The Right to Wear Religious Symbols ||

The Right to Wear Religious SymbolsWhistler Daniel; Hill Daniel J.ISBN: 9781137354174DOI: 10.1057/9781137354174Palgrave Macmillan

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DOI: 10.1057/9781137354174

The Right to Wear Religious Symbols

10.1057/9781137354174 - The Right to Wear Religious Symbols, Daniel J. Hill and Daniel Whistler

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DOI: 10.1057/9781137354174

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DOI: 10.1057/9781137354174

The Right to Wear Religious SymbolsDaniel J. HillDepartment of Philosophy, University of Liverpool, UKand

Daniel WhistlerDepartment of Philosophy, University of Liverpool, UK


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© Daniel J. Hill and Daniel Whistler 2013

All rights reserved. No reproduction, copy or transmission of thispublication may be made without written permission.

No portion of this publication may be reproduced, copied or transmittedsave with written permission or in accordance with the provisions of theCopyright, Designs and Patents Act 1988, or under the terms of any licencepermitting limited copying issued by the Copyright Licensing Agency,Saffron House, 6–10 Kirby Street, London EC1N 8TS.

Any person who does any unauthorized act in relation to this publicationmay be liable to criminal prosecution and civil claims for damages.

The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988.

First published 2013 byPALGRAVE MACMILLAN

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www.palgrave.com/pivot

doi: 10.1057/9781137354174


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http://www.palgrave.com/pivot

DOI: 10.1057/9781137354174 v

Contents

Acknowledgements vii

List of Abbreviations ix

Table of Cases x

Table of Statutes and Treaties xv

Introduction: Philosophy of Religion Goes to Court 11 Debating religious symbolism in the

public sphere 22 Argument and structure 43 The contribution of philosophy of religion 6

Part I Trends in Article 9(1)

1 The Manifestation Test 151 The anatomy of a case under Article 9 162 Religious symbols and the

manifestation test 26

2 The Myth of the Necessity Test 361 The necessity test described 372 The disputed cases 39


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Contents

3 The Practical Turn 491 The emergence of the practical turn 512 The growing significance of 9(2) 55

Part II Understanding the Practical Turn

4 The UK Government and Generally Recognized Practices 621 The UK Government’s argument 642 Generally recognized forms of practice 663 Problems with the Government’s account 68

5 The Participative Symbol 731 The history of the symbol 742 Bearing witness 773 Passive symbols 804 Praxis and belief in religion 85

6 High-Level and Low-Level Beliefs 911 Philosophical background 922 The practical turn again 943 The Williamson case 954 Strasbourg case-law 985 Objections 101

Conclusion: Why Eweida Won 1061 Theoretical frameworks for the practical turn 1072 Eweida after the practical turn 1073 Eweida and the legacy of the practical turn 111

Bibliography 119

Index 125


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DOI: 10.1057/9781137354174 vii

Acknowledgements

The following study emerges out of an AHRC Connected Communities Scoping Study entitled, ‘Philosophy of Religion and Religious Communities: Defining Beliefs and Symbols’, undertaken during 2012. We therefore wish, first, to thank the Arts and Humanities Research Council whose funding made this project possible. We also wish to thank our colleagues in the Department of Philosophy and the School of the Arts at the University of Liverpool, who helped us to extend our research leave during this time, as well as Brendan George for his support in turning this research into a book.

As we spell out in detail in the Introduction, this book is the result of participatory research involving stakehold-ers and academics from fields, organizations, and interest groups of all kinds. Each of the organizations and individu-als in the following lists (in alphabetical order) had a hand in the genesis of this research and therefore, in many ways, deserves to be labelled a co-author: Christian Concern; Edge Lane Hindu Temple; Education Islam; Equality and Human Rights Commission; Evangelical Alliance; Faith Express, Liverpool University; Liverpool Muslim Society; Metropolitan Cathedral, Liverpool; National Secular Society; Premier Christian Radio; Zoroastrians of the North-West; Adel Ahmed; Burjor Avari; Zarin Avari; Christopher Baker; Andrew Brower Latz; Jenny Bunker; Harry Bunting; Clare Carlisle; Rebecca Catto; Shirley Chaplin; Stephen Clark; Charles Clarke; Frank Cramner; Andrew Crompton; Sarah Egan; Richard Gaskin; Matthew Gibson; Elaine Graham; Simon Hailwood; James Harding;


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Acknowledgements

Paul Helm; Chris Hewson; Mark Hill; Gillian Howie; Patrick Kelly; Christina Kennedy; Peter Kennedy; Ram Krishan; John Langlois; Ian Leigh; Harry Lesser; Gary McFarlane; Dominic McGoldrick; David McIlroy; Stephen McLeod; Ian McParland; Katharine Sarah Moody; Michael Nazir-Ali; Eleanor Nesbitt; David Perfect; John Pugh; Julian Rivers; Abdul B. Shaikh; N. Sharma; Elizabeth Staunton; Thomas Staunton; Kaushar Tai; Roger Trigg; Panayiota Vassilopoulou; Lucy Vickers; Thomas Ward; Anne Marie Waters; Daniel Webster; Paul Weller; Johannes Zachhuber. David Perfect from the Equality and Human Rights Commission deserves special mention because it was he who first sug-gested the idea for what follows.

The final drafts of this book were written with the memory of Gillian Howie very much in our minds.


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DOI: 10.1057/9781137354174 ix

List of Abbreviations

AC Appeal Cases (Law Reports)BHRC Butterworths Human Rights CasesDR Decisions and Reports (of the European

Commission of Human Rights)ECHR European Convention of Human Rights

( officially ‘Convention for the Protection of Human Rights and Fundamental Freedoms’)

ECtHR European Court of Human RightsEHRC Equality and Human Rights

CommissionEHRR European Human Rights ReportsET Employment TribunalEWCA Civ England and Wales Court of Appeal

(Civil Division)EWHC Admin England and Wales High Court

(Administrative Court)FCR Family Court ReportsGC Grand ChamberHRA Human Rights Act 1998ICR Industrial Cases ReportsIRLR Industrial Relations Law ReportsQB Queen’s BenchUKEAT United Kingdom Employment Appeal

TribunalUKHL United Kingdom House of LordsWLR Weekly Law Reports


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Table of Cases

European Commission/Court of Human Rights

97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia [2007] ECHR 1160, (2008) 46 EHRR 30. (App no 71156/01, 3 May 2007.)

34

A v UK [also sub nom X v UK and Ross v UK] (1984) 6 EHRR 558 (Commission Decision). (App no 10295/82, 14 October 1983.)

11, 35, 45, 48, 59, 66, 71

Ahmad v UK [also sub nom X v UK] (1982) 4 EHRR 126 (Commission Decision). (App no 8160/78, 1 March 1981.)

41–3, 45, 47–8

Alexandridis v Greece, App no 19516/06 (ECtHR, 21 February 2008, unreported.)

20, 33

Arrowsmith v UK (1981) 3 EHRR 218 (Commission Decision). (App no 7050/75, 12 October 1978.)

12, 19, 28–31, 34–5, 37, 46, 50–4, 59, 71, 111, 115, 117–8

Bayatyan v Armenia [2011] [GC] ECHR 1095, (2012) 54 EHRR 15. (App no 23459/03, 7 July 2011.)

98–9, 101, 104

Blumberg v Germany, App no 14618/03 (ECtHR, 18 March 2008, unreported.)

32

C v UK [also sub nom A v UK and Croft v UK] (1984) 6 EHRR 587 (Commission Decision). (App no 10358/83, 15 December 1983.)

45, 48, 66, 71


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Table of Cases

Campbell v UK (1982) 4 EHRR 293. (App nos 7511/76 and 7743/76, 25 February 1982.)

32–3, 99, 104

Cha’are Shalom Ve Tsedek v France [GC] [2000] ECHR 351, (2000) 9 BHRC 27. (App no 27417/95, 27 June 2000.)

43–4, 47, 59, 100, 105

D v France (1983) 35 DR 199. (App no 10180/82, 6 December 1983.)

41, 45, 47–8

Dahlab v Switzerland ECHR 2001-V. (App no 42393/98, 15 February 2001.)

2, 11, 51, 57, 59, 82–3, 89–90

Dautaj v Switzerland App no 32166/05 (ECtHR, 20 September 2007, unreported.)

