate future. This first of all calls for attention regarding risks in taking prudence to be an internal affair only. If prudence is solely taken as an inward disposition, a type of cleverness in dealing with complex circumstances, it may very well fail in addressing the outcomes of this skill in terms of decisions and subsequent actions. Instead, prudence relates judgment and consequence. This is methodically reflected in case-based reasoning, taken as the formal skill that is typically present in juridical, medical and theological professions (Cherry & Iltis 2007). Casuistry can be considered a critique of rule-based reasoning for the latter’s disregard of complexity, variety, conflict and circumstance. It can be taken as experience-mining, where procedures of analogical argumentation are applied to problem-solution pairs (Richter & Weber 2013, 17–23). Thus, whenever an appeal to universal rules or conventions fails due to conflict or tragic circumstance, a reflective equilibrium must be established between ethical argumentation and well-considered convictions. This especially holds for the argumentation based on human rights, where its universal claims are inevitably based on culturally contingent characteristics. The interaction of universal claims and cultures’ contingencies can be dealt with adequately by a recourse to and exposure of convictions. According to Paul Ricoeur, convictions have an ethical priority over conventions in a prudential assessment of the issues at hand (Ricoeur 1994, 287–290). To clarify this assessment for an individual with regard to conflicting issues in a life-plan, the

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metaphor of a judge can be applied. A judge holds a constitutional role within the legal system in which a prudent assessment and decision have the character of a judicial verdict. The verdict is given on the basis of an opinion in the case at hand, informed both by conscientious convictions (of a judge or a jury) in case, balanced by interpretation of the law in similar cases. In this understanding, parties with conflicting concerns are taken as agents that have justice as object of desire, renounce vengeance, and agree to accept pardon and suffer penalties. As such, sanctions assume an acceptance of responsibilities while pardon heals offended memory and offers it a future (Ricoeur 2000, 127–145). This constitutional approach to prudence has its analogies in personal decision making, where conscientious convictions and interpretations of rules and routines likewise represent a format to arrive at well-informed decisions. Whereas prudence is an interpretative skill in legal issues of quality of life, it is a virtue in shaping the life–plan. The latter sense represents a special case in healthcare. To the extent that a patient acts as prudent agent, he does so with his own life plan in mind that – depending on the health state – is affected by deprivation, suffering and disability. Since the autonomous position ascribed to the patient is a function of his abilities to perform intentional actions and achieve goals, it is always under threat of affecting his prudential judgment, and in any case it differs from a person who is healthy and well in charge. What is more, the patient’s attitude towards his life plan is marked by the sick role and its implied social values, norms and expectations, which may cloud decisions. Thus, quality of life in healthcare from the patient’s perspective is pursued against a constrained life plan. This may leave the virtue of prudence in the individual patient intact and even more strongly appeal to it, but a one-sided legal emphasis on a patient’s prudent self-determination may also represent an ideology where in fact care and support are called for. Again there is a special function of religions to be noted. Religions have a well-known moral guidance function that offers support in the life plans of individuals, and this is especially so in situations marked by contingency where prudent decision-making is invalidated. This contingency function as the specialty of religions in modern societies has been well established (Luhmann 1984; Lübbe 1986; Kaufmann 1989; Pollack 1995). Religions are relevant to situations of contingency, in that they offer a recourse to convictions in situations beyond personal control. Religious convictions explain how contingencies arise, and how in times of suffering a state of events may still hold a hidden meaning. These beliefs install individuals as moral persons and helps them to accept an unavoidable order of events while leaving the tragic situation intact. What is more, religions offer promises of salvation in claiming a transcending perspective from which the tragic order that invalidates decisions in a life-plan,

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can be overcome. Ritual is especially important in that regard, since it promises a future perspective in which the present state of suffering can be overcome and ultimate salvation will be reached (Riesebrodt 2008, 2009). It is here where religions offer support and comfort in enduring what cannot be achieved. This function of religion reminds of the need for continuous selfreflection that link the life plan to the interpretative traditions that have been passed down over the ages (Schilderman 2014). Outlook It is now time to take the various strands of thought reflected in this contribution together, and offer a summary to recapitulate the analysis of the relationship of healthcare, human rights and religion. The problem that the contribution introduced relates to the fact that human rights to health and care are intrinsically linked, and harbour a notion of quality of life that has gained strong significance in the practice of healthcare over the last decades. The perspective taken aimed to link private and public notions of quality of life by applying the Rawlsean idea of the life-plan. In subsequent steps, it was argued that dignity motivates the pursuit of a life-plan, and that an emphasis of capabilities in quality of life safeguards personal autonomy in policies aimed at a fair distribution of care services. To account for the inevitable boundaries set by conflict, suffering and tragedy, the skill of prudence was introduced, understood from the metaphor of judicial assessment. On the basis of this argument so far, it is demonstrated that an ethical account of quality of life is possible in a way that addresses both its character as a common good and one of personal interest. This represents a basic condition to interpret health and care in terms of human rights, even if it still needs far more elaboration. But what about religion? In the course of the argumentation, religion was shown to be relevant. This relevance can be crystalized in terms of three functions that religions serve. The first function is recognition, understood here as the practical interpretation and expression of human dignity. While it is clear that this function can only be understood within the confessional terms of a respective religious tradition, it maintains that religions – at least in principle – meet a necessity to offer a culture in which dignity can be experienced, celebrated and put into action in the setting of a life-plan. Without this, dignity may still refer to a foundational right but fail to be an object of desire and remain a letter of the law. This recognition characteristic in human rights reflects a basic consensus of religious traditions and philosophical wisdom (Reis Monteiro 2014, 161–198). The second function is mediation. The capability

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approach to justice as a shared principle to distribute healthcare services, puts the abilities of the individual at centre. Religions act as normative organizations that can mediate in this; not only by simply representing views of the good life but by supporting the deployment of resources to capabilities and stimulating choice in the pursuit of functionings. Formal as these terms may sound; they actually do represent what any religion has done over the centuries, namely offering support in health and care from a moral perspective of the common good that is relevant to the life-plans of individuals. The third function is consolation. This characteristic function deals with assessing the inevitable contingencies in a life-plan: offering motives that explain boundaries of any life-plan; helping to endure conflicts, suffering and tragedies that intervene in a life-plan; and offering perspectives that transcend the life-plan. This characteristic of spiritual care can be considered basic and profiling in settings of healthcare. Simultaneously, it addresses the setting of constraint that any appeal to human rights is faced with as soon as boundaries that characterize the human condition represent inevitable blockades to the exercise of these rights; as is by all means to be observed in the varieties of human suffering (Anderson 2014). As counts for any religious function, religions have no natural predisposition to do things right, and history displays many instances of religious dysfunctions, also in providing for health and care. From this observation, one can question the public significance of these religious functions. Rawls has pointed out that in dealing with public issues, religions employ arguments that are characterized by ‘burdens of reason’ that complicate a consensus over the nature of ‘the good life’. Among these burdens of reason feature the complexity of evidence, the problems in ranking values, the facts of conflicting interpretations, arguments and evaluations, and the bewildering phenomenology that cover the totality of life experiences that religions deal with (Rawls 1996, 54–58; 1999, 475–478). Following this line of argumentation, the transparency of the motives and aims of religions in dealing with healthcare can and should be questioned. However, in their institutional form, religions are open for scrutiny in their efforts to exercise these functions. The human right to freedom of religion and the constitutional requirement of a separation of church and state vouchsafe that. Religious freedom refers to an individual right and is only to be considered a group or community right as a derivate. As a right it sets limits to collective goals and aims to protect individual autonomy from group claims. As such, religion is significant in a life-plan to the extent that an individual chooses to embrace it. However, in pursuing this life-plan, two specific characteristics of the freedom of religion need to be taken into account. First, one should notice that religion is culture-specific; its definition and interpretation

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depends on confessional traditions and national histories. Thus the interpretation of religious freedom in a life-plan requires a hermeneutic interpretation of some kind, and in that respect it differs from alternative rights. And secondly, religion is based on a free choice to be constrained in exercising freedoms, since religions have their own encompassing and institutionally backed set of prescriptive values. This implies that religious freedom both allows and stimulates critical thought and speech on religious grounds, while it also protects individual choice in safeguarding from individual discrimination by state or other religions (Scolnicov 2011, 23–58). This supports a basic human right to award religions a position in the life-plan of individuals in their quest for quality of life. Bibliography Alkire, S. (2008). The Capability Approach to the Quality of Life. http://www.ophi.org .uk/wp-content/uploads/OPHI-RP-2a.pdf?7ff332, retrieved 30-05-2014. Alkire, S. & Deneulin, S. (2009) A Normative Framework for Development. In: Deneulin, S.; Shahani, L. (Eds.) (2009). An Introduction to the Human Development and Capability Approach. Ottawa: Human Development and Capability Association. 228–245. Anderson R. (2014). Human Suffering and Quality of Life. Conceptualizing Stories and Statistics. Dordrecht: Springer. Ariana, P. & Naveed, A. (2009). Health. In: In: Deneulin, S.; Shahani, L. (Eds.) (2009). An Introduction to the Human Development and Capability Approach. Ottawa: Human Development and Capability Association. 228–245. Armstrong, D. & Caldwell, D. (2004). Origins of the Concept of Quality of Life in Health Care: A Rhetorical Solution to a Political Problem. In: Social Theory & Health, 2004, 2, (361–371). Augustine, A. (about 420). Enchiridion on Faith, Hope, and Love. Saint Augustine. Newly translated and edited by A. Outler (1955), Perkins School of Theology Southern Methodist University Dallas, Texas. Barracchi, C. (2008). Aristotle’s Ethics as First Philosophy. Cambridge: Cambridge University Press. Browne, J., McGee, H. & O’Boyle, C. (1997). Conceptual Approaches to the Assessment of Quality of Life. In: Psychology and Health, 1997, Vol. 12, pp. 737–751. Cabrera, O. & Ayala, A. (2013). Advancing the Right to Health through Litigation. In: Zuniga, J.; Marks, S.; Gostin, M. (Eds) (2013). Advancing the Human Right to Health. Oxford: Oxford University Press. 25–38. Capps, P. (2009). Human Dignity and the Foundations of International Law. Oxford, Hart Publishing.

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Cherry, M. & Iltis, A. (Eds.) (2007). Pluralistic Casuistry. Moral arguments, Economic Realities, and Political Theory. Springer: Dordrecht. Daniels, N. (1979). Rights to Health Care and Distributive Justice: Programmatic Worries. In: The Journal of Medicine and Philosophy, 1979, vol. 4, no. 2. 174–191. Esping-Andersen (1990). The Three Worlds of Welfare Capitalism. Cambridge, Polity Press. Esping-Andersen (1999). Social Foundations of Postindustrial Economies. Oxford: Oxford University Press. Ferngren, G. (2009). Medicine and Health Care in Early Christianity. Baltimore: The Johns Hopkins University Press. Friedman, S. (2003). Congruence and the Good of Justice. In: Friedman, S. (Ed.) (2003). The Cambridge Companion to Rawls. Cambridge: Cambridge University Press. 277–315. Friedman, E. & Gostin, L. (2012). ‘Pillars for Progress on the Right to Health: Harnessing the Potential of Human Rights through a Framework Convention on Global Health’ In: Health and Human Rights: An International Journal (2012) 14(1) 4, 5. Gostin, L. (2012). ‘A Framework Convention on Global Health: Health for All, Justice for All’. In: Journal of the American Medical Association 16; 307(19): 2087–2092. Hill, M. (2013). What is a welfare state? In: Greve, B. (Ed.) (2013). The Routledge Handbook of the Welfare State. New York, Routledge. 11–19. Kaufmann, F. (1989). Religion und Modernität. Sozialwissenschaftliche Perspektiven. Tübingen: Mohr. Kateb, G. (2011). Human Dignity. Cambridge, The Belknap Press of Harvard University Press. Kirch, W. (Ed.) (2008). Encyclopedia of Public Health. New York: Springer. Lanigan, B. (Ed.) (2008). Human Dignity and Bioethics. New York: Nova Science Publishers, Inc. Lewis, M. (2007). A Brief History of Human Dignity: Idea and Application. In: Malpas, J.; Lickiss, N. (Eds.). Perspectives on Human Dignity: A Conversation. Dordrecht: Springer. 93–105. Lübbe, H. (1986). Religion nach der Aufklärung. Wien: Verlag Syria. Luhmann, N. (1984). Soziale Systeme. Frankfurt am Main: Suhrkamp. NESRI (2014). What is the Human Right to Health and Health Care? https://www.nesri .org/programs/what-is-the-human-right-to-health-and-health-care (retrieved may 2014). Nordenfelt, L. (2004). The Varieties of Dignity. In: Health Care Analysis. 12(2), 2004: 69–81. Nussbaum, M. (2000). Women and Human Development. Cambridge, Cambridge University Press. Nussbaum, M. (2011). Creating Capabilities. The Human Development Approach. Cambridge: The Belknap Press of Harvard University Press.

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O’Keefe, T. (2010). Epicureanism. Durham: Acumen. Oksuz, E. & Malhan, S. (2006). Compendium of Health Related Quality of Life. Generic Instruments. Ankara: Baskent University. Pollack, D. (1995): Was ist Religion? Probleme der Definition. In: Zeitschrift für Religionswissenschaft 3/2, 163–190. Patrick, D. & Erickson, P (1993). Health Status and Health Policy. Oxford: Oxford University Press. Phillips, D. (2006). Quality of Life. Concept, policy and practice. London: Routledge. Pico della Mirandola (1998). On the Dignity of Man. Indianapolis: Hackett Publishing Company, Inc. (Translation: Charles Glenn Wallis). Rawls, J. (1996). Political Liberalism. New York: Columbia University Press. Rawls, J. (1999). A Theory of Justice (rev. ed.). Cambridge: The Belknap Press of Harvard University Press. Reis Monteiro, A. (2014). Ethics of Human Rights. Cham: Springer. Richter, M. & Weber, R. (2013). Case-based Reasoning. A Textbook. Dordrecht: Springer. Ricoeur, P. (1994). Oneself as Another. Chicago: University of Chicago Press. Ricoeur, P. (2000). The Just. Chicago: The University of Chicago Press. Riesebrodt, M. (2008). Theses on a Theory of Religion. In: International Political Anthropology. Vol. 1 (2008), 1, 25–41. Riesebrodt, M. (2010). The Promise of Salvation. A Theory of Religion. Chicago: University of Chicago Press. Ripley, M. (2003). Quality of Life Research. A Critical Introduction. London: Sage. Robeyns, I. (2005). The Capability Approach. A theoretical survey. In: Journal of Human Development, vol 6, no 1, 93–114. Robeyns, I. (2006). The Capability Approach in Practice. In: The Journal of Political Philosophy. 14, 3, 2006, 351–376. Schilderman, J.B.A.M. (2011). Religious Capital and Public Accountability. In H.-G. Ziebertz & L. Francis (Eds.), The Public Significance of Religion (Empirical Studies in Theology, 20) (pp. 41–63). Leiden: Brill. Schilderman, J.B.A.M. (2014). Defining Religion. A Humanities’ Perspective. In: Schilderman J. (Ed.). The Concept of Religion. Defining and Measuring Contemporary Beliefs and Practices. Leiden: Brill, 176–198. Schubert, K., Hegelich, S. & Bazant, U. (2009). European Welfare Systems. Current state of research and some theoretical considerations. In: Schubert, K.; Hegelich, S.; Bazant, U. (Eds) (2009). European welfare systems. London: Routledge. 3–28. Scolnicov, A. (2011). The Right to Religious Freedom in International Law. Between group rights and individual rights. London: Routledge. Sen, A. (2009). The Idea of Justice. Cambridge: The Belknap Press of Harvard University Press. Sirgy, M., Phillips, R. & Rahtz, D. (Eds) (2011). Community Quality-of-Life Indicators: Best Cases V. Dordrecht: Springer.

