Law and Religion in The 21st Century - Research Paper Example

Law & Religion in the 21st Century – the case of Dogru v France BAILII: [2008] ECHR 1579 The establishment of legal rules within societies reflects the need of people to regulate their relationships and to set the framework in which the relation between the state and individuals will be developed. Most commonly, the legal rules of each particular society respond to the ethical and cultural characteristics of its population; in countries where culture and traditions are strong, their influence on the national laws and ethics are expected to be decisive. Different results would be observed in countries where the rights established by the law are considered to have the primary role in the regulation of all aspects of human activities1. An indicative example is France; the country is traditionally related with the promotion of freedom of thought and expression; this freedom is strongly supported by the law while any right that is possible in opposition with this freedom is limited. Under these terms, it could be expected that the violation of personal rights – as the right to practice the religion – would be considered as leading to the intervention of the state – for the protection of the individual involved2; however, it has been proved that the interpretation of freedom and religion can be sometimes differentiated under the influence of specific social and cultural conditions. Current paper focuses on the examination of the various aspects of the case of Dogru v France (2008); the specific case refers to a dispute relating with the right of women to wear headscarf within the context of their religion. The local court held that the decision of the school’s committee to expel the girl – applicant by the school because of her refusal to take off the headscarf during the physical education classes, was sufficiently justified. A series of appeals followed by the girl’s parents regarding the specific decision – appeals were submitted to the Caen Administrative Court, the Nantes Administrative Court of Appeal and the Conseil d’Etat3. All appeals were dismissed; the argument that wearing headscarf during the physical education and sports classes could be dangerous for the girl was used as the basis of the local authorities and the French courts in order to support the decision of the school’s committee. In other words, the potential threat of life – which was assumed to exist in the specific case – was considered to be of higher importance from the girl’s right to practice her religion. When the case was brought before the European Court of Justice, the decision of the local court was further verified – no breach of the article 9 of the Convention was identified. The decisions of the local courts to prohibit the right to practice the religion because of the potential risk of health were characterized as justified. Even regarding the claim for violation of the article 2 of protocol No.1 – protection of the right to education – the Court held that the above claim would not be examined separately following the same reasoning with the decision of the Court regarding the application of the article 9 of the Convention – no violation of the latter was found by the Court in the specific case. The specific decision could be understood and evaluated only if referring to the facts of the case but also to the legal rules that were applied; the reference to the justifications used by the French courts when the above case was brought before them is also necessary. Dogru v France is an important decision; it reflects the views of the courts on the interpretation of specific rights – like the right of the article 9 of the Convention but also the right on the right to education; up to now, the European case law was not clear regarding the power of the right to practice a religion; existing case law focused in the past in the recognition of the right of individuals to have specific religious belief – however, there was no clear view regarding the extension of this right and its power compared to other rights especially those rights referring to the public. In terms of creating legal precedent – as explained above – the specific case is quite important leading to the following effects: a) the power of the individual to seek for protection of his rights by the European Union is strongly supported – the ECHR is becoming a court with significant power – even if its practices have been often criticized and b) the protection of human rights in the member states is proved to be inadequate – the intervention of the ECHR led to the limitation of the crisis. The decision of the Court on Dogru v France refers to two major issues: the potential applicability of the article 9 of the Convention and the application of the article 2 of the Protocol no. 1. At a first level the Court characterizes the application as admissible; however, there is no acceptance of the applicant’s claims regarding the violation of the article 9 – or the article 2 of the protocol 1. These claims are rejected; in accordance with the court there is no violation of the article 9 of the Convention – as the applicant suggested. But the above decision could be criticized as of its effectiveness; through this decision an hierarchy of rights is developed; public rights as they are in opposition with the rights of the public. In terms of its appropriateness, the Court’s decision can be characterized as satisfactory; a wide range of legislation has been used in order to develop an assumption on the issue under consideration; of course, there are certain points that should be addressed more carefully; the reference to the legal rules and the case law related solely with the religion has been quite limited. On the other hand, the development of the personal rights cannot be limited in order for the