The Judicial Protection of Religious Symbols in Europe's Public Educational Institutions: Thank God for Canada and South Africa

Hans-Martien Th.D. ten Napel 1 , 1  and Florian H.K. Theissen 2 , 2
  • 1 Leiden University, h.m.t.d.tennapel@law.leidenuniv.nl
  • 2 Berenschot and Leiden University, fhktheissen@gmail.com

How should judges deal with the manifestation of religious symbols in public educational institutions? In light of the important role of human rights in our legal and political system, courts should grant maximum protection under the freedom of religion or belief. The central thesis of this article is that the European Court of Human Rights fails to live up to this standard. In order to reach this conclusion, the article analyzes relevant case law of the European Court and compares its case law with that of the high courts of Canada and South Africa. In addition, the article assesses the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism. Adoption of a more consistently minimalist methodology by the European Court might lead to a greater protection granted to individuals and groups. However, a wide and deep ruling is first required to overturn the current line of reasoning. The European Court can draw inspiration from Canada and South Africa for such a judgment.

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Muslim World Journal of Human Rights offers a medium for scholarly debate on various aspects of the question of human rights as it relates to the Muslim World. MWJHR promises to serve as a forum in which barriers are bridged, and human rights are finally discussed with an eye on the Muslim world, in an open and creative manner.

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