66, 71

Dogru v France [2008] ECHR 1579, (2009) 49 EHRR 8. (App no 27058/05, 4 December 2008.)

11, 24, 34, 52–3, 59, 99–100, 105

Efstratiou v Greece App no 24095/94 (ECtHR, 18 December 1996, unreported.)

45, 48

Eweida v UK [2013] ECHR 37, [2013] IRLR 231. (Apps no 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013.)

2, 6, 11, 24, 30, 34–5, 57–8, 60, 62–4, 67–8, 70–2, 100–1, 105, 107–18

H v UK [also sub nom CW v UK and W v UK] (1993) 16 EHRR 44 (Commission Decision). (App no 18187/91, 10 February 1993.)

104

Işık v Turkey, App no 21924/05 (ECtHR, 2 February 2010, unreported.)

20, 33

Jakóbski v Poland [2010] ECHR 1974, (2012) 55 EHRR 8. (App no 18429/06, 7 December 2010.)

46, 53–4, 59, 60, 100, 105

Kalaç v Turkey (1999) 27 EHRR 552. (App no 20704/92, 1 July 1997.)

22, 32, 34

Karaduman v Turkey (1993) 74 DR 93. (App no. 16278/90, 3 May 1993.)

18, 32

Khan v UK (1986) 48 DR 253. (App no 11579/85, 7 July 1986.)

39, 46

Kjeldsen v Denmark (1979–80) 1 EHRR 711. (App nos 5095/71, 5920/72 and 5926/72, 7 December 1976.)

48

Kokkinakis v Greece (1993) 17 EHRR 397. (App no 14307/88, 25 May 1993.)

10, 77, 89, 117

Konttinen v Finland (1996) 87 DR 68. (App no 24949/94, 3 December 1996.)

22, 33–4


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Table of Cases

Kovaļkovs v Latvia [2012] ECHR 280, App no 35021/05 (ECtHR, 31 January 2012, unreported.)

54–5, 58, 60, 100, 105

Kuznetsov v Russia [2007] ECHR 34, (2009) 49 EHRR 15. (App no 184/02, 11 January 2007.)

66, 71

Lautsi v Italy [2009] ECHR 1901, (2010) 50 EHRR 42. (App no 30814/06, 3 November 2009.)

2, 35, 81–4, 89

Lautsi v Italy [GC] [2011] ECHR 2412, (2012) 54 EHRR 3. (App no 30814/06, 18 March 2011.)

2, 11, 27, 35, 74, 78, 81–4, 88–90

Lazzarini v Italy App no 53749/00 (ECtHR, 7 November 2002, unreported.)

66, 71

Leela Förderkreis eV v Germany [2008] ECHR 1269, (2009) 49 EHRR 5. (App no 58911/00, 6 November 2008.)

24, 34

Metropolitan Church of Bessarabia v Moldova [2001] ECHR 860, (2002) 35 EHRR 13. (App no 45701/99, 14 December 2001.)

72

Pichon v France App no 49853/99 (ECtHR, 2 October 2001, unreported.)

33, 66, 71

Porter v UK (2003) 37 EHRR 8. (App no 15814/02, 8 April 2003.)

66, 71

Ribeiro v Portugal App no 16471/02 (ECtHR, 26 October 2004, unreported.)

66, 71

Şahin v Turkey [2004] ECHR 299, (2005) 41 EHRR 8. (App no 44774/98, 29 June 2004.)

51, 59, 104

Şahin v Turkey [GC] [2005] ECHR 819, (2007) 44 EHRR 5. (App no 44774/98, 10 November 2005.)

3, 11, 17, 30, 32, 46, 50–5, 57–9, 64, 71, 99–100, 104, 108–10, 115, 117

Salonen v Finland (1997) 90 DR 60. (App no 27868/95, 2 July 1997.) 19, 32

Sessa v Italy, App no 28790/08 (ECtHR, 3 April 2012, unreported.)

57, 60

Skugar v Russia [2009] ECHR 2159 App no 40010/04 (ECtHR, 3 December 2009, unreported.)

66, 71

V v Netherlands (1984) 39 DR 267. (App No 10678/83, 5 July 1984.)

66, 71

Vajnai v Hungary (2010) 50 EHRR 44. (Application No.33629/06, 8 July 2008.)

32


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Table of Cases

Valsamis v Greece (1997) 24 EHRR 294. (App no 21787/93, 18 December 1996.)

45, 48

Vereniging Rechtswinkels Utrecht v Netherlands (1986) 46 DR 200. (App no 11308/84, 13 March 1986.)

66, 71

Williamson v UK, App no 27008/95 (Commission Decision, 17 May 1995, unreported.)

24, 34

Williamson v UK, App no 55211/00 (Inadmissibility Decision, 7 September 2000, unreported, no judgment.)

103

X v Austria (1981) 26 DR 89. (App no 8652/79, 15 October 1981.)

39–40, 46

X v Germany (1981) 24 DR 137. (App no 8741/79, 10 March 1981.)

19, 32–3, 104

X v UK (1975) 1 DR 41. (App no 5442/72, 20 December 1974.)

40–1, 47

Zaoui v Switzerland, App no 41615/98 (ECtHR, 18 January 2001, unreported.)

66, 71

Domestic cases

Adewole v Barking, Havering and Redbridge University Hospitals NHS Trust [ET 2011, unreported.]

26, 35

Azmi v Kirklees MBC [2007] UKEAT 0009/07/3003, [2007] ICR 1154.

2, 7, 11

Chaplin v Royal Devon & Exeter NHS Foundation Trust (ET/1702886/2009, 21 April 2010.)

2, 11, 89

Eweida v British Airways Plc [2010] EWCA Civ 80, [2010] ICR 890

2, 11

Grainger Plc v Nicholson [2009] UKEAT 0219/09/0311, [2010] ICR 360

104

Ladele v Islington LBC [2009] EWCA Civ 1357, [2010] 1 WLR 955

2, 11

McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, [2010] IRLR 872

2, 11

R (Begum) v Denbigh High School Governors [2006] UKHL 15, [2007] 1 AC 100

3, 11, 34, 109, 117


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Table of Cases

R (Playfoot) v Millais School Governing Body [2007] EWHC 1698 (Admin), [2007] 3 FCR 754

2, 11, 28, 35

R (Watkins-Singh) v Aberdare Girls’ High School Governors [2008] EWHC 1865 (Admin), [2008] 3 FCR 203

2, 11, 28, 35

R (Williamson) v Secretary of State for Education and Employment [2001] EWHC Admin 960, [2002] HRLR

95–6, 103

R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB 1300

33, 35, 46, 95–7, 103, 105

R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246

18, 32–3, 95–8, 102–5


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Table of Statutes and Treaties

Domestic

Equality Act (2010) 17, 31Human Rights Act (1998) 7, 16–7

International

Convention for the Protection of Human Rights and Fundamental Freedoms (1950)

2, 4, 5, 7, 15–35, 37–48, 50–60, 63–72, 80–8, 94–105, 107–116

Universal Declaration of Human Rights (1948)

31


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DOI: 10.1057/9781137354174 1

Introduction: Philosophy of Religion Goes to Court

Abstract: The introduction attempts to demonstrate that philosophers do have a distinctive contribution to make to the study of the role of religious symbols in the law of human rights. Court judgments often explicitly or implicitly make significant assertions concerning the role of religious symbols, for example that religious symbols exist merely to express antecedent religious beliefs. These assertions are properly philosophical rather than legal, and therefore should be subjected to philosophical scrutiny. Philosophers have the necessary training and knowledge of the discussion of assertions like these in order properly to evaluate them.

Keywords: religious symbols, human rights, philosophy and the law

Hill J. Daniel and Daniel Whistler. The Right to Wear Religious Symbols. Basingstoke: Palgrave Macmillan, 2013.doi: 10.1057/9781137354174.


