Accommodating Social Security and Freedom of Religion
| Author | Danny Pieters |
| DOI | 10.1177/138826271501700301 |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| Subject Matter | Article |
316 Intersentia
ACCOMMODATING SOCIAL SECURITY AND
FREEDOM OF RELIGION
D P*
Abstract
In this article I explore how national and European law de al with situations where the
right to social security, and, more broadly, the law on social secur ity, seem to con ict
with the freedom of religion. e article begins by specif ying what is meant by the
terms ‘social secur ity’ and ‘ freedom of religion’. It attempts to illustrate areas of real
or apparent con ict bet ween the freedom of religion and social sec urity law, referring
to case law and practice in a variety of Western count ries. It then deals with religiou s
objections to participation in social sec urity schemes as such, with the d e nition of
suitable work from a religious pers pective and with health care coverage in light of
religious objections. In conclu sion, it seeks to develop an approach that can be followed
for solving cases of real or apparent tension bet ween social security law and the freedom
of religion.
Keywords: freedom of relig ion; health care coverage; social sec urity; suitable work
1. SOCIAL SECURITY AND FREEDOM OF RELIGION
When talk ing about social secu rity and freedom of religion, we should rst specify
what we mean by these terms. ere are probably as many de nitions of social
security as authors dea ling with social s ecurity.1 References are frequently made to the
de nition or rather the enumeration found in ILO C onvention no. 102 on minimum
standards of social security, enacted in 1952. e following are usua lly identi ed as
* Prof. Dr. Danny Pieters i s Professor of Socia l Security L aw at the Institute of So cial Law, KU Leuven.
Address: Blijde-inkomststraat 17 (00.04), 3000 Leuven, Belgium; phone: +32 16 37 71 74; e-mail:
danny.pieters@law.kuleuven .be i s article builds on the ndings in his contribution to t he Liber
Amicorum for Eberhard Eic henhofer (Janda a nd Devetzi 2015); the h section of th is article is
new and develops a theor y of how to overcome the previously establ ished tensions between socia l
security a nd freedom of religion.
1 In li ne w it h wh at I have pre vi ous ly w ri tte n, I wou ld l ik e to d e ne social sec urity for present pur poses
as th e body of a rra ngement s shapin g the so lidar ity of p eople f acing (t he thr eat of ) a lack o f earn ings
(i.e. income from paid lab our) or particular cos ts.
Accommodati ng Social Secur ity and Freedom of Religion
European Jour nal of Social Sec urity, Volume 17 (2015), No. 3 317
social risks: lack of income from paid labour a ecting those people who do not (or
no longer have to) work due to old age, incapacity to work or unemployment; or the
passing away of a wage-earni ng partner; the particu lar costs related to the upbringing
of children; the need for (and coverage of the costs pertaining to) medica l care; and
the lack of the means nece ssary for a decent existence.
Whatever theoretica l discussions there mig ht be about the concept of social
security, it is important to note that t he Universal Declaration of Human Rights of
1948 recognises in Article222 the rig ht to social securit y as a fundamenta l human
right. Such rights were subsequently speci ed in the UN Covenant on Economic,
Social and Cult ural Rights of 1966. In this C ovenant Article9 repeats the recognition
of the ‘right of everyone to social security and social insurance’. In addition, national
constitutions o en recognise, explicitly or implicit ly, social security as a funda mental
or constitutional right. In such cases, the exact mea ning of the term social security is
usually much easier to deter mine.
In light of the di culties of de ning the concept of social security from an
international or comparative perspect ive, if one wishes to make the international
recognition of social sec urity as a human right legal ly operational, it is clear that more
precise standards of social security will have to be developed in international legal
instruments. is is, of course, not very easy at a global level but could be realised
somewhat more easily at a Europea n level. At a universal level, by far most importa nt
formulation is ILO Convention no. 102 on minimum standa rds of social secur ity.
At the European regional level, the Member States of the Council of Europe agreed
on a somewhat higher standa rd, which was realised in the Europea n Code of Social
Security and its additional Protocol of 1964, followed some 25 years later by t he
Revised Europea n Code of Social Security.
As far as the free dom of religion is concerned let us merely recall th at this freedom
always has an interna l aspect, the freedom to hold a religious belief (or not); and an
external aspec t, the freedom to express one’s faith individually or in a g roup; nally,
the freedom of religion also recognises the f reedom of a religious community to
organise itself freely. e latter aspect of the freedom of religion is less relevant here.
Let us also note here that rel igious freedom also encompasses the freedom not to
believe and the freedom to cha nge religion. As is the case for al l freedoms, the freedom
of religion is never absolute: all freedom can be limited, at least when it reaches the
forum externum. Depend ing upon the legal system in which the f reedom of religion is
embedded, these limits will be enumerated in the constitutional document granting
the freedom, such as the Eu ropea n Convention of Human R ights, or can be deduced
2 ‘Everyone, as a member of society, has t he right to socia l securit y and is entitled to rea lisation
through national e ort and internat ional co-oper ation and in accorda nce with the organisation
and resources of eac h state, of the economic, so cial and cultu ral rights indi spensable for his dign ity
and the free deve lopment of his personality.’
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