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THE CHANGING LANDSCAPE OF LAW AND RELIGION IN EUROPE: SECULARISM AND CULTURAL HERITAGE

Published online by Cambridge University Press:  18 January 2017

Mark Hill QC*
Affiliation:
Honorary Professor, Centre for Law and Religion, Cardiff University, Wales; Extraordinary Professor, University of Pretoria, South Africa; Visiting Professor, Dickson Poon School of Law, King's College, London; Adjunct Professor, Notre Dame University School of Law, Sydney, Australia

Extract

This is a self-indulgent, and perforce idiosyncratic, excursus into some (but by no means all) of the vast body of literature that has been published in recent years touching on secularism and cultural heritage in Europe, surveyed from the vantage point of law and religion scholarship. It was commissioned by the Journal of Law and Religion as part of its ambitious project for sharply focused and widely angled snapshots of the state of the field at the present moment.1 And, for this English writer, with this particular topic, the moment could not be more propitious.

Type
STATE OF THE FIELD ESSAYS
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2017 

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References

1 For this essay on the state of the field, I was invited to give particular scrutiny to the four volumes listed, but I have commented on other relevant literature in the course of my survey.

2 See Duxbury, Neil, “Better Read When Dead,” Amicus Curiae 32 (2000): 2529 Google Scholar.

3 [1932] AC 562, at 567.

4 Johnes v Johnes (1814) 3 Dow 1, 15; 3 English Reporter 969, 974. For further reflections from the deputy president of the United Kingdom Supreme Court, see Lady Hale, “Should Judges Be Socio-Legal Scholars?,” Conference of the Socio-Legal Studies Association, 26 March 2013.

5 Druxbury, “Better Read When Dead,” 26. Sir Robert Megarry observed in Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, at 16–17, when disagreeing judicially with something he had written in one of his own books, “[The scholar] has to form his ideas without the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law.”

6 John Maynard Keynes famously—though perhaps apocryphally—remarked, “When events change, I change my mind. What do you do?”

7 With an exceptionally high turnout of 72.2 percent of those eligible to vote, 51.9 percent chose to leave, while 48.1 percent preferred to stay: see “EU Referendum Results,” BBC News, accessed December 9, 2016, http://www.bbc.co.uk/news/politics/eu_referendum/results. Most voluntary associations (including churches) have constitutional provisions that preclude changes to their foundational documents on so slender a majority.

8 To adopt the terminology regularly deployed by the outspoken Brexiteer Daniel Hannan MEP.

9 Doe's considerable contribution to scholarship in this field has recently been recognized in a festschrift, Cranmer, Frank, et al. , eds., The Confluence of Law and Religion: Interdisciplinary Reflections on the Work of Norman Doe (Cambridge: Cambridge University Press, 2016)CrossRefGoogle Scholar.

10 Doe, Norman, Law and Religion in Europe: A Comparative Introduction (Oxford: Oxford University Press, 2011)CrossRefGoogle Scholar.

11 Ibid., 263–64.

12 Robbers, Gerhard, ed., State and Church in the European Union (Baden-Baden: Nomos Publishers, 2005)Google Scholar.

13 HP Bulmer Limited and another v J Bollinger SA and others [1974] Ch 401 at 418F. The issue for the Court of Appeal was one of statutory interpretation, concerning the European Community Act 1972.

14 McCrea, Ronan, Religion and the Public Order of the European Union (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar.

15 Rivers, Julian, “In Pursuit of Pluralism: the Ecclesiastical Polity of the European Union,” Ecclesiastical Law Journal 7, no. 34 (2004): 267–91CrossRefGoogle Scholar.

16 Ibid., 267.

17 Robbers, Gerhard, “Diversity of State-Religion Relations and European Union Unity,” Ecclesiastical Law Journal 7, no. 34 (2004): 304–16, at 312CrossRefGoogle Scholar.

18 Doe, Law and Religion in Europe, 237.

19 I am unconvinced, however, that the historic and cultural background can necessarily bear the weight placed upon it by certain contemporary commentators, such as Nelsen and Guth (see below).

20 Consolidated Version of the Treaty on European Union preamble, May 9, 2008, 2008 O.J. (C 115) 15.

21 The principal of subsidiarity was first added to EU law through the Maastricht Treaty's introduction of art. 3b to the Treaty Establishing the European Economic Community. See Treaty on European Union art. G, July 29, 1992, 1992 O.J. (C 191) 6. The principal had been long recognized in Catholic canon law.

22 The regulation of religion is not expressly listed among the competences of the European Union, though subjects associated with religion are, such as culture and education.

23 Joint Declaration Concerning Mount Athos, Nov. 19, 1979, 1979 O.J. (L 291) 179.

24 Council Joint Action 2007/106/CFSP, art. 3(e), 2007 O.J. (L 46) 56.

25 They seek to provide tools for European Union diplomats, but the guidelines and their implementation are not without controversy (See Annicchino, Belief, Law, and Politics, 261).

26 See Madeley, John and Enyedi, Zsolt, eds., Church and State in Contemporary Europe: The Chimera of Neutrality (London: Frank Cass Publishing, 2003)Google Scholar.

27 McCrea, Religion and Public Order, 3. But nevertheless the European Union employs a “principle of balance” between the sometimes competing claims of religion, culture, and politics.

28 Charter of Fundamental Rights of the European Union, Dec. 18, 2000, 2000 O.J. (C 364) 10.

29 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (hereafter ECHR).

30 Akrich v Secretary of State for the Home Department, Case C-109/01, [2003] ECR I-9607. See Hill, Mark, “Freedom of Religion: Strasbourg and Luxembourg Compared,” in Religion and Equality: Law in Conflict, ed. Cole Durham, W. and Thayer, Donlu (New York: Routledge, 2016), 2534 Google Scholar.

