An analysis of the discontinuity in the religious rights jurisprudence of the European Court of Human Rights.
Demythologizing the myth of modern human rights law.
By Diana van Vugt
' The frightening truth concealed by the liberal myth is, therefore, that liberal principles go against the grain of human and social nature. Liberalism is not a matter of clearing away a few accidental obstacles and allowing humanity to unfold its natural essence. It is more like making a garden in a jungle that is continually encroaching ... But is precisely the element of truth in the gloomy pictures of society and politics drawn by critics of liberalism that makes the project of realizing liberal principles all the more urgent.' (Margaret Conavan, 1990)
Introduction
Imagine the fictive case that a well known novelist writes a profane short story for a special issue of the weekend supplement of the Helsingin Sanomat with the theme Faith and The Meaning of Life. The story revolves around the fictive diary notes of a 16 year old boy, who is radically challenging the existence of God. Due to his orthodox Lutheran upbringing, the teen despises the Christian faith so vigorously that he condemns his Christian upbringing and education, amongst others, 'as indoctrination of the sort the Nazi regime practiced in order to convince the public of the necessity of the Final Solution'.
A considerable part of the newspaper readers adheres to the Christian faith and is gravely shocked by the contents of the short story. Let us imagine, that several readers initiate criminal investigation against the writer and the Helsingin Sanomat. Furthermore, let's assume that the proceedings lead up to the Finnish High Court, however, without resulting in a conviction against the writer and the newspaper. The subsequent judges have been unanimously pointing towards the constitutional rights to freedom of expression and consciousness to motivate their judgments.1 Especially the appeal court judges have been emphasizing that the freedoms of expression and consciousness form the cornerstones of a free democratic society. Moreover, these rights are especially relevant in case of the protection of controversial art works from state censure.
However, the applicants feel that justice is denied to them. They decide to seek resort to the European Court of Human Rights on grounds that the Finnish state (e.g. the courts that handled the proceedings) has been violating the applicants' right to freedom of religion, which includes the right to due respect for religious beliefs. Besides the Constitution, this right is covered by the European Convention on Human Rights. Moreover, they claim that religious beliefs enjoy special protection under Finnish law, since the Finnish Criminal Code contains an article that explicitly criminalizes 'disturbing the peace of religion', or in other words: blasphemy. Meanwhile, the Finnish government representative holds onto the argumentation of the courts, emphasizing the fundamental importance of the freedoms of consciousness and expression.
Thus, both parties call upon constitutional basic rights, which are also covered by the European Convention of Human Rights. Who has justice on his side?
Before going more deeply into that question, let's still consider another fictive case. A female Dutch student, majoring in Dutch criminal law, applies for a job as a legal clerk at the criminal law department at the regional court of, say, Rotterdam. She is practicing Muslim and therefore has chosen to wear a headscarf in the public sphere, in order to protect and emphasize her feminine and religious integrity. During the job interview the aspiring legal clerk is confronted with the question whether she would wear her headscarf while being in duty to attend court cases. In Dutch courts the legal clerk sits at a table besides the panel of judges and wears a black gown, similar to the judges. Truthfully, she answers that she would wish to do so. After all, the courtroom is part of the public sphere.
Eventually, the applicant is rejected for the job as a legal clerk. After probing for a due motivation of that decision, it turns out that she is rejected because she uttered the wish to wear her headscarf in court. The rejected applicant finds her rights to freedom of religion and expression are seriously infringed, despite the court's insistence on the necessity of neutral representation, symbolizing the autonomous and unbiased character of the judiciary. A complained is filed to the 'Commissie voor Gelijke Behandeling' (Committee for equal treatment), a quasi judiciary body in the Netherlands that provides (non binding) advisory opinions in cases of alleged discrimination on race, religion, ethnicity, sex, gender and age.
Before the committee, the representative of the regional court of Rotterdam stresses the necessity of judicial neutrality, which means that no obvious signs of cultural and religious identity should be visible in the courtroom. The gowns of judicial officials within the scenery of the courtroom bear a clear witness the appeal to neutrality, which, moreover means secularity. The visibility of the religious signs in the courtroom is likely to challenge the separation of state and religion in the eyes of the public, so the argument goes. Conclusion is that one should take those issues into account when considering to pursue a career as a judicial official.
However, the committee emphasizes the dynamic character of society, which should ideally be reflected in the law and, moreover, the representation of legal authority as well. It points out that the Dutch society has significantly changed in the past 30 years; labor migration has brought cultural influences of immigrants coming from diverse corners of the world. A significant amount of them have their origins in predominantly Muslim countries, like Turkey and Morocco. Many of them and their descendants have become citizens of the Netherlands, thus (political) agents of the Dutch civil society, which should have equal chances of access to representational governmental functions. The blunt fact that a significant group, namely Muslim women that wear a headscarf, would be excluded from those functions or otherwise forced to put aside an important part of their religious identity, puts into question legal and political authority of such rule - or better, particular interpretation of that rule - since it turns itself against the very principles of the rule of law and democracy, which are deemed to be non-discriminatory in their essence. So the committee supports the complaint of the rejected legal clerk, based on the prohibition of discrimination.
