Upcoming Speaking Engagement: 2017 ICON∙S Conference on ‘Courts, Power, and Public Law’, Copenhagen, July 5-7

 

My two scheduled presentations during the conference are entitled: ‘The European Court of Human Rights’ “constitutional morality” in the religious domain’, and ‘In Defense of the Classical Liberal Conception Regarding Religious Freedom’.

About the general conference theme:

‘The overarching theme of the ICON-S 2017 Annual Meeting will be “Courts, Power, Public Law”. The expanding role of courts is arguably one of the most significant developments in late-20th and early-21st century government. Today, courts around the world play an increasingly central role in defining the relationship between different organs of the state, as between state, non-state actors and individual citizens, and between national and supranational levels of governance. Domestic courts routinely interpret and enforce constitutional provisions guaranteeing the separation of powers, federalism and civil and political rights. Many domestic courts also now play a role in safeguarding democracy, and protecting and promoting social rights. In doing so, many domestic courts are also in active ‘dialogue’ with regional and international tribunals, as well as with transnational investment agreements or legal norms; and international courts likewise rely on regional and domestic human rights and public law norms in developing international jurisprudence.

What explains this increasingly dense network of judicial control over public power, and transnational judicial interaction? To what extent do courts succeed in achieving their goals, and under what conditions? In the midst of concerns about national and international security, how should courts respond to such concerns without compromising ideals of constitutional democracy? What should be the appropriate remit of international tribunals in balancing the competing claims of a just peace and individual responsibility? What are we to make of the role of courts in the management and mismanagement of the national and international economic crisis, and how it has called into question some of the classic institutions of democracy? Answering these questions requires close attention to the social, economic and political context for judicial review. It also invites attention to questions of public power: how, and under what conditions, do courts enjoy the power, legitimacy and independence necessary to serve as a meaningful check on national and transnational actors? How does the social and political power enjoyed by political elites, citizens or social movements contribute to the creation or success of judicial review in different settings? Do we need to rethink the conventional ways of understanding how courts mediate between the international and the national? Addressing these questions is a key focus for much of the leading scholarship on comparative constitutional law, comparative politics, comparative administrative law, and international law and governance today. It is also the focus of the ICON-S 2017 Conference.’

About ICON-S:

‘The initiative to create an International Society of Public Law emerged from the Editorial Board of I·CON – the International Journal of Constitutional Law. For several years now I·CON has been, both by choice and by the cartographic reality of the field, much more than a journal of comparative constitutional Law. I·CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also increasingly includes scholarship that reflects both legal reality and academic perception, and which in dealing with the challenges of public life and governance combines elements from all of the above with a good dosage of political theory and social science.’

Source, and all additional information:

https://icon-society.org/2017-conference/.

Article in Muslim World Journal of Human Rights (2011)

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The abstract of this article, entitled ‘The Judicial Protection of Religious Symbols in Europe’s Public Educational Institutions: Thank God for Canada and South Africa’, reads as follows:

‘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.’

For order information of the article, which was co-authored with Florian H. Karim Theissen, see:

http://www.degruyter.com/view/j/mwjhr.2011.8.issue-1/1554-4419.1216/1554-4419.1216.xml.

About the journal:

‘Muslim World Journal of Human Rights offers a medium for scholarly debate on various aspects of the question of human rights as it relates to the Muslim World. Edited by an international board of leading Islamic studies, Middle Eastern studies and human right scholars from around the world, MWJHR promises to serve as a forum in which barriers are bridged (or at least, addressed), and human rights are finally discussed with an eye on the Muslim world, in an open and creative manner.

The choice to name the journal, “Muslim World Journal of Human Rights” reflects a desire to examine human rights issues related not only to Islam and Islamic law, but equally those human rights issues found in Muslim societies that stem from various other sources such as socio-economic and political factors, as well the interaction and intersections of the two areas.’

Presentation during day conference on ‘Multiculturalism: Template for Peace or Recipe for Division’, West Yorkshire School of Christian Studies, Leeds (2007)

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‘”Has multiculturalism had its day?” “Has multicultural society any space for faith-based institutions”? This time the answers come from Greg Mulholland MP, Jan van der Stoep, Hans-Martien ten Napel and Jonathan Chaplin, who are the speakers at a day conference run by the West Yorkshire School of Christian Studies.