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1 Debating religious symbolism in the public sphere

Over a series of legal cases in the UK and Europe during the past 20 years, the limits to which uses of religious symbolism are subject in the public sphere have been tested repeatedly. From the coming into force of the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR), in 1953, right up until 1993, the European Court of Human Rights (ECtHR) had never decided a case on the basis of the right to freedom of religion alone.1 Since then, however, and particularly in the last few years, the number of cases before the ECtHR concerning freedom of religion (and freedom from religion) has increased dramatically. Similar trends are noticeable in the UK courts.2 The law has been put to the test again and again by school pupils wishing to wear karas (R ( Watkins-Singh) v Aberdare Girls’ High School3) or chastity rings (R (Playfoot) v Millais School Governing Body 4), objectors to crucifixes on classroom walls (Lautsi v Italy 5), and those in teaching positions who wear niqabs or headscarves (Azmi v Kirklees MBC 6; Dahlab v Switzerland 7), among many others. Perhaps, however, the most high-profile cases to galvanize debate around the protection of religious symbols have been Eweida v British Airways 8 and Chaplin v Royal Devon and Exeter Hospital NHS Foundation Trust,9 which were later conjoined before the ECtHR (along with two non- symbolism cases, Ladele v Islington LBC10 and McFarlane v Relate Avon Ltd 11) as Eweida and Others v UK.12 Eweida and Chaplin each fell foul of uniform policies at her workplace (British Airways for Eweida and the National Health Service for Chaplin) because she openly wore a cross (Eweida) or a crucifix (Chaplin) around her neck. Each sought protection from the courts, alleging discriminatory policies (both direct and indirect) which prohibited her from displaying a symbol that she deemed central to her religious identity. Each lost and went to the ECtHR to seek restitution.13 As a result, a public debate has now emerged: whether in columns by celebrity politicians,14 prime-ministerial tweets15 or calls from Christian leaders to wear crosses in solidarity,16 the protection religious symbols receive has become newsworthy.

In addition, there exist ongoing debates in Europe, and also globally, concerning the right of Muslim women to wear religiously sanctioned clothing, such as headscarves and veils, in the public sphere. Recent years have seen not only controversial legislation being passed in Belgium and France,17 but also the creation of significant legal precedents at both the


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European (Şahin v Turkey 18) and UK (R (Begum) v Denbigh High School Governors19) levels. Debate surrounding religious clothing occurs, of course, against background concerns over the sexual politics of Islam, its supposedly threatening nature to Western states, and also the hegemony of secular values; nevertheless, one can also point to a more abstract concern with the relation of religious clothing (whether niqāb, hijāb, or otherwise) to underlying beliefs and the extent to which such clothing is required by Islamic belief – that is, the religious (and, perhaps, symbolic) status of such clothing.

The question ‘when, if ever, is it acceptable to prohibit the use of religious symbols?’, which the courts have repeatedly been called upon to answer, is multi-faceted. It requires attention to the cogency of the belief that is being symbolized, evaluation of the interference brought about by such a prohibition, and a weighing-up of the rights of the individual to manifest their religion against the rights of others and the state as a whole. The aspect of this issue that has most caught the public imagination, however, is the so-called manifestation test: the courts have regularly asked (not without exception, as we shall see) whether uses of religious symbols really do manifest the religions or beliefs that they symbolize or, instead, while they may be ‘motivated’ by the religions or beliefs in question, whether they fail to manifest them. It has been a long-standing public perception that domestic courts adjudicate on whether a religious symbol should be described as a mandatory means of manifesting core beliefs or merely a personal choice, and the ECtHR has traditionally decided cases on whether the symbols in question are ‘intimately linked’20 to the underlying beliefs.

A 2010 open letter to The Daily Telegraph in the wake of the Eweida case, signed by prominent members of the Church of England, provides a clear example of the reaction that is to be found among many religious communities to the courts’ line of questioning on this issue:

For many Christians, wearing a cross is an important expression of their Christian faith and they would feel bereft if, for some unjustifiable reason, they were not allowed to wear it. To be asked by an employer to remove or ‘hide’ the cross, is asking the Christian to hide their faith. Any policy that regards the cross as ‘just an item of jewellery’ is deeply disturbing and it is distressing that this view can ever be taken.21

Likewise, in February 2012, the Christians in Parliament group published Clearing the ground, which concluded that it was ‘problematic’ that courts


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did not make ‘allowance for [symbols] that might be widely chosen to express identity with a faith but are not required by it’.22 Vigorous reac-tion from senior members of the Roman-Catholic Church has been forthcoming as well.23 Strong opinions have also long been expressed on the opposing side of the debate: earlier, in November 2006, Terry Sanderson (President of the National Secular Society) had complained of Eweida’s stance as suggesting ‘that her religion is more important than anything else’.24

It is precisely on this component of cases concerning religious dis-crimination that the following is focused. We scrutinize, and try to make sense of, the changing ways in which the ECtHR, in particular, has put religious symbolism to the test as a manifestation in cases considered under Article 9 of the ECHR. That is, the following chapters first lay out in detail the different ways in which the ECtHR has judged uses of religious symbols to be ‘intimately linked’ to, expressive of, motivated by, or encouraged by religious beliefs; second, they look to interpret and analyse the underlying theoretical structures that give rise to these criteria for protecting symbols, as well as suggesting new conceptual frameworks to understand them better. It is here that the philosophical nature of the following is most apparent: we hone in particularly on the various conceptions of ‘belief ’ and ‘symbol’ at play in these different tests and scrutinize their cogency. In the second half of the Introduction, we return to the idea that tools and methods drawn from the philosophy of religion can help enhance understanding of both the case-law and the public debate around discrimination; before then, however, it is neces-sary to articulate more distinctly the thesis we shall be proposing.

2 Argument and structure

Our argument can be stated as follows: Article 9(1) of the ECHR speaks of the ‘freedom, either alone or in community with others and in public or private, to manifest [one’s] religion or belief, in worship, teaching, practice and observance’. And traditionally (i.e. prior to 2005) many judgments had paid special attention to the concept of ‘manifestation’ as a means of distinguishing protected from unprotected manifestations of belief. In particular, when it came to uses of religious symbolism, there had been a sharp focus on (what we shall call) ‘the sign-function’ of the symbol – that is, the way in which, and the extent to which, the symbol


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expresses an underlying belief. This forms the traditional ‘expression test’ applied by the ECtHR. Chapter 1 sets out in detail the anatomy of a case brought under Article 9, and, in particular, the traditional deploy-ment of the category of expression to distinguish between protected and unprotected uses of religious symbols. Yet in legal literature (and public perception), the necessity test has been by far the commonest way of describing the ECHtR’s traditional jurisprudence on this issue; on this interpretation, an action counts as a manifestation of a belief only if it is obligated by that belief. In Chapter 2, however, we argue at length that this understanding of the necessity test is mistaken, and show in detail how the cases usually supposed to support a reading of the necessity test in the early decisions and judgments of the ECtHR and European Commission actually demonstrate the opposite.

The central thesis of the book is first presented in Chapter 3. We maintain that, since 2005, Strasbourg jurisprudence (followed to some extent by domestic jurisprudence) has displayed what we call ‘the practi-cal turn’. This we analyse as the turn away from seeing actions solely in the light of the antecedent beliefs that they manifest to seeing actions and the practices that they compose in their own right alongside beliefs. The key characteristic of this shift to considering symbols increasingly more as practices as well as signs concerns the role of motivation in judgments under Article 9. Traditionally, according to the manifestation test, motivation had been definitively cast as insufficient to count as expression and therefore motivated symbols were not necessarily treated as manifestations under Article 9. This is the so-called Arrowsmith prin-ciple.25 Since 2005, however, while such a principle has been repeatedly endorsed, the rulings implicitly allow for motivation to be sufficient for a symbol to count as a manifestation. Merely motivated symbols are pro-tected too. The lack of anxiety the ECtHR has shown over this apparent inconsistency is itself indicative of how relatively marginal the symbol/belief relation (and so those categories that characterize that relation, such as motivation, expression, and obligation) has become.

The crucial contribution of this book is an attempt to make sense of the above. This practical turn can, we suggest, be understood according to various theoretical frameworks; thus, while Part 1 of the book sets out in detail the evidence in the case-law for this practical turn, Part 2 is devoted to philosophically explaining and analysing it by means of inter-rogating the central concepts at the heart of judgments under Article 9: the concepts of belief and symbol. In Chapter 4, as a preliminary to our


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own constructive attempts at understanding the practical turn, we first consider and reject the framework offered by the UK Government in its observations on Eweida v UK. The Government argues that the threshold by which to distinguish protected from unprotected religious symbols in an era of jurisprudence after the practical turn derives from the concept of ‘generally recognized practices’; however, as was pointed out at length in Eweida, however, such a reconstitution of the manifestation test leads to all sorts of unwanted problems.