Both parties seem to adhere to valid legal and plausible reasoning, based on highly valued constitutional and human rights. Since the European Court of Human Rights has acquired an officious status as the 'constitutional court of Europe' and would thus be presumed to be an authority in setting a standard in the collision of religious freedom with state neutrality, the question arises what it would have ruled in this and similar cases. Again, who has justice on his or her side? The answer rather seems to be a matter of choice - according to one's own ideas on the 'general good' - than complying to a metaphysical standard like justice.
The fictional cases above point towards the complex legal problem of collision of fundamental rights and controversies between individual rights and the collective interest of state secularism. This essay focuses specifically on the cases where the collision of fundamental rights involves a claim to religious rights which come into confrontation with the rights to freedom of expression and conscience of others, as well as presumed communal interests of secular democracy.
More specifically, it will be analyzed how the European Court of Human Rights translates its political biases into a legal argument which seeks to bring an authoritative end to conflicts of fundamental rights. A comparison between the ECHR's jurisprudence on blasphemy, on the one hand, and claims to religious freedom by Muslims brings a discomforting schism to light. Whereas the Court apparently tends to regard it just to protect the religious feelings of Christians, at cost of the freedom of expression, it has shown a jurisprudential trend to turn down claims to religious freedom and the freedom of expression by Muslim applicants, defining their interests in a tedious relationship with the principle of secular democracy.
It will be argued that this is not a peculiarity or wrong of the European Court of Human Rights, but rather exposes to us the core problematic of modern (international) law. According to the Enlightenment ideal, where modern law evolved from, human reason and its reflection in positive law provide an autonomous and objective standard to measure conflicting, subjective interests against. The secular and autonomous concept of law should ideally provide a rational counterweight to the subjectivism of metaphysical concepts of natural law and political power struggle. It will be argued that law cannot live up to those principles. In other words, law cannot escape from politics and morals; law is at the heart of both.
The myth of legal autonomy and determinacy
These observations point at the prime ontological question what law is. The fictional cases discussed above already show that law is not what it seems. At least, if one sticks to the delusional image that law is, or should be, detached from politics and thus provide determinate standards that confine political decision making. The discussion of the fictional cases above suggests that political decision making lies at the heart of the legal argument and judgment. The very existential justification of law has its foundation in liberal legal theory, which assumes legal autonomy to be the answer to a human nature of violent desire for power as well as false transcendentalism.
In that light, the observation that political decision making lies at the heart of the legal judgment, would thus seem the very end of law, and even more, justice. In other words, this study would end here in a cynical nihilism or realism of a kind that assumes that a judicial decision merely depends on what the judge had for breakfast. While indeed ascribing to the idea that political contextuality forms the law and legal argument in a crucial way, it will be argued here that precisely the recognition of law as a distinguished political process could preserve the authoritative normative status of law. By 'distinguished' I mean, based on a specific and formalized vocabulary. Before elaborating on this argument, the deconstruction of the liberal myth of legal autonomy and determinacy, and more specifically, the myth of modern (human) rights theory will be discussed in more detail.
Paradoxically enough, the myth of modern legal autonomy and determinacy is also based on a process of demystification; namely the enlightenment of divine theories of natural law by the law of reason. Fitzpatrick explains the myth of modern law in the context of the development of secular, rationalist and liberal philosophy, which draws its identification merely from a negation of 'traditional superstition'. Demystification is thus claimed as the way to absolute, scientific and human truth. The liberal emphasize on secularism and individualism places man in the role to explain and justify his (self made) world. This process involves connecting reality with the transcendent or, in other words, connecting the facts of society with norms that justify it. The phenomenon of myth characteristically functions as a conceptual framework to connect facts and norms in a justifying narrative. In case of the enlightenment myth, the reconciling factor between those spheres is defined to be human reason, rationality.
Fitzpatrick aims to reverse the demystification of modern law and by doing so show that modern law is itself a myth. Myths typically deal with origin, transcendence and identity. In Fitzpatrick's words: 'The myth claims, or often claims, an exclusive humanity or at least the superiority for the group. Origins are located in a special way. The point of origin is sacred - set apart, made transcendent and beyond encompassing in profane experience. Myth both sets the limits of the world, of what can be meant and done, and transcends these limits in its relation to the sacred.' Characteristically, this contradiction exists within the myth, but is at the same time mitigated by it. Although it is generally recognized that modernity shows 'survivals' of myth, like ritualistic dress and language in the specific scenery of the law-court, Fitzpatrick makes the point that the myth of modernity encompasses much more than survivals only. To the contrary, he states that in the negation of myth - the mythical transcendence of myth by rationality and progress - rather enshrines the perfection of myth.
The historical context of the birth of the negative myth of modernity is formed by the devastating European religious wars, which coincided with the period of Enlightenment in science and philosophy, as well as the wake of colonialism. Especially the latter constituted a fertile root for the European civilization and development missions based on the superiority idea of 'White reason'. Anthony Anghie reminds us how concepts central to international law, like sovereignty and rights, were deployed by the colonial powers to further their political and economical dominance, which eventually resulted in the spread of liberal western European notions of international law, human rights and governance over the world.
