The European Court of Human Rights on Religious Symbols in Public Institutions – A Comparative Perspective: Maximum Protection of the Freedom of Religion Through Judicial Minimalism?
Bibliographic record
Abstract
How should judges deal with the manifestation of religious symbols in public institutions? In light of the important role of human rights in our legal and political system, we contend that the freedom of religion or belief ought to be central to the approach of the courts. As human rights should only be limited in a democratic society if this is strictly unavoidable, courts should grant individuals and groups maximum protection under the freedom of religion or belief. The central question of our paper shall therefore be whether the ECtHR has lived up to this standard. In order to answer this question, in Section 3, we shall analyze relevant case law of the European Court, notably the case of Leyla Sahin v. Turkey, in which the ECtHR held, that although a Turkish ban on wearing head scarves at state universities interfered with the right of students to manifest their religion, the interference can nevertheless be justified as ‘necessary in a democratic society’. Section 4 will compare European case law with that of the high courts of Canada and South Africa, two nations that, like the Council of Europe, are characterized by a significant degree of religious pluralism. Finally, the paper will assess the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism set out in Section 2. In doing so, we hope in the concluding section to be able to answer the following two subquestions: (1) does judicial minimalism offer a framework that helps to explain differences in outcomes between the ECtHR and the Canadian and South African high courts; and (2) can the ECtHR learn something from the other two jurisdictions?
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.015 | 0.018 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.004 |
| Science and technology studies | 0.007 | 0.021 |
| Scholarly communication | 0.018 | 0.014 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.016 | 0.007 |
| Insufficient payload (model declined to judge) | 0.005 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".