Multiculturalism: Template for peace or recipe for conflict? takes place on December 8 at Outwood House, Horsforth with sessions at Woodside Methodist Church.’

Source: ThirdWay Magazine, december 2007.

‘WYSOCS is a Christian education centre exploring the power of faith in learning for every aspect of life. Based in Leeds, we provide resources for Christians throughout the UK and beyond to engage culture with an authentically Christian worldview.’ See: http://wysocs.org.uk.

You can download Jonathan Chaplin’s contribution, ‘Has multiculturalism had its day? Towards a Christian assessment’, here: http://www.klice.co.uk/uploads/Ethics%20in%20Brief/Chaplin%20v12.6%20pub.pdf.

For audio, go here: http://www.wysocs.org.uk/recordings.php.

My own presentation was entitled: ‘”Curbing’ multiculturalism in the European Court of Human Rights?

 

Chapter in volume on Law and Religion in the 21st Century. Relations between States and Religious Communities (2010)

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‘This book brings together leading international scholars of law and religion to provide an overview of current issues in State-religion relations. The first part of the collection offers a picture of recent developments in key countries and regions. The second part is focused on Europe and, in particular, on the Nordic States and the post-communist countries where State-religion systems have undergone most profound change. The third and final part is devoted to four issues that are currently debated all over the world: the relations between freedom of expression and freedom of religion; proselytism and the right to change religion; the religious symbols; and the legal status of Islam in Europe and Canada.
The work will be a valuable resource for academics, students and policy-makers with an interest in the interaction between law and religion.’

My own chapter, co-authored with Florian H.K. Theissen, is entitled: ‘The European Court of Human Rights on religious symbols in public institutions – a comparative perspective: maximum protection of the freedom of religion through judicial minimalism?’.

Order information:

http://www.ashgate.com/isbn/9781409411437.

 

A Test of Faith? Religious Diversity and Accommodation in the European Workplace

Pleased to learn, upon my return from vacation, that the above book, edited by Katayoun Alidadi, Marie-Claire Foblets and Jogchum Vrielink, all at the Catholic University of Leuven, Belgium, is now available from Ashgate Publishing. The flyer of the book, to which I contributed a chapter entitled ‘Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace’, contains the following information: 

‘Religion and modernity meet in the European workplace. The implications are many and varied. The contributions to this timely volume are concerned with the legal dimensions of these encounters. They merit very careful scrutiny.’ – Grace Davie, University of Exeter, UK

‘Throughout Europe, religion in the workplace is perceived as self-evident in some contexts, and as hugely problematic in others. The increasing number of legal scholars and practitioners who confront this issue, will find in this book numerous pathways along which to form their own legal opinion, and to help shape the as yet undecided legal approaches in many European countries.’ – Eva Brems, Ghent University, Belgium

Issues of religious diversity in the workplace have become very topical and have been raised before domestic courts and the European Court of Human Rights. Examining the controversial and constantly evolving position of religion in the workplace, this collection brings together chapters by legal and social science scholars and provides a wealth of information on legal responses across Europe, Turkey and the United States to conflicts between professional and religious obligations involving employees and employers.

Contributors: Katayoun Alidadi, Marie-Claire Foblets, Jogchum Vrielink, Lucy Vickers, Saïla Ouald Chaib, Kristin Henrard, Hans-Martien ten Napel, Titia Loenen, Yves Stox, Mine Yildirim, Rim-Sarah Alouane, Efrat Tzadik, Gabrielle Caceres, Amandine Barb, Julie Ringelheim.

To order, please visit: www.ashgate.com. All online orders receive a discount. Alternatively, contact our distributor: Bookpoint Ltd, Ashgate Publishing Direct Sales, 130 Milton Park, Abingdon, Oxon, OX14 4SB, UK. Tel: +44 (0)1235 827730 Fax: +44 (0)1235 400454. Email: ashgate@bookpoint.co.uk.

August 2012, 382 pages, Hardback, 978-1-4094-4502-9, £75.00, www.ashgate.com/, isbn/9781409445029. Sample pages for published titles are available to view online at: www.ashgate.com

Contents: Introduction; Part I European Components of the Religion and Workplace Debate: Section I Religion, Workplace Accommodations and the Case Law of the European Court of Human Rights: Section II New Player Joining In: the European Union and Religious Discrimination: Part II Identity, Neutrality, Secularism: Case Studies and Comparative Perspectives: Section I Country Studies: Turkey, France and Belgium: Section II Comparative Perspectives In the Public and Private Workplace: Index.

