The concepts: revisiting religious diversity within multicultural classrooms: religious freedom, education and equality
Introduction: human rights and normative conflict
The transformative power of human rights is hard to question. What is less clear, particularly outside the confines of the Western world, is the degree of the authentically universal components of the current body of human rights. This study is not focused on the debate of whether international human rights are the product of a predominantly European perspective of the individual. Admittedly, they are. Nor is it concerned directly with the extent to which this body of rights had been used in both colonial and post-colonial frames as an “instrument of a modern-day civilizing project”. Indeed, they have, even within the European space. While human rights have been proposed as a “solution to the normative consequences of legal pluralism”, it remains open to debate to what extent these norms ‘suffer’ merely from jurisdictional conflicts of diverse interpretation or whether they are subjected to a form of normative pluralism in themselves.
In this frame, the interaction between domestic human rights and international human rights is uncontested: while it may be occasionally conflictual or conducive to fragmentation, it is established. The trend towards fragmentation was intensely debated in the last decade. It was premised on the growth of specialized sub-fields of international law after 1989, the rise of non-state actors and the inclusion of new types of international norms beyond those already recognized.
Such fragmentation can and does create conflicts and incompatibilities arising from diverging rules. Peters argues, however, that we have presently entered into an era of‘systemic harmonization’ in international law where this process is gradually being reversed. National law is to a lesser degree affected.
What the exchange is still unclear about, however, relates to cases when international human rights norms conflict among themselves: pluralism embedded within (clashing) normative statements provokes a sense of hierarchy among rights and even among the interpretations of one right, despite the perceived validity of the norms in dispute. This kind of inquiry on normative conflicts presupposes a clearer understanding of the content of the rights to religious freedom, education and equality that are the object of this study. The aim therefore of this chapter is to revisit the conceptual bearings of these central norms in order to then explore their use in the case studies that follow.
One of the latent horizontal concerns of this analysis is the ongoing tension between individualized rights and collective duties and responsibilities. When engaging with the right to equality, the right to religious freedom or the right to education, following a rights-based approach,s any proposed strategy adopted by States, defined as duty-bearers in protecting rights, should account for the ways that individuals in their own complexity experience both the affirmation and especially the denial of such rights. The right to education in conjunction with that of freedom of belief is, for example, mediated by intersecting institutions such as local authorities, teachers, parents or religious organizations. In other words, the role of the State in protecting individuals’ religious freedom becomes more complex due to the conception of freedoms outside State interference, as connected to individual moral choices.
In recent human rights scholarship, two key issues framing the debate of the present discussion occupy the scene: first, the content of equality. If we understand equality as “the extent to which individuals are in a position actually to exercise . . . rights”, then we are using a substantive form of the concept where the duty of the State is heavier as it needs to remove any impediments jeopardizing the exercise of such rights. Equality can be also conceived as “the ability to exercise genuine choice and to act on this choice”, or ‘agency’, extending
The concepts 33 beyond the formal entitlement to act. After all, the exercise of rights, even at the supra-national and global levels requires the involvement of individuals, not just states.
At the same time, and this is the second point, the State can no longer be considered neutral with regard to ethical/moral commitments, merely by virtue of its acceptance to follow and abide by human rights. Autonomy and individualism are, for example, explicit value commitments on behalf of the State, as Rawls has noted. So, the open question becomes when should the State intervene: to defend specific values with which it identifies or to protect a specific plurality of values conducive to maintaining equality?
The complexity of the human rights frame is further highlighted by the fact that other factors, in the form of constraints, affect the exercise of freedoms. Poor health, poverty and lack of education move the analysis beyond the simple consideration of the question on whether there has been state interference with a particular right.
In reality, legal systems often contribute to the enforcement of social stratifications, and any attempt to reverse the social effects of law depends on changes in structure and perception of law as a non-static and heterogeneous phenomenon. It is not uncommon, thus, that a legal system, despite human rights guarantees, allows privileges to persist or maintains the status quo ante of former systems,' in more subtle ways.
Within the context of the study of the normative co-existence - and occasional competition - between religious belief and state law, translated most commonly as a conflict between religious freedom and other human rights or communal interests, balancing has acquired a constitutional dimension. More than that, it has become a method of constitutional interpretation, leading to the adjudication of such conflicts in both domestic and supra-national fora.
Such balancing usually happens through an assessment of the limitations of religious freedom invoked with the activation of the principle of proportionality. The method runs, however, in international human rights law an inherent risk: that of legitimizing abuses of political power. It also assumes that internationaladjudicatory bodies may adopt a deferential approach to the assessment of such conflicts, as the example of the European Court of Human Rights illustrates with respect to its Article 9 ECHR jurisprudence. While there is a clear advantage to balancing as a method leading to potentially fairer outcomes, religious freedom in the assessment of the ECtHR is shown to operate, for example, at the antipode of communal interests. In other words, it is translated as a conflict between a right’s claim of an individual against the rest of the community. For purposes of diversity management, however, such an approach towards the balancing of interests neglects the diversity of human experience while rejecting any consideration of the context in which human rights claims arise. Reverting to Hatton v. UK, the dissenting opinion to the majority judgment was explicit on this point:
We do not find it persuasive to engage in the balancing exercise employing the proportionality doctrine in order to show that the abstract majority’s interest outweighs the concrete ‘subjective element of the small minority of people’. . . . Indeed, one of the most important functions of human rights protection is to protect ‘small minorities’ whose ‘subjective element’ makes them different from the majority.
