This article analyses the manner in which the margin of appreciation has been developed by the European Court of Human Rights in Article 9 cases. As a principle of subsidiarity European Convention States Parties enjoy a margin of appreciation but its scope varies according to particular principles. It is generally certain, when a proportionality test applies (eg concerning proselytism, places and buildings of worship, legal recognition of religious communities, prisoners’ rights), narrow, when the Court has already formulated specific interpretational criteria (eg concerning State’s interference with the internal affairs/dissolution of a religious community or restrictions sought by religious employers), or wide, when there is no widespread consensus and State authorities are in a better place to determine on the matter (eg levying of church taxes, freedom of religion in workplace, public places, and educational institutions). This article appraises the rationale and circumstances which produce particular outcomes with a view to increasing predictability and consistent practice by States.
{"title":"The Margin of Appreciation in Freedom of Thought, Conscience, and Religion under Article 9 of ECHR","authors":"Konstantina Alexopoulou","doi":"10.1093/ojlr/rwac014","DOIUrl":"https://doi.org/10.1093/ojlr/rwac014","url":null,"abstract":"\u0000 This article analyses the manner in which the margin of appreciation has been developed by the European Court of Human Rights in Article 9 cases. As a principle of subsidiarity European Convention States Parties enjoy a margin of appreciation but its scope varies according to particular principles. It is generally certain, when a proportionality test applies (eg concerning proselytism, places and buildings of worship, legal recognition of religious communities, prisoners’ rights), narrow, when the Court has already formulated specific interpretational criteria (eg concerning State’s interference with the internal affairs/dissolution of a religious community or restrictions sought by religious employers), or wide, when there is no widespread consensus and State authorities are in a better place to determine on the matter (eg levying of church taxes, freedom of religion in workplace, public places, and educational institutions). This article appraises the rationale and circumstances which produce particular outcomes with a view to increasing predictability and consistent practice by States.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43761900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Correction to: Indonesia's Supreme Court Judgment on Religious Clothing: Failing Women and Girls in Public Schools?","authors":"","doi":"10.1093/ojlr/rwac009","DOIUrl":"https://doi.org/10.1093/ojlr/rwac009","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44513403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The promulgation of the new state-level conversion laws in India or some changes in already existing ones by ordinances is premised upon various conspiracy theories of Hindu fundamentalists against Muslims. Implicit in and placed at the centre of these new anti-conversion laws and public debates thereof is the conspiracy theory of love-jihad that Muslim men lure Hindu women on the pretext of love and get them convert to Islam to eventually outnumber the Hindu majority. This article argues that the anti-conversion laws in India result from anxieties of the dominant caste and class regarding gender and caste, leading to the imposition of the mainstream orthodox religious and political will upon the marginalized. The creation of anti-conversion laws is based on assumptions, fears, conspiracy theories, and moral and religious values primarily shared by the ‘upper-caste’ section across the political spectrum. Furthermore, it also shows a growing nexus between conservative religious forces and state apparatuses that restricts religious and social mobility of the marginalized sections through legal changes.