31 The text of my lecture, delivered at the University of Virginia at the Third Conference of the International Consortium for Law and Religion Studies, “Religion, Democracy and Equality,” held on August 21–23, 2013, was published three years later as Mark Hill, “Freedom of Religion: Strasbourg and Luxembourg Compared” (above). Notwithstanding the passage of time pending publication, the Court of Justice of the European Union has provided little by way of indication as to how it proposes squaring this particular circle.

32 Its formal title is the Treaty Establishing the European Economic Community (TEEEC), and it came into force on January 1, 1958. For the text of the Consolidated Version of the TEEEC, as amended by the Treaty of Lisbon, see Consolidated Version of the Treaty on the Functioning of the European Union, May 9, 2008, 2008 O.J. (C 115) 47–200.

33 Officially, the Treaty on European Union (TEU), it was signed on February 7, 1992, and came into force on November 1, 1993. For the text of the Maastricht Treaty, see Treaty on European Union, July 29, 1992, 1992 O.J. (C 191).

34 Directive 95/46/EC.

35 See Hill, Mark, “Voices in the Wilderness: The Established Church of England and the European Union,” State and Society 37, no. 1-2 (2009): 174 Google Scholar. Nelsen and Guth, are similarly critical of the “paltry presence” of the Church of England (Nelsen and Guth, Religion and the Struggle for European Union, 306).

36 See its informative website at http://www.ceceurope.org/.

37 See, for example, ECHR, art. 11 (providing for freedom of assembly and association).

38 McCrea, Religion and Public Order, 68. In so doing, the European Union “implicitly identifies religious perspectives as a legitimate and necessary element of policy formation. Furthermore, the recognition of the right of religious bodies to be consulted by law-making institutions in a separate article [in the European Union Reform Treaty] from that dedicated to civil society in general, characterizes this religious contribution to law-making as distinctive and particularly important.” Ibid.

39 See McCrea, Religion and Public Order, 164. Discussing discrimination law in the European Union, McCrea writes: “This approach suggests that EU law recognizes religion as an exceptional phenomenon whose communal rights and public role are entitled to broad recognition not accorded to other kinds of bodies.” Ibid.

40 For a detailed critique of the distinctions between them, see Hill, “Freedom of Religion: Strasbourg and Luxembourg Compared,” 25–34.

41 And due to fall to twenty-seven with the departure of the United Kingdom.

42 See the differential treatment of the applicants in Eweida and Others v. United Kingdom (2013) 57 EHRR 8, discussed in Hill, Mark, “Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg's Judgment in Eweida v UK ,” Ecclesiastical Law Journal 15, no. 3 (2013): 191203 CrossRefGoogle Scholar.

43 Davie, Grace, “Law, Sociology and Religion: An Awkward Threesome,” Oxford Journal of Law and Religion 1, no. 1 (2012): 235–47CrossRefGoogle Scholar.

44 Sandberg, Russell, Religion, Law and Society (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar.

45 Durkheim, Émile, The Elementary Forms of the Religious Life, trans. Cosman, Carol (Oxford: Oxford University Press, 2001), 319 Google Scholar.

46 See generally, Hill, Mark and Griffith-Jones, Robin, “The Relevance and Resonance of the Great Charter of 1215 for Religions Today,” in Magna Carta, Religion and the Rule of Law, ed. Hill, Mark and Griffith-Jones, Robin (Cambridge: Cambridge University Press, 2015), 1418 Google Scholar.

47 Sandberg, Russell, ed., Religion and Legal Pluralism (Burlington: Ashgate, 2015), 1 Google Scholar.

48 See Priban, Jiri, Sovereignty in a Post-Sovereign Society: A Systems Theory of European Constitutionalism (Farnham: Ashgate, 2015)Google Scholar.

49 The battle cry of Brexit campaigners in the run-up to the June 2016 referendum was “Take back control,” although behind the rhetoric lay the same hollowness as existed for the promised monetary savings that, quite literally, did not add up.

50 Zucca, Lorenzo, A Secular Europe: Law and Religion in the European Constitutional Landscape (Oxford: Oxford University Press, 2012)CrossRefGoogle Scholar.

51 G.A. Res. 36/55, art. 3, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Nov. 25, 1981).

52 “When I use a word,’ Humpty Dumpty said, in a rather scornful tone, it means just what I choose it to mean—neither more nor less.Carroll, Lewis, Through the Looking Glass (Philadelphia: Henry Altemus Co., 1897), 123 Google Scholar.

53 It is unclear why Bielefeldt limits his aspirational ideal to minorities. Majoritarian religions are equally deserving of meaningful dialogue with government. To ignore this gives credence to the contention that Christians are persecuted in many European states, in that neutral laws do not yield to accommodate established churches in quite the same way as they do, for example, for a minority Muslim community: see Hill, “Religious Symbolism and Conscientious Objection in the Workplace,” in particular, the discussion of the Eweida litigation both in the United Kingdom domestic courts and in Strasbourg.

54 I prefer the expression pluralist for a state that adopts a neutral stance towards different religions and provides a framework within which all may flourish, leaving secular for those states (France and Turkey, for example) that seek to keep religion form the public square completely.

55 Rivers, “In Pursuit of Pluralism,” 291.

56 Article 9 of the European Convention on Human Rights protects both religious and non-religious belief: “It is in its religious dimension one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.” Kokkinakis v Greece [1993] ECHR 20. See also Bratza, Nicolas, “The ‘Precious Asset:’ Freedom of Religion under the European Convention on Human Rights,” in Religion and Discrimination Law in the European Union, ed. Hill, Mark (Trier: University of Trier, 2011), 916 Google Scholar.

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