In his book Secularism; Christianity, Islam, Modernity, Talal Asad asserts that the essence of the myth of modernity is constituted by the idea of secularism. Asad stresses the point that secularism entails more than just the idea of separation of religion and state. Instead, secularism captures the paradoxical concepts of reality and transcendence in the social and political realm of human society. Secularism configured as a justifying narrative of governance takes the form of the rule of law. The rule of law as a secular narrative, a mode of holding configurations of meaning together11, situates the mythical origin as well normative transcendence of political power in the reality of human society.
This particular configuration of meaning, situating both concrete the origin of political power and its normative transcendence in human society, stems from the modern social contract thinkers. According to social contract theories, humans are originally free and equal sovereigns, who have nevertheless good reason to cooperate in political entities. Thereby they grant part of their sovereignty to the political entity and thereby legalize the political entity. Similarly the legitimacy of international law and international organizations stems from 'social contracts' between sovereign states, distributing part of their sovereignty to the transnational level. Political and legal constitutionality thus merely evolves from the merging of individuals or states in legal political organizations. Though at the same time, it is assumed that the original individual rights of free and equal men are given indefinitely and inalienably. The theory of human rights is based exactly this assumption of the infinite freedom an equality of men.
The distribution of parts of individual sovereignties to the political entity provides it with mythical origin and transcendence at the same time. The constitution of political entities thus originates in consent but exceeds, indeed transcends, it at the same time, because of its legally binding formula, which refers back to the sovereignty passed from men upon the political organization. With the rule of law the realm of the transcendent has entered the profane or in words of Horkheimer and Adorno: 'In the enlightened world, mythology has entered into the profane. In its blank purity, the reality which has been cleansed of demons and their conceptual descendants assumes the numinous character which the ancient world attributed to demons.'
The latter part of the quotation refers to Horkheimer's and Adorno's critique on the corrupting power of capitalism which the modern myth of rationality and objectivity seeks to conceal and justify. Without adhering to the fatal destructiveness Horkheimer and Adorno ascribed to the profaned myth of modernity, it is crucial to note that they stress the structural bias in all that is called objective and rational in the vocabulary of modernity, amongst which the modern concept of law. This crucial line of critical thought has inspired many a critical (legal) writer, especially under the co-inspiration of the so called 'linguistic turn' in the 1970s. Under influence of structural linguistics, analytical concepts, like Foucault's discourse analysis, were coined to unravel the dynamics of political power configurations behind the processes of knowledge creation and information distribution. In legal theory this led to a broad movement of critical legal studies (CLS), originating from the United States and inspired by American legal realism.
Here in Europe, Martti Koskenniemi almost literally made school with his analysis of the dialectical structure of the legal argument pointing towards its political nature. In his book Between utopia and apology. The structure of the international legal argument, Koskenniemi shows how the concept of international law hinges upon two mutually exclusive and at the same time necessarily complementary conceptual frameworks, namely concreteness and normativity, or facts and norms. On the level of legal theory this dialectic structure manifests itself in the contradictory though complementary conceptual frameworks of individualism and communitarianism, representing respectively the liberal idea of individual emancipation and the need for social order.
However, neither of these concepts nor the pair of them could provide the rule of law, at least according to the liberal paradigm, which envisions law as an autonomous, (semi) objective, normative mechanism fostering both individual emancipation and social order at the same time. The essence of the liberal concept of law is that it constitutes politics' significant Other. In other words, law and politics form a binary opposition, depicting law as the bringer detached normativity and order to the political sphere of colliding interests and power struggle. According to this idea, law thus exists in the negation of politics. In the post Second World War era human rights ideology could almost be called a model example of this idea. However, critical discussions on the (political) meaning and merits of human rights have been increasingly coming from the margin of the international legal and political debates. Though most critical debates characteristically take place within the spheres of the academia and less were a critical reflective attitude would probably be most needed. That would be in the actual pluralizing spheres of law creation, application and adjudication; the circles of national governments, international organizations, NGOs, international tribunals and corporations.
Recognition of the law's structural bias in each and every legal argument would make all the difference between myth and reality. Law would descent from its mythological air castle to political reality and that would be a good thing. From the structural failure to make the myth of the rule of law reality, the language of law would provide a specialized vocabulary to deliberate on differing, colliding ideas and interests in a specific, professionalized, unifying language. After all, the very concept of law has a political agenda as well; law aims to universalize the liberal morals of freedom and equality. No concept could make that more clear than the concept of universal human rights.
Myths might not be designed to become reality, but that does not mean that human rights idealism, legal normativity or cosmopolitan universalism would per definition lead to betrayal and disillusionment, as Horkheimer and Adorno seem to suggest. Moreover, the conceptual frames of the legal argument, normativity and concreteness, provide a professional vocabulary that by its very nature strives to a balance between normativity and concreteness, therewith carrying the intent to prevent escalation to either direction; normative imperialism or political apology. However, what does lead to disillusionment and betrayal, because of not being able to deliver the rule of law, is the prevailing liberal assumption of the detached autonomy and determinacy of law.
