Rights, Religious Pluralism and the Recognition of Difference

Off the Scales of Justice

Dorota Anna Gozdecka

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317629795
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Human rights and their principles of interpretation are the leading legal paradigms of our time. Freedom of religion occupies a pivotal position in rights discourses, and the principles supporting its interpretation receive increasing attention from courts and legislative bodies. This book critically evaluates religious pluralism as an emerging legal principle arising from attempts to define the boundaries of freedom of religion. It examines religious pluralism as an underlying aspect of different human rights regimes and constitutional traditions. It is, however, the static and liberal shape religious pluralism has assumed that is taken up critically here. In order to address how difference is vulnerable to elimination, rather than recognition, the book takes up a contemporary ethics of alterity. More generally, and through its reconstruction of a more difference-friendly vision of religious pluralism, it tackles the problem of the role of rights in the era of diverse narratives of emancipation.

Part I
From non-confrontation to obsession and back again

Religious pluralism as an emerging legal principle in the European legal sphere

No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals.

Lautsi v. Italy, European Court of Human Rights,
Application no. 30814/06, 18 March 2011,
Concurring opinion of Judge Bonello, para. 1.1

Chapter 1
Council of Europe bodies and soft-law interpretations of religious pluralism

The Council of Europe and its organs were the pioneers in interpreting the limits of freedom of religion and the duties of Member States in securing it. In particular the Parliamentary Assembly of the CoE has become an active interpreter of democratic standards in the area of law and religion. Before religious pluralism became a consideration for the ECtHR it was the Parliamentary Assembly that adopted multiple recommendations and resolutions dealing directly with religious issues. In this active process of interpretation the Assembly created a body of soft law which gave rise to religious pluralism understood as a legal principle in interpreting freedom of religion and necessity in a democratic society (Gozdecka 2009). Even though soft law did not directly refer to any particular theoretical approach, its development reflected liberal theoretical positions concerning diversity and cultural coexistence. It has also mirrored the development of liberal Enlightenment standards – from mere toleration to multicultural adjustment.

In one of its earliest documents dealing with religion, Recommendation 1202 (1993) ‘On religious tolerance in a democratic society’, the Parliamentary Assembly remained modest in its interpretation and stressed the individual nature of a belief as well as underlined its ‘positive impact on the immediate social surroundings’.¹ Following the classic Kantian conception of law and its separation from the moral (Kant 1797), this approach affirmed the liberal division between the private and public spheres and the assumption that religion must always belong to the private (Habermas 2008). At the same time the Recommendation observed the impact of migration on the meeting of different religious groups² and put emphasis on religious conflicts stemming from the fundamentalisation of majority religions as well as the growing crisis of values.³

Despite the best intentions to respond to the demands of growing diversity, this early Recommendation did not yet speak of ‘religious pluralism’, but merely of ‘religious tolerance’⁴ that ought to be fostered in a Western ‘secular society’.⁵By adopting tolerance as its starting point, this first approach to religious diversity by definition created the perception of the other. In this neo-colonial approach (Sharma 2009) it is easy to imagine that it was the Christian European male separating the private (religious) and the public (secular) that remained seen as the superior standard (Mancini 2012). Everyone else who did not conform to this standard was to be ‘tolerated’. But in the mere conception of tolerance lies a judgment. The one who tolerates does not refrain from passing judgment on the inferiority of the one to be tolerated. But in the enlightened and allegedly superior approach, the one who tolerates knows he must remain righteous and tolerate the presence of the other. He may disapprove of the beliefs of the other but in the name of reason refrains from oppressing that other. In Adorno’s words: ‘The bourgeois … is tolerant. His love of people as they are stems from his hatred of what they might be’ (Adorno 1951). Tolerance as a starting point for diversity offers no more than a precarious peace. A peace based on the hierarchy between the one who is superior and the one who must be tolerated.

But even that precarious peace is not framed with reference to religious pluralism. The Assembly, as if borrowing straight from Locke’s A Letter Concerning Toleration, sees tolerance as a mere duty of the state to secure every individual’s freedom from religious oppression (Locke 1689). Pluralism remained out of the question as a value. It was merely seen as something to be aware of, but not as a goal or an aspiration.⁶ Pluralism and the very ‘crisis of values’ are put close enough to create an illusion that they are but the same thing. Like Locke’s ‘magistrate’, the state in the Recommendation is seen as bearer of the duty of neutrality to all religions in a state of affairs that appears to be no more than an unfortunate turn of history towards pluralism.⁷ In the precarious peace of tolerance there is no thought of recognition (Brown 2008).

But the Assembly continued its interpretation with more Enlightenment-inspired documents. In the following Recommendation 1396 (1999), ‘Religion and democracy’, the Parliamentary Assembly’s voice is perhaps a little less archaic but retains a strong liberal democratic tone. It underlines that whereas religion in general impacts democratic society positively,⁸ it is also a source of multiple conflicts. To avoid much of the doubt concerning who is the source of the conflict, the Recommendation deals in greater detail with religious extremism, which is seen as a negative and essentially anti-democratic phenomenon.⁹ Because of the fear of an extremist other, the vision embedded in the text conceives of a static liberal democratic system based on the idea of a consensus. From Locke’s classic understanding of toleration, it evolves towards contemporary liberal democratic models such as proposed by John Rawls or Jürgen Habermas. The Rawlsian conception of a reasonable consensus resonates throughout the entire text (Rawls 2005). In this model the public sphere is neatly ordered by reasonable citizens, presumably white Christian men rather than emotional ‘extremists’, such as Muslim women in head-coverings (Mancini 2012). The public good is shaped through negotiation and is reflected in the public sphere, where a static and pre-agreed conception of justice exists. The veil of ignorance, from behind which these just principles are conceived, with utmost certainty in the Assembly’s view, must guarantee the equality of all. However, only reasonable citizens are included in the negotiation on the shape of what that public good and justice entail. The Recommendation clearly advocates that governance and religion should not mix and that states should exclude from consultations any religious groups not supporting the fundamental values of democracy. This a priori exclusion from deliberation without a doubt corresponds with the Rawlsian notion of ‘unreasonable doctrine’. After all, only reasonable citizens who can surgically separate their religious doctrines and treat them as an individual matter without bringing them into the public sphere of deliberation can join the process of formation of justice:

It is not up to politicians to decide on religious matters. As for religions, they must not try to take the place of democracy or grasp political power; they must respect the definition of human rights, contained in the European Convention on Human Rights, and the rule of law.¹⁰

This deliberation on the public good ought to happen through dialogue. In this respect the Recommendation has a distinct flavour of Habermasian discourse theory (Habermas 1998). It underlines the importance of engaging in more regular dialogue with religious and humanist leaders about the major problems facing society. It encourages dialogue between religions and promotion of regular dialogue between theologians, philosophers and historians, as well as with representatives of other branches of knowledge. This dialogue is believed to create harmonious democratic societies through discourses aimed at achieving self-understanding. Through such discourses participants can get a clear understanding of themselves and ‘become clear about the kind of society in which they want to live’ (Habermas 1998, 282).

This Recommendation is also the first body of soft law which explicitly mentions a link between religious pluralism and democracy, even though it does not yet assign pluralism the value of a principle. It confirms the commitment to a plurality of ethical, moral and ideological conceptions of individual European citizens and casually draws a link between democracy and religious pluralism by placing religious pluralism among certain goals that democracy helps to achieve:

Democracy and religion need not be incompatible; quite the opposite. Democracy has proved to be the best framework for freedom of conscience, the exercise of faith and religious pluralism. For its part, religion, through its moral and ethical commitment, the values it upholds, its critical approach and its cultural expression, can be a valid partner of democratic society.¹¹

But despite this reference to pluralism and its link with democracy the presence of the other is clearly tangible in the Recommendation. It is no longer the ‘inferior’ newcomer to the traditional religious or non-religious status quo explicitly excluded by the judgment on her inferiority. The other in this text hides in the silence of the margins. She continues to exist in the illusionary assumption that reasonable citizens will separate themselves from their own religious or non-religious majoritarian traditions and refrain from judgment on the ‘inferior’ other. Instead this conception assumes that they join, without prejudice, in negotiation of the common good and justice. The presence of the other resonates in the a priori exclusion of the ‘unreasonable citizen’ and ‘unreasonable’ doctrine concluded by the judgment of none other than the ‘reasonable’ majority. She lurks in the illusory belief that mere dialogue can solve the problems of society without guaranteeing that truly everyone rather than an elite of experts can participate in shaping the discussion and that the discussion also embraces emancipation. And finally the other lives in the very conception of the consensus so well criticised by Lyotard, who argued that consensus in its dominant understanding is but a component of a system which uses consensus for achieving its real goal – acquisition of power (Lyotard 1984, 60–1).

The tendency to liberal interpretation of pluralism with a development towards multicultural readjustment continues in the subsequent document issued a few years later, even before the Danish cartoon controversy. Recommendation 1720 (2005), ‘Education and religion’, like earlier documents, neatly separates the public and the private and highlights the importance of seeing religion as a personal matter. But despite retaining its liberal democratic focus the Assembly is evolving into a body more conscious of a communitarian critique (MacIntyre 1981, 1988; Taylor 1979; Sandel 1998; Parekh 2002). For the first time in its interpretative efforts, it attempts to adjust liberalism to a model accommodating both individuals and communities. It discovers the importance of the community in the example of a community that is closest to the individual, the family.¹² In recognising the importance of the family as a community interacting with other communities in a society, it acknowledges possible differences of priorities and attempts to go beyond the narrow understanding of liberalism focusing solely on the individual.

This necessity of acknowledging the community is connected with the observed problem of the disappearing knowledge of religion which, in the Assembly’s view, resulted in a lack of ‘the necessary bearings’ through which young people could fully ‘apprehend the societies in which they live and others with which they are confronted’.¹³ Therefore it has led to emergence of conflicts between different communities, both religious and non-religious.¹⁴ For these reasons the primary focus is on dialogue between religions and learning about diversity. The Recommendation emphasises:

Knowledge of religions is an integral part of knowledge of the history of mankind and civilisations. It is altogether distinct from belief in a specific religion and its observance. Even countries where one religion predominates should teach about the origins of all religions rather than favour a single one or encourage proselytising.¹⁵

Whereas religious pluralism is not mentioned verbatim, recommending teaching about the origins of all religions rather than one does acknowledge the de facto necessity of recognising and fostering diversity. The Assembly does not view the predominantly mono-religious composition of a society as a sufficient justification for its domination in educational life. It expresses the concern that the beliefs of adherents of other religions must be duly weighed, thus signifying a turning point in the Assembly’s approach. It is here that for the first time the differently religious individual is no longer seen as the other that must be barely tolerated and who must tolera...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• PART I From non-confrontation to obsession and back again: religious pluralism as an emerging legal principle in the European legal sphere
• PART II Three myths of inclusion
• PART III Religious pluralism, human rights and the dissident
• Index