We propose, in contrast, two complementary ways of making philo-sophical sense of the practical turn. First, in Chapter 5, we consider in detail the notion of symbolism, looking particularly at the history of the use of this term in the modern period and how, since Romanticism, philosophers have attributed to symbols a number of functions: not only the sign-function traditionally emphasized in cases falling under Article 9, but also a participation-function. That is, symbols do not merely express a belief; they also bear witness to the user’s participation in a community. We contend that the practical turn can be understood as a growing acknowledgement of the participation-function of symbols. In Chapter 5, we shift from critically interrogating the concept of symbol to that of belief, and suggest that another philosophical framework for understanding the practical turn is the turn from consideration of high-level theoretical systems of belief (such as religions), to which actions and practices are considered subservient, to consideration of individual low-level practical beliefs on an equal footing with the actions that naturally flow from them.

The Conclusion reapplies the above philosophical analysis concretely to the legal jurisprudence itself and, in particular, we provide the first sustained analysis of the judgment in Eweida v UK from January 2013. We argue that a naïve interpretation of the practical turn that treats it merely as a shift from beliefs to practices fails to make sense of this judgment. Only a more nuanced interpretation that takes account of the frameworks proposed in both Chapters 5 and 6 of this book can show the logic behind the Eweida judgment.

3 The contribution of philosophy of religion

If the above is what we hope to show in the rest of the book, in the rest of the Introduction we wish to take a step back to consider more generally


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the very idea that philosophers of religion might get their hands dirty with legal cases of religious discrimination. For one may justifiably ask how philosophers of religion can be of any practical assistance in the matter of the legal status of the use of religious symbols. Indeed, this is merely a sub-question of the pressing demand for philosophers of religion generally to show that their research relates to life outside of philosophy of religion (or justify why it need not).

Philosophers, it should be noted, have already contributed to aca-demic debates around legal cases alleging religious discrimination. In political philosophy, Calder and Smith’s painstaking analysis of competing understandings of equality and diversity in Azmi v Kirklees MBC is illustrative.26 In philosophy of religion, Roger Trigg’s Religion in Public Life27 and Equality, Freedom and Religion28 have already contributed a strong voice to the debate. Nevertheless, these deal with only the tip of the iceberg; for example, there has been little in the way of rational reconstruction of key concepts and arguments in these cases and in the legislation. And, more particularly, Article 9 of the ECHR and its related jurisprudence, which regulate this sphere, do employ several concepts on which philosophers of religion might usefully comment, such as those of belief, symbol, conscience, and manifestation. It is such a task that we begin to undertake in what follows in order to contribute some clarity and cogency to public and legal discourse around religious symbolism and its protection.

This is, of course, not to limit philosophical interest in cases of reli-gious discrimination just to conceptual analysis of this kind. It is clear that engagement with the value of a human-rights approach to religious conflict, or with the limits of liberty in justifying interference with mani-festations of religion, or with the ethics of responding to others’ symbols, is each a key philosophical concern. Thus, to take the first example: Article 9 (and the Human Rights Act 1998 that encodes it in UK law) is not the only way to ensure protection for some uses of religious symbols. While these legal instruments turn freedom of religion into a positive and universal human right, the traditional approach in the UK had been one of common law, defined by ‘negative accommodation’ and ‘passive religious tolerance’.29 The wider question of whether assigning a par-ticular human right to freedom of religion is the most helpful approach should not be forgotten. Moreover, questions concerning the very viability of philosophical approaches to the law should not be neglected either: there remains a question concerning the applicability of rational


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reconstruction to what goes on in the courts. Does the very pragmatism necessitated in deciding these cases in situ sit uneasily with a systematic analysis of the fundamental concepts?

This does not, however, get to the heart of the questions raised at the beginning of this section surrounding the alleged continual irrelevance of philosophy of religion to contemporary religious practices and debates outside the academy. It strikes us as undeniable that philosophy of religion has traditionally taken place at a distance from the concerns, forms of understanding, and ways of speaking of non-academic reli-gious believers and practitioners. This is not to say that this distance is necessarily a bad thing or that it is even possible fully to overcome it. Nevertheless, philosophy of religion has shown itself as alienated from contemporary religious debate in a number of ways.30

For example, philosophy of religion as predominantly practised today excludes certain topics from its remit that are absolutely central to many religious lives. Discrimination is a paradigmatic example of this. Yet, other than the work cited above, philosophers of religion have entirely evacuated the field in deference to political philosophers. One could cite numerous other topics central to ‘everyday’ understandings of religion neglected in philosophy of religion (religious consolation for trauma and loss, for instance).

Moreover, it is not just the content of philosophy of religion that is often judged to be lacking, it is the form as well. There is perhaps no fiercer critic here than John Cottingham:

The way many contemporary academic philosophers go about their task – maintaining an astringently dry style modelled on legalistic or scientific prose, scrupulously avoiding literary or other potentially emotive allu-sions ... often [seems] somehow to miss the mark, or at least to need supple-menting, when we are dealing with the phenomena of religious allegiance and its significance. Our philosophical discourse ... may be in need of a certain supplementation or broadening if it is to engage us on more than a narrowly intellectual plane.31

For Cottingham, philosophy of religion needs to surpass its traditional tools and methods in order to treat religion differently. It is not here a matter of new content, but a new approach to religion itself. We shall return to this.

If the above does provide an accurate portrait of the situation, then what is to be done? Of course, one might reply that philosophy of religion has no responsibility towards the extra-academic concerns of religious


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believers and practitioners; there is a real sense in which philosophy of religion is an a priori discipline and is therefore independent of lived religion. Yet even within philosophy of religion, there is a growing sense of dissatisfaction with the way things are done. Take Robin Le Poidevin’s recent editorial in Religious Studies:

I want to issue a call to arms. ... What I have in mind is not a defensive strategy, which would unhelpfully suggest an embattled discipline, but something much more positive, and intrinsically worthwhile. We should make efforts to offer a new agenda. That is, not simply new thoughts about familiar questions, but new questions, or new methodologies.32

Combined with Cottingham’s sentiments in The Spiritual Dimension quoted above, this provides a compelling imperative to do philosophy of religion differently. And while Le Poidevin is not here merely recom-mending engagement with lived religion, it is surely plausible that such engagement needs to play a significant part in a revitalized agenda. Only then might the gap between philosophy of religion and lived religion begin to be bridged, so that, in Scott-Bauman’s words, ‘scepticism about philosophy [among faith communities] is replaced by a dialectical proc-ess of using philosophy to help people live together and look forward, alert to new possibilities.’33

So, let us ask again: what is to be done? It is a matter of identifying solutions that can help philosophy of religion to engage in a more sus-tained and less condescending manner with religious practitioners and non-religious practitioners. Of course, there remains the demand on all philosophy to be rigorous, cogent, and clear; the question, however, is what different ways there are to achieve such rigour, cogency, and clarity.

There are some obvious solutions, such as broadening the scope of phi-losophy of religion to include more of those topics that are traditionally excluded from its remit yet matter to those outside the academy. Beverley Clack’s work on mourning and loss34 and Mark Wynn’s phenomenology of sacred space35 are examples of where this work is already happening. More fundamentally still, philosophers of religion could begin to estab-lish their projects on the basis of a more diverse, inclusive range of data about religious lives – taking on board ideas, concepts, and concerns from non-Abrahamic religions in particular.36 Such an approach would bring philosophy of religion into a more constructive relation with other research on religion (particularly sociology, anthropology, and ethnog-raphy), thereby promoting joined-up research.