public rights to be served. All rights should be equally protected by the law. At a first level, the Court seems to conform with existing law; however, it could be argued that the interpretation of the legal principles applied on the particular case has not been objective; because of the nature of the dispute – practice of religion – the decision of the Court to recognize to specific legal rules – those related with the protection of health as part of the educational activity – increased power compared to the right to practice the religion can have significant effects on the social life of the particular country; issues of inequality towards specific part of the population could appear; the right of the person to develop his beliefs can be considered as being under threat. On the other hand, it seems that the reasoning of the particular case can be also considered as justified if taking into consideration the political and social structure of the particular country. In other words, the specific decision should not be considered as being opposite to the local culture and ethics; rather the Court followed existing legal and cultural trends – if there was a different ruling then the social and cultural balance in France could be adversely affected. More specifically, France is a country where the development of social and financial activity is not depended on the ethics and the rules of the Church – which is a separate entity from the state in accordance with the existing legal framework. In this context, the recognition to the religion of decisive power – through the positive ruling in this case – could lead to social turbulences affecting existing social and cultural ethics – which are based on the pluralism of ideas. It is stated by the Court that the separation of the state from the Church in France has led to the creation of two different legal entities the borders and the powers of which should be mutually respected by the individuals and the authorities. A reference is made to the Section 1 of the Act of December 1905 – the legal framework through which the roles of the State and the Church are regulated – where it is noted that: “The Republic shall ensure the freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order.”4 The issue of the right of people in France to express their thoughts and practice their religion is rather complex. Because in the specific country rights recognized by the state can be contradicted with the moral obligations and the rules imposed by the religion, the power of the judge to intervene and decide on the power of each one of these rights is quite is of decisive importance for the development of the country’s legal culture. The creation of legal precedent in the particular case could lead to the justification – or the rejection – of similar practices followed by other women in France. In the specific case, the Court used not only existed legal rules (as the law for the separation of the state and the Church, 1905, described above) but also the views of theorists – only those views that are adequately supported and justified. An indicative example of such rule is the view of the members of Stasi commission which examined the specific issue and was led to the following assumptions: ‘... the visibility of a religious sign is perceived by many as contrary to the role of school, which should remain a neutral forum and a place where the development of critical faculties is encouraged. It also infringes the principles and values that schools are there to teach, in particular, equality between men and women’5. In accordance with the specific view, the right of the school committee to refuse to the female students their right to wear headscarf, is not a limitation of the personal rights, it is rather a consequence of the country’s social and political structure – it is noticed that the state in France is not closely related with the Church – in this context, there is no obligation by the Courts to recognize to each one of these parties of increased power towards the other. The right of wearing headscarf in school has also being examined by the French administrative authorities – relevant decisions have been taken within the context of the specific dispute. The regulation of the issue from these authorities does not allow many options to individuals regarding the expression of their rights and beliefs – clear guidelines are given and no alternatives are left. The most important legislative texts used by the Court for the development of its view on the particular dispute are the following ones: a) the Education Act of 1989 where it is noted that ‘Pupils must comply with the duties inherent in their studies; these include assiduity at school and compliance with the rules and community life of the school’6, b) the Decree of 1985, where it is made clear that ‘the duty of assiduity referred to in Article L. 511-1 of the Education Code requires pupils to adhere to the teaching periods determined in the school timetable; the school’s internal rules shall specify the manner in which this Article is implemented’7; the above rule can be used in order to explain the obligation of the pupil to respect the decisions of the school committee even if it is primarily thought that these decisions are in contradiction with specific social rights and ethics, c) The internal rules of the school involved in the particular case have been also taken into account by the Court; of course, these rules cannot be considered as being more powerful than the orders of the state regarding the treatment towards the personal rights; but they can lead to the development of legal precedent especially if are combined with other legal orders – as indicatively the legal texts referred above. In the particular case, the rules of the school are clear: ‘II b)  School dress. ... All pupils are required to dress discreetly and decently and in accordance with the rules of health and safety. ... Discreet signs manifesting the pupil’s personal beliefs, such as their religious convictions, shall be accepted in the establishment, but conspicuous signs which are in themselves of proselytising or discriminatory effect shall be prohibited; ..’ 