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Sudduth, M. (2008). Pico della Mirandola’s Philosophy of Religion. In: Dougherty, M. (Ed.). Pico della Mirandola. New Essays. Cambridge: Cambridge University Press. 61–80. Sulmasy, D. (2008a). Dignity, Rights, Health Care, and Human Flourishing. In: Weinstub, D.; Diaz Pintos, G. (Eds.). Autonomy and Human Rights. An International Perspective in Health Care. Dordrecht: Springer. 25–36. Sulmasy, D. (2009). Dignity and Bioethics: History, Theory and selected Applications. In: Lanigan, B. (2008b). Human Dignity and Bioethics. New York: Nova Science Publishers. 325–346. Swaan, A. De (1988). In Care of the State: Health Care, Education and Welfare in Europe and the USA in the Modern Era. Oxford: Oxford University Press. Tobin, J. (2012). The Right to Health in International Law. Oxford: Oxford University Press. Ven, J. van der (2004). Is there a God of Human Rights? The Complex Relationship between Human Rights and Religion: A South African Case. Leiden: Brill. Walters, S. (2009). Quality of Life Outcomes in Clinical Trials and Health-Care Evaluation. A Practical Guide to Analysis and Interpretation. Chichester: Wiley. WHO (1948). Preamble to the Constitution of the World Health Organization, as adopted by the International Health Conference, New York, 19–22 June 1946, and entered into force on 7 April 1948. WHO (1997). WHOQOL. Measuring Quality of Life. WHO. WHO (2002). 25 Questions and Answers on Health and Human Rights. Geneva, World Health organization. Woolf, R. (2009). Pleasure and Desire. In: Warren, J. (Ed.). The Cambridge Companion to Epicureanism. Cambridge: Cambridge University Press. 158–178.

chapter 4

“La ikraha fi’l-din – There Is No Compulsion in Religion” – Or Is There?* Katajun Amirpur This article, which is essentially about contemporary arguments in favour of freedom of religion and conversion, focuses specifically on the situation in Iran today. The reason for this focus is because an examination of a specific political and social situation renders the study of Islamic sources on such issues more productive and worthwhile. Contemporary Iran is an especially interesting case since Iran’s legal system applies Islamic law in many key areas of life, including the issue of freedom of religion and conversion. Iran therefore presents us with an extreme and unusual situation, but also one in which discourse about religious freedom and conversion is all the more interesting. The arguments formulated here can equally applied in other countries with a predominately Muslim population, although the debate in these other countries remains large theoretical, simply because their legal systems are secular. To return to the issue of religious law: modern Iran grants the recognised ‘religions of the Book’, that is, Zoroastrians, Jews and Christians, certain rights, but not full legal equality with Muslims. Their autonomy as religious communities is respected, and these groups maintain their own hospitals, schools, and retirement homes. They may teach and study their languages, celebrate their holidays, have churches, temples and synagogues (and, indeed, are even permitted to build new ones), and they are entitled to send their own representatives to parliament. Interestingly enough, this puts Jews and Christians in a better position than Sunni Muslims, since building Sunni mosques is illegal in Tehran. According to the country’s most recent official national census, taken in 1996, there were an estimated 59.8 million Muslims, 30,000 Zoroastrians, 79,000 Christians, and 13,000 Jews, with 28,000 “others” and 47,000 “not stated.”1 However, as has already been said, despite enjoying a far-reaching religious autonomy, the members of recognised ‘religions of the Book’ do not have equal rights under the law. They are constitutionally banned from serving as

* This paper has been published in German language; in H.-G. Ziebertz (ed.), Religionsfreiheit, Würzburg: Echter, 2015. 1 http://www.state.gov/j/drl/rls/irf/2006/71421.htm.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304390_005

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President, and are excluded from many other senior positions in government, society, and – especially – the armed forces. Some aspects of inheritance law also reflect legal inequalities. (For example, the estate of a Christian who dies leaving three sons and a nephew would, if that nephew converted to Islam, pass entirely to the convert, leaving the Christian sons nothing.) Other discriminatory rules also persist. In addition, apostasy is a crime under Iranian law. All non-Islamic missionary activities are strictly prohibited. Non-Muslims, on the other hand, may freely convert to Islam (Sanassarian, 2000). The situation of the Baha’i, whose faith is not officially recognised by the Iranian state, is different and will be addressed in more detail later (Afshari, 2001, 119–122). In the following discussion, we will explore the ideas of four scholars who pursue different goals in this field. The first of these scholars advocates complete legal equality with Muslims for Jews, Christians and Zoroastrians, the recognised ‘religions of the Book’. The second goes further and argues that the Baha’i deserve to be granted the civil rights the government continues to deny them. The third proposes complete freedom of religion, including the right of free conversion to any faith. The position of the fourth scholar goes further still: this scholar advocates religious pluralism of the kind proposed by John Hick in the West.

Mohammad M. Shabestari

The first person we will look at here is Mohammad M. Shabestari. Shabestari was born in Iran in 1936. He studied Islamic Jurisprudence in Qom for seventeen years, and attained the licence to issue legal opinions (ijaza). In the 1960s, Mohammed Shabestari headed the Imam Ali mosque and Islamic centre in Hamburg, a position he held for nine years. During this time, he became fluent in German and read, especially, the work of Protestant theologians (Amirpur, 2013, 207–240). Shabestari is convinced that the Qur’an supports the view that God prefers Muslims to adherents of all other religions. This, he claims, cannot simply be argued away, as some have tried to do in their eagerness for interreligious dialogue. However, he also argues that this preference must not be reflected in law, as is the position in Iran today. Given this, Shabestari attempts a theological justification for full legal equality for Jews and Christians under Islamic law. Shabestari’s key argument for legal equality is that the reasons that moved Muslims to codify unequal treatment in the past no longer apply

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today. To support this contention, he studies the relationship between the three Abrahamic religions throughout history. His argument is developed in three steps: 1. 2.

Historically, the way Jews, Christians and Muslims viewed each other was based on their religious tenets of the day. Adherents of each of these religions regarded the beliefs of the others as either misguided or hostile. This conviction carried over into various social structures. It was widely assumed that adherents of a different faith had to be assigned an inferior position in politics and society to reflect the inferior status that God Himself assigned to these religions. Shabestari goes on to say: It might appear that beliefs conducive to violence and the bitter actions and grave injustice they produced were produced and implemented by only a handful of adherents of these three religions. However, it remains a fact that the texts of all three Abrahamic religions, of Judaism, Christianity and Islam, include passages that, if they are not interpreted correctly, can give rise to such beliefs. In Jewish religious texts, we find the assertion that Jews are closest of all humanity to God and accounted His chosen people. Christian religious writings accord the same status to Christians, while the religious texts of Muslims see it as reserved for the followers of Muhammad’s teachings.

shabestari, 2000, 313

Shabestari does not intend to reinterpret the religious texts. Instead, his objective is simply to highlight where the error in the original argument lies. This error, he argues, was that the adherents of these religions were unable to separate two different things: the proximity of a person to God and the position of that same person in society. As a result, the premise of one conclusion was erroneously transferred to the other, despite the fact that the two subjects were entirely different. The degree of a person’s proximity to God, in Shabestari’s view, concerns their happiness in the afterlife, while their individual rights concern their social coexistence as equals in this life. The first addresses a vertically structured relationship between God and humanity, while the other addresses a horizontal structure, that is, relationships between human beings. Unlike the relationship with God, which human beings are not free to design as they choose, relationships between people are subject to human will; as such, these relationships are for us to design as we please. As a result of this confusion, these horizontal, social relationships came to mirror the vertical, spiritual one between God and man. The entire social pyramid was thus based on an ideology founded on an erroneous

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‘mirroring’. This leads Shabestari to his conclusion, in the third stage of his argument: Yet in our present age, the situation looks entirely different. At present, the acceptance of philosophy and science as independent sources of understanding and the emergence of critical, legal, moral and political philosophy have given adherents of the three religions the ability and opportunity to clearly and correctly separate the fundamental rights that may underpin relationships between humans from the relationship between God and man. In this day and age, we may still believe that God reprimands the unfaithful in the Old and New Testament and the Qur’an. However, at the same time we are responsible and duty bound as humans to extend the same fundamental rights to all people in our society – believers and non-believers. shabestari, 2000, 316–317

Shabestari therefore demands equal rights for Iran’s Christians and Jews. His argument is remarkable, not least in what it chooses to omit. There is no mention of the Baha’i, the country’s largest religious minority of 350 000 members. This religion, which developed from Shia Islam in the 19th century, is not formally recognised by the Iranian government. Its members are considered heretics and are not only discriminated against, as Jews and Christians are, but actively persecuted. The Iranian parliament is even now considering a bill that, if passed, would collectively declare all Baha’i apostates from Islam, effectively making them outlaws. Their legal situation is already precarious: Baha’i are randomly arrested, prohibited from practising their religion, and their graves are often desecrated. Shabestari’s silence is easily explained: in Iran, speaking of the Baha’i is informally, but effectively forbidden. Shabestari himself said in an interview that the topic was impossible to discuss at present. Other reformists maintain the same noticeable silence around the topic. This is not solely explained by fear, though that, no doubt, plays a role. Unlike Christians, Jews or Zoroastrians, Baha’i pose a genuine theological challenge since they claim – at least, in the Shi’a reading – that the expected Twelfth Imam appeared on earth in their founder Baha’ullah.

Hosein Ali Montazeri

Under these circumstances, the fatwa issued in 2008 by Grand Ayatollah Hosein Ali Montazeri (1922–2009), one of the most widely recognised authorities in

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Shi’a Islam (Amirpur, 2010, 475–516), is all the more remarkable. In it, he declared that while the Baha’i were not a recognised minority according to the law of the Islamic Republic since they were not people of the Book according to the Qur’an, they were nonetheless citizens of the Islamic Republic and therefore enjoyed the protection of the state. Though he refers to them as a “misguided sect”, he nonetheless demands that their “human and civil rights must be respected.” He sees his task as a missionary as “winning their hearts” (Montazeri 2008). The fatwa reads: (…) fundamentally, we are obliged to respect the human rights of those people who follow none of the divine religions, in accordance with the rule of the noble verse: God forbids you not, as regards those who have not fought you in religion’s cause, nor expelled you from your habitations, that you should be kindly to them and act justly towards them: surely, God loves the just (sura 60 verse 8) and according to the order of the amiru-l-muʼminin, ʻaleyhi as-salam, in his letter to Malik al-Ashtar: You must create in your mind kindness, compassion and love for your subjects. Do not behave towards them as if you are a voracious and ravenous beast and as if your success lies in devouring them. Remember, Malik, that amongst your subjects there are two kinds of people: those who have the same religion as you have; they are brothers to you, and those who have religions other than that of yours, they are human beings like you. (nahj al-balagha, name 53). montazeri 2008

This is far from what we, in the West, would call the genuine recognition of other people’s right to practise a religion. Montazeri’s fatwa is no manifesto of tolerance or plea for religious pluralism. Nonetheless, these are far-reaching demands in view of the realities of the situation. Coming from one of the highest Shi’a religious authorities in the country, a man considered a marja-i taqlid (source for imitation) by millions of faithful, this fatwa has had considerable influence.

Mohsen Kadivar

One of Montazeri’s most prominent students is the Islamic jurist Mohsen Kadivar (b. 1957). Living in exile in the United States (since 2009), Moshen Kadivar is the custodian of Montazeri’s estate. His exile is not directly related to his position on religious liberty, but due to other political controversies that

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cannot be further explored in this article (Amirpur, 2009, 80–85). Kadivar advocates religious liberty, including the right of individuals to convert to other religions. For an Iranian, this has an immediate political dimension: there is, on the one hand, the bill mentioned above that would collectively define the Baha’i as apostates. On the other, there are recent legal cases, such as that of the pastor Youcef Naderkhani, which briefly gained worldwide attention in early 2012. (Naderkhani was accused of apostasy and sentenced to death for converting to Christianity and undertaking missionary activities. He was since been acquitted on appeal.) In his book, Haqq an-nass, the Rights of Man, Kadivar writes that he was moved to write the essay discussed here as a result of the charge of apostasy against his personal friend Hasan Yussefi Eshkevari and the so-called chain murders (Kadivar, 2008, 88). In 1998 and 1999, several intellectuals were murdered in Iran and there were rumors that the fatwa of a prominent legal scholar had legitimized these killings. Kadivar argues that there are two forms of Islam: one, traditional or, as he refers to it, ‘historical Islam’, which is subscribed to by the majority of the Iranian religious establishment. This is incompatible with democracy and democracy’s implicit guarantee of religious freedom. The form of ‘spiritual Islam’ he propagates, on the other hand, is. Kadivar explains his exegetical approach in his essay “Eslam-e tarikhi va eslam-e ma’navi” (Historical Islam and Spiritual Islam). Kadivar defines ‘historical Islam’ as an understanding that regards the cultural, regional and historical circumstances prevailing at the time and place of revelation as sacred. This sacred set of circumstances, in the view of historical Islam, must be preserved as an unchangeable paragon of how things ought to be. According to Kadivar, historical Islam contends that the form in which Islam was revealed was its original and perfect one. As people and circumstances moved away from this sacred past, they increasingly deviated from the original and true form of Islam. According to the adherents of this view, the best possible circumstances were those prevailing at the time of the Prophet, and the revival of religion they advocate means nothing less than a return to that original world. The true meaning of religiosity in spiritual Islam, on the other hand, lies in a genuine understanding of religion and in the endeavour to realise the ultimate aims of Islam. In this view, the true criterion of religiosity is to be in tune with the aims, the mission and spirit of Islam in both theory and practice. Piety is thus a matter of the heart, not related to sustaining temporally and locally specific external forms harking back to the days of the Revelation. Islam, Mohsen Kadivar writes, is like rain water: as it flows through different times and places, it takes on different shades of meaning and traditions.