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To some extent, this book contributes to opening up philosophy of religion in this way. It analyses a concern that is not normally central to academic philosophizing on religion, but does loom large in the con-sciousness of both believers and non-believers alike outside the academy. Yet, to conclude this introduction, we want to make the case for a more radical way in which the following overcomes the gulf separating philoso-phy from lived religion – through a participatory methodology. According to the community-based research model from which this book comes, the participation of non-academic users is not merely a jumping-off point for analysis or a means of ensuring the dissemination of research conclusions, but practitioners and philosophers collaborate fully in the process of research construction itself as an intrinsic component of the philosophizing.37 That is, this book emerged out of a series of workshops and reviews consisting of public, legal, and philosophical discussions of religious discrimination, which involved stakeholders as well as academics. Thus, representatives from local and national organizations, including policy makers, faith communities, and secular organizations, took the opportunity both to develop philosophical analytical tools and to deploy them in the interrogation of the concepts of belief and symbol as they occur in recent jurisprudence on the protection of religious symbols.38 Interactive discussion of the core research question and the report’s contents provided a means to deploy philosophy of religion in an open way, inclusive of non-academic concerns and contestations. The results of these discussions were then written up to be scrutinized again by all the interested parties. This, we think, is the book’s real contribu-tion to ‘a new agenda’ for philosophy of religion (in Le Poidevin’s words). And it is with this methodology that we hope to show that philosophy of religion can have something to say when it comes to public and legal debates around religious discrimination.

Notes

Kokkinakis v Greece 1 (1993) 17 EHRR 397 (App no 14307/88, 25 May 1993); Judge Pettiti’s partly concurring opinion. See further, Martínez-Torrón, J. (2001) ‘The European Court of Human Rights and Religion’ in R. O’Dair and A. Lewis (eds) Law and Religion (Oxford: Oxford University Press), p. 188; and McGoldrick’s comments, ‘There was no substantive jurisprudence on freedom of religion until 1993 but since then it has become a torrent’ (D. McGoldrick, ‘Religion in the European Public Square and in


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European Public Life – Crucifixes in the Classroom?’, European Law Review, 11.3, p. 499).See M. Hill and R. Sandberg (2007) ‘Is Nothing Sacred? Clashing Symbols in 2 a Secular World’, Public Law, p. 488.R (Watkins-Singh) v Aberdare Girls’ High School Governors 3 [2008] EWHC 1865 (Admin), [2008] 3 FCR 203.R (Playfoot) v Millais School Governing Body 4 [2007] EWHC 1698 (Admin), [2007] 3 FCR 754.Lautsi v Italy5 [GC] [2011] ECHR 2412, (2012) 54 EHRR 3. (App no 30814/06, 18 March 2011.)Azmi v Kirklees MBC6 [2007] UKEAT 0009/07/3003, [2007] ICR 1154.Dahlab v Switzerland 7 ECHR 2001-V. (App no 42393/98, 15 February 2001.)Eweida v British Airways Plc8 [2010] EWCA Civ 80, [2010] ICR 890.Chaplin v Royal Devon9 & Exeter NHS Foundation Trust (ET/1702886/2009, 21 April 2010).Ladele v Islington LBC 10 [2009] EWCA Civ 1357, [2010] 1 WLR 955.McFarlane11 v Relate Avon Ltd [2010] EWCA Civ 880, [2010] IRLR 872.Eweida v UK12 [2013] ECHR 37, [2013] IRLR 231. (Apps no 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013.)In the Conclusion to this book, we provide, significantly, the first sustained 13 analysis of the ECtHR’s judgment in this case.B. Johnson (2012) ‘It’s a Huge Mistake to Forbid a Tiny Act of Christian 14 Worship’, The Daily Telegraph (London, 12 March 2012), http://www.telegraph.co.uk/comment/columnists/borisjohnson/9137523/Its-a-huge-mistake-to-forbid-a-tiny-act-of-Christian-worship.html, date accessed 15 June 2013.D. Cameron (2013) ‘Delighted that principle of wearing religious symbols at 15 work has been upheld – ppl shouldn’t suffer discrimination due to religious beliefs’, Twitter (15 January 2013), https://twitter.com/David_Cameron, date accessed 15 June 2013.BBC News (2012) ‘Cardinal Keith O’Brien urges Christians to “proudly” wear 16 the cross’, http://www.bbc.co.uk/news/uk-scotland-17611036, date accessed 15 June 2013.See the statement of facts in 17 Dogru v France [2008] ECHR 1579, (2009) 49 EHRR 8. (App no 27058/05, 4 December 2008.)Şahin v Turkey18 [GC] [2005] ECHR 819, (2007) 44 EHRR 5. (App no 44774/98, 10 November 2005.)R (Begum) v Denbigh High School Governors 19 [2006] UKHL 15, [2007] 1 AC 100.A v UK 20 (1984) 6 EHRR 558. (App no 10295/82, 1 January 1984.)Lord Carey and Others (2010) ‘The Religious Rights of Christians are Treated 21 with Disrespect’, The Daily Telegraph (London, 28 March 2010), http://www.telegraph.co.uk/comment/letters/7528487/The-religious-rights-of-Christians-are-treated-with-disrespect.html, date accessed 15 June 2013.


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Christians in Parliament (2012) 22 Clearing the Ground inquiry: Preliminary report into the freedom of Christians in the UK, http://www.eauk.org/current-affairs/publications/upload/Clearing-the-ground.pdf, p. 15, date accessed 15 June 2013.See N. Squires (2010) ‘Cardinal Drops Out after Calling UK “Third World”‘, 23 The Daily Telegraph (London, 15 September 2010), http://www.telegraph.co.uk/news/religion/the-pope/8004493/Pope-visit-Cardinal-drops-out-after-calling-UK-Third-World.html, date accessed 15 June 2013.T. Sanderson (2006) ‘Christian Bullies Press Their Advantage’, Editorial of 24 the National Secular Society (24 November 2006), http://www.secularism.org.uk/editorialchristianbulliespressth.html, date accessed 15 June 2013.Named after 25 Arrowsmith v UK (1981) 3 EHRR 218 (Commission Decision). (App no 7050/75, 12 October 1978.)Calder, G. and Smith, S. (2011) ‘Differential Treatment and Employability: 26 A UK Case Study of Veil-wearing in Schools’ in G. Calder and E. Ceva (eds) Diversity in Europe: Dilemmas of Differential Treatment in Theory and Practice (London: Routledge), pp. 157–69.R. Trigg (2007) 27 Religion in Public Life: Must Faith Be Privatized? (Oxford: Oxford University Press).R. Trigg (2012) 28 Equality, Freedom and Religion (Oxford: Oxford University Press).M. Hill, R. Sandberg, and N. Doe (2011) 29 Religion and Law in the United Kingdom (Alphen: Kluwer), p. 25.None of the observations that follow will surprise many philosophers of 30 religion, for a glance at any critical volume or essay on the field will show similar remarks. For detailed presentations of what we go on to say, see P. Anderson (1997) A Feminist Philosophy of Religion (Oxford: Blackwell); B. Clack and B. Clack (2008) Philosophy of Religion: A Critical Introduction, 2nd edn (London: Polity); Carter, J. and Whistler, D. (2011) ‘At the Intersection of Moral and Religious Philosophy’ in J. Carlisle, J. Carter, and D. Whistler (eds) Moral Powers, Fragile Beliefs: Essays on Moral and Religious Philosophy (London: Continuum); and, most recently, K. Schilbrack (2013) The Future of the Philosophy of Religion (Oxford: Blackwell).J. Cottingham (2005) 31 The Spiritual Dimension: Religion, Philosophy and Human Value (Cambridge: Cambridge University Press), pp. 2–3.R. Le Poidevin (2012) ‘Editorial’, 32 Religious Studies, 48.1, p. 2.A. Scott-Baumann (2003) ‘Teacher Education for Muslim Women: 33 Intercultural Relationships, Method and Philosophy’, Ethnicities, 3.2, p. 258.B. Clack (2002) 34 Sex and Death: A Reappraisal of Human Mortality (London: Polity).M. Wynn (2009), 35 Faith and Place: An Essay in Embodied Religious Epistemology (Oxford: Oxford University Press).


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For a statement of this approach, see M. Burley (2012) 36 Contemplating Religious Forms of Life (London: Bloomsbury).For further details on what follows, see the programmatic remarks in 37 C. Baker, J. Reader, and D. Whistler (2012) ‘Speculative Philosophies and Religious Practices’, Political Theology, 13.2, pp. 141–55 (particularly the section ‘The Impact of Philosophy of Religion’). Background for this description of the methodology can be found in the various methodological reviews in Review of Religious Research (for instance).A full list of those involved is given in the Acknowledgements. As is 38 there pointed out, in many ways they can be considered co-authors of the following.