Full contents listing is available on the website: http://www.ashgate.com/default.aspx?page=637&calctitle=1&pageSubject=501&title_id=11755&edition_id=15297 .’

Guest Post: Recent Case-Law of the European Court of Human Rights and the U.S. Supreme Court on Church Autonomy

By Jaco van den Brink. J. van den Brink (LLM) is attending a Master’s in Political Philosophy at Leiden University and meanwhile preparing a PhD research on religious freedom.

A couple of quite interesting judgments were issued by the ECtHR, the last two years, concerning the internal autonomy of churches. The most recent judgment was in the case Fernandez-Martinez vs. Spain (15th May 2012). The applicant was a Catholic priest, who was married and was therefore discharged by the Church authorities of the teaching activities he performed before. The question was at stake: is it primarily the state’s task to protect the employee’s position and free private-life choices, or to refrain from interfering in the appointment policies of the Church? The Court didn’t find a violation. According to Stijn Smet on http://strasbourgobservers.com/2012/05/24/fernandez-martinez-v-spain-towards-a-ministerial-exception-in-europe/ , the Court sided with the Spanish Constitutional Court in deciding that the state was not allowed to engage in this religiously inspired internal policy of the Church, without really engaging in a balancing of interests by testing the reasonability of the Church’s decision. The Court itself however, seems to suggest that it intends to perform such a test.In January of this year, the Court seemed to take quite another approach in Sindicatul "Pãstorul cel Bun" v. Romania. In this case the Court ruled that the Romanian Orthodox Church could not refuse legal acknowledgment to a kind of labor union of a certain group of clerics and lay members. The Church’s freedom of religion and association apparently did not preclude its duty to grant full associational freedom within its sphere, to all its members.

The three ‘German cases’ (September 2010, Schüth vs. Germany and Obst vs. Germany; and February 2011 Siebenhaar vs. Germany), were judged in a way that seems to be somewhere in between the two mentioned above. These cases were quite similar to Fernandez-Martinez vs. Spain, but here the Court undoubtedly engaged in a balancing of interests and judged (albeit marginally) the reasonability of the decision by the churches to end the employment contract.

These cases are often compared with the US-Supreme Court judgment in the case Hosanna-Tabor, in which case a religious teacher was dismissed by a Lutheran church. The Supreme Court -unanimously -did nothing to evaluate this church’s decision, but merely elaborated on the ‘ministerial exception’, according to the Court implicit in the Religion Clauses of the First Amendment. This principle contains that religious institutions are more or less free to make their own choices in the appointment of ‘ministers’, regardless of the employment regulation. The state therefore doesn’t have a say in such church’s internal affairs, as the Supreme Court concludes. It seems to me that this judgment goes even further in recognizing church autonomy than the ECtHR in Fernandez-Martinez vs. Spain.

To conclude, I’ll put some reasons why I’m inclined to think that the Hosanna-Tabor-type of reasoning is the most sound:

  • Much can be said in favour of the principle that the legitimacy-area of the state stops where the area of church authority begins. Churches and states both fulfil important roles in people’s lives, but their roles are very different and irreducable to each other. (By the way, such a principle would also apply to religious institutions in general, but maybe also to other civil society institutions, and perhaps even to families).

  • If the state’s competences are to be restricted this way, then indeed there is even no room for a balancing of interests in a case like Hosanna-Tabor or Fernandez-Martinez. As long as the church doesn’t interfere in the state’s prerogatives of protecting citizens against violence or other clear cases of exploitation and abuse, the church’s internal business are to be left up to the church’s proper authorities. A court which evaluates a church’s appointment decision, holds implicitly that the state has full competence to direct everything in society and is free to decide how much autonomy it is willing to grant to churches.

  • This becomes still more important when we take the religious character of churches into account, since it is not up to the state to evaluate the content of religious ethics.

  • We cannot strive towards a protection of individual autonomy, regardless what kind of institution is involved, since that would be to deny the special, indispensable role that such institutions (as collective institutions) play in human life and in society. This role is not reducable to individual choice only, and neither to the goods which the state provides.