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For our context, we must particularly look at several lines of argument in which traditional and spiritual Islam take different positions on certain issues. One such issue is that of equality: although traditional Islam does allow that all humans are equal in the life to come, where they will be judged solely on their piety, justice in this world does not imply equality in all cases. Race and skin colour are not reasons for discrimination in Islamic law, but gender, faith and personal freedom (or slavery) are. That is why women are not accorded the  same rights as men, non-Muslims are not accorded the same rights as Muslims, and slaves not accorded the same rights as free people. Kadivar regards this differentiation of legal rights as a key feature of Islamic law in its traditional form. Another issue is that of religious freedom. Muslims should not be forced to give up their religion, and non-Muslims should not be converted by force. However, traditional law also regards voluntary conversion as illegal for Muslims. Apostasy is a punishable offense. According to Kadivar, these penalties for conversion and the ban on proselytising among Muslims demonstrate that freedom of religion and speech do not exist in traditional Islam. Kadivar contrasts this interpretation of Islam, which is not only dominant in Iran, but taught in very similar form at Cairo’s al-Azhar University, with a reformed, spiritual reading of the faith. In this, all members of society, regardless of their religion, gender, race or opinion, can freely determine their political fate, mould the public sphere, and shape their community’s life. All are equal in rights. No difference will be made between the various schools of Islam, between Muslims and non-Muslims, between men and women, with regard to their active or passive franchise or civil rights. Furthermore, everyone will be free to choose their faith, their school of interpretation, and their religious opinion. Nobody will be forced to adopt a religion or interpretation against their will. According to this interpretation of Islam, freedom of religion and freedom of speech are perpetual fundamental rights. It follows that people are always free to change their allegiances, beliefs and opinions. Equally, they are free to observe their religious rites or not to do so. Nobody can be forced into a religious act. This new exegesis, spiritual Islam, forms the basis of Kadivar’s advocacy of religious freedom. It implies the possibility of changing one’s religion and does not seek to punish apostasy. An essay written for an English-language collection that was based on a speech held in Iran addresses the issue in greater depth (Kadivar, 2008, 181–215). In this essay, Kadivar contrasts the two understandings of religion, looks at how they came about, and attempts his own reinterpretation of the sources. In his view, the sources do not support the

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traditional interpretation that forbids Muslims to change their religious affiliation and that threatens apostasy with death. Kadivar begins his argument by explaining the position of traditional Islam on religious freedom. Historically, Islam divided humanity into three groups: Muslims, People of the Book, and infidels. Traditional interpretations of Islam subject all three groups to restrictions of religious freedom. Muslims are free to practise their religion, to proselytise, publicly carry out their rites, and build mosques. Nobody may force a Muslim to abjure his faith or prevent him from carrying out his rites. Yet for all this, their liberty has limits: Muslims are not free to change their religion. Neither does traditional Islam allow Muslims to doubt the canonical texts or question the foundations of their religion. Different restrictions apply to the People of the Book (ahl al-kitab) recognised in the Qur’an. They are permitted to retain their religion in return for paying a head tax ( jizja). Their free exercise of religious rites in their places of worship is granted. Unlike Muslims, the ahl al-kitab may publicly criticise their own religion and change it, although conversion is only permitted to Islam or another religion of the Book. However, these groups are not permitted to proselytise among non-Muslims or build new places of worship and all depend on the goodwill of the Muslims. They are not permitted to criticise Islam. Also, they are often forbidden to practise things their religion permits if Islam forbids it. In Iran, Christian women are forced to wear headscarves in public, and Christians may sell pork and alcohol only to non-Muslims. According to the traditional interpretation of Islam, the third category of people, the infidels, have forfeited their right to life. They enjoy no civil rights of any kind. Though Kadivar does not mention them by name, this applies to the Iranian Baha’i under the dominant interpretation of Islam. Kadivar concludes that most interpretations of Islam do not permit religious freedom. This is not limited to Iran or to Shia Islam. Such positions can be derived mainly from the tradition of the Prophet and the imams, but there are a number of suras in the Qur’an that would also seem to support them, primarily suras 9:29; 9:36; 9:5 and 8:39. Despite such Qur’anic and traditional sources opposing religious freedom, Kadivar does not consider his position untenable. Instead, he deploys rational arguments on religion and freedom on the assumption that Islam, especially Shia Islam, is a highly rational religion. Nothing that is reasonable can be contrary to religion. Therefore, religion cannot desire compulsion: a compelled observation of religion is not only unreasonable, it is not genuine religion at all. Where people are deprived of the right to choose their faith, the inevitable result is hypocrisy. Furthermore, if God had wanted all people to be Muslims,

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He would have created them Muslims. That is why Kadivar considers force in religious matters irrational. He concludes that religious freedom is desirable from a rational perspective. On this assumption – a hermeneuticist would speak of a prior understanding – Kadivar proceeds to analyse the Qur’an. Selecting suras that support the idea of freedom in religion, he concludes that punishing apostasy in this life has no Qur’anic basis. God will punish those who chose the wrong religion in the afterlife. Kadivar supports this assertion with a collection of suras that he divides into seven categories. Suras of the first category forbid compelling anyone to convert to Islam or remain Muslim. These include the frequently quoted sura 2:256, but also suras 10:99 and 11:28. Suras of the second category define it as necessary for everyone to have the freedom to find the right path in this life – or not. As an example of this category, he quotes sura 18:29. This sura says that we are free to choose the right, Islamic path, or not to choose it. Punishment for choosing wrongly will be incurred in the afterlife. The text makes it clear that non-Muslims risk hellfire, but there is no punishment for them in this life. Kadivar also includes suras 10:108, 39:41 and 27:91–93 in this category. Of course, he writes, the Qur’an differentiates between Islam and the wrong path, between the faithful and the infidels. Nonetheless, he emphasises, individuals are free to choose their own path. If there were but one path to follow, there would be no need for judgement and for divine reward for the correct choice or punishment for the wrong one. Without free will, all of this would be pointless. Thus, Kadivar marshals these texts in support of the freedom to choose one’s own religious path in this world. A third category includes sura 88:21–22: Then remind them! Thou art only a reminder, Thou art not charged to oversee them. The Prophet reveals Islam as the true religion, but it is his role to admonish humanity, not to compel them. Kadivar states that the Qur’an is very clear on the role of the Prophet in revelation. It was the Prophet’s responsibility to spread the message of justice, to lead and to enlighten, but never to force people to choose the right religion. This is also expressed in suras 50:45, 25:55–56, 13:40 and 5:99. Kadivar concludes that, if even the Prophet as the personification of the true faith and first guardian of Islamic religion, does not have the right to force other’s religion but only to provide correct guidance, nobody else can possibly be justified in claiming the right to deprive others of their freedom in the name of Islam. Judging the faith of people as right or wrong is solely

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left to God. Humans who judge the religion of others presumptuously claim divine qualities – something that God has expressly forbidden to humanity and His prophets. Kadivar identifies a fourth category of verses as explicitly forbidding earthly punishment for those who change their religion. Although, historically, people were often forced to stay in their religion or punished harshly for apostasy, Kadivar contends that the Qur’an bans the practice in three distinct passages. First, he points to sura 7:90: Those who cried lies to Shuaib as if they never dwelt there, Those who cried lies to Shuaib, they were the losers. Shuaib is ordered to renounce Islam and return to the religion of his ancestors. The subjects of Pharaoh meet a similar fate in sura 7:124–7, where they are called on to renounce the religion of Moses which they have just adopted. In the eyes of Pharaoh, they had become guilty of apostasy and were to suffer death in punishment. Kadivar believes that the Qur’an does not condone the acts of either Pharaoh or the notables in either of these cases. Their treatment of apostates is unjust. He concludes that the Qur’an clearly disavows an earthly punishment for apostasy in these suras. A possible objection to this reading would be that the Qur’an only opposes punishment for apostates from paganism to Christianity or Islam, which is what the two stories describe. Both defenders of a traditional interpretation of Islam and western critics of traditional Islam are likely to support this line of argument. Kadivar, though, proposes a holistic reading of the Qur’an, a reading that makes this position irrational. Islam is reasonable, and reason dictates that one cannot be permitted what is forbidden to another. As the fifth group, Kadivar identifies a set of verses addressing the conduct of religious leaders towards each other and the acceptance of different religions by the Almighty. He sees this attitude especially clearly in sura 109. Say: “O unbelievers, I serve not what you serve, And you are not serving what I serve, Nor am I serving what you have served, Neither are you serving what I serve. To you your religion, and to me my religion!” Kadivar views this as incontrovertible evidence that Islam allows for freedom of religion and of conscience. He further points to a sixth category of verses that ban punishment for apostates in this world. In this category, he especially

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stresses sura 2:219–220, which speaks of punishment to sinners, but not of execution or murder. The sole penalty that is mentioned explicitly takes place in the afterlife. There is yet another, seventh category that addresses the Qur’anic view of adopting Islam. The Qur’an follows a peaceful line here, stressing logic and argument, suggestion and counsel. Force, death or violence are nowhere mentioned. Islam is a compassionate religion and invites outsiders to adopt it in a spirit of compassion. This new reading of the Qur’an by the Islamic jurist Kadivar thus comes to the conclusion that genuine Islam does, in fact, support freedom of religion, in direct contradiction of certain traditional interpretations. Kadivar is therefore ready to engage in debate on current events that touch on the issue of apostasy. To take a concrete example: on 19 November 2011, Azerbaijani author Rafiq Taji, who was accused of apostasy, was stabbed. He mysteriously died in hospital several days later. Iranian Hojjatoleslam Mohammad Javad Fazel Lankarani used this occasion to renew the fatwa issued in 2006 by his father, one of Iran’s most highly respected clerics, and to congratulate Taji’s murderers. Note that Lankarani senior had replied to a follower’s question about what to do with a writer who had insulted the Prophet; Lankarani senior, in answer to the question, claimed that such a writer would have to be killed. Following Taji’s murder and the renewal of the fatwa by Lankarani junior, Kadivar wrote a letter to Lankarani junior, his erstwhile fellow student, which was published on the popular internet platform rah-e sabz. This forum is often host to discussions on freedom of religion and speech, human rights, and their violation in Iran today. In his letter, Kadivar writes that both Lankarani senior and junior had placed themselves in the tradition of Ayatollah Khomeini’s Rushdie-fatwa. He then poses the rhetorical question whether Lankarani was aware of even a fraction of the insults that the Prophet suffered every day, especially in Persian and even, in fact particularly, in Iran. Should all those guilty be punished with death as apostates, he asks (Kadivar 2011). Of course not, is his own answer, as he points out that the Qur’an forbids punishing apostasy in this life. He supports this with the arguments made above and states boldly: Unlike you, I am not only not gladdened by the murder of this rude Azeri citizen, I am, in fact, deeply ashamed of this cowardly act committed in the name of Islam, of Shia, and of the Sources of Imitation. kadivar 2011

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The fourth intellectual to be discussed here advocates a pluralist theology. The newly posed question of how to interpret religious pluralism reached Iran in the 1990s. In 1995, the journal Kiyan held a round table discussion on the topic of religious pluralism (pluralism-e dini), a discussion that included the participation of several notable experts. The discussion was published in print soon afterwards. In the introduction, the editors already assert that religious pluralism plays an important role in contemporary debates inside Iranian kalam, the study of religion and philosophy. Mohammad Shabestari remembers that Abdoljavad Falaturi introduced the topic into the debate when he (Falaturi) was professor of Islamic studies at Cologne University and one of the leading voices in Christian-Muslim dialogue in Germany (Shabestari 2012). Falaturi, he recounts, reported on the recurring debates about religious pluralism in Europe in the early 1990s. Since then, the issue had been touched upon again and again. The abovementioned journal Kiyan, the leading forum of religious reformist debate until its ban in 2008, hoped to address a number of questions through its round table panel and the publication of several essays. These included an essay by Ahmad Naraqi entitled The Essential Unity of the Religions and Religious Pluralism as well as one translated into Farsi from the book Philosophy of Religion: Selected Readings by Michael Peterson, William Hasker, Bruce Reichenbach & David Basinger. And the questions were: does accepting religious pluralism necessarily lead to relativism? What teachings inside the Islamic community might lead to acceptance of pluralism, which to its rejection? Could it be claimed, for example, that mystical movements support accepting pluralism while a legal interpretation of Islam rejects it? It is obvious that Kiyan did not create this debate, but merely addressed an issue that was already present in contemporary Iranian discourse. For one thing, the panellists show great familiarity with the precise terminology surrounding it. The introduction explains the common definitions of religious pluralism (kethratgera’i-ye dini), exclusivism (enhesar gera’i) and inclusivism (shomul gera’i) and their Persian translations. What is particularly interesting is that this discussion also emphasises the fact that religious pluralism and religious fundamentalism are two sides of the same coin. Both are responses to the challenges of modernity, a religious situation that confronts the individual with unprecedented heterogeneity. Some panellists regard pluralism as the cure for fundamentalism, expecting recognition and acceptance to allow people of different faiths to enter into dialogue without insisting on their mutually exclusive truth claims. Others warn that pluralism represents a potential path

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to relativism (Sadri, 1995/1996, 6). They also insisted that pluralism hardly represents the sole mode of peaceful coexistence with people of other religions. Shabestari, for example, suggests that simple tolerance towards the other is quite sufficient for that purpose. A believer might well be convinced of having absolute truth on his side without necessarily resorting to violence (Shabestari, 1995/1996, 11). Shabestari is nonetheless an advocate of religious pluralism, at least in terms of religious philosophy. As a theologian, he seems less certain (Shabestari, 2012). Although he finds that pluralism does not make sense from a strictly theological perspective, Shabestari can agree with the philosophical view that everyone holds a part of the absolute truth. It is in these parts that the essence of absolute truth manifests itself to the individual (Shabestari, 1995/1996, 12). Over a year later, Abdolkarim Soroush (Amirpur, 2013, 176–206) returned to the issue of religious pluralism in the pages of Kiyan. Since then, Soroush’s thought and impact have been explored in a number of essays and two monographs (Ghamari-Tabrizi, 2008; Amirpur, 1996; Amirpur, 1996, 465–481. Matin-Asghari, 1997, 95–115). In addition, some of his own writings are available in English translations (Soroush, 2000; Soroush, 2009). Soroush enjoys high international repute: a book claiming to introduce the fifty key figures of Islam includes him among that number (Jackson, 2006, 236–241) and at one stage, western journalists even saw him as an Islamic Luther figure (Wright, 1995). Soroush himself has written much on a number of issues. His views on religious pluralism, which is the issue here, go beyond even the religious liberty Kadivar demands. He not only argues that non-Muslims should be at liberty to practise their religion and Muslims should be allowed to convert, but considers other religions legitimate paths to God. This position obviously owes much to the influence of John Hick. Soroush, greatly impressed by the work, expressly quotes Hick’s book Disputed Questions in Theology and the Philosophy of Religion. These questions are: Why should my Muslim and Jewish friends be less the object of God’s love than I myself? Does He truly love them less than me, the Christian? What have I done that they have not? Were there fewer saintly or good people among Muslims or Jews? Did they commit more sins than we Christians? (Soroush, 1997, 7). Hick concludes from these questions that, theologically, the truth of a given tenet is not terribly relevant. What matters is its practical function of mediating salvation. He asserts that different religious convictions and rites are equally capable of fulfilling this function to a great extent. Different religions can therefore be understood as embodiments of different perception of the real and different responses to this arising from different cultural forms of human existence.

