[opiniojuris] Jon Finer: Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, by Peter G. Danchin (abstract)

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Posted by Jon Finer:
Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, by Peter G. Danchin (abstract)
http://www.opiniojuris.org/posts/1212969592.shtml


   Consider the following statutory provision:
   In public schools, students are prohibited from wearing symbols or
   attire through which they conspicuously exhibit a religious
   affiliation.
   Such a law, now familiar in the wake of the recent affaire du foulard
   in France, appears prima facie to violate the most basic tenets of the
   right to freedom of religion and belief in international law. Article
   18(1) of the International Covenant on Civil and Political Rights
   provides that everyone has the right to freedom of thought,
   conscience, and religion, including the freedom âeither individually
   or in community with others and in public or private, to manifest . .
   . religion or belief in worship, observance, practice and teaching.â
   In most religious traditions, the wearing of religious symbols or
   attireâfor example, the Jewish yarmulke, the Sikh turban, or the
   Islamic hijabâis not a simple matter of choice but a matter of
   religious duty, ritual, and observance. Within different traditions,
   there are a variety of ways in which religious symbols work. In
   Christianity, for example, the crucifix is worn as an ornament of
   conviction whereas in Judaism the yarmulke is worn as a matter of
   religious obligation.
   For certain ethnic, religious, and cultural groups (whether they
   comprise the majority or a minority), wearing religious or traditional
   dress is closely bound up with spiritual practices and is a defining
   element of group identity. For Islamic girls and women the wearing of
   the hijab may be a form of social obligation which is
   religiously-motivated rather than a matter of religious duty per se.
   This, in turn, has an intergenerational dimension with the continuity
   of religious tradition being seen as a critical factor in the survival
   of specific cultural, religious, and linguistic groups.
   While the specific historical reasons for the wearing of religious
   symbols and attire may vary in different religious traditions, the one
   common feature is the centrality of such practices to the
   manifestation of religious belief. Given this widely-acknowledged
   fact, on what possible groundsâand for what reasonsâcan a state seek
   to limit this aspect of the freedom to manifest oneâs religion?
   Considerable scholarly attention has been paid in recent years to the
   French law proscribing the wearing of religious symbols in public
   schools and to the issue of Muslim minorities in European
   nation-states more generally. This Article responds to a deeper
   concern. Stepping back from these debates, and from some of the more
   comfortable philosophical and jurisprudential assumptions upon which
   they appear to rest, it aims at a more rigorous theoretical treatment
   of the subject.
   The Article thus asks whether there is a coherent notion of religious
   freedom in international law and, if not, why not? In identifying
   certain problematic aspects of the extant literature, it advances an
   argument which seeks to overcome the current impasse in liberal
   theorizing: the idea of value pluralism as a theoretical basis for
   religious freedom in international law. By acknowledging rather than
   seeking to avoid the disabling indeterminacies of rights discourse,
   and by recognizing the intrinsic connection between individual
   autonomy and communal goods, value pluralism opens new pathways for
   reimagining the limits of liberal theory and for cultivating an ethos
   of engagement toward currently intractable questions of subjectivity
   and intersubjectivity.
   The full article can be read [1]here.

References

   1. file://localhost/var/www/powerblogs/opiniojuris/posts/1212969592.html