Contemporary legal decision makers mostly attempt to find their golden midway between normativity and concreteness by rhetorically trying to circumvent revealing the political decision under the surface of the legal argument, through a balancing act involving both normative and concrete arguments. By argumentatively including both conceptual frameworks a suggestion of synthesis, rule of law, is created. In order to 'cover up' the structural indeterminacy of legal norms, mostly rhetorical techniques as equity reasoning and teleological interpretation are deployed. As will be discussed below, this is exactly the path the European Court of Human Rights also goes.
Exposé of cases and the moral politics of the European Court on human rights.
Wingrove vs. United Kingdom concerns a short movie titled Visions of Ecstasy (1989) by the movie director Nigel Wingrove. The British Board on Movie Classification rejected Wingrove's application for a distribution certificate on grounds that the movie would contain blasphemous scenes, which is a criminal offense according to British common law. Wingrove appeals without success to this decision, after which he seeks recourse to the ECHR, claiming that his right to freedom of expression is violated.
According to Wingrove, Visions of Ecstasy has its roots in the writings of St. Teresa of Avila, a sixteenth century Carmelite nun, who reported particularly strong ecstatic visions of Jesus Christ. Visions of Ecstasy shows the mystical and sensuous trance of a scarcely dressed young nun, depicting St. Theresa of Avila. The controversial scenes include an episode of the nun wounding herself with a nail whereupon she spills her blood over her bear breasts and a sequence of scenes in which she passionately kisses the crucified body of Christ, while making intense bodily contact with him.
The ECHR acknowledges that the refusal of the British Board on Movie Classification to issue a distribution certificate constitutes an interference with the applicant's right to freedom of expression, guaranteed in Article 9 of the Convention. Though, section two of the Articles 8 till 11 of the Convention provides circumstances under which such interferences might be legitimate. The criteria are cumulative and should thus all be fulfilled.
1. Any interference should be prescribed by or in accordance with the law (meaning the national law of the applicant).
2. The interference should aim to serve at least one of the listed legitimate interests in the catalog of Art. 8,9,10 or 11 of the Convention.
3. The interference should be necessary in a democratic society (interpreted as a 'pressing social need')
4. The interference should be proportionate to the aim or interest pursued.
In the Wingrove case, the first criterion is met by the British Board's reference to Article 4 of the Video Recordings Act 1984 as the legal ground for its decision. Since the decision of the British Board on Movie Classification aimed to protect the religious rights of others, the second criterion is assumed to be fulfilled as well. Although blasphemy lacks a clear legal definition, the ECHR appears to be easily satisfied with the argument that the applicant should have reasonably foreseen that Visions of Ecstasy could fall within the scope of blasphemy.20
On the third and fourth requirement, the ECHR provides a rather vague reasoning. Essentially, the Court states that it was 'not unreasonable' for the national authorities to consider that the video 'could have reached' people who would experience the content of the video as particularly offensive to their Christian beliefs. From such an evasive statement one could impossibly derive a convincing argument for pressing social need. Neither does the Court's argumentation properly cover the issue of proportionality. However, the ECHR concludes that the ban of Vision of Ecstasy by the British Board on Movie Classification is legitimate. No violation of the Convention was found.
The Court avoids any substantial reasoning on the crucial question whether blasphemy legislation in itself would be (un)necessary in a democratic society. Instead, it asserts that there is not yet sufficient common ground on the matter in the legal and social orders of the member states of the Council of Europe. More in general, the ECHR holds the opinion that in case of moral issues, national authorities are better capable of judging the necessity of an interference then an international court.21 Therefore, it grants a rather wide margin of appreciation to the member states. That means that actions of national authorities are only subject to a marginal test on compatibility with the Convention. In other words, acts of national authorities are not likely to be liable to scrutiny of the ECHR.
This highly peculiar and questionable judgment of the ECHR does not stand on its own, though rather forms a salient example of the Court's tendency to protect Christian values at cost of the freedoms of expression and consciousness. Otto Preminger Institute vs. Austria concerns a similar case. Also this case concerns a movie that is banned on grounds on blasphemy. The audio visual association the 'Otto Preminger Institute', applicant to the ECHR, intended to screen Werner Schroeter's movie Das Liebeskonzil, an independent film that aims to discuss the hypocrisy of religion.
It is worth to recall that the movie was based on Oscar Panizza's theater piece with the same title. Panizza, a modernist play writer, made religious and political hypocrisy his main artistic subject. In Schroeter's version, an actual performance of the play in Rome is placed in the context of a reconstruction of Panizza's blasphemy trial. Panizza had faced the banning of his play by a Munich court in 1895, which subsequently sentenced him to a year imprisonment for blasphemy.22 A century later, the European Court of Human Rights upholds the tradition of censorship, violating the principles of the human rights Convention it was designated to protect.
It is striking that the Innsbruck Appeals Court refers to the values of an orderly and tolerant state and society to legitimate its act of censorship.23 Though censorship seems by its very nature outrightly in conflict with the principle of a tolerant democracy, which should be equality based. Presumably, in such a society would fit no protected Christian elite, nor justification for silencing of political opinions and creative freedom. However, the ECHR confirms the court ruling in a similar manner as already exposed for the Wingrove case. It acknowledges that the banning of the movie interferes with the applicant's freedom of expression, though the interference was prescribed by law, namely Austria's Penal Code which criminalizes the disparaging of religious convictions. Furthermore, according to the ECHR, the interference served a legitimate goal, namely the protection of the rights of others and, specifically, the right to respect for religious beliefs.