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Soroush sees this idea expressed in the verse of the Persian poet Foroughi Bastami (1798–1857): “You appeared to me in thousandfold glory; So that I might admire you with a thousand eyes” (Soroush, 1997, 7). To Soroush, “the first who brought the seed of pluralism into this world was God himself, when He sent different prophets” (Soroush, 1997, 7). In line with Hick, he agrees it is inconceivable that, among billions of believers, only the adherents of Twelver Shia Islam hold the truth (Soroush, 1997, 11). Soroush considers the other world religions to partake of truth to a great degree. He also says this of other branches of Islam – a remarkable statement in the light of the violent differences between Shia and Sunni Islam: Neither is Shia Islam the one and only truth, nor is Sunni (though the adherents of both confessions are convinced that their respective truth is just that). Neither Ashariyya is absolute truth, nor Mu’tazila, neither Ja’fari jurisprudence nor Maliki, neither the Tafsir of Fakhr-e Razi nor that of Tabataba’i, neither the Zaidis nor the Wahabis. Neither all Muslims are guilty of idolatry (shirk), nor are all Christians. The world is full of incomplete identities, and it is not the case that absolute truth is found on one side and absolute falsehood on the other. If we realise this, it becomes easier to accept pluralism. soroush, 1997, 12

These views did not go unchallenged. A number of responses were printed in the following issues of Kiyan (Shobeiri, 1997; Qa’emi Niya, 1997; Naraghi, 1997). Soroush, in turn, replied to those in a further round table discussion, again organised by the journal (Soroush, 1997). Yet another reply to his statements was prefaced by the editors with the words: The debate about religious pluralism provides important intellectual impulses in our religious society. The essence of thought of the religious thinkers struggling over faith in our century is the effort to both regard one’s own religion as true and accord other religions a share of the truth without producing a contradiction between this theory and the teachings of their faith. Editorial, 1998, 10

This strongly reviled essay, by Soroush, along with parts of the debate it triggered, was published in book form (Soroush 1999), and a separate booklet was published which contained a dispute between Soroush and the cleric Mohsen Kadivar (Kadivar & Soroush 2000). Overall, the controversy found a broad public reception.

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In their dispute, Kadivar lays out his objections to Soroush, who replies to them. We will now look at these objections and counter-objections in more detail. In his initial argument to explain religious pluralism, Soroush appeals to reason. He argues it is irrational to assume that just one tenth of all Muslims – the Shia – are not in error while everybody else on earth is. If you proceeded from the assumption that you yourself are rightly guided, but that everyone else is in error, then the question arises: what has happened to human reason and what is the meaning of ‘right guidance’? The Qur’an puts great emphasis on reason, arguing that all humans are reasonable. Why, then, are they not reasonable enough to see that Shia Islam is the only true religion? And why does the Qur’an, which, after all, presents itself as the book of right guidance, not guide everyone correctly, but leave some to fall into perdition? (Kadivar & Soroush 2000, 18). This last is especially problematic, Soroush argues, and here he is probably influenced directly by John Hick since Hick points out that religious affiliation is the product of random circumstance, and one which depends mainly on the place, family or social environment into which an individual is born (Hick, 2005, 7). Kadivar opposes this position, championing the traditional Islamic position that all prophets of the revealed religions taught the same single truth. The non-Islamic revealed religions, by not recognising Muhammad as Prophet, only hold part of that truth. They do not partake of its entirety, but still offer the possibility of partial salvation (Kadivar & Soroush 2000, 20). Thus, he argues, Christians and Jews are not entirely in error, but Islamic teachings are superior, representing the completion of Christian and Jewish (Kadivar & Soroush 2000, 23). Kadivar does not part from mainstream Islamic theology, and states that eternal happiness is only given to those who believe in Muhammad. Jews and Christians, however, at least share Islam’s belief in resurrection and judgement. They are not at fault for their false beliefs and, after all, what really matters is their faith in God, in resurrection, and their good deeds (Kadivar & Soroush 2000, 34). Furthermore, adherents of all religions are due a measure of respect. Here, Kadivar refers to Buddhists and Confucians who, in his view, also share in part of the truth (Kadivar & Soroush 2000, 35). He also includes Sunni Muslims as not entirely misguided: their faith, too, contains truth and, ultimately, only God knows who shall enter paradise. To be admitted to heaven requires faith and good deeds, and there are varying degrees of perfection in all people – including Shia Muslims (Kadivar & Soroush 2000, 26). This is as far as Kadivar is willing to go, and he expressly excludes the possibility of giving more ground. Religious pluralism, as far as Kadivar is concerned, is incompatible with the faith and religious convictions of Muslims (Kadivar & Soroush 2000, 27).

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His core argument – that Islamic teaching represents a perfection of Jewish and Christian teaching – is at home not only in the mainstream of Islamic thought, but is also little different from the positions espoused by early Christian proponents of Christian-Muslim dialogue. I personally agree with John Hick: Hans Küng only seemingly goes much farther than Karl Rahner with his notion of ‘anonymous Christians’. Kadivar’s concessions are not enough for Soroush. He demands an explanation, a reason why the undeniable fact of religious pluralism in the world exists. His interest is not in the truth or falsehood of any one religion, but in the conviction that there must be a reasonable explanation why there are so many different religions, and why the Qur’an has not moved all humanity to embrace it. The only logical explanation, to him, is that God desired this pluralism. Otherwise, it would surely contradict His omnipotence and right guidance that the entire world had not converted to Shia Islam. Surely, God would not permit so many people to remain misguided. Soroush therefore proposes as the only rational conclusion that that God wanted diversity and difference. Religious pluralism, then, is Qur’anic. By now, it should be clear that there is a lively, ongoing debate in Iran on the issue of religious pluralism. Many noteworthy exponents of reform go along with Kadivar in opposing it, but there are also highly respected Iranian intellectuals who follow Abdolkarim Soroush’s in espousing views that are similar to those proposed in the West by John Hick and also Perry SchmidtLeukel. Soroush himself certainly represents an extreme position in the Iranian spectrum. In accepting all religions as equally valid paths to God, he automatically embraces religious freedom, including the freedom to convert to any religion. Others do not go as far. They consider Soroush’s and Hick’s position towards other religions as untenable, but are nonetheless willing to argue for legal recognition to be extended to other religions, and are willing to argue in favour of freedom of religion and even freedom of conversion. Bibliography Afshari, R. (2001). Human Rights in Iran – The Abuse of Cultural Relativism, University of Pennsylvania Press. Amirpur, K. (1996). Ein iranischer Luther? Abdolkarim Sorushs Kritik an der schiitischen Geistlichkeit. Orient 37, 465–481. Amirpur, K. (2003). Die Entpolitisierung des Islam, Abdolkarim Sorushs Denken und Wirkung in der Islamischen Republik Iran. Würzburg: Ergon.

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Amirpur, K. (2009) (Ed.). Unterwegs zu einem anderen Islam. Texte iranischer Denker. Translated from Farsi and introduced by Katajun Amirpur, Freiburg: Herder. Amirpur, K. (2010). Wider die „absolute Führungsbefugnis des Rechtsgelehrten (velayat-e motlaq-e faqih): Zur Rolle und Kritik des Hossein Ali Montazeri. Asiatische Studien 64, 475–516. Amirpur, K. (2013). Den Islam neu denken. Der Dschihad für Demokratie, Freiheit und Frauenrechte, München: Beck. Editorial (1998). Kiyan 41, 10–12. Ghamari-Tabrizi, B. (2008). Islam & Dissent in Postrevolutionary Iran. Abdolkarim Soroush, Religious Politics and Democratic Reform. London: I.B. Tauris. Hick, J. (2005). The Next Step beyond Dialogue. Knitter, Paul F. (ed.): The Myth of Religious Superiority (3–12), New York. Jackson, R. (2006). Fifty Key Figures in Islam, Routledge. Kadivar 2011 = Kadivar, Mohsen: http://en.kadivar.com/objection-to-the-recent-fatwa -of-terror/ last accessed 03 June 2013. Kadivar, M. (2008). Haqq an-nas. Eslam va hoquq-e bashar, Tehran: Tarh-e nou. Kadivar, M. & Soroush, A. (2000). Pluralism-e dini. Monazere-ye Doktor Abdolkarim Soroush va Hojjat ol-eslam Mohsen Kadivar, Tehran: Sarat. Kiyan & Abdolkarim Soroush (1997a). Haqqaniat, aqlaniyat, hedayat. Kiyan 40, 3–17. Matin-Asghari, A. (1997). Abdolkarim Sorush and the Secularization of Islamic Thought in Iran. Iranian Studies 30, 95–115. Montazeri (2008). The quotation was published on the website http://www.amontazeri .com, accessed 12 March 2012. Naraghi, A. (1997). Dar bare-ye mabda-ye pluralism-e dini. Kiyan 40, 3–17. Qa’emi Niya, A.-R. (1997b). Dindari va sarat-e mostaqim. Kiyan 38, 20–31. Sadri, A. (1995/1996). Pluralism-e dini. Kiyan 28, 3–25. Sanassarian, E. (2000). Religious Minorities in Iran. Cambridge: Cambridge University Press. Shabestari 2012 = Conversation with Mohammad Mojtahed Shabestari on 18 June 2012 in Hamburg. Shabestari, M.M. (1995/1996). Pluralism-e dini. Kiyan 28, 3–25. Shabestari, M.M. (2000). Naqdi bar qera’at-e rasmi az din (A Critique of the Official Interpretation of Religion), Tehran: Tarh-e nou. Shobeiri, M. (1997). Saratha-ye mostaqimtar. Kiyan 38, 10–19. Soroush, A. (1997). Saratha-ye mostaqim. Sokhani dar pluralism-e dini; mosbat va manfi. Kiyan 36, 2–16. Soroush, A. (1999). Saratha-ye mostaqim. Tehran: Sarat.

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Soroush, A. (2000). Reason, Freedom, and Democracy in Islam. Translated, Edited and with a critical Introduction by Mahmoud Sadri and Ahmad Sadri. Oxford: Oxford University Press. Soroush, A. (2009). The Expansion of Prophetic Experience: Essays on Historicity, Contingency and Plurality in Religion. Translated by Nilou Mobasser. Leiden: Brill. Wright, R. (1.2.1995). An Iranian Luther shakes the Foundations of Islam. The Guardian.

chapter 5

Religious Citizens: On the Relation between Freedom of Religion and the Separation of Church and State Ernst Hirsch Ballin* Introduction Libraries can be filled with publications about the freedom of religion as one of the most ancient and best known human rights. Given the usage of the word “religion” in the international legal texts, I will not distinguish between religion in the sense of being a member of a religious group and religion in the sense of belief. From my article, it will emerge that religion can be defined as a conviction about a transcendental truth that can be shared with others. Membership then is the expression, belief the foundation of religion. In the history of the Netherlands, the struggle for freedom of religion was the starting point of the revolution against the Habsburg ruler. In the eyes of many, freedom of religion is the original point of reference for the constitutional identity of the Netherlands. According to Andeweg and Irwin (2009, 6), “religion and politics became enmeshed as the struggle for religious freedom became intertwined with the fight to protect traditional political freedoms”. Whereas churches and other religious institutions usually claim freedom of worship, teaching and internal organization vis-à-vis the state, they do not as easily accept freedom of legitimate action in politics. The concept of religious institutions is used throughout the chapter in a wide sense, including Jewish and Muslim associations, irrespective of the extent to which they have a structured organization and membership. Confessional political movements require their representatives to implement the moral convictions of their religious community and to follow the instructions of its leadership (mainstream Christiandemocratic political parties are not “confessional” parties; Hirsch Ballin, 2013). This gives rise to tensions with the secular character of a polity. According to Leigh and Ahdar (2012, 1069), “[a] key mark of a secular state is the attempt to justify public policies and programmes on secular and not religious grounds”.

* The author is grateful to Caia Vlieks llm and Shavana Musa llm (Tilburg University) for their valuable assistance and comments.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304390_006

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No doubt, religion has a moral significance for the believer that is in principle relevant for all his actions, including political action as a citizen. In that sense, it also has a legitimate place in a secular democracy. That, however, does not give the believer the right to subjugate others to religious prescripts via the force of a political institution. It is everyone’s responsibility as a co-citizen to live up to constitutional standards of decision-making that are mutually acceptable. As long as the outcome of the political process is compatible with human rights standards, the religious citizen has to abide by the rules. Freedom of conscience is with equal respect one of the characteristics of secularism (Maclure & Taylor, 2011). A rejection of a rule out of one’s own conscience should under certain conditions be respected by the state, but this does not suspend the binding character of the rule itself. In the footsteps of St. Augustine’s text on the two cities – the earthly and the heavenly (Augustine, 426, Ch. 28) – we could say that man is a sort of double citizen: a citizen of his secular community, and one who is aspiring for the City of God. In his introduction to Marcus Dods’ translation, Thomas Merton (2000, xx) takes a view on the relation between the two cities that whoever is concerned about the shortcomings of earthly cities may take to heart: “Nevertheless, the fact that the two cities are opposed to one another does not mean that they cannot peacefully co-exist here on earth. It is not impossible that they should agree upon a modus vivendi. They can come to terms, and it is well that they should do so. The temporal advantage of worldly society is well served when the citizens of heaven still living in the world are protected by the temporal power. And although the Church as a whole can only profit by persecution, nevertheless temporal peace is a greater blessing, and one to be prayed and worked for, since it provides the normal condition under which most men can safely expect to work out their eternal destiny”.

