Book Reviews
| Date | 01 January 2002 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00372 |
| Published date | 01 January 2002 |
REVIEWS
Carolyn Evans,Freedom of Religion Under the European Convention on Human
Rights, Oxford: Oxford University Press 2001, xxiv + 222 pp, hb £40.00.
In the time that it takes to complete the first sentence of this review (I will pretend for
the moment that I am someone who writes the first sentence of book reviews
effortlessly) a search can be completed on the European Court of Human Rights web-
site which will pull up cases according to key names, dates, and all the usual business,
but also according to article. That is, one who is interested in the protection of
religious freedom can have erected the relevant list of cases almost effortlessly. And
there they will stand, like plastic ducks in a row awaiting the air rifle of one’s
jurisprudential wrath to fall upon them like that of some Strangers on a Train-era
carnival sucker.
Carolyn Evans is as much aware of this as anyone, of course, and her new book,
Freedom of Religion Under the European Convention on Human Rights , which is, at
least in form, a very traditional account of the development and various incongruities
contained in the legal tests for protection under Articles 9(1) and 9(2) of the ECHR,
attempts to straddle a rather difficult line between completeness of legal account, and
depth of critical analysis. Her results are interesting and mixed, with the brunt of
importance for her study being borne, as I think Evans herself would acknowledge,
by the critical insight she brings to bear on what is an obviously and shamefully
incoherent line of human rights jurisprudence.
It should be said at the outset that this study is critical in the best sense of the word,
with Evans waiting until only page two to nail her colours to the mast:
The bodies responsible for protecting freedom of religion and belief under the Convention
have approached their task in an incoherent and inconsistent manner. The principles which
they have developed to assist in interpreting articles relevant to freedom of religion or belief
have generally been favourable to States and have given little consideration to the
importance of freedom of religion and belief.
For those of us who have been unaccountably sharp with loved ones after reading
Otto-Preminger-Institut vAustria and rather too blunt with small children and
strangers after an afternoon spent with Kokkinakis vGreece, Evans is a sympathetic
spokeswoman. Evans is unflinching when it comes to pointing out the tendency of
both Court and Commission for cringing deference to often trivial but unquestioned
state necessity, its flagrant use of the principle of voluntarism in highly questionable
factual circumstances (the discussion of Karaduman vTurkey is enlightening on this
point), and most disturbingly, the manner in which Christian assumptions as to the
content of religious observance have shaped the Court and Commission’s approach
to both the definition of the so-called forum internum, and the evidential burden on
those attempting to prove dissident or minority observances.
Evans is further unafraid to discuss the relevant, and rather more enlightened
American law on the protection of religious freedom, including relevant comparisons
with both the highs (Wisconsin vYoder) and lows (Oregon vSmith) of Supreme
Court jurisprudence, which at the very least serves empirically to subvert suggestions
found in the European materials that some element of subjectivity in the
ascertainment of religious obligations, or the suspension of generally applicable
ßThe Modern Law Review Limited 2002 (MLR 65:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 141
laws for reasons of religion, will lead to some manner of administrative anarchy. Of
equal enjoyment for this reviewer is that although this work originated as a doctoral
thesis, it wears the transition to book form lightly. If on occasion the scholarly
apparatus makes rather too evident the suspect joys of the miniaturist, this is more
than made up for in its plain spoken-ness of organisation and internal referencing.
It is these excellent qualities of exposition which combine to make the blunted
analytical conclusions so frustrating for the reader. The author’s concerns for
jurisprudential consistency are evident from the outset where a nod is made in the
direction of political theory with the introduction of now rather too-familiar
quotations from those partners in autonomy, Dworkin and Raz, supporting the
assertion that the project would be argued from the principle of autonomy as the
central underlying value of religious freedom. This assertion is justified with a rather
superficial survey of its general importance as a concept to recent debates on
individual rights. This superficiality is certainly no crime as Evans makes no
pretensions to jurisprudential creativity and the concept does need to be explained.
However, as is too often the practice, once the need for philosophical respectability is
satisfied, the concept is simply left to drop. The idea of autonomy does not in fact re-
appear at all until page 127, and then only as a throwaway analytical synonym for
personal freedom. Evans seems, in the case of autonomy, to originate its discussion
with a partially prescriptive intent and through inattention to the concept in use, drifts
on to a descriptive usage in relation to the case law, so that we are never really sure
whose, or what, idea of ‘autonomy’ is in play. What Evans is really concerned with
here is a very traditional idea of liberal freedom. Indeed, she would have been much
better to have acknowledged clearly at the outset an ideologically-driven liberal
interest in the modified ‘freedom’ of civil and political liberty, and introduced, if
anyone, Berlin or Mill as a conceptual model, and moved on from there.
Again, conceptual uncertainty regarding the idea of autonomy certainly is not a
hanging offence, but this points up a problem which reappears throughout the book,
an entirely unfathomable and stubborn unwillingness to offer any substantiation for
the string of concepts implicated in the Article 9 jurisprudence which Evans, quite
rightly, indicts as incoherent and insecure. I cannot emphasise enough what a
singularly striking component this is of the book. Time and again concepts are picked
out from the Article 9 jurisprudence and intelligently and justifiably critiqued as
being inconsistent, but yet no suitable prescription is offered in their place, or more
accurate or unifying description offered in clarification of the concept itself.
Perhaps the best example of this is the discussion of the forum internum, the
personal, or internal, element of belief as the fundamental and non-derogable
component of religious freedom as opposed to the manifestation, or continuation, of
that belief in action. Evans begins by broadly introducing the topic and intelligently
points up the inconsistencies in its use by the Court and Commission. However, as is
common throughout the work, once past the stage of introductory critique, Evans,
with no stronger or more coherent conception to put in its place, slides from critic to
user. That is, soon enough Evans is using the concept in the context of describing
other elements of the jurisprudence without clarifying whose, or which, concept is
actually in play. The result is that by the end of the work it appears as if she has
absorbed the incoherent and conceptually unsound usage of the Court and
Commission as her chosen conception of forum internum, and is using it freely, as
if it is somehow meant to indicate something clear to us beyond ‘the term the court
uses to signal certain jurisprudential moves’.
This, in the context of the work itself, can only be seen as bizarre, as Evans spends
so much time describing the ills associated with the poor articulation of concepts
The Modern Law Review [Vol. 65
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