{"title":"Anxieties of the Dominant: Legal, Social, and Religious in the Politics of Religious Conversion in India","authors":"Mukesh Kumar, Garima Yadav","doi":"10.1093/ojlr/rwac008","DOIUrl":"https://doi.org/10.1093/ojlr/rwac008","url":null,"abstract":"\u0000 The promulgation of the new state-level conversion laws in India or some changes in already existing ones by ordinances is premised upon various conspiracy theories of Hindu fundamentalists against Muslims. Implicit in and placed at the centre of these new anti-conversion laws and public debates thereof is the conspiracy theory of love-jihad that Muslim men lure Hindu women on the pretext of love and get them convert to Islam to eventually outnumber the Hindu majority. This article argues that the anti-conversion laws in India result from anxieties of the dominant caste and class regarding gender and caste, leading to the imposition of the mainstream orthodox religious and political will upon the marginalized. The creation of anti-conversion laws is based on assumptions, fears, conspiracy theories, and moral and religious values primarily shared by the ‘upper-caste’ section across the political spectrum. Furthermore, it also shows a growing nexus between conservative religious forces and state apparatuses that restricts religious and social mobility of the marginalized sections through legal changes.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44794516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although ostensibly different, Franz Kafka and the mystical theorist Muḥyī al-Dīn ibn ‘Arabī (d. 638/1240) both employ complex rhetoricity that accommodates paradox and contradiction. This study compares how their complex rhetoricity exposes the tension between the essential human need to comprehend god, and a god who is essentially apophatic. God’s apophasis, expressed as His numinous laws, inevitably comes into conflict with Man’s rationality. Through a theological/legal analysis of Kafka’s novel, The Trial, and ‘Ibn ‘Arabī’s interpretation of ‘Īsā’s (Jesus’) encounter with God on the Day of Judgement, the implications of this tension are explored. Manifested as the incompatibility of immutable divine laws and variable human affairs, and the divergent demands of the individual and the community, the epistemic crisis elicited by this tension provokes opposing reactions from Kafka’s protagonist, Josef K., and ‘Īsā. Josef K.’s demise results from his exclusive reliance on reason, while Īsā succeeds in his encounter with God because he recognizes that, even though rationality is necessary, it is limited.
虽然表面上不同，但卡夫卡和神秘主义理论家Muḥyī al- d n伊本阿拉伯(公元638/1240年)都使用复杂的修辞学来容纳悖论和矛盾。本研究比较了他们复杂的修辞学如何暴露了人类理解上帝的基本需要和一个本质上冷漠的上帝之间的紧张关系。上帝的阿帕菲斯，表现为他的灵性法则，不可避免地与人的理性发生冲突。通过对卡夫卡小说《审判》的神学/法律分析，以及伊本·阿拉比对Īsā(耶稣)在审判日与上帝相遇的解释，探讨了这种紧张关系的含义。这种张力所引发的认知危机，表现为永恒不变的神律与多变的人世间事务的不相容，以及个人与社会的不同诉求，引发了卡夫卡的主人公约瑟夫·K和“Īsā”的对立反应。Josef K.的死亡是由于他完全依赖理性，而Īsā成功地与上帝相遇，因为他认识到，即使理性是必要的，它也是有限的。
{"title":"Ibn ‘Arabī and Kafka on God and the Law","authors":"Ismail Lala","doi":"10.1093/ojlr/rwac003","DOIUrl":"https://doi.org/10.1093/ojlr/rwac003","url":null,"abstract":"Although ostensibly different, Franz Kafka and the mystical theorist Muḥyī al-Dīn ibn ‘Arabī (d. 638/1240) both employ complex rhetoricity that accommodates paradox and contradiction. This study compares how their complex rhetoricity exposes the tension between the essential human need to comprehend god, and a god who is essentially apophatic. God’s apophasis, expressed as His numinous laws, inevitably comes into conflict with Man’s rationality. Through a theological/legal analysis of Kafka’s novel, The Trial, and ‘Ibn ‘Arabī’s interpretation of ‘Īsā’s (Jesus’) encounter with God on the Day of Judgement, the implications of this tension are explored. Manifested as the incompatibility of immutable divine laws and variable human affairs, and the divergent demands of the individual and the community, the epistemic crisis elicited by this tension provokes opposing reactions from Kafka’s protagonist, Josef K., and ‘Īsā. Josef K.’s demise results from his exclusive reliance on reason, while Īsā succeeds in his encounter with God because he recognizes that, even though rationality is necessary, it is limited.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"18 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the late 2021, the European Court of Human Rights rejected as inadmissible the application lodged by a person affiliated with the Church of the Flying Spaghetti Monster. The Court argued that ‘Pastafarianism’, due to its purely satirical character, cannot be considered to be a religion or belief within the sense of Article 9 of the European Convention of Human Rights. This ruling appears to be convincingly justified. However, some aspects of the reasoning offered in the body of the decision might raise concerns as to the Court’s willingness to adhere to its earlier standards, since the conclusion was reached at the price of overstretching the well-established view on the incompatibility of the state’s duty of neutrality with any power to assess the legitimacy of religious beliefs or the ways in which they are expressed.
{"title":"Did Pastafarians Lose in Strasbourg, After All?","authors":"Wojciech Brzozowski","doi":"10.1093/ojlr/rwac001","DOIUrl":"https://doi.org/10.1093/ojlr/rwac001","url":null,"abstract":"In the late 2021, the European Court of Human Rights rejected as inadmissible the application lodged by a person affiliated with the Church of the Flying Spaghetti Monster. The Court argued that ‘Pastafarianism’, due to its purely satirical character, cannot be considered to be a religion or belief within the sense of Article 9 of the European Convention of Human Rights. This ruling appears to be convincingly justified. However, some aspects of the reasoning offered in the body of the decision might raise concerns as to the Court’s willingness to adhere to its earlier standards, since the conclusion was reached at the price of overstretching the well-established view on the incompatibility of the state’s duty of neutrality with any power to assess the legitimacy of religious beliefs or the ways in which they are expressed.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"8 3","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwac005","DOIUrl":"https://doi.org/10.1093/ojlr/rwac005","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwac006","DOIUrl":"https://doi.org/10.1093/ojlr/rwac006","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwac007","DOIUrl":"https://doi.org/10.1093/ojlr/rwac007","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwac002","DOIUrl":"https://doi.org/10.1093/ojlr/rwac002","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
India is a country of religious pluralism, and cultural diversity wherein religion is one of the important social institutions. Freedom of religion in India is guaranteed as a fundamental right which comprises ‘freedom to freely profess, practice and propagate religion’ within the Constitutional boundary. The Indian constitution fosters equality to all and has a broader interpretative connotation. Often, the judiciary is posed with the delicate task of settling the sensitive disputes relating to religion. The court's intervention into such practices may lead to a conflict of existing values backed by the religion or society with newly introduced values by the court. Recently, the Supreme Court in the Sabarimala Temple Entry case declared the practice of prohibiting women in their menstruating age from entering the temples as unconstitutional. The article substantiates that the case paves the way for ensuring equality for women in every sphere, including religion. It critically appraises the existing jurisprudence of religious freedom and argues the need to establish a much coherent jurisprudence based on constitutional principles. The article correlates moral, social, and religious intricacies in determining the constitutional validity of religious practices and tries to substantiate it based on developing jurisprudence of constitutional morality.
{"title":"Evolving a New Religious Freedom Jurisprudence: A Step Towards Ensuring Equality for Women","authors":"Maria Jawed, Dhanaji Mukundrao Jadhav","doi":"10.1093/ojlr/rwab021","DOIUrl":"https://doi.org/10.1093/ojlr/rwab021","url":null,"abstract":"India is a country of religious pluralism, and cultural diversity wherein religion is one of the important social institutions. Freedom of religion in India is guaranteed as a fundamental right which comprises ‘freedom to freely profess, practice and propagate religion’ within the Constitutional boundary. The Indian constitution fosters equality to all and has a broader interpretative connotation. Often, the judiciary is posed with the delicate task of settling the sensitive disputes relating to religion. The court's intervention into such practices may lead to a conflict of existing values backed by the religion or society with newly introduced values by the court. Recently, the Supreme Court in the Sabarimala Temple Entry case declared the practice of prohibiting women in their menstruating age from entering the temples as unconstitutional. The article substantiates that the case paves the way for ensuring equality for women in every sphere, including religion. It critically appraises the existing jurisprudence of religious freedom and argues the need to establish a much coherent jurisprudence based on constitutional principles. The article correlates moral, social, and religious intricacies in determining the constitutional validity of religious practices and tries to substantiate it based on developing jurisprudence of constitutional morality.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"6 ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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