Also in this case, the Court avoids a clear answer to the question whether the special protection of religious, read: Christian, groups is necessary in a democratic society and, if that the answer would be - undesirably - confirming, whether forfeiture of a controversial artwork is proportional to the interest served. 24 Absurdly enough, in the case at hand, the protective measure concerns the already highly selective audience of independent film. Then, the number of Christians among this public who would possibly feel offended should be, per definition, minimal. Though the Court holds onto its argument that national authorities are in a better position to judge the necessity of an interference, since they presumably have a more accurate view on the interests of the society as a whole then an international court. As discussed above, this formula indicates a wide margin of appreciation for the national authorities. This leads almost automatically to the conclusion that the ECHR finds in the interference of the Austrian authorities no infringement of the Convention.
The case of Leyla Sahin vs. Turkey (2005) resembles the above mentioned fictive case of the Muslim applicant being rejected for a job as a legal clerk in a Dutch court. Ms. Sahin was a fifth year student of medicine at the University of Istanbul, where she was refused to do written examinations and participate in courses because she wore a headscarf. As a practicing Muslim, Ms. Sahin had chosen to wear the veil by way of 'religious duty'. The decision to deny her access to exams and classes was based on a circular issued by the Vice-Chancellor in 1998 forbidding the wearing of head scarves and beards in the public space of the university.
Leyla Sahin finds, amongst others, her right to freedom of religion (Article 9 of the Convention) infringed and eventually complains to the European Court of Human Rights. According to Article 9 of the Convention, the freedom of religion also means the freedom to manifest ones religion in public. At this point the freedom of religion conjoins with the freedom of expression, as stated in Article 10 of the Convention. Both the Chamber and Grand Chamber agree that the circular of the Vice Chancellor concerning Islamic dress intervenes with the applicant's right to manifest her religion. The question is whether such an interference could be considered to fall under the provisions given in the second section of Article 9 (and 10) of the Convention and could thus be legitimated.
The first question to address is whether the inference could be considered 'prescribed by law'. Besides fitting in the statutory framework of the university and its tradition on the regulation of religious dress, the Court notes that the Turkish Constitutional Court has been delivering various judgments concerning the topic of Islamic dress in the public sphere. According to the ECHR, the Constitutional Court has determined that the freedom of dress in institutions of higher education is 'not absolute'. Moreover, it had ruled that authorizing students to wear a veil for religious purposes had to be considered in conflict with the Constitution's principle secularity and thus unconstitutional. The ECHR considers that there is sufficient legal basis for the Vice Chancellor's circular in Turkish law to assume that the applicant should have been aware of them at the time she pursued her studies in Istanbul, after a period of study in Vienna.
As for the legitimacy of the aim, the Court considers that the Vice Chancellor's circular aims to protect the rights and freedoms of others and the public order. This consideration must be seen against the Court's seeming conviction that the allowance of obvious public manifestation of the Islam, as a majority religion with extremist tendencies, threatens the very principle of (secular) democracy itself and thus the rights and freedoms of others (especially the freedoms of conscience, thought and expression). It is no surprise then that this preconception also rules the Court's argumentation on the necessity of the measures taken against Ms. Sahin.
Indeed, in the footsteps of the domestic Constitutional Court, the ECHR perceives interference with the right to manifest one's religion by forbidding the Islamic veil necessary in a democratic society, since the principle of secularism should be seen as the very guarantee of democracy, in fact, the meeting point of liberty and equality. Note that this formulation looks highly peculiar in the light of Courts tolerance of Christian blasphemy laws. The ECHR sustains its question begging argument by stressing that the Islam had been tending to politicize and radicalize in Turkey during recent years and thus possibly poses a serious threat to the state secularism and democracy, especially since the majority of the Turkish population adheres to the Islamic faith. Furthermore, the ECHR, again referring to the Constitutional Court, addresses the issue of gender equality, which is to her eye threatened by the mere suggestion that the wearing of the veil would be a sign of female oppression and/or submission.
For all those reasons together, the ECHR concludes that the university's Vice Chancellor's ban on beards and veils, called upon against Ms. Sahin, could not be considered disproportional in the light of the social need protected. Hence, according the ECHR there is no violation of Leyla Sahin's right to manifest her religion. In a dissenting opinion Judge Tulkens rises important critique against the Court's assumptions that the Islam in general would tend towards (militant) fundamentalism, of which the wearing of the veil by women in public would be a strong (political) statement. Moreover, Tulkens reminds the Court and the reader that the freedom to manifest one's religion, analogue to the freedom of expression, should not be interfered for the mere reason that views, ideas or practices concerned, are not shared by everyone and might even shock, offend or disturb some people. To the contrary, the freedom to express oneself, including the freedom to manifest one's religion, are merely coined to such situations. After all, rights only become meaningful when there is a social conflict.