Beyond the Separation of Church and State

The ‘separation of church and state’ is a valuable template for the avoidance of conflicts between religious and secular obligations. Its meaning is that the state should neither meddle in the internal affairs of the church, nor the church(es) of that state. It is regarded as a precondition for the freedom of religion because it protects the independence of the churches and other religious institutions. At the same time, it asserts the democratic nature of the constitution, free from privileged influences. In the realities of our time, we might need a few more of these principles, e.g. a ‘separation of state and industry’. For example, why do we think that it is inappropriate for a bishop to be a

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member of the Senate, but accept a chairperson of an employers’ organization sitting on the Senate floor? In the United Kingdom a different situation exists, where bishops of the Church of England are by law members of the Upper House. The origins of the separation principle are very clear though. The separation between church and state protects the freedom of religion from an institutional perspective. One of its purposes is to assure equal religious freedom. The state and the religious institutions refrain from attempts to control each other’s internal affairs, and, as a consequence of its secular identity, the state will not privilege or disenfranchise anyone because of his or her religion. We will first discuss its merits and implications, and then turn to the reasons why, in these times, a more sophisticated understanding of the relationship between religious and secular obligations is required. Many European countries had an official church. Some of them still have, but with limited practical significance. The influence could go both ways, e.g. state approval for the nomination of bishops or ecclesiastical competence in certain areas of legislation. Into the 19th century, the Pope and some German bishops had their own states. Historically, the separation principle served equal treatment of all citizens and the full realization of democratic governance. The first step on the road towards acceptance of religious pluralism was the ‘recognition’ of other religious institutions, sometimes next to the (formerly) official church. Several European democracies had (like the Netherlands until the last quarter of the 20th century) or have (like Hungary) such a system of registration, respectively, recognition. The Hungarian system was abused when Parliament excluded nine formerly recognized churches (Egyház and Others v. Hungary, 2014). Other states, like France, view the absence of any official relation as the consequence of a strictly secular model. Across all these differences most of the systems have one thing in common: religious freedom was viewed in the first place as the liberty to choose the religious community of their own preference (Sharma, 2011). The phenomenon of official churches and its opposite, the separation of church and state, reflected a situation where being religious was synonymous to belonging to a group, i.e. being a member of a specific church or other religious institution. Equal treatment irrespective of one’s religion (or even not having a religion) and equal religious freedom are ensured by the constitution of democratic states and various international legal documents, including the Universal Declaration of Human Rights (udhr) (Article 18), the International Covenant on Civil and Political Rights (iccpr) (Article 18 with ccpr General Comment No. 22: Article 18, Freedom of Thought (1993)), the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) (Article 9) and the Charter .

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of Fundamental Rights of the Europeans Union (Article 10). Article 18 iccpr reads as follows:





1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

In these modern texts, the emphasis has shifted from the protected position of churches to an individual right. According to General Comment No. 22 on Article 18 iccpr (1993, para. 4, last sentence), the protection of the churches and other religious institutions can be derived from this human right: “In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications”. The relation between a church or other religious institution and its individual members is presupposed in this approach, but it is not the subject of any regulation. This can be regarded as a consequence of the religious freedom of the religious institutions: their inner organization is not regulated by civil law, but by their inner (e.g. ecclesiastical) regulations (cf. Art. 2:2 Dutch Civil Code; Warendorf et al., 2009). Rituals, especially initiation rites and rites of transition at important life events, play an important role here (Hirsch Ballin, 2012). According to Bryan Turner (2011), “the core meaning of the Abrahamic religions was established by the Old Testament prophets and by the early Christian community to signify a body of people drawn together by belief in a monotheistic God and held together by rituals, especially dietary practices and sacrifice”. They confirm the

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inclusive relation between the religious community and the individual. The religious community offers him or her protection and the solidarity of the group in situations of need. In the absence of alternatives like state welfare, members of religious communities may feel pressure to comply with the rules and rituals of their group, even to the extent that their religious freedom is impaired. The state will in principle abstain from any interference. Such pressures have faded away in most western democracies, but still exist or became even more severe in less developed societies. The success of the Muslim Brotherhood in North Africa and beyond, and of evangelical sects in Latin America derives at least partly from their ability to provide welfare and education to the downtrodden. The specific history of a country can also play a role. The Republic of Turkey views itself as having a ‘laic’ constitution; until recently a strictly secular constitutional identity prevailed in politics. Because of its past and of fears that Islamic clergy could take over, part of its constitutional setup involved – ever since the abolition in 1924 of the Caliphate – the exclusion of competing religious authorities from indirect power, through the establishment of an agency in charge of Sunni Muslim institutionalized religion, the Diyanet İşleri Başkanlığı (Somer, 2012). Article 136 of the Turkish Constitution provides for this body: “The Presidency of Religious Affairs, which is within the general administration, shall exercise its duties prescribed in its particular law, in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity”. We may conclude that the separation of church and state is an important, but not in itself sufficient protection of personal freedom in the domain of religion. The actual realization of freedom of religion requires the availability to the individual of alternative possibilities to maintain his or her social and economic subsistence in the unfolding of his or her life project. When, in 1917, the Dutch constitution integrated religiously-instituted schools in the statesponsored educational system, it also introduced a constitutional guarantee that in every community public education as a neutral alternative would be available (Art. 23 of the Constitution for the Kingdom of the Netherlands). A strict separation of state and church would leave these matters to be decided within the community, given everyone’s right to determine at what point he or she will prefer to leave this community. But is that really sufficient as a guarantee for personal freedom? Freedom of religion depends not only on the absence of powers that interfere in their religious life, but also in the presence of institutions that protect them from undesired inclusion. Severing the bonds with a community may put oneself in social isolation. This is often the case when essential social services like education and welfare depend on religious institutions. The constitutional identity of the state as an

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Islamic state or, until recently, a Christian state may serve as the justification for such practices, but de facto dominance of a certain religion can amount to similar results. Being excluded from the religious community may amount to someone’s civil death; even worse are situations where leaders or tribunals of the religious community may impose physical punishment or the death penalty in cases of apostasy (bbc, 2014; Law Library of Congress Global Legal Research Center, 2014). Such an abhorrent breach of human rights is not justified by Islam either. According to Abdullahi Ahmed An-Na’im (2008, 122): “there should be no penal or other negative legal consequences for apostasy and all of the related concepts from an Islamic perspective, because belief in Islam presupposes and requires the freedom of choice and can never be valid under coercion or intimidation”. Such situations compromise religious freedom and contrast with the actual self-understanding of the person as a subject free to choose and to relate with other persons. The availability of support when needed from neutral or freely chosen service providers (including hospitals and schools) is a necessary precondition for the freedom to leave or stay outside a religious community. From the viewpoint of a religion true to its transcendent vocation, insincerity is equally undesirable. In the West, a prejudice exists that Islam does not care about forced ‘conversions’, pointing at the dire practices of Taliban, Al-Shabaab, Boko Haram and the so-called Islamic State. Some remember that history of Christianity was not honorific either: after the Reconquista of Andalucía (Al-Andalus), Muslims and Jews were forced to ‘convert’ to Christianity or face punishment and expulsion. For the Christian churches, this is something of a painful past. Authoritative Muslim leadership equally confirms that conversion can never be imposed by force (Open Letter to Dr. Ibrahim Awwad Al-Badri, 2014). An-Na’im (2008, 1, 125–128) even goes one step further: he demonstrates that in Islam itself a preference can be found for the secular state as the best context for a truly free life in faith (“[i]n order to be a Muslim by conviction and free choice”) and underlines the significance of equal citizenship. The freedom to change one’s religion, guaranteed in the iccpr and other international documents, appears to be a freedom to adhere to a different preexisting religious institution. A growing number of people in modern society do not wholesale accept the teachings and prescripts of a religious institution anymore (Joas, 2012). To them, religious freedom is also the personal freedom towards the shared points of reference (like revelations, prophecies, holy texts and holy places) to which they relate their religious identity. In other words: religious identity is not necessarily submission, but part of one’s autonomy. This is what Russell Sandberg (2014, 223) has called the “subjective turn” in our understanding of freedom of religion.

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Freedom of Religion in a Comprehensive Human Rights Context

The preceding paragraph has shown that the interpretation of freedom of religion as the freedom to accept or change a religion will not suffice in the face of social and economic pressures to join or not to leave a certain community. The confirmation of “the freedom to change one’s religion” in the treaty provisions is insufficient. A full realization of personal freedom of religion depends on the overall freedom of the person. It is part of someone’s human security, in the broad sense that people have “the right to live in freedom and dignity, free from poverty and despair with an equal opportunity to enjoy all their rights and fully develop their human potential” (unga Res 66/290, 2010). This transformation of the freedom of religion reflects a transformation of the role of religion in society. Against the common belief that secularization has gradually diminished the role of religion and that religion is fading away in modern societies, Hans Joas (2012, 42, 152) argues that secularization and the encounter in modern urbanized societies with a multiplicity of religions, have transformed the social meaning of religion. Religion is no longer a ‘given’ frame of reference for a more or less united group of believers, but rather an option that has to coexist with other religious options. This diversity might nevertheless build a united front against nationalist and racist enemies of universalism (Joas, 2012, 224–225). Doug Saunders (2012, 153) arrives at a similar conclusion in his recent book about ‘The Myth of the Muslim Tide’. Even where in the Arab World confessional movements like the Muslim Brotherhood have gained much influence, their leadership is actually not a restoration of former religious bonds, but rather “a politically conservative movement among a range of political choices”. Salafists and other fundamentalists fill a gap, in Germany and other European countries, created by feelings of exclusion among youngsters, deepening instead of healing the rifts in the society (Abdel-Samad, 2014, 102). The deciding point is not the call to violence, but their view on man and society. They are playing the identity card, inciting people to identify themselves in an exclusive manner with a specific ethnicity or religion (Abdel-Samad, 2014, 105). This is especially dangerous whenever the self-confident affirmation of this identity goes hand in hand with contempt against other identities (Sen, 2006; Maalouf, 1998). Abuses of religious identities are the most dangerous of all, since they can pit their followers against each other in ‘holy wars’, which are often even more ferocious then other wars because of the expectancy of a post-mortal reward for fallen fighters (on religious wars, cf. Armstrong, 2014). In this exploitation of religious feelings, both international legal norms and religious prescripts are trampled on, as we learn from the accurate analysis of both

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international law and Sunni Muslim legal and religious doctrine by M. Cherif Bassiouni (2014), (Joas, 2012, 182). Just like any other legal concept the freedom of religion is in a continuing process of “iterations” (Benhabib, 2006, 48) to be re-interpreted and redefined. Religious freedom is thus going through new iterations from the freedom to be included in a ritually conformed community (in which religious authorities define their own powers) into a freedom to choose and articulate one’s religion. Viewing freedom of religion as a right of the person is in the light of the changed socio-economic realities essentially more than the affirmation of an abstract, individual right. The neutrality of the state in its arbitrating and supporting functions is indispensable. Some of the traditional tenets of the separation of church and state have therefore to be reconsidered. This is the case with legalistic roofing over religious practices. Religious courts – churches as well as Islamic communities have them – may serve an equitable response to life questions, but must not display a compelling parallel structure that keeps people away from invoking their rights in a state court. The attempts to widen the reach of the hybrid religious Körperschaften des öffentlichen Rechts (religious bodies that under a transitional provision in Article 140 of the German Constitution can be established under public law (Epping, 2012, 140–141)) would further diminish the – still incomplete – separation of state and church in Germany and bolster conservative voices (Abdel-Samad, 2014, 111, 114). The persons appointed by their religious institution as a judge must therefore view their task as a specific pastoral service, bringing peace in conflict situations, not as religious law enforcement. Safeguarding the freedom of religion and conscience requires some state supervision: everyone should feel free to accept or not to accept the jurisdiction of the judges of their religious institution.

Religious Citizenship

Meanwhile, many religious institutions struggle with the extent to which they should accept an increasingly self-defining adherence to their religion, and to what extent belonging to the community can be a process of mutual understanding instead of mere submission. It is basically the same process that changed political life in the course of the 19th and the 20th centuries. Authoritarian regimes have gone through the same process in many states during the last two centuries: emancipation of the downtrodden and recognition of everyone’s innate human dignity (Joas, 2011/2013) cannot be stopped. Freedom of religion requires therefore not only an institutional separation, but also a public structure that warrants equal rights in the other dimensions of

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living together. It is a dimension – condition and consequence at the same time – of the full enjoyment of human rights and citizens’ rights (Hirsch Ballin, 2014). As a person whose dignity is protected by the law, the citizen has the right to be a religious person in the context that he or she accepts and creates, and maybe redefines over time (Thierse, 2000). Freedom is more than a bundle of rights: it is the power of every person to develop his or her life project in a society. The context of life projects, protected and supported by human rights, in our times is a world “on the move”: ongoing migration to the cities brings people together from different origins, with different convictions. Under the 21st century conditions of migration and urbanization, people move around and co-create their changing social fabric. Many of the oppressed people and – consequently – of the refugees all over the world have suffered from a lack of protection (or even acceptance) of their citizenship on religious grounds, or pretended religious grounds as a guise for power hunger. Room for religious diversity is for them a natural requirement of living together. Interesting here is the Canadian example. Bruce Ryder (2008, 87) claims in his chapter on ‘The Canadian Conception of Equal Religious Citizenship’ that “in a number of important ways, Canada takes a more robust approach to equal religious citizenship than can be found in the human rights jurisprudence of many other countries”. Commenting a landmark case in the Canadian Supreme Court (O’Malley v Simpsons-Sears, 1985), Ryder (2008, 90) comes to the conclusion that “[w]ithout the ability to demand that neutral rules and policies be adjusted to meet their religious needs, people of faith cannot participate equally in social and economic life”. At the same time, however, it is recognized “that religious equality rights are not absolute; they will have to give way in the face of competing rights and interests”. What is needed in contemporary society is a mutual willingness of political actors and religious leaders to engage in a dialogue, respectful of each other’s responsibilities, aiming at an understanding of how religious freedom and democratic legitimacy can be brought to terms. In Catholicism, the authoritative ‘Compendium of the Social Doctrine of the Church’ recommends a “method of discernment”, “structured around certain key elements” including analysis “with the help of social sciences”, reflection “in the light of the Gospel and the Church’s social teaching”, and “identification of choices” (Pontifical Council for Justice and Peace, 2005, para. 568; Hirsch Ballin, 2013). Religion is a contribution to a vital civil society. It should not be a tranquillizer (as it often has been, in the service of the ruling class). Because it expresses itself in moral categories, it is a more productive source of unrest than the superficial bashing of the elite by ‘social’ media. The role of the citizen is pivotal in a free society that has organized itself as a democratic state on

