Freedom of Religion and Criminal Law: A Legal Appraisal - From the Principle of Separation of Church and State to the Principle of Pluralist Democracy?
In: J.A. van der Ven & H.-G. Ziebertz (eds.), Tensions within and between Religions and Human Rights, Leiden/Boston: Brill 2012, p. 27-66.
30 Pages Posted: 27 Apr 2012
Date Written: April 1, 2012
This paper discusses how criminal law and religion should or should not be involved with each other from the point of view of the right to freedom of religion. With that in mind the paper addresses several interrelated questions. What does the principle of separation of church and state require, what interests does it serve, and does it allow for criminal law measures that are explicitly concerned with matters of religion or belief? What does the human right to freedom of religion in general imply about the relation between state and religion? To what extend does the right to freedom of religion oppose, allow or require criminal law measures that deal explicitly with religion or belief? Issues discussed here are e.g. blasphemy, apostasy, an proselytism. And finally: is the principle of pluralist democracy better suited to regulating the relation between the state and religion when it comes to criminal law than the separation principle? As regards the analyses of international human rights law, the emphasis of this contribution is the International Covenant on Civil and Political Rights (ICCPR, 1966) and the European Convention on Human Rights (ECHR, 1950). The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the 1981 UN Declaration), the American Convention on Human Rights (ACHR, 1969), and the African Charter on Human and People’s Rights (AfChHPR, 1981) will be considered insofar as these instruments or the jurisprudence based thereon provide relevant direction on the issues under discussion.
Keywords: Religion, Human rights, Criminal Law, Blasphemy, Apostasy, Proselytism
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