Meeting the Challenge: Redefining Europe's Classical Model for State Intervention in Religious Practices
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
| Author | Stéphanie Lagoutte,Eva Maria Lassen |
| DOI | 10.1177/016934410602400103 |
| Subject Matter | Part A: Article |
MEETING THE CHALLENGE: REDEFINING EUROPE’S
CLASSICAL MODEL FOR STATE INTERVENTION
IN RELIGIOUS PRACTICES
STE
´PHANIE LAGOUTTE and EVA MARIA LASSEN*
Abstract
This article challenges the affirmation that the State has an increasing obligation to interfere in
religious practices in order to establish harmony between these practices and human rights.
Using the phenomenon of religious divorce as a case, it is argued that State intervention is
largely unnecessary, may well be fruitless and might even prove counter-productive. However, as
it is not in society’s interest to host huge discrepancies between human rights and religious
practices, the article aims to find new ways for achieving greater harmony. We suggest a more
complex version of the traditional European model for State intervention in religious affairs. In
this model, the principle of legally limited State intervention blends with the State’s primarily
non-legal support of religious communities and individuals in their attempts to decrease
discrepancies between human rights and religious practices.
1. INTRODUCTION
In 2005 an imam created an outcry in Denmark by suggesting the use of blood
money as a means to stop an escalation of crime. In France, lively debates on
headscarves preceded and followed the ban on headscarves in schools, while the
excommunication by the Roman Catholic Church of self-proclaimed women priests
recently caught the attention of the media. The list of how established and often
century-old religious practices and norms have stirred the minds of Europe in the
last decades goes on.
With regard to religious practices and norms which have no real effect in terms
of legal rights or obligation of individuals, the response of the human rights
community is far from clear-cut. In fact, the human rights community is caught in
heated debates on State intervention in such religious practices which are
incompatible with the norms of society at large. These debates involve politicians,
the media, scholars, religious communities and individuals, and are increasingly also
played out in court. In many cases, the incompatibility between religious practices
and legal norms is being presented as a human rights issue.
Among potential discrepancies between religious practices and human rights are
issues concerning gender, family and children, freedom of speech within religious
communities, community structure and ecclesiology, employees’ rights, refusal of
Netherlands Quarterly of Human Rights, Vol. 24/1, 33-59, 2006.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 33
* Ste´phanie Lagoutte, Ph.D. and Eva Maria Lassen, Ph.D. are respectively research fellow and senior
research fellow at the Danish Institute for Human Rights. The authors would like to express their
thanks to the following for having read and commented on an earlier draft of this article: Henrik
Zahle, Tim Jensen, Thomas Brudholm and Jørgen Wahl.
34
medical treatment on religious grounds, and honour killing and blood money.
These examples will often be perceived as a reflection of a conflict between religious
freedom and other human rights.
A question persistently accompanying the debates on these and other religious
issues is whether the State has an obligation to interfere in certain religious practices
in order to establish harmony between human rights and religious practices. Largely
based on the view that harmony between religious practices and human rights is
mandatory from a human rights perspective the answer to this question is gradually
becoming more and more affirmative: the State must intervene and put an end to
these religious practices.
This article challenges this affirmation, and suggests instead the adoption of a
more complex version of the traditional European model for State intervention in
religious affairs. State intervention in a European context is, it will be argued, largely
unnecessary, may well be fruitless and might even prove counterproductive: first,
State intervention is largely unnecessary because the collision between religious
practices and human rights practices does not per se constitute a human rights
violation insofar as religious practices have no legally binding consequences. This
fact is often overlooked, creating a discourse not infrequently marred with
confusion. The article aims at rectifying this confusion by means of establishing
conceptual clarity.
Second, State intervention may well be fruitless, because religious issues which
are problematic in a human rights context are often dealt with in religious law –
examples are Jewish law, the Canon law of the Catholic Church, and Islamic law –
and religious law can by its nature not be changed by State intervention.
Third, State intervention may prove counterproductive from a human rights
point of view, first, because State intervention may be seen as a violation of religious
freedom, second, because State intervention, by protecting one or several rights,
carries the risk of suppressing other rights, notably religious freedom.
Acknowledging, however, that it is not in society’s interest to host huge
discrepancies between human rights and religious practices, the article aims to find
new ways for achieving greater harmony. It will be argued that an intensified and
more systematic dialogue between, on the one hand, the State and, on the other
hand, religious communities and individuals of religious beliefs is a precondition for
finding sustainable solutions to these clashes and the only way to avoid the risk of
violating freedom of religion. By means of emphasising the need for increased
dialogue instead of increased legal State intervention, the article opens new fields of
possibilities to meet the challenges facing human rights in Europe in the 21st
century.
Section 2 of the article examines the traditional model of limited State
intervention – in this article named the Classical model – as well as its modern
contender, namely the claim for increased State intervention. As an example of a
religious issue which in recent years has provoked increased State intervention we
have chosen religious divorce. This case-study focuses on three European countries,
namely England, France and Norway, and aims at determining the extent to which
State intervention is necessary, possible, and meets the goals intended by the
intervention. Section 3 examines the challenges to the Classical model and the ways
in which pluralistic norm systems are dealt with in the context of the European
Convention on Human Rights. Finally, section 4 explores in more detail the normative
interaction of the State and the religious sphere. We propose to take account of the
Ste´phanie Lagoutte and Eva Maria Lassen
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