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the basis of the rule of law (Hirsch Ballin, 2014, 141). Religion is, at least in the self-understanding of the believer, fundamental to his or her personal ­identity. A religious person (who may be a believer or a non-believer) rejects any self-deification. Religion, in this encompassing meaning, does not replace the ‘political’ nature of man that makes him a citizen. Rather, it is an unassuming way to strive for perfection in the service of others. Conclusion Respecting the role of religion in a free, democratic constitutional context is not self-contradictory. In the view of Jürgen Habermas (2006, 9–10), a postsecular society must include religious voices: “all that is required here is the epistemic ability to consider one’s own faith reflexively from the outside and to relate it to secular views. Religious citizens can well recognize this ‘institutional translation proviso’ without having to split their identity into a public and a private part the moment they participate in public discourses”. Secularist ideologies have given way to a secular state that appears to be compatible with an acceptance of freedom in faith. This was also the starting point for the Muslim scholar An-Na’im. Present day tensions around all varieties of fundamentalism underline the importance of such a different approach. Even in France, the country from which the idea of a strictly secular state originates and where the principle of laicité is firmly rooted in constitutional theory, new approaches emphasizing the value of a free dialogue have emerged since the late 20th century (Gauchet, 1998). Only a humane religion, i.e. a religion that accepts the condition humaine of diverse human beings living together, is what we can have in mind when we recognize freedom of religion as a human right. Specific “public theologies” might justify a view on citizenship that excludes followers of other beliefs; see the article by Sandal (2013) for an analysis of the impact of “public theology” on shortcomings in equal citizenship in Turkey. Does this mean that the freedom of religion can only protect some religions, not all, irrespective of their tenets? Peter Danchin (2006, 415) has – in the view developed here, rightly – criticized international law scholars for their acceptance of a problematic view on religion: “Human rights law (…) has deferred to religious despotism in the private sphere through the definition of religion as a ‘sovereign, extralegal jurisdiction in which inequality is not only accepted, but expected’”. Our answer to this delicate question must be precise. Indeed, not every ideology that claims to be a religion deserves protection. I reject the idea of such an ‘absolute’ freedom of religion. Think for instance of the tenets of the

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so-called Islamic State, an example which might be supplemented by many other religions in all parts of the world. An ‘absolute’ interpretation of the freedom of religion would run as follows. The so-called caliph (assuming this title without wide consensus among Muslims was actually an act of heresy according to the Open Letter to Dr. Ibrahim Awwad Al-Badri, 2014, para. 22) would have the right to teach that mankind should live in a political system in which every deviation from the teachings he endorses is to be subject to severe punishment. He and his followers are however not entitled to put these teachings into practice because that would infringe upon the human rights of others, and the dissemination of these teachings would in many jurisdictions have to be qualified as incitement to hatred and violence against others on the basis of group characteristics, i.e. a crime. What sense then would it make to call this a religion that is protected under human rights, if its very core is not acceptable under a human rights regime, which by its nature first and foremost protects the freedom to live together in peace and dignity? This apparent aporia reveals to us what we actually have in mind when we talk about freedom of religion: not any claim about an absolute truth, but a view (set of convictions) on the transcendental dimension of humanity. According to Rafael Domingo (2013, 452), “all legal systems should be open to transcendence as a constitutive element of the legal approach to religious freedom”. Ideologies that promote violence at the expense of human dignity do not qualify for protection by human rights. In a commonwealth, where people live together under the reciprocal recognition of human rights – a democratic state under the rule of law – being religious does not diminish one’s rights and obligations as a citizen, nor does citizenship diminish the possibility of hearing a religious vocation (Habermas, 2008, on the legitimate place of religion in a secular (but not a secularist) state). Hearing and listening is, according to Karl Rahner’s (1971) Christian anthropology what defines man in his or her religious identity. Hearing the Word of God does not take man out of history and society. Bibliography Abdel-Samad, H. (2014). Der islamische Faschismus. In L. Göttermann (ed), Querdenken. Das wichtigste aus Politik, Wirtschaft und Kultur (101–131). München: Knaur. An-Na’im, A.A. (2008). Islam and the Secular State: Negotiating the Future of Shari’a. Harvard: Harvard University Press. Andeweg, R.B. & Irwin, G.A. (2009). Governance and Politics of the Netherlands. Basingstoke, Hampshire/New York: Palgrave Macmillan.

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Augustine (426). Civitas Dei (The City of God). Hippo. Book xiv (Ch. 28). Bassiouni, M.C. (2014). The Sharīa and Islamic Criminal Justice in Time of War and Peace. Cambridge: Cambridge University Press. bbc (2014, May 15). Sudan Woman Faces Death for Apostasy. bbc News Africa. Retrieved from http://www.bbc.com/news/world-africa-27424064. Benhabib, S. (2006). Another Cosmopolitanism. Oxford: Oxford University Press (48). ccpr General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) (30 July 1993) CCPR/C/21/Rev.1/Add.4. Danchin, P. (2006). Between Rogues and Liberals: Towards Value Pluralism as a Theory of Freedom of Religion in International Law. American Society of International Law Proceedings, 100, 414–416. Domingo, R. (2013). A New Global Paradigm for Religious Freedom. Journal of Church and State, 55, 427–453. Egyház and Others v. Hungary. App. Nos. 70945/11, etc. (ECtHR, 8 April 2014). Epping, V. (2012). Grundrechte. Heidelberg/Dordrecht/London/New York: Springer. Gauchet, M. (1998). La religion dans la démocratie. Paris: Gallimard. Habermas, J. (2006). Religion in the Public Sphere. European Journal of Philosophy, 14(1), 1–25. Habermas, J. (2008). Die Dialektik der Säkularisierung. Blätter für deutsche und internationale Politik, 4, 33–46. Hirsch Ballin, E.M.H. (2012). Religieuze en seculiere rituelen in het publieke domein (Kardinaal Willebrands-lezing). In E.M.H. Hirsch Ballin, M. Poorthuis, M. ten Brink & P. Goedendorp (eds), Religie achter de voordeur vandaan?. Heeswijk: Berne Media/Uitgeverij Abdij van Berne, 28–47. Hirsch Ballin, E.M.H. (2013). Christianity and the Future of Christian Democracy: Salting Politics with Compassion. Tilburg: Tilburg University. Hirsch Ballin, E.M.H. (2014). Citizens’ Rights and the Right to Be a Citizen. Leiden/ Boston: Brill Nijhoff. Joas, H. (2011). Die Sakralität der Person. Eine neue Genealogie der Menschenrechte. Berlin. English translation (2013). The Sacredness of the Person. A New Genealogy of Human Rights. Washington: Georgetown University Press. Joas, H. (2012). Glaube als Option. Zukunftsmöglichkeiten des Christentums. Freiburg/ Basel/Wien: Herder. Law Library of Congress Global Legal Research Center. (2014). Laws Criminalizing Apostasy in Selected Jurisdictions. Washington: The Law Library of Congress Global Legal Research Center. Leigh, I. & Ahdar, R. (2012). Post-Secularism and the European Court of Human Rights: Or How God Never Really Went Away. Modern Law Review, 75(6), 1064–1098. Maalouf, A. (1998). Les identitités meurtrières. Paris: Grasset. Maclure, J. & Taylor, C. (2011). Secularism and Freedom. Secularism and Freedom of Conscience. Harvard: Harvard University Press.

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Merton, T. (2000). Introduction. In St. Augustine, The City of God. Marcus Dods tr, New York: Modern Library. O’Malley v Simpsons-Sears. 2 SCR 536 (1985). Open Letter to Dr. Ibrahim Awwad Al-Badri, alias ‘Abu Bakr Al-Baghdadi’, and to the fighters and followers of the self-declared ‘Islamic State’ (2014, September). Sent by 126 leading Muslim scholars. Retrieved from http://www.lettertobaghdadi.com/. Pontifical Council for Justice and Peace. (2005). Compendium of the Social Doctrine of the Church. Vatican City/Washington: Libreria Editrice Vaticana/United States Conference of Bishops. Rahner, K. (1971). Hörer des Wortes. Zur Grundlage einer Religionsphilosophie. Freiburg/ München: Herder. Ryder, B. (2008). The Canadian Conception of Equal Religious Citizenship. In R. Moon (ed.), Law and Religious Pluralism in Canada. Vancouver/Toronto: ubc Press, 87–109. Sandal, N.A. (2013). Public Theologies of Human Rights and Citizenship: The Case of Turkey’s Christians. Human Rights Quarterly, 35, 631–650. Sandberg, R. (2014). Religion, Law and Society. Cambridge: Cambridge University Press. Saunders, D. (2012). The Myth of the Muslim Tide: Do Immigrants Threaten the West? New York: Vintage Books. Sen, A. (2006). Identity and Violence: The Illusion of Destiny. New York/London: Norton. Sharma, A. (2011). Problematizing Religious Freedom. Dordrecht/Heidelberg/London/ New York: Springer. Somer, M. (2012, June 5). Turkey’s New Constitution & Secular Democracy: A Case for Liberty. E-International Relations. Retrieved from http://www.e-ir.info/2012/06/05/ turkeys-new-constitution-secular-democracy-a-case-for-religious-and-non -religious-liberties/. Thierse, W. (ed.) (2000). Religion ist keine Privatsache. Düsseldorf: Patmos. Turner, B.S. (2011). Religion and Modern Society. Citizenship, Secularisation and the State. Cambridge: Cambridge University Press. unga Res 66/290 (2010, October 25). un Doc A/RES/66/290. Follow-up to paragraph 143 on human security of the 2005 World Summit Outcome. Warendorf, H.C.S., Thomas, R. & Curry-Sumner, I. (2009) The Civil Code of the Netherlands. Alphen aan den Rijn: Kluwer Law International.

chapter 6

Attitudes toward Human Rights and Religiosity among Adolescents in England and Wales Replicating and Extending a Study in Turkey Leslie J. Francis and Mandy Robbins Introduction The International Empirical Research Programme Religion and Human Rights 1.0 at Radboud University Nijmegen (the Netherlands), which commenced in 2005, had three solid and clearly stated aims. The second of these aims was expressed in the following way: conducting empirical research into the effects of religious beliefs and practices as well as ethical values on attitudes toward human rights among senior secondary school and tertiary school students, both religious and non-religious, in various African, Asian, and European countries from a comparative, cross-cultural perspective. van der ven & ziebertz, 2013, 1

A major scientific strength of this programme concerns the way in which an extensive questionnaire was employed in eight languages within fifteen countries. The questionnaire comprised four groups of items on the family situation, values, religion, and human rights. Recent analyses of these extensive empirical data have generated a wide range of studies, including: employing data from the Netherlands exploring the connection between religion and attitudes toward religious freedom, and attitudes toward the separation of church and state (van der Ven, 2010); employing data from Germany exploring the connection between four areas of human rights (separation of state and church, freedom of life style, freedom of expression, and political rights) and three measures of religiosity (religious practice, inclusiveness/exclusiveness, and dialogue/pluralism) (Ziebertz & Reindl, 2011); employing data from Sweden to explore the impact of religion on attitude toward freedom of religion and on attitude toward freedom of speech (Sjöborg, 2012); employing data from Germany and Palestine to explore personal, societal, and cultural influences on attitudes toward generation one, generation two, and generation three human rights (Webb, Ziebertz, Curran, & Reindl, 2012); employing

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data from Tanzania to explore the connection between religion and women’s socio-economic rights among Christians and Muslims (van der Tuin & Fumbo, 2012); employing data from Germany to explore religious socialisation and values as predictors of human rights attitudes (Ziebertz & Reindl, 2012); employing data from England and Wales exploring the connection between religion, personality, and human rights among Christians and Muslims, distinguishing between the influence of religious identity and textual authority (Francis & Robbins, 2013); employing data from Germany exploring the connection between religion and attitudes toward euthanasia and attitudes toward abortion among Christians and Muslims (Ziebertz & Reindl, 2013); employing data from Turkey exploring the connection between religion and civil rights, socioeconomic rights, and attitudes toward abortion, and euthanasia among Turkish adolescents (Ok & Eren, 2013); employing data from six countries in North-West Europe (Belgium, England and Wales, Germany, the Netherlands, Norway, and Sweden) to explore the connection among religion and socioeconomic rights among Christian, Muslim, and non-religious young people (van der Ven, 2013); employing data from Tamil Nada, India, to explore the connection between the public significance of religion and socio-economic rights in a multi-religious context (Anthony, 2013); and employing data from Norway to explore the connection between three types of religiosity (difference type, humanity type, and spirituality type) on attitudes toward the right to work, the right to social security, women’s rights, children’s rights, and refugees’ rights (Botvar, 2013). The initial studies emerging from the International Research Programme Religion and Human Rights 1.0 illustrate the capacity of the data to address a range of issues, and the variety of theoretical and methodological perspectives from which the data can be interrogated. Such studies provide a rich platform on which the science of religion and human rights can build into the future. One of the recognised ways in which the science of religion and human rights can be moved into its next phase of scientific rigour is through the replication of the pioneering analyses on other comparable data sets. A key strength of the Programme is precisely that it was established with such capacity in mind. The notion of testing one of the pioneering analyses on a different database was proposed by Francis and Robbins (2013) who set out to test and to build on the earlier analyses published by Webb et al. (2012). Drawing on data provided by a sample of 1,492 students from Germany and Palestine, Webb et al. (2012) developed three robust scales of human rights across three generations of human rights: Generation one human rights were assessed by a four-item scale focusing on political issues that generated an alpha coefficient of .66:

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• The police should not use force against political demonstrations; • The government should not pass a law forbidding all forms of political protest; • The government should guarantee political refugees freedom of travel; • The government should provide a decent standard of housing for political refugees. Generation two human rights were assessed by an eight-item scale focusing on socio-economic issues that generated an alpha coefficient of .86: • The government should provide a job for everyone who wants one; • The government should provide a decent standard of living for the unemployed; • The government should provide health care for the sick; • The government should provide a decent standard of living for the old; • The state should protect children from neglect or negligent treatment; • The state should protect children’s right to engage in play and recreational activities; • The state should protect women’s right to acquire and administer property; • The state should protect women’s rights to adequate job opportunities. Generation three human rights were assessed by a four-item scale focusing on environmental issues that generated an alpha coefficient of .71: • The state should protect unspoiled nature; • The state should reduce air pollution by industry by imposing legal limits; • I am willing to make certain sacrifices for the sake of a more beautiful environment; • I am willing to pay higher prices for products that would mean less industrial pollution. Francis and Robbins (2013) proposed testing these three scales on data provided by their sample of 1,058 adolescents in England and Wales. Their analyses confirmed that all three instruments achieved alpha coefficients above the threshold of .65 proposed by DeVellis (2003) and slightly in excess of the levels reported by Webb et al. (2012) in their foundation paper: political issues, α = .73; socio-economic issues, α = .86; environmental issues, α = .76. Francis and Robbins (2013) then employed these three scales in a statistical model designed to test the comparable influences of personal factors (age and sex), psychological factors (extraversion, neuroticism, and psychoticism), and religious

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factors (religious identity and textual authority) on these three areas of human rights. It is the use of the same instruments in different studies that begins to build up a body of connected empirically-grounded knowledge concerning the connection between religion and human rights across nations and across culture. Replicating Ok and Eren (2013) It is against this background that the present study sets out to replicate among young people in England Wales a study originally formulated by Ok and Eren (2013) among young people in Turkey. Ok and Eren (2013, 155) addressed in their study two core research questions among young people in Turkey: • What is the relation between their attitudes toward human rights and their religious orientations? • What is the impact of their religious orientations on their attitude toward human rights, while controlling for some population characteristics, namely, sex, age, and political orientation? In their first step to operationalise these research questions, Ok and Eren (2013) drew on the items included in the International Empirical Research Programme Religion and Human Rights 1.0 survey to construct three measures of human rights, styled the Scale of Socio-Economic Rights (10 items), the Scale of Civil Rights (12 items), and the Scale of Permission to Lift the Right to Life (9 items). It is worth examining the items of these scales with some care. The ten-item scale concerned with socio-economic rights embraced the following themes and generated an alpha coefficient of .87: • The government should provide a decent standard of living for the old. • The state is obliged to protect children from neglect or negligent treatment. • The government should provide health care for the sick. • The state should protect women’s rights to acquire and administer property. • The state should protect women’s rights to adequate job opportunities. • The government should provide a job for everyone who wants one. • The government should provide a decent standard of living for the unemployed. • The state is obliged to protect children’s right to engage in play and recreational activities. • The state should protect unspoilt nature. • The state should reduce air pollution by industry by imposing legal limits.

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Conceptually, however, these last two items seem to belong to generation three human rights (environmental issues) rather than generation two human rights (socio-economic issues). The twelve-item scale concerned with civil rights embraced the following themes and generated an alpha coefficient of .80: • tv journalists with radical ideas have a civil right to employment. • Minority groups should be free to use the town hall to hold protest meetings. • Newspaper columnists should be free to express radical convictions. • The police should not use force against political demonstrators. • Inflicting severe physical suffering on potential terrorists is prohibited. • Guaranteeing terrorists access to a lawyer is necessary to protect their individual rights. • A mass murderer should be informed of his/her right to keep silent before the court. • Police searches of private homes without a search warrant are prohibited. • The government should not pass a law forbidding all forms of public protest. • The police are only allowed to inspect people’s cars under strict judicial conditions. • Imposing inhuman mental treatment on people accused of mass murder is forbidden. • A cabinet minister should allow his striking officials to meet in a ministerial building. Conceptually all twelve items seem to belong to the domain of civil rights. The nine-item scale concerned with permission to lift the right of life embraced the following themes and generated an alpha coefficient of .82: • It should be possible for a pregnant woman to obtain a legal abortion: ○ if economically she cannot afford any more children; ○ if psychologically she cannot afford any more children; ○ if there is a strong chance of serious defect in the baby; ○ if the woman’s own health is seriously endangered by the pregnancy. • A woman in the final stages of an incurable disease wants to end her life: ○ the doctor is allowed to do this; ○ the doctor is allowed to do this only if palliative care is exhausted.

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• In regard to abortion politicians should take decisions independently of religious leaders. • In regard to euthanasia politicians should decide irrespective of any religious leaders’ will. • Any form of sexual relations between adults should be their individual choice. Conceptually, however, the last of these items is problematic to locate within the theme concerned with permission to lift the right to life. The first aim of the present replication study is to test the psychometric properties of the three human rights scales (concerned with socio-economic rights, civil rights, and permissions to lift the right to life), after modifying two of the scales to enhance conceptual clarity, among a very different population of young people (in England and Wales compared with Turkey). In the second step to operationalise their research question, Ok and Eren (2013) proposed three measures of religiosity. Two of these measures drew on the items included in the International Empirical Research Programme Religion and Human Rights 1.0 to construct the Religious Saliency Scale (3 items) and the Interreligious Openness Scale (6 items). The three-item scale concerned with religious saliency embraced the following themes and generated an alpha coefficient of .80: • My religion or worldview has great influence on my daily life. • If I have to take important decisions, my religion or worldview plays a major part in it. • My life would be quite different had I not my religion and worldview. Although these three items work well as a scale, the survey in fact includes a fourth item that may have added further breadth to this instrument: • My religion or worldview is important to me. The six-item scale concerned with interreligious openness embraced the following themes and generated an alpha coefficient of .79. • Authentic life can only be received through conversation between religions and worldviews. • Authentic life can only be found when religions or worldviews communicate with one another. • The way to authentic life is only to be found when religions and worldviews have dialogue with one another.

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• Religions and worldviews are all equal, they are all directed to authentic life. • There is no difference between religions or worldviews, they all stem from a longing for authentic life. The third measure of religiosity employed by Ok and Eren (2013), the six-item Religious Stress Scale was specific to the version of the questionnaire employed in Turkey. The second aim of the present replication study is to test the psychometric properties of the two religiosity scales available within the international survey (concerned with religious saliency and with interreligious openness), after modifying one of the scales to include an additional item, among a very different population of young people. The third aim of the present replication study is to explore the correlations between religiosity and human rights employing the three human rights scales and the two religiosity scales in common with the study by Ok and Eren (2013). Additionally, the new analyses will include an index of religious affiliation, distinguishing between Muslim, Christian, and religiously unaffiliated young people. In the third step to operationalise their research question, Ok and Eren (2013) proposed three control variables. They included sex and age as two standard control variables and then included as their third control variable the notion of political preferences, assessed on a five-point scale: left, centre-left, centre, centre-right, right. The fourth aim of the present replication study is to include these three control variables in order to employ the same analytic model as Ok and Eren (2013). The fifth aim of the present replication study is to add the notion of personality as a further set of control variables. Just as the study in Turkey added a measure of religious stress to the internationally agreed body of measures, the study in England and Wales added a recognised personality measure in order to integrate these international data with a research perspective of particular interest to the local research group. The model of personality employed is that proposed by Eysenck and Eysenck (1991). Eysenck’s Model of Personality Eysenck’s dimensional model of personality maintains that individual differences in personality can be most adequately and economically summarised in terms of three higher order orthogonal dimensions (extraversion, neuroticism, and psychoticism). This model also takes the view that neurotic and psychotic disorders are not discontinuous from normal personality but occupy the extreme end of two different continua which describe individual differences in normal personality. Eysenck’s three dimensional model of personality has been operationalized

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in a series of instruments designed for use among both adults and young people, including the Eysenck Personality Questionnaire (Eysenck & Eysenck, 1975), the Eysenck Personality Questionnaire Revised (Eysenck, Eysenck, & Barrett, 1985) and the Eysenck Personality Scales (Eysenck & Eysenck, 1991). These instruments also routinely include a lie scale alongside the three established measures of extraversion, neuroticism, and psychoticism. Eysenck’s extraversion scales measure sociability and impulsivity. The opposite of extraversion is introversion. The high scorer on the extraversion scale is characterised by the test manual (Eysenck and Eysenck, 1975) as a sociable individual, who likes parties, has many friends, needs to have people to talk to, and prefers meeting people to reading or studying alone. The typical extravert craves excitement, takes chances, acts on the spur of the moment, is carefree, easy-going, optimistic, and likes to ‘laugh and be merry’. Eysenck’s neuroticism scales measure emotional lability and over-reactivity. The opposite of neuroticism is emotional stability. The high scorer on the neuroticism scale is characterised by the test manual as an anxious, worrying individual, who is moody, and frequently depressed, likely to sleep badly and to suffer from various psychosomatic disorders. Eysenck and Eysenck (1975) suggest that if the high scorer on the neuroticism scale ‘has to be described in one word, one might say that he was a worrier; his main characteristic is a constant preoccupation with things that might go wrong, and with a strong emotional reaction of anxiety to these thoughts.’ Eysenck’s psychoticism scales identify the underlying personality traits which at one extreme define psychotic mental disorders. The opposite of psychoticism is normal personality. The high scorer on the psychoticism scale is characterised by Eysenck and Eysenck (1976), in their study of psychoticism as a dimension of personality, as being ‘cold, impersonal, hostile, lacking in sympathy, unfriendly, untrustful, odd, unemotional, unhelpful, lacking in insight, strange, with paranoid ideas that people were against him.’ Empirical studies within the psychology of religion employing Eysenck’s dimensional model of personality, have consistently reported an inverse association between psychoticism scores and religiosity, as crystallised by Francis (1992) and confirmed by more recent studies, including Francis, Lewis, and Ng (2003), Francis and Burton (2007), Francis, Robbins, ap Siôn, Lewis, and Barnes (2007), Francis, Robbins, Lewis and Barnes (2008), Francis, Robbins, Santosh, and Bhanot (2008) and Francis and Hermans (2009). Considering Ok and Eren’s Findings In terms of bivariate correlations, Ok and Eren (2013) found that religious saliency was negatively correlated with agreement with civil rights (r = –.17**)

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and negatively correlated with agreement with permissions to lift the right to life (r = −.40**), but independent of levels of agreement with socio-economic rights (r  =  .09). Interreligious openness functioned in a different way. Interreligious openness was positively correlated with agreement with civil rights (r = .18**) and positively correlated with agreement with permissions to lift the right to life (r = .29**), but independent of levels of agreement with socio-economic rights (r  =  .08). In terms of political preference, right-wing views were negatively correlated with agreement with civil rights (r = −.27**) and negatively correlated with agreement with permissions to lift the right to life (r = −.37**), but independent of levels of agreement with socio-economic rights (r = −.08). In terms of sex differences, women held more positive views on civil rights (r = .17**) and on socio-economic rights (r = .11**), but there were no significant sex differences on views regarding permissions to lift the right to life. Age was not significantly correlated with any of the three human rights measures. Research Question The preceding discussion has identified five research aims or research questions for the present study designed to replicate and to extend the analyses of Ok and Eren (2013). Such replication enables clear comparisons to be drawn between findings in Turkey and findings in England and Wales. The first research question tests the psychometric properties of three measures of human rights proposed by Ok and Eren (2013) with slight modifications to enhance conceptual clarity. The second research question tests the psychometric properties of the two measures of religiosity proposed by Ok and Eren (2013) with slight modification to strengthen one of the scales. The third research question explores the correlates between the three measures of human rights and the two measures of religiosity, with an added index of religious affiliation. The fourth research question explores the role of the three control variables employed by Ok and Eren (2013), namely sex, age, and political preference. The fifth research question extends the original analyses of Ok and Eren (2013) by adding Eysenck’s model of personality to the equation. Method Procedure The survey was conducted within selected schools in England and Wales where there was a good mix of Christian, Muslim, and religiously-unaffiliated students. Within participating schools complete classes of year 10, year 11, year 12,

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and year 13 students (14- to 18-year-olds) were invited to take part in the survey. Students were assured of confidentiality and anonymity. Although all pupils were given the choice not to participate, very few decided not to take part in the survey, probably in the light of the interest of the subject matter. Measures Human rights and religiosity were assessed by five measures all employing Likert type items rated on a five-point scale: agree strongly (5), agree (4), not certain (3), disagree (2), and disagree strongly (1). These measures comprised the Scale of Socio-Economic Rights (8 items), the Scale of Civil Rights (12 items), the Scale of Permissions to Lift the Right to Life (8 items), the Religious Saliency Scale (4 items), the Interreligious Openness Scale (6 items). Political preference was assessed by a five-point scale: left (1), centre left (2), centre (3), centre right (4), right (5). Personality was assessed by the abbreviated form of the Eysenck Personality Questionnaire Revised (EPQR-A) as developed by Francis, Brown and Philipchalk (1992) and further modified by Francis, Robbins, Louden, and Haley (2001). This instrument comprised three six-item measures for extraversion, neuroticism and psychoticism. Each item is rated on a two-point scale: yes (1) and no (0). Religious affiliation was assessed by the questions “My personal religious/ worldview is…” followed by a checklist leading with the option ‘non-religious’ and including the major world faiths and Christian and Islamic denominations. Sex was coded in the conventional manner: male (1), female (2). Sample The analyses were conducted on the 1,058 adolescents who self-assigned as Christian, as Muslim, or as religiously unaffiliated, excluding from analysis those who identified with other religious traditions

Results and Discussion

The first step in data analysis explored the characteristics of the sample in terms of sex, age, political preferences, and religious affiliation. These data presented in Table  6.1 show a balance of male and female participants, a good spread of age and political preferences, and sufficient representation of the three religious groups included in the analysis. The second step in data analysis takes an overview of the psychometric properties of the eight measures employed in the study in terms of means,

Human Rights and Religiosity among Adolescents Table 6.1

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Sample characteristics

% Sex Age

Political preferences

Religious affiliation

male female fourteen fifteen sixteen seventeen eighteen Left Centre left Centre Centre right Right none Christian Muslim

52 48 13 37 31 15 5 9 14 61 11 5 36 45 19

standard deviations, and the alpha coefficients (Cronbach, 1951). These data presented in Table  6.2 demonstrate that the three scales concerned with human rights (socio-economic rights, civil rights, and permissions to lift the right to life), the two scales concerned with religiosity (religious saliency and interreligious openness) and two of the three personality scales (extraversion and neuroticism) recorded internal consistency reliability in terms of alpha coefficients meeting the threshold of .65 commended by DeVellis (2003). The lower alpha coefficient recorded by the psychoticism scale is in line with the operational difficulties incurred by measuring this dimension of personality (Francis, Brown, & Philipchalk, 1992). Tables 6.3, 6.4, and 6.5 provide more details about the three scales concerned with human rights in terms of the correlations between each item and the sum of the other items comprising that scale and in terms of the item endorsement across the whole sample expressed as the sum of the agree strongly and agree responses. The item rest-of-scale correlations demonstrate that each item is contributing usefully to the scale of which it is part. Six of the 8 items comprising the Scale of Socio-Economic Rights were endorsed by over two thirds of the young people: 68% agreed that the state