The case of Leyla Sahin seemingly represents a trend in the ECHR's jurisprudence based on the assumption that democracy should show its teeth to public expressions of the Muslim faith. As judge Tulkens remarks in her dissenting opinion with the Leyla Sahin case, the Court tends to connect the Islam as such with 'extremist political movements' which pose a threat to democratic societies, especially in countries like Turkey where the majority of the population is Muslim. This would justify, again per se, regulations and measures that curtail the religious rights, freedom of expression and association of Muslims, in order to protect the public order and social peace. In particular, Judge Tulkens refers another recent and more renown case; the ECHR's Grand Chamber judgment (2003) on the constitutional ban on the highly popular and Islamic Refah Partisi.
Touching upon the heart of the democratic paradox between individual freedom and the protection of democracy against potential political majorities that support alleged (religious) totalitarianism, the Refah Partisi case witnesses most obviously of the development of an implicit and selective (discriminatory) concept of militant democracy in the jurisprudence of the ECHR. The concept of militant democracy describes a situation wherein governmental authorities merely decide which political movements suit the democratic regime and which not. This also implies that governmental authorities assume the discretion to take - legal - measures against alleged anti-democratic actors.
Moreover, militant democracy implies the danger to turn against the very principle of democracy. There is a realistic danger that a militant democracy becomes a shield for hegemonic power, legitimating the infringement of rights and freedoms, assuming that rights are only meant for those who are labeled as good. The evil should be rooted out, even if that means recourse to violence. The United States' project of forcing the so called axis of evil within an international democratic regime by the very means of the war on terror, provides a most striking example of militant democracy off limits.
The event leading to members of the Refah Partisi to complain to the European Court on Human Rights, was a judgment of the Turkish Constitutional Court demanding the dissolving of the Refah Party based on alleged ideas and acts against the principle of state secularism. It is worth noting that the Refah party was leading the polls with a significant majority by that time and that elections were coming up. In other words, it was feared that Refah would grasp power. Allegedly, the Refah Party was campaigning to introduce a theocratic regime and Islamic law, the Sharia, and would not shun to use of force.
On its turn, the Refah Party states that it has never intended to undertake any action against the democracy, nor ushered ideas that would run counter the principle of state secularism. The complaint to the European Court of Human Rights is mainly founded on an alleged breach of the freedom of association (Article 11 of the Convention), in relation to violations of the freedoms of religion and expression (Articles 9 and 10 of the Convention). In its judgment the Court emphasizes the close relationship between the Convention regime and the principle of democracy. To justify its militant democracy argument, the Court merely states that democracy is the requirement for the exercise of rights and freedoms, which implies that rights could be legitimately - and sometimes necessarily - compromised to some extend in order to protect the very principle democracy.
In that light, the Court considers that political parties might only campaign for change in the legal and constitutional structure of a state if it does so solely by democratic means and faithful to the principle of democracy itself.34 Because democracy is such a crucial issue to the Convention regime, the Court states, only a limited margin of appreciation is granted to the member states. So contrary to the above discussed blasphemy cases, the Court assigns itself a more elaborate discretion to criticize domestic governance in the light of the principle of democracy. In other words, the Court takes a more activist attitude. This we also saw in the case of Leyla Sahin, where the court navigated its argument towards a collision of religious rights with the principle of democracy, thus allowing for an activist attitude.
Based on the narrow margin of appreciation and its thus created discretion, the Court rules that the order to dissolve the Refah Party answers to a pressing social need. It takes into consideration the party program and various public statements by politicians. The Court analyzes that the alleged theocratic ambitions, based on the Sharia would not guarantee that the principles of democracy would be observed.35 Therefore, in conclusion, the judgment of the Constitutional Court could be said to answer to the pressing social need to protect state secularism and democracy. The following crucial consideration from the Grand Chamber judgment nicely encapsulates the adoption of a militant democracy concept by the ECHR:
'The Court must not lose sight of the fact that in the past political movements based on religious fundamentalism have been able to seize political power in certain States and have had the opportunity to set up a model of society which they had in mind. It considers that, in accordance with the Convention's provisions, each Contracting State may oppose such political movements in the light of historical experience. ... The Court further observes that there already was an Islamic theocratic regime under Ottoman law. When the former theocratic was dismantled and the republican regime was set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional Court was justified in holding that Refah's policy of establishing Sharia was incompatible with democracy.'
It is worth to note that the Court 'reads' a concept of militant democracy in the Convention regime, more precisely into the provisions for interference with the rights and freedoms formulated in Article 8 till 11 of the Convention. Moreover, it seems to do so selectively in cases that concern manifestations of the Islam. It could be argued that the continued existence of discriminatory (i.e. only considering Christianity) blasphemy laws, in countries with a Christian majority, is potentially as threatening to the principle of democracy - especially the rights to freedom of expression and conscience of others - as Muslim party that aims to introduce the Sharia.
Contrary to what one would expect based on the myth of modern law, the European Court of Human Rights thus provides paradoxical standards on how to deal with conflicts between the freedoms of religion, expression and conscience and the general interest of secular democracy. The rationale behind the argumentative choice of the ECHR points unmistakably to political and moral opinions that dominate within the member states of the Council of Europe and thus in the panel of judges of the European human rights court. Also, it has to be kept in mind that the Court solely relies on the voluntary, political recognition of the member states to the regime of the European Convention on Human Rights. Thus, the schism in the ECHR's provides a clear example of the structural bias of the Court breaking through the surface of autonomy of law.
