The Fundamentalism of Liberal Rights: Decoding the Freedom of Expression Under the European Convention for the Protection of Human Rights and Fundamental Freedoms
25 Pages Posted: 26 Sep 2014
Date Written: September 22, 2014
This paper attempts to deconstruct the free speech defense of the publications of cartoons offensive to many Muslims in Denmark and elsewhere in Europe in order to highlight the deep philosophical tensions between the characterizations of religion and race, between free speech and hate speech, and between the freedoms of expression and of religion. A scrutiny of the jurisprudence of the European Court of Human Rights (“ECtHR”) reveals the difficulties inherent in defining permissible limits on expression, particularly as it involves the identification and prioritization of interests that are worthy of protection under a state's law. The struggles over the characterization of certain interests as fundamental rights, in turn, raise questions over the ‘fundamental-ness' of rights and the valuation of foundational social and political values that the rhetoric of rights presumes as incontrovertible. This study seeks to advance the argument that fundamental rights, such as the freedom of expression, are legal constructs whose value is contingent on the ends they are employed to serve in a given socio-political environment. While the contingency of fundamental rights is palpable in debates over their definition and over what they include or exclude, it is most clearly visible in the clash of fundamental rights, in particular the freedoms of expression and religion.
Keywords: Freedom of Expression, Freedom of Religion, European Convention of Human Rights
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