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Table 6.2 Scale properties

Scale of Socio-Economic Rights Scale of Civil Rights Scale of Permissions to Lift the Right to Life Religious Saliency Scale Interreligious Openness Scale Extraversion Neuroticism Psychoticism

N items

Alpha

Mean

sd

8 12 8 4 6 6 6 6

.86 .78 .76 .87 .83 .78 .65 .47

31.57 38.27 28.20 12.47 17.91 4.41 3.09 .80

5.38 6.76 5.28 4.51 4.61 1.80 1.69 1.06

Table 6.3 Scale of Socio-Economic Rights

The government should provide a job for everyone who wants one The government should provide health care for the sick The state should protect children from neglect or negligent treatment The state should protect women’s rights to acquire and administer property The government should provide a decent standard of living for the old The government should provide a decent standard of living for the unemployed The state should protect women’s right to adequate job opportunities The state should protect children’s right to engage in play and recreational activities

r

yes %

.40 .69 .74

51 83 81

.72

68

.72

77

.38

42

.68

71

.65

73

should protect women’s rights to acquire and administer property; 71% agreed that the state should protect women’s rights to adequate job opportunities; 73% agreed that the state should protect children’s right to engage in play and recreational activities; 77% agreed that the government should provide a decent standard of living for the old; 81% agreed that the state should protect children from neglect or negligent treatment; and 83% agreed that the government

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Minority groups should be free to use the town/village hall to hold protest meetings Newspaper columnists should be free to express radical convictions Police searches of private homes without a search warrant should be prohibited Imposing inhuman mental treatment on people accused of mass murder should be forbidden A cabinet minister should allow his striking officials to meet in a ministerial building tv journalists with radical ideas should have a civil right to employment The police should only be allowed to inspect people’s cars under strict judicial conditions Inflicting sever physical suffering on potential terrorists should be prohibited The police should not use force against political demonstrators The government should not pass a law forbidding all forms of public protest Guaranteeing terrorists access to a lawyer is necessary to protect their individual rights A mass murderer should be informed of his/her right to keep silent before the court

r

yes %

.49

47

.28

42

.38

42

.43

30

.43

25

.42

32

.40

33

.42

32

.50 .41

33 38

.46

32

.50

45

should provide health care for the sick. The remaining two items in this section received a lower level of endorsement: 51% agreed that the government should provide jobs for everyone who wants one; and 42% agreed that the government should provide a decent standard of living for the unemployed. Seven of the 12 items comprising the Scale of Civil Rights were endorsed by between a third and a half of the young people: 33% agreed that the police should not use force against political demonstrators; 33% agreed that the police should only be allowed to inspect people’s cars under strict judicial conditions; 38% agreed that the government should not pass a law forbidding all forms of public protest; 42% agreed that police searches of private homes without a search warrant should be prohibited; 42% agreed that newspaper

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Table 6.5 Scale of Permissions to Lift the Right to Life

In regard to euthanasia, politicians should decide irrespective of any religious leader’s will In regard to abortion, politicians should take decisions independently of religious leaders It should be possible for a woman to have a legal abortion if there is a strong chance of serious defect to the baby It should be possible for a woman to have a legal abortion if economically she cannot afford any more children It should be possible for a woman to have a legal abortion if her health is seriously endangered It should be possible for a woman to have a legal abortion if psychologically she cannot afford any more children The doctor should be allowed to do this (euthanasia) The doctor should be allowed to do this (euthanasia), only if other options to ease her pain run out

r

yes %

.32

31

.37

36

.58

58

.59

47

.58

67

.61

50

.44 .25

56 60

columnists should be free to express radical convictions; 45% agreed that a mass murderer should be informed of his/her right to keep silent before the court; and 47% agreed that minority groups should be free to use the town/ village hall to hold protest meetings. The remaining five items were endorsed by at least a quarter of the young people: 25% agreed that a cabinet minister should allow his striking officials to meet in a ministerial building; 30% agreed that imposing inhuman mental treatment on people accused of mass murder should be forbidden; 32% agreed that tv journalists with radical ideas should have a civil right to employment; 32% agreed that inflicting severe physical suffering on potential terrorists should be prohibited; and 32% agreed that guaranteeing terrorists access to a lawyer is necessary to protect their individual rights. In terms of the Scale of Permissions to Lift the Right of Life, over half of the young people supported euthanasia: 56% agreed that the doctor should be allowed to do this if requested by a woman in full possession of all her mental faculties who is in the final stages of an incurable and painful disease so asks. The proportion rises to 60% when other options to ease her pain run out. Grounds for legal abortion are supported by 67% of the young people if the woman’s health is seriously endangered, by 58% if there is a strong chance of

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serious defect to the baby, by 50% if psychologically she cannot afford any more children, and by 47% if economically she cannot afford any more children. The majority of young people recognise the sensitivity of the issues of abortion and euthanasia to religious groups, although 31% argue that politicians should make decisions about euthanasia independently of religious leaders, and the proportion rises to 36% who take this position in respect of abortion. Tables 6.6 and 6.7 provide more details about the two scales concerned with religiosity in terms of the correlations between each item and the sum of the other items comprising that scale and in terms of the item endorsement across the whole sample expressed as the sum of the agree strongly and agree responses. The item rest-of-scale correlations demonstrate that each item is contributing usefully to the scale of which it is part. In terms of the Religious Saliency Scale, 60% of the young people agree that their religion or worldview is important to them. The proportions fall, however, to 39% who agree that their life would be quite different without their religion or worldview, and to 34% who agree that their religion or worldview has great influence on their daily life, and to 34% who agree that it they have to take important decisions their religion or worldview plays a major part in it. The Interreligious Openness Scale demonstrates that around a quarter of the young people take the view that interreligious dialogue promotes the search for truth and for human flourishing. It is not, however, possible to discern from these questions the extent to which disagreement with this position is motivated by defence of one religious tradition or by disregard for all religious traditions. The data shows that: 20% of young people agree that living life to the full can only be received through conversation between religions or worldviews; 22% agree that the way to truth is only to be found when religions or worldviews have dialogue with one another; 26% agree that religions or worldviews are all equal, they are all directed to the truth; 27% agree that there Table 6.6 Religious Saliency Scale

My religion or worldview is important to me My religion/worldview has great influence on my daily life If I have to take important decisions, my religion/worldview plays a major part in it My life would be quite different, had I not my religion/worldview

r

yes %

.49 .80 .82

60 34 34

.77

39

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Table 6.7 Interreligious Openness Scale

Living life to the full can only be received through conversation between religions or worldviews Religions or worldviews are all equal, they are all directed to the truth Truth can only be found when religions or worldviews communicate with one another All religions or world views are equally valuable; they represent different ways to the truth The way to truth is only to be found when religions or worldviews have dialogue with one another There is no difference between religions or worldviews, they all stem from a longing for truth

r

yes %

.46

20

.63 .67

26 29

.64

33

.70

22

.55

27

is no difference between religions or worldviews, they all stem from a longing for truth; 29% agree that truth can only be found when religions or worldviews communicate with one another; and 33% agree all religions or worldviews are equally valuable; they represent different ways to the truth. The third step in data analysis explores the bivariate correlations between age, sex, political preference, the three measures of human rights, the two measures of religiosity, the three measures of personality, and religious affiliation. Religious affiliation is entered by the creation of two dummy variables (Muslim and Christian) with no affiliation as the reference point. The correlations provided in Table  6.8 will be discussed in the following sequence: the connection between the three human rights scales; the role of personal factors (sex and age); the role of political preferences; the role of personality; the role of self-assigned religious affiliation and religious saliency; and the role in interreligious openness. Given the large sample and the number of bivariate correlations being tested simultaneously the five percent probability level has been suppressed in the table. First, attitudes toward the three areas of human rights (socio-economic rights, civil rights, and the right to life) are all intercorrelated. Young people who endorse socio-economic rights are also likely to endorse civil rights and to endorse permission to lift the right to life. Since the intercorrelations between the three scales were not reported by Ok and Eren (2013), comparison with their data is not possible on this issue.

Note **, p  .30, and if items load high on two factors, the difference in factor loading should be > .15. In a second step we examined the two religious groups separately with the remaining items after the first step. These separate factor analyses should show whether the overall structure of the first step holds good for each group individually. In other words, the second step finds out whether the models established in the overall analysis recur in the analyses relating to particular groups. The purpose of this step is to uncover intergroup differences.

5.1

8

8 We limit ourselves to essentials here. More detailed information on sampling and data collection may be found in the doctoral dissertation of Hadiwitanto (2016 – forthcoming) and is also available on request from the authors. A brief profile of the selected universities can be found in Sterkens et al. (2014, 18–21).

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In a third step, these inter-group differences are eliminated, by running a factor analysis, with the items remaining after the second step, for Muslim and Christian respondents together again. The differences (in measurement) between Muslims and Christians are therefore eliminated in this final step, leading to a cross-religious comparative model. For the sake of simplicity, we only report the results of the third step of factor analysis.9 The series of factor analyses resulted in three equivalent scales: items 14, 6, 2, and 10 (diversity liberalism) cluster together with items 3 and 7 (group communitarianism) in a first factor; items 12, 16 and 4 coincide in a second factor (state communitarianism); and items 9, 13, 5, and 1 coincide in a third factor (autonomy liberalism). This means that the moderate models of diversity liberalism and group communitarianism cluster together in one single measurement we label the ‘cooperation model’. The two outer ends of the spectrum on the relationship between religion and state, which we distinguished theoretically, are also clearly separated among Muslim and Christian respondents: state communitarianism and autonomy liberalism (cf. Table 8.1). The two moderate models of the relationship between religion and state are combined in one measurement of ‘cooperation between religion and state’, made up of the items 14, 6, 2 and 10 of our theoretical model for diversity liberalism, and items 3 and 7 of our theoretical model for group communitarianism. In the diversity liberalism model, the state is neutral towards religion, but it recognises diverse religious groups as autonomous, and protects them. In group communitarianism, the state recognises diverse religious groups as essential members of the community, and sources of shared values. Hence, the state actively facilitates and supports religious groups. Overall, our respondents do not emphasise the differences between the models; rather, they stress the common characteristics: that the separation between the state and religious groups is not total, and that the state should recognise different religious groups. In Indonesia, the state cannot separate itself from the religious communities, and religion is clearly visible in the public domain. Article 29 of Indonesia’s Constitution states that the state is based upon the belief in One God, and that religious freedom is guaranteed within the limits of this prerequisite. An independent Ministry of Religious Affairs is responsible for coordinating matters of religion. Our Muslim and Christian respondents combine the fine distinctions in the general idea that the government should protect, support and facilitate religious traditions in society, thus reflecting a model of cooperation between the state and religion. 9

9 See Anthony, Hermans & Sterkens (2015, 42–44 and 78–82) for a detailed description of how to reach cross-religious comparative measures. The results of the factor analyses of the first and second steps are available on request; please email [email protected].

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Table 8.1 Factor analysis (Paf, Varimax rotation), commonalities (h2), percentage of explained variance, and reliability (Cronbach’s alpha) of comparative understanding of state-religion relationship among Muslim and Christian students. Items

Factors F1

14. The state should protect all religions to flourish in society. 6. The state should protect all religious communities for the sake of diversity. 10. The state should guarantee the freedom and rights of all religious groups on equal basis. 2. The state should protect all religions in society without any distinction. 3. The state should facilitate religious communities to flourish. 7. The state should support different religious communities to transmit their values. 12. The state should be based on the values and norms of my religion 16. The government should be inspired by values and norms of my religious tradition. 4. The state should base the whole society on the values of my religion. 9. The state and religion should be completely separated. 13. The state should not deal with religious matters at all. 5. The government should not interfere with religion at all. 1. The state and religious traditions should be totally independent from each other Cronbach’s alpha Number of valid cases

h2 F2

F3

.70

−.04

−.00

.48

.68

−.07

.07

.48

.64

−.02

−.04

.41

.61

−.09

−.05

.38

.57

−.00

−.02

.33

.54

−.05

.02

.29

−.10

.83

−.06

.71

−.07

.77

−.05

.60

−.04

.66

−.02

.44

−.07

−.03

.74

.56

−.00

−.06

.69

.48

.03

−.02

.61

.37

−.01

−.02

.56

.31

.79 1480

.79 1456

.74 1462

Scale: 1 = Totally disagree; 2 = Disagree; 3 = not sure; 4 = Agree; 5 = Totally agree Explained variance = 44,9%; F1 = cooperation; F2 = state communitarianism; F3 = autonomy liberalism

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State communitarianism is understood to be a very close relationship between one particular religion and the state. In this radical model, governance is strongly influenced by the norms of that particular religion (for instance, items 12 and 16). The state does not only endorse one particular religion, but also recognizes it solely as the official religion. Autonomy liberalism is at the opposite end of the spectrum, featuring total separation between religion and state. This does not necessarily mean that the state is hostile towards religion; rather that the state is neutral, and does not interfere in religion and religious affairs. Agreement with Models of Religion-state Relationship among Muslims and Christians The second research question aims at the levels of agreement with the different models of religion-state relationships, and the possible differences between Muslim and Christian respondents in this regard. We calculated the mean scores and standard deviations for each model of religion-state relationship, and checked for significant differences between Muslims and Christians by means of an independent-samples T-test. The level of agreement with the three models of religion-state relationships is expressed in a five-point Likert scale running from total disagreement (1) to total agreement (5). Table 8.2 below provides a summary of the average scores, and the inter-group differences.

5.2

Table 8.2 Levels of agreement (mean and standard deviation) with regard to models of relationships between religion and state among Muslim and Christian, and T-tests of means between religious groups of respondents

Cooperation Muslims Christians State communitarisnism Muslims Christians Autonomy liberalism Muslims Christians

N

Mean

s.d.

(t-value)

789 707

4.04 4.30

.56 .48

−9.899** −9.899**

763 693

3.29 2.69

.93 .89

12.780** 12.780**

789 706

2.41 2.43

.81 .81

−.317 −.317

Scale: 1(Totally disagree), 2 (Disagree), 3 (Not sure), 4 (Agree), 5 (Totally agree) t-values are significant at p