The ECHR attempts to cover this juxtaposition up by using the flexibility of to the margin of appreciation. But exactly by doing so, it reveals its structural bias, reflecting a context of a major Christianity affiliated culture and population, combined with an intense collective fear for the Islam. On the level of legal theory, the pressing question arises whether law and legal decision making could at all escape from such bias or that such is inherent to the law. If so, law would lose its mythical status as a normative mechanism that stands above parties and political manipulation. What is then left of law? What determines its authority by separating it from mere power exercise?
As we saw, the ECHR employs the concept of the margin of appreciation to grant itself, respectively member states a margin of political discretion, in a way that suggests that the 'myth of legality' is sustained. The margin of appreciation is presented as a legal reasoning necessary for a balanced application of the human rights norms enshrined in the Convention. The margin provides a construct of reasoning that allows for teleological interpretation and equity reasoning at the same time. Nevertheless, we have seen that the Court's teleological and equitable balancing act with the margin of appreciation cannot safe it from unmasking the indeterminacy of its legal reasoning and thus the legal norms it founds its legal argument on.
After all, following the logic of the liberal legal theory, if legal norms would provide clear directions, no structurally inconsistent jurisprudence would need to exist. But is does need to exist; there is no escape possible from the critique of inconsistency, since there exist no moments of synthesis - constituting legality between normative and concrete arguments. However, the universe of law does not break down by admitting and openly exploiting its open texture and political nature. After all, law, especially human rights law, has its own universalizing political agenda of individual emancipation and consent based social peace. Law's normative ideals turn out to be part of its political agenda, instead of its transcendent opposite.
Legal professionalism could build exactly on the recognition that the law's agenda and character are thoroughly political. In other words, lawyers should let go of the artificial division between law and politics and dare to envision law rather as a distinguished form of politics; a form of politics that distinguishes itself through its formalistic formulas, proceduralist ways of rule creation, application and adjudication. By its formalism and proceduralism law encapsulates the argumentative dynamics between facts and norms in the abstract, providing space to mitigate between the contradicting goals of individual emancipation and social order. Law would thus a forum to deliberate and negotiate conflicting interests and views with a vocabulary that strives to respect for individual interests and common understanding; social peace.
As we saw in the cases discussed above, law typically operates within the conflict zone between individual interests and social order. Especially through the collision of basic or human rights attention is drawn to the fundamental strife between individualism and communitarianism that lies at the heart of liberal legal theory. Law moves indeterminately back and forth on the liberal equilibrium. The structure of the Convention freedoms at stake in the cases quoted above, namely article 8 to 11, anticipates on the law's inherent indeterminacy by providing exception clauses in the second section, allowing for state interventions in the exercise of those freedoms.
The techniques of teleological and equity reasoning are build in to these clauses; they refer to democratic necessity and proportionality as major criteria for state interference. In all cases discussed above, the ECHR made use of the exception clause in the second section of, respectively, the rights to freedom of expression, conscience, religion and association. The Court sought a way out of the conflicting, though all valid, rights claims by invoking the highly elastic standards of democratic necessity and proportionality, thus seeking legal cover for its political decision to favor one rights claim over the other. It is no coincidence that the figure of the margin of appreciation is typically connected to the second section exceptions to the freedoms of article 8 to 11 of the Convention. It perfectly complements the teleological and equity reasoning, since the margin provides another means attempting to legalize political discretion. The Court ascribes more or less political discretion to itself or the member state, depending on the question whether the Court wishes to take an activist stance, in order to make its political point or rather leave political responsibility to the member state.
As argued above, it is impossible to find legal synthesis in the dynamics of normative and concrete arguments, at least not without admitting that this synthesis hinges upon moral and political choices, for the simple reason that the law does not imply those choices. Therefore, almost all interests could be legally valid stated in terms of rights. This point is perfectly illustrated by the cases discussed above. Based on the same set of rights encapsulated by article 8 to 11 of the Conventions, the ECHR justified state intervention based on the protection of religious rights, prioritizing them over the principle of secularism and the freedoms of expression and conscience of others. However at the same time, it justified state intervention exactly in order to protect the values of secularism and the freedoms of expression and conscience, at cost of the applicants claim to the freedoms of religion and association.
The Court would gain, instead of lose, credibility and plausibility if it would not longer hide the core indeterminacy of the legal framework it applies and thus draw full political agency to itself as a legal decision maker, weighing perceived individual and general interests. Of course, especially 'general or society's interest' remains a rather obscure entity, merely prone to reflect the political and moral conceptions of the beholder. On the more abstract level, however, an 'interest of society' lies in the legal decision making, the judgment, that would ideally end the eventually escalating conflict (of rights) between parties. That is exactly the rationale and function of law; mitigating between the conflicting values connected in various ways to respectable individual interests and the collective interest of social order.
Here comes also the normative, idealistic dimension of law into play, however not as statement about what the law represents as an autonomous entity (the opponent of politics), though rather as a normative horizon, reflecting ideal images of the political good; the goals that we, actors in a transnational political arena, unite for, despite disagreement and conflict on the concrete levels of implementation, application and adjudication. Exactly because the conflict within legal norms and arguments is acknowledged, a discursive space is opened where actors are deliberately dared to formulate their particular interests within the abstract normative dimension of legal norms, taking into account its conflicting and indeterminate nature. Justice or the idea of justice has to be created any time anew.
