Posted: 12 Apr 2017 Last revised: 19 Apr 2017
Date Written: April 9, 2017
This Article argues that the European Court of Human Rights’s use of the margin of appreciation in cases involving disputed and socially controversial religious symbols can be seen as the Court’s status-seeking mechanism, whose application varies with the status of states, and the social status and distance of religious symbols from mainstream social norms. Due to the informational function of law and status concerns, the Court’s procedures and decisions, however, have mobilizing effects upon third party interveners, states, groups, and ‘loyalists’, with, at times, negative consequences. The mobilization of the states as third party interveners in front of the Court creates a structural misbalance unfavorable to the individual applicants, while intervention of non-state third parties in the Court’s procedures defers the alignment of socially controversial religious symbol such as the wearing of the burkha with mainstream norms. Mobilization of states, groups and loyalists in the wake of the Court’s deliberations decreases overall social pluralism, since states and various groups benefit from using litigation in front of the Court for purposes of the preemptive defense of the status quo and the creation of an emerging consensus (as in the case of high-status states seeking to promote burkha ban across Europe), norm-entrepreneurship and strategic cause-legitimization (in the case of groups), and in–group and out-of-group ‘loyalty testing’ (in the case of ‘loyalists’). The differentiated treatment of states and the largely negative mobilizations, caused by the increase of religious diversity, work to move the Court further away from the consent-based view of states and autonomy-based view of religions toward the status-oriented treatment of states and religions based upon social and demographic factors.
Keywords: European Convention on Human Rights, European Court of Human Rights, religious freedom, international law, consent, status, sociology of law, comparative law, burkha ban, margin of appreciation
JEL Classification: A00, E00
Suggested Citation: Suggested Citation
Jusic, Asim, Mobilizing Around Religious Symbols: The European Court's Margin of Appreciation between Consent, Mobilizations and Status (April 9, 2017). University of Pennsylvania Journal of International Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2949253