8. d) the view of the Conseil d’ Etat on the particular dispute has been similar with the arguments already used by the other authorities. In the ruling of the Conseil d’ Etat regarding the particular case it is highlighted that ‘1.  ...The principle of secularism in state education, which is one aspect of the secular nature of the State and the principle that all public services must be neutral, requires teachers and the school curriculum to respect both this neutrality and pupils’ freedom of conscience’9. Furthermore, it is made clear that the freedom of conscience as described above cannot lead to the development of inequalities within the school – the acceptance of the cultural or religious ethics of specific children could be considered as inequality towards the rest of the children. The issue was further regulated by the circular sent by the Minister of Education to the school principals and school inspectors across the country – because of the existence of the specific dispute. In this circular, the power of secularism as a principle governed the administration of rights in France is highlighted. More specifically, it is noted that ‘At school, however, where young people mix without any discrimination, the exercise of the freedom of conscience, in keeping with the requirement of respect for pluralism and the principle that the public service shall be neutral, requires that the entire educational community be shielded from any ideological or religious pressure’10. It should be noticed that the above rules led to the intervention of the state; appropriate legal framework was developed in 2004 regarding the regulation of the rights of pupils to wear signs or dress that have a religious reference in schools across France. More specifically, it is noted that ‘in State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited; the school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil’11 . The above rules are quite clear; pupils in schools across France can exercise their rights to expression and conscience but there is no way that the exercise of these rights contradicts with the rights of others and the school regulations12 – which they are considered as being violated because of the potential wearing of a sign or dress that is related with the religion. Through all the above rules, the European Court held that the right of the pupils to wear headscarf in school could be controlled as of its potential opposition with other rights but also with the current rules that regulate the rights/ obligations of pupils in schools. The views presented in the above rules could not be ignored by the Court; these views are clear, there is no space for misunderstanding; the right to exercise personal rights is considered to be limited especially when there are particular legal orders that lead to different obligations13. In the context of the European law, the protection of rights is ensured through a series of appropriately customized rules; article 9 of the Convention is used when the freedom of religion – among other rights – is under threat. The specific article was used by the claimant’s (pupil’s) parents in order to prove the violation of personal rights by the decision of the school committee to expel the girl because of the wearing of a headscarf during the classes of physical education. Article 9 of the Convention includes the following rules: ‘1. Everyone has the right to freedom of thought, conscience and religion… 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’14. In accordance with the above view, the restrictions imposed on the right of a person to exercise his/ her religion can be considered to be justified if they are based on specific rules of the domestic law – it is made clear that the specific exception involves in those rules that have been set for the public safety. The specific issue that has been examined by the Court in other cases, it cannot be effectively handled unless if referring to similar disputes15 – the legal rules mentioned before are in any case bounded for the European Court of Justice which could however identify no relevance between the domestic and the European Law in the particular case and proceed to a different ruling from those made by the state’s courts and administrative authorities. Particular attention has be paid by the Court to the potential risk of wearing the headscarf in school for the other children that have not yet developed their religious beliefs16. In a similar case it was held by the Court that ‘it is difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf might have on the freedom of conscience and religion of young children, who were more easily influenced’17. In the particular case, the rights of the individual are violated under the superiority of the rights of the public – that need to be a priority for the State. References Ungureanu, C. (2008) The Contested Relation between Democracy and Religion. European Journal of Political Theory, Vol. 7, No. 4, 405-429 Moberg, D. (1966) The sociology of religion in Western Europe and America. Social Compass, Vol. 13, No. 3, 193-204 Arjomand, S. (2003) Law, Political Reconstruction and Constitutional Politics. International Sociology, Vol. 18, No. 1, 7-32 (2003) DOI: 10.1177/0268580903018001002 Steinhoff, A. (2004) Religion as Urban Culture. Journal of Urban History, Vol. 30, No. 2, 152-188 Case law Dahlab v Switzerland BAILII: [2005] ECHR 42393 Dogru v France BAILII: [2008] ECHR 1579 Leyla Sahin v. Turkey BAILII: [2005], ECHR no. 44774 Read More