In other words, rights claims encapsulate abstract ideas of the political and moral good, besides and in the light of the particular interests involved. Therewith, the normative aspect of a legal argument or norm exceeds the particularity of the conflict at stake and thus appeals to the realization of the ideals of individual emancipation and social peace, but without assuming that those ideas are out there as a source of justice transformed into law. Besides it is all we actually have, isn't the deliberate will to strive to emancipation, consent and social conflict resolution not even a more stimulating and beautiful idea (because it appeals to the human capacity and agency to create and maintain society), than a myth that justice is out there, ready to be grasped through reason, from a seamless web or from law books? We should interact rather than gaze up to heaven.
Such a stance would indeed dare the European Court of Human rights - or any other legal decision maker - to reach beyond historicity, current political interests and collective fears, in order to view its mandate and jurisprudence within the light of the emancipating though pacifying ideals of law and reconsider ... whether the Court deems it reasonable to tolerate ancient blasphemy laws as a pressing social need in current pluralizing European societies, while at the same time curtailing the religious, expression and association rights and freedoms of Muslims by identifying them as a threat to (secular) democracy in similar pluralizing European societies.
Conclusion.
Investigating the discriminatory jurisprudence of the European Court of Human Rights on the collision between the freedom of religion, freedoms of expression and conscience and the societal interest in social peace and order, drew the attention to the eternal dialectics between concreteness and normativity inherent to the legal argument. The eternal dialectics at the heart of the phenomenon of law, pointing at its inherent contradiction, implies that the objectivism and determinacy ascribed to law by liberal legal theory is an illusion; there is no synthesis possible between contradicting values. Law as an autonomous entity and politics' opposite is a myth.
This, or rather the enlightenment myth of objectivism in general, made Horkheimer and Adorno's to paint a gloomy picture of fatal deception looming behind the enlightenment myth, as soon as it would be uncovered as a liberal political justifying narrative for ruthless capitalism and cultural impoverishment. Indeed, in case of the law and legal argument, no escape from politics is possible; either one chooses to merely support the existing social power configuration with legal arguments or choose a more external, normative perspective to support or criticize social relations.
As we saw in the ECHR's jurisprudence, it attempted to unite those opposing arguments and distribute political discretion through teleological and equity reasoning by complementary use of the exception clauses to the freedoms formulated in the articles 8 - 11 of the Convention and the margin of appreciation. Though, it also became obvious how this line of reasoning betrays itself and unveils the structural bias; the political decision, the cultural historical contextualization behind each and every legal decision. But does that mean a fatal deception, as Horkheimer and Adorno seem to suggest, or postmodern nihilism, which seems to imply the suicide of the concept of law.
Certainly, the argument appeals to the demythologization of the Court's, the Convention's, the law in general, sacrosanct normative status but revelation of the political and situational character of law opens ways, provides a language to reintegrate idealism in the concept law as well, especially when it concerns an essentially idealistic branch of law like human rights law. As a normative language law provides an excellent vocabulary to voice ideas of the political good that exceed the direct, political interests involved. The law could thus provide a horizon, a positive self deception, a strife for better, though entirely and ultimately within the discursive field of politics. There exist no higher grounds, nor do we need them.
Cited literature
- Adorno, Theodor W. and Max Horkheimer. Dialectic of enlightment. New York 1944
- Anghie, Anthony. Time present and time past. Globalization, international financial institutions and the Third World. In: New York university journal of international law and politics. 2000, vol. 32 issue 2.
- Asad, Talal. Formations of the secular. Christianity, Islam, Modernity. Stanford 2003
- Fitzpatrick, Peter. The mythology of modern law. London (1992).
- Koskenniemi, Martti. From utopia to apology. The structure of the international legal argument. Helsinki 1989 (revised and reprinted edition: Helsinki 2006).
- Petman, Jarna. Human rights democracy and the left. in: Unbound, Harvard journal of the legal left. Spring 2006, p. 63 - 91. www.law.harvard.edu/students/orgs/unbound (last visited 2-6 2007)
Cited cases
- European Court of Human Rights, Wingrove vs. the United Kingdom, judgment of 25 November 1996, Reports of judgments and decisions, 1996 V.
- European Court of Human Rights, Otto Preminger Institute vs. Austria, judgment of 20 September 1994, Series A no. 295 A.
- European Court of Human Rights, Leyla Sahin vs. Turkey, judgment of 29 June 2004, no. 44774/98.
- European Court of Human Rights, Leyla Sahin vs. Turkey, judgment of 10 November 2005 (Grand Chamber), no 44774/98.
- European Court of Human Rights, Refah Partisi (welfare Party) and others vs. Turkey, judgment of 31 July 2001, no. 41340/98, 41342/98, 41343/98, 41344/98.
- European Court of Human Rights, Refah Partisi (Welfare Party) and others vs. Turkey, judgment of 2003 (Grand Chamber), no. 41340/98, 41342/98, 41343/98, 41344/98.
