Islam in the Secular Nomos of the European Court of Human Rights
86 Pages Posted: 2 Sep 2010 Last revised: 14 Jul 2011
Date Written: 2011
Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the conceptual relationship between religion and the public sphere internal to not only European nation-states but the supranational 'nomos' of the Strasbourg Court itself.
The Article argues that a complex historical and normative relationship between Christianity and secularism continues to define the modern contours and shape of the public sphere and the right to religious liberty alike and that assertions of claims of right by Muslims have thus made visible both the historical contingency and cultural particularity of these norms and forms of legal ordering. An argument is advanced which views the Court’s reasoning under Article 9 as entangled with not one but two rival liberal traditions: one dialogic which defines the right to religious liberty in value pluralist terms and views the public sphere in terms of social peace; the second rationalist which defines the right more narrowly in terms of autonomy and views the public sphere in terms of a particular substantive theory of justice. The Article concludes by suggesting that a better understanding of how religious freedom emerged in early modern moral and political thought will show that the dialogic pluralist strand is deeply encoded in the logic and structure of Article 9 and how this may open new pathways by which to re-imagine the current limits of the Court’s jurisprudence.
Keywords: Comparative Law, Human Rights Law, International Law, Jurisprudence, Public Law and Legal Theory, Religion
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