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Part I Trends in Article 9(1)


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1The Manifestation Test

Abstract: In the UK the law of human rights centres on the European Convention on Human Rights (ECHR). Within the ECHR our focus is on Article 9(1), which provides the qualified right to manifest one’s religion or belief. What does ‘manifest’ mean? The Courts have ruled that, while not every action ‘motivated or inspired by’ a religion or belief thereby manifests it, one that is ‘intimately linked to’ or ‘directly expresses’ a religion or belief does manifest it. But what do these relations come to? The Courts have given only a set of examples. This chapter will examine various different attempts to draw from these examples a ‘test’ that will tell, for any given action and belief, whether or not that action manifests that belief.

Keywords: ECHR Article 9, manifestation test, ECtHR case-law, motivated or inspired, intimately linked, directly expresses



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Trends in Article 9(1)

To begin, it is necessary to delimit the scope of this study – the mani-festation test as it is to be found (and also not found) in the case-law concerning Article 9 of the ECtHR. This test has cast a long shadow over much of the debate surrounding religious discrimination in the UK and Europe. For while the framing of UK legislation concerning indirect discrimination has played its part, it is for the most part the perceived nature of Article 9’s manifestation test that has led to endless debates over whether certain religious symbols are required or mandated by adherence to a religious worldview, whether they form a ‘core part’ of that religion, are ‘intimately linked’ to it, or ‘a generally recognized form’ of it – and of course to the debate over whether any of these questions should even matter when it comes to protecting freedom of religion.

In Part I, therefore, we embark on a detailed description of the mani-festation test as it has emerged out of Article 9 and been deployed by the ECtHR over the past 30 years (Chapter 1); we dispel a widely believed myth surrounding the stringency of this test (Chapter 2); and finally trace recent developments in the Court’s attitude towards it (Chapter 3). Our aim is thereby to provide a detailed exposition of the material that will be the subject of philosophical analysis and interrogation in Part 2.

1 The anatomy of a case under Article 9

Article 9 of the ECHR reads as follows:

Article 9 – Freedom of thought, conscience and religion

Everyone has the right to freedom of thought, conscience and 1 religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.Freedom to manifest one’s religion or beliefs shall be subject only 2 to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others1

In the HRA 1998, the right to religious freedom in the ECHR (as well as all the other rights therein protected) was made directly justiciable in


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UK courts. Domestic courts must now take account of these Convention rights in their decisions. The protection of religious belief and manifesta-tion accorded in the ECHR is also implicitly affirmed in the UK Equality Act 2010.2

1.1 ‘Religion or belief ’

The ECHR and domestic legislation protect both religion and belief. Section 10(2) of the Equality Act 2010 reads, ‘Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.’3 Humanism and atheism are given as examples.4 The reference to ‘lack of belief ’ ensures that not only freedom of religion and belief but also free-dom of lack of religion is protected. It is worth saying a few words to begin with about what is meant by ‘religion’ and then ‘belief ’ in this context.

1.1.1 Religion‘Religion’ is of course a much-contested term; we are interested, how-ever, in the way religious symbolism is understood in cases of religious discrimination in the courts of the UK and Europe; therefore, what is at issue, first, is the courts’ understanding of ‘religion’.

The ECHR and HRA 1998 are praised and criticized in equal measure for avoiding a definition of religion.5 By opening the rights afforded in Article 9 up to freedom of thought, conscience, and religion, judges no longer need to distinguish a religion from a non-religious conviction. Both are equally covered. While we agree that the ECHR and HRA 1998 do avoid a substantial, doctrinal definition of religion, nonetheless, pre-cisely by understanding religion in line with thought and conscience, and precisely by pairing it so tightly with belief, they do provide parameters for defining its formal structure.

In this vein, an initial statement often repeated in European judgments is as follows:

Freedom of thought, conscience and religion ... is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life.6

In Şahin v Turkey (and in many other cases), such a general statement of the significance of religion is supplemented with the following:

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in


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private, or in community with others, in public and within the circle of those whose faith one shares.7

This is a distinction between ‘the forum internum ... the sphere of personal convictions and religious beliefs’ and the forum externum.8 The underly-ing view here seems to be that (insofar as Article 9 is concerned) religion is ‘primarily’ a matter of belief, and therefore only derivatively a matter of manifesting belief (whether that manifestation consists in acts of wor-ship and assembly or in the display of religious symbols).

A key concern of many commentators on Article 9 has been the relation of this conception of religion to lived religion itself, particularly its ability adequately to describe religions in all their diversity. That is, if a conception of religion follows from Article 9 of the ECHR in which beliefs held in the forum internum are primary and manifestations only secondarily derivative of them, the question naturally arises: is religion actually like this? If it turns out to be the case that this model of religion is not universal, a question is raised about Article 9’s ability to protect religions of these other kinds. We shall return to this point at length at the end of Chapter 5.

1.1.2 BeliefIn order for its manifestations to be eligible for the protection of Article 9, a belief must meet some conditions – and these conditions provide a framework for determining the meaning of ‘belief ’ in legislation concern-ing religious discrimination. As Lord Nicholls put it in R (Williamson) v Secretary of State for Education and Employment:9

When questions of ‘manifestation’ arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instru-ments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood.10

Likewise, the ECtHR itself speaks of protecting the manifestations only of ‘views that attain a certain level of cogency, seriousness, cohesion and importance’.11


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In relation to non-religious ‘philosophical convictions’, the ECtHR further determines the sorts of belief that qualify for protection under Article 9 as follows:

Having regard to the Convention as a whole ... the expression ‘philosophical convictions’ in the present context denotes, in the Court’s opinion, such convictions as are worthy of respect in a ‘democratic society’ and are not incompatible with human dignity.12

This is not setting the bar particularly high, and few beliefs have been found to fail, the most famous exception being in the case of Salonen v Finland,13 where the applicants wished to name their daughter ‘Ainut Vain Marjaana’ (‘the one and only Marjaana’). Although in its judgment the Commission allows that ‘this wish can be deemed as a thought in the sense of Article 9’, it finds it not to be ‘a manifestation of any belief in the sense that some coherent view on fundamental problems can be seen as being expressed thereby’.14 Similarly, in X v Germany the Commission used the same language in stating that ‘the applicant’s wish to be buried on his own land cannot be considered as a manifestation of belief in practice in the sense of Article 9(1) of the Convention. ... [T]he Commission does not find that it is a manifestation of any belief in the sense that some coherent view on fundamental problems can be seen as being expressed thereby.’15

The key point is that non-religious beliefs are accorded equal protection under Article 9 as long as they meet the minimal criteria just outlined. Nevertheless, in what follows we focus solely on the protection accorded to religious symbols under Article 9. And this is for the pragmatic reason that as yet no case involving non-religious symbolism (such as a rainbow-coloured hairband manifesting one’s commitment to gay rights or a ribbon manifesting one’s commitment to the eradication of cancer) has been heard at the ECtHR under Article 9, even if non-religious practices (such as the distribution of allegedly pacifist leaflets in Arrowsmith v UK) were regularly considered under Article 9 by the Commission. This is for the simple reason that such symbolism cases are instead brought under Article 10, which protects the right to freedom of expression, because – as we shall point out in what follows – there has historically been a much lower threshold to engage Article 10 than Article 9. The jurisprudence surrounding Article 10 has not developed the so-called belief test, manifestation test, or specific-situation rule that have impeded many cases involving religious symbols brought under Article 9.16 The case of


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Atilla Vajnai, who was imprisoned for exhibiting communist insignia on his jacket at a political rally in Hungary, is a case in point: this insignia engages Article 10 without any explicit tests’ being applied.17 Yet, despite the fact that all cases surrounding symbolism that fall under Article 9 (up to the present) have concerned established religions, and despite the restriction that places on our study, the National Secular Society’s recent contentions should (and theoretically do) still hold true:

[Acts] should not more readily be held to constitute a manifestation when believed to follow from religious doctrine than when they result from philosophical conviction or rational analysis.18

1.2 The four tests

When confronted with a claim under Article 9 concerning the right to manifest beliefs, judges have tended to apply four tests or filters. We categorize them as follows.

