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The Judicial Protection of Religious Symbols in Europe’s Public Educational Institutions: Thank God for Canada and South Africa

Muslim World Journal of Human Rights, Vol. VIII, No. 1, pp. 1-24, 2011

Posted: 25 Feb 2012  

Hans-Martien ten Napel

Leiden Law School

Florian H. Karim Theissen

Leiden University - Leiden Law School

Date Written: October 12, 2011

Abstract

How should judges deal with the manifestation of religious symbols in public educational institutions? In light of the important role of human rights in our legal and political system, courts should grant maximum protection under the freedom of religion or belief. The central thesis of this article is that the European Court of Human Rights fails to live up to this standard. In order to reach this conclusion, the article analyzes relevant case law of the European Court and compares its case law with that of the high courts of Canada and South Africa. In addition, the article assesses the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism. Adoption of a more consistently minimalist methodology by the European Court might lead to a greater protection granted to individuals and groups. However, a wide and deep ruling is first required to overturn the current line of reasoning. The European Court can draw inspiration from Canada and South Africa for such a judgment.

Keywords: religious symbols, public educational institutions, European Court of Human Rights, comparison with high courts of Canada and South Africa, interpretation theory, judicial minimalism, secularity, secularism

Suggested Citation

ten Napel, Hans-Martien and Theissen, Florian H. Karim, The Judicial Protection of Religious Symbols in Europe’s Public Educational Institutions: Thank God for Canada and South Africa (October 12, 2011). Muslim World Journal of Human Rights, Vol. VIII, No. 1, pp. 1-24, 2011. Available at SSRN: https://ssrn.com/abstract=2010449

Hans-Martien Ten Napel (Contact Author)

Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Florian H. Karim Theissen

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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