Balancing, therefore, as described earlier, seems to lack in precision and consistency, particularly for religious freedom. It shows additional weaknesses too: first, it operates under criteria of sincerity, centrality of belief or seriousness in order to make the belief legally examinable, and second, the legal assessment is more often than not measured against the understanding that it is a private matter of choice. The use of the ‘margin of appreciation’ for instance in the European context, ultimately strips away any remaining notion of balancing in the European religious rights adjudication landscape, as it shows evidence of judicial restraint on behalf of the Strasbourg Court to even enter the discussion of human rights balancing.
That is not to say, however, that all religious rights’ claims should be granted or accommodated. The broader picture that merits some reflection when exercising religious rights in the ECHR framework but also in other ‘fora’ lies in the unclear demarcation line between the means of balancing and its consequences. The latter paradoxically seem to accentuate rights’ inequalities instead of mitigating
The concepts 35 them. At the moment, for instance, the perception of threat and risk of religious radicalization prevails over any serious attempt to balance rights that are in conflict with each other.
Overall, analyzing normative conflict between state regulation of public education and religious norms calls for both a legal as well as a cultural analytical perspective. Human rights, such as the principle of equality or that of religious freedom, reveal themselves in a different light when viewed in a context of cultural difference, beyond a strict state-centered notion of legality. This different light allows for reflection on what makes (and unmakes) social order or, in simpler terms, what provokes conflict in the first place. Public schools, in that sense, are places filled with manifold layers of normativity' where children, parents, teachers, administrators or religious communities and the State get involved in their individual, but also group, identities as agents of order and disorder, giving ‘the law’ its fluidity’ and elasticity. Even state law in itself is occasionally far from stable, filled with inner tensions, while it remains a prima facie dominant ordering by virtue of the high amount of resources that it disposes of in comparison to other orders of norms.
At the origin of equality is precisely the need to protect diversity, which is an important point to recall when balancing rights. Equality, like other norms, is challenged as a normative discourse to capture the constant evolution of identity claims in societies where personal autonomy and free consent occupy distinct places, often to the declared detriment of social cohesion. When conflict occurs, therefore, equal status in society becomes contingent not upon competition but rather upon interdependence. Normative pluralism, in this respect, represents the starting point for the quest towards interdependence.
-  For a discussion on this point see Srilatha Batliwala, ‘When Rights Go Wrong—Distorting the Rights Based Approach to Development’, Harvard University: Hauser Center for Nonprofit Organizations, 2010, at 1-2, available at www.justassociates.org/WhenRightsGoW rong.pdf. 2 Batliwala (2010) at 2. 3 See, for example, Topidi, Kyriaki EU Law, Minorities and Enlargement, 2010, Intersentia for an account of minority rights standards alignment process addressed to post-communist countries preparing for EU accession. 4 For a discussion of this point see Samantha Besson, ‘European Human Rights Pluralism: Notion and justification’, in M. Maduro, K. Tuori and S. Sankari (eds.), Transnational Law: Rethinking European Law and Legal Thinking, Cambridge University Press, 2014, 170-205, at 173. 5 Besson (2014) at 185.
-  Anne Peters, ‘The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization’, ICON, 15(3), 2017, 671-704. 2 Obligations appearing as preconditions for rights is as much of a culture-based argument as it is a necessity for survival and development for a number of groups. 3 Borrowed from the analysis of the rights-based approach to development, the UN Office of the High Commissioner defines it as follows: “Essentially, a rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development” (www.unohchr.org). 4 Batliwala (2010) at 3. 5 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties, Oxford University Press, 2008, at 9. 6 Fredman (2008) at 9. 7 Fredman (2008) at 11.
-  Fredman (2008) at 9. 2 John Rawls, Justice as Fairness, Cambridge, MA: Harvard University' Press, 2001, at 156. 3 This point resonates Amartya Sen’s Development as Freedom, Oxford University Press, 1999, at 5 where he finds freedom to be conditioned on the removal of major sources of unfreedom: “poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or over-activity of repressive states”. His approach is framed on development within developing countries. 4 Reva Siegel, ‘Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action’, Stanford Law Review, 49, 1996-1997, 1111-1148, at 1113. 5 Siegel (1997) at 1116, also considering the example of the 1875 US Civil Rights Act on racial discrimination in 1124. 6 Basak Qali, ‘Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions’, Human Rights Quarterly, 29, 2007, 251-270 at 252. 7 £ali (2007) at 253.
-  See indicatively Sahin p. Turkey, Appl. No. 44174/98 (Grand Chamber), 2005 and Lautsi >>. Italy, Appl. No. 30814/06 (Grand Chamber), 2011. 2 See, conversely, Hatton and Others >>. UK, Appl. No. 36022/97, 2003 describing the balance “between the competing interests of the individual and the community as a whole” (at para. 86) 3 Qali (2007) at 259. 4 Hatton and Others p. UK, Appl. No. 36022/97 (Grand Chamber), 2003 Joint Dissenting Opinion of Judges Costa, Ress, Türmen, Zupancic and Steiner at para. 14. 5 Günter Frankenberg, Comparative Law as Critique, Elgar, 2016, at 121. 6 Qali (2007) at 270?
-  See indicatively ECtHR Decisions of 4 December 2008 Dogru i>. France, Appl. No. 27058/05 and Kervanci v. France, Appl. No. 31645/04. 2 Michele Graziadei, ‘State Norms, Religious Norms and Claims for Plural Normativity Under Democratic Constitutions’, in R. Bottom et al. (eds.), Religious Rules, State Law and Normative Pluralism: A Comparative Overview, Springer, 2016, 29-43 at 36. 3 Graziadei (2016) at 38. 4 Graziadei (2016) at 39. 5 Graziadei (2016) at 39.