1.2.1 Belief testInitially, claims are judged to engage Article 9 only if the beliefs that are purportedly manifested meet certain criteria, as we have already set out. These criteria are, to recap, ‘a certain level of cogency, seriousness and importance’ as well as being ‘worthy of respect in a democratic society and not incompatible with human dignity’.19 In short, such beliefs must be ‘a coherent view on a fundamental problem’.20

In case-law, it is customary to contend that the right to hold a belief in the forum internum of ‘individual conscience’ is ‘absolute’, whereas the right to manifest it in the forum externum is ‘qualified’.21 It might at first seem impossible to have a case decided under the forum internum, since it might seem obvious that no state could reasonably have a law man-dating or proscribing certain beliefs – religious or otherwise – insofar as they are not manifested in any way (even alone and in private). There have, however, been cases decided under this aspect of 9(1). The ‘Guidelines for the review of legislation pertaining to religion or belief ’ adopted by the Venice Commission of the Council of Europe make the assertion that ‘legal requirements mandating involuntary disclosure of religious beliefs are impermissible’.22 And this understanding of the limitation of the state’s regulation of the forum internum is endorsed in the Court’s case-law, for example in the cases of Alexandridis v Greece 23 and Işık v Turkey.24


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1.2.2 Manifestation testSecond, if the claim heard before the ECtHR under Article 9 concerns – as almost all of them do – the manifestation of this belief in the forum externum, then the judges have traditionally applied a further test to ensure that the external behaviour under question does indeed consti-tute a manifestation according to Article 9.

The ‘main sphere’ of protection for Article 9 is the forum internum,25 whereas the forum externum is protected only ‘as a secondary matter’.26 And while, as we shall explore in detail in what follows, manifestations in the forum externum are traditionally27 protected only insofar as they relate back to antecedent beliefs held in the forum internum, they are still protected, and courts have been committed to fully upholding this pro-tection for the forum externum. As Lord Nicholls puts it in the domestic context,

[Freedom of religion] is not confined to freedom to hold a religious belief. It includes the right to express and practise one’s beliefs. Without this, freedom of religion would be emasculated. Invariably religious faiths call for more than belief. To a greater or lesser extent adherents are required or encouraged to act in certain ways, most obviously and directly in forms of communal or personal worship, supplication and meditation.28

Notwithstanding such assertions of the significance of manifestations to religious life, one of the most crucial problems for what follows is the ability of the ECHR to provide adequate protection for manifestations of religion (such as uses of symbols) in the forum externum.

The text of Article 9 provides four examples of manifestations of reli-gious belief: worship, teaching, practice, and observance. In terms of our focus on religious symbols, an initial question must concern the place of the use of religious symbols among the listed manifestations. In early European cases, there was comparatively little debate surrounding the above list of protected manifestations of religion or belief and, indeed, there was even a suggestion that the list should be interpreted in a non-exhaustive, open manner.29 Since then, however, the list has become a closed one30 and the use of religious symbols has been definitively identi-fied as a form of practice. In other words, a ‘practical turn’ in the treatment of the use of religious symbols has become increasingly prominent and we shall return to it at length in what follows. While this constant and settled appeal to practice has provided some stability in the assessment by the Court of uses of religious symbols, it has also led to problems of


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its own, since ‘practice’ is ‘the most amorphous and least well-defined of the categories of protected religious freedom’, in Carolyn Evans’s words.31 Such problems will motivate much of Part 2 of this work.32

In the light of these categories, the second test the judges apply con-cerns whether the rites of worship, observances, teachings, or practices that allegedly manifest such beliefs can, in fact, be properly designated ‘manifestations of belief ’, rather than (for instance) practices that are merely motivated by such beliefs. The second half of this chapter will set out this test in more detail.

1.2.3 InterferenceThird, it needs to be established that the right of the applicant to manifest his or her beliefs was in fact interfered with. It is at this stage that ques-tions surrounding the applicant’s ability to manifest his or her beliefs freely in other ways are considered.

The classic case here is one declared inadmissible on 3 December 1996 by the Commission, Konttinen v Finland.33 The Commission’s report states:

The Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1 ... The Commission would add that, having found his working hours to conflict with his religious convic-tions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion.34

The Commission makes two assertions here: the first is that it is not a violation of Article 9 if the reason why a religious person was dismissed was not his or her religious convictions per se;35 the second is that the applicant’s rights were not interfered with since he was free to go and manifest his religion in another job. It would seem, by this argument, that the only way in which one could have one’s rights interfered with would be if one could not get any job in the state in question at all.

While the decision in Konttinen was taken only by the Commission, not seven months later, on 1 July 1997, the Court endorsed the thrust of the Commission’s reasoning in the leading case of Kalaç v Turkey 36:

Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account. ... In choosing to pursue a military career Kalaç was accepting of his own accord a system of military


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discipline that by its very nature implied the possibility of placing on cer-tain of the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians.37

The Court here suggested that the reason why Kalaç’s rights were not violated was simply to do with his ‘specific situation’: he had chosen to become a military judge and, in so choosing, implicitly accepted restric-tions on the exercise of his freedom.

The phrase ‘specific-situation rule’ (or ‘the right to resign’ or ‘particular regime approach’, as it is also called) has been adopted by commenta-tors to cover the ECtHR’s case-law that whether or not prevention of a certain manifestation of one’s religion constitutes interference with one’s religion depends on the specific situation in question, such as whether the prevention of the manifestation occurred in the context of paid employment, and so could have been avoided by resigning or obtain-ing a new position. Only then, the implication is, would the Court grant that there had been interference with the applicant’s right to freedom of religion, and only then would the judgment move on to consider the justification stage.

1.2.4 JustificationFinally, the judges consider the extent to which the state was justified in interfering with the applicant’s rights in line with the limitations on freedom of religion and belief set out in Article 9(2).

The ways in which one’s religious freedom can be limited by the state without the state’s thereby violating one’s rights are laid out in the text of 9(2): the first necessary criterion is that the limitations have to be pre-scribed by law – that is, there must be a legal basis for the interference, in that, in order for a violation to be found, the interference must not be illegal. The point of this is that a state cannot necessarily be found guilty of violating a citizen’s rights every time someone takes the law into his or her own hands and illegally interferes with the citizen’s freedom. For example, if a private individual had ripped Eweida’s cross from round her neck, that would not have automatically meant that the UK had violated Eweida’s rights, since the action was illegal. If, however, it were perfectly legal to rip religious symbols from around people’s necks, or if – though it were illegal – the police declined to enforce the law,38 or if the courts made the wrong decision,39 then the state could potentially be in violation of Article 9, since the interference would, then, have the necessary basis in law.


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If the interference does have the necessary legal basis then there will, nevertheless, be no violation if the interference is ‘necessary in a democratic society’ in one or more of three aims: (i) it is in the interests of public safety, (ii) it protects public order, health, or mor-als, or (iii) it protects the rights and freedoms of others.40 An example of (i) (and also of (ii) and (iii)) is Leela Förderkreis eV v Germany,41 in which the German action of labelling the applicant organization a ‘sect’ was held to be an interference with the religious rights of the organization’s members, but an interference justifiable in the interest of the safety of the general public, by dint of their being warned of the dangers of the association.42 The second aim consists of three sub-aims: the protection of public order, the protection of health, and the protec-tion of morals. An example of (ii) with respect to the first sub-aim, that of public order, is Dogru v France,43 where the ban on the headscarf during physical-education classes was held to be justified under both (ii) and (iii).44 An example of (ii) with particular reference to public health would be the case of Chaplin (conjoined to Eweida), in which it was held that Chaplin’s being prevented from wearing a crucifix round her neck, although an interference with her rights was justified by the aim of protecting the health and safety of herself and her patients.45 An example of (ii) where the aim was the protection of public morals was Williamson v UK, in which the Commission rejected Williamson’s claim that the Church of England’s decision to ordain women to the priest-hood amounted to a violation by the UK of his rights under Article 9.46 The Commission decided that ‘the Synod’s concern to abide by its view of scripture can be regarded as coming within the meaning of “protec-tion of ... morals” ’.47 Finally, an example of (iii) would be the case of McFarlane (conjoined to Eweida), in which McFarlane’s dismissal from his paid employment was held to be justified by the aim of ensuring the protection of the rights and freedoms of same-sex couples that might be customers of McFarlane’s employer.48

More could be said about what might, and what might not, fall under the various limbs of 9(2), and whether the limbs are mutually exclusive (which they seem plainly not to be; it seems obvious that public order and public safety will sometimes overlap) and jointly exhaustive, whether some limbs should be excised, or others added. This would take us too far afield, however. It is not our purpose to consider the legitimacy of such qualifications, and so Article 9(2) will be for the most part ignored


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from now on. Our focus will be mainly on a conceptual analysis of the status of religious symbolism in relation to Article 9(1). The importance of 9(2) here is solely to point out that just because the use of a symbol may initially qualify for protection under Article 9(1), this does not mean that it will be protected in the end. The grounds for discriminating against it may well be justified.

* * *

For the applicant to prove that his or her right to freedom of religion and belief has been interfered with and so for ‘Article 9 to be engaged’ (as the ECtHR puts it), all three of the first three tests need to be satisfactorily passed. It is then up to the state to demonstrate why such interference was justified.

In what follows, we concentrate on the second, manifestation, test – whether a specific use of a religious symbol counts as a manifestation of a belief. This is obviously not to deny that there is much of legal and philosophical interest in the other three tests: the idea that beliefs that are manifested need to be cogent and important, for example, or the prob-lem of balancing the interests of the individual against those of the state deserves much rigorous scrutiny. Moreover, as we will go on to consider in Chapter 3, there is a convincing legal argument that too much stress on the manifestation test (at the expense of justification) might actually be the underlying problem with the outcome of cases considered under Article 9, especially in the domestic courts.49 Nevertheless, the fact that so much of the courts’ focus in recent and historic cases of religious symbolism has been on the manifestation test provides the motiva-tion for this investigation. The questions at stake in an analysis of the manifestation test are: what might the ECHR mean by a manifestation of belief? And, in the light of the traditional consensus in the case-law that ‘Article 9(1) does not cover each act which is motivated or influenced by a religion or belief ’,50 by what criteria are protected and unprotected manifestations to be distinguished? That is, what is the threshold for engaging Article 9, and can it be justified? Moreover, and more specifi-cally, we are concerned with the following question: are uses of religious symbols, such as crosses, crucifixes, and chastity rings, to be considered as manifestations of belief and, if so, in what circumstances should their display be protected?


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2 Religious symbols and the manifestation test

2.1 Symbol

In order to proceed to a discussion of how uses of religious symbols have been treated under Article 9, it is first necessary to obtain a provisional sense of what is meant by ‘symbol’ in this context. As we proceed, it will be evident that the very definition of a symbol is part of what is at stake in the argument of this book; nevertheless, a preliminary note on what we include under the category of ‘symbol’ will situate our discussion more concretely.51

First, it is necessary to point out that, at least initially, we are mak-ing this category as inclusive as possible. For instance, items of religious dress do not customarily symbolize a belief; to call niqābs ‘symbols of Islam’, even, is misleading. They do not conform to the idea of a symbol in the way in which a Star of David, for example, does. Take Adewole v Barking, Havering and Redbridge University Hospitals NHS Trust: Adewole, a Christian midwife, refused to wear scrub trousers while in the operat-ing theatre, insisting that Deuteronomy 22:5 forbade her from wearing trousers.52 Even if she is right about Deuteronomy, it does not follow that her use of trousers is a symbol of Christianity in the same way as Chaplin’s crucifix is. Similarly, the wearing of the jilbāb or niqāb or hijāb may signify that one is a Muslim in certain contexts (though some of these garments are worn by others, such as some ultra-Orthodox Jews), but it is not necessarily the case that they are thereby used as religious symbols. They are not worn in order to symbolize anything, rather they are worn in order to protect modesty.

Nevertheless, we will provisionally include these forms of dress under the category of ‘symbol’ for one simple reason: in the legal cases, they are treated in a very similar manner to more evident forms of symbol-ism. There is a noticeable continuity between judgments on crosses and judgments on niqābs.

If the above stresses the inclusivity of our use of ‘symbol’, we do still want to set some conceptual limits to its application. One such limit is that a symbol must be used as a symbol by someone. Indeed, it is the use of a symbol that is protected by law, not the symbol itself: a cross lying forgotten on a beach requires no protection; the use of it by an individual may do. Something becomes symbolic by its being used as a symbol:


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Whether something is or is not a religious symbol has relatively little rel-evance in and of itself when the question at issue is whether that symbol may be displayed in some fashion by the believer.53

Yet it is not necessary for anyone other than the user of the symbol to recognize it as being used as a symbol. This allows for the use of secret, personal symbols that no one else recognizes as such.

Moreover, to be a religious symbol, it is necessary that the user intend the item to be a religious symbol. Many people wear crosses as mere items of jewellery, without intending that what they wear be worn as a religious symbol. In this case they are not using the cross as a religious symbol, just as it is not normally used as a religious symbol when flown as part of the Union Flag. This is vitally important when what is at issue is the change in meaning of a symbol over time (as discussed in Lautsi v Italy54): just as the Rod of Asclepius was once used as a religious symbol and is now used exclusively as a secular symbol to refer to the medical profession, so too other symbols cannot be assumed to be still religious just because of their religious heritage. Intention to use or display a sym-bol religiously is essential.

A second qualification involves the type of intention, which cannot be merely imaginative or intellectual: in principle, any detectable physical object may be used as a symbol (though for many objects this will be totally impracticable), but it is still necessary that the item be used as a symbol. It will not do, for example, for someone just to think of an object and intend that it be symbolic. For it actually to become symbolic one has to use it in some way. This ‘in some way’, however, is extremely indeterminate: symbols can be worn, they can be carried,55 they can be stuck on a wall.

2.2 Sign

With these qualifications in mind, we now turn to how the ECtHR has treated the idea of religious symbolism. And, as we have seen from our analysis of the relation between the forum externum and the forum inter-num, according to Article 9 (at least as it has traditionally been inter-preted) a religious symbol is first a manifestation of belief. The symbol primarily exists to express such a belief – and it is therefore to be defined as a sign of this belief.

Symbols are indeed, in part, signs. That is, a religious symbol is a physical entity of some kind whose use can make manifest an underlying


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religious belief. Symbols make beliefs external and concrete – transfer them from the forum internum of the individual’s mind into the forum externum, so to speak. And the symbol, once constituted, exists (in part and not necessarily explicitly) to express a belief. It is (to this extent) a sign. The physical object exists to remind the user or other individuals encountering it of an important religious belief. This is not the only pur-pose of symbols (as we shall see), but it is still an important one. Hence, while we shall go on to argue that the ECtHR’s myopic overemphasis on the symbol’s sign-function is controversial, to recognize that the symbol has a sign-function is not.

The Sikh Kara is a case in point. In R(Watkins-Singh) v The Governing Body of Aberdare Girls’ High School, Silber J explains part of its significance as follows:

Sikhs explain [the Kara’s] symbolism as a circle that reminds them of God’s infinity and speak of their being linked (‘handcuffed’) by it to God. For many it is a reminder to behave in accordance with religious teaching.56

Such is one of the many ways in which the Kara is significant to the Sikh: the very way it is shaped (as a circle) is a visual representation of God’s infinity; it is a way of visibly indicating a belief in the forum externum. Similarly in Playfoot, much emphasis is placed on Playfoot’s chastity ring as ‘a sign of commitment to sexual abstinence’57 and one of the most contested aspects of Lautsi was whether the crucifix exhibited in Italian classrooms was ‘a religious sign’ or a merely cultural one.58

The symbol’s function as sign is emphasized repeatedly by the courts, and this is, of course, a natural consequence of the understanding of religion that seems to underlie Article 9. If manifestations derive from antecedent beliefs, then it will be the case that such manifestations are manifestations only to the extent that they remain tethered to, and ori-ented towards, such beliefs. As we shall see, crucial to deciding whether a symbol is a manifestation of a belief is the closeness of its relation to such a belief. The Arrowsmith case provides a useful example: the reason why Arrowsmith’s distribution of leaflets was not deemed a manifesta-tion of her pacifism was that the leaflets were held not to express the underlying pacifist beliefs. The Commission concentrated in particular on the leaflets’ recommendations to soldiers in Northern Ireland to go absent without leave which, while it could implicitly be seen as further-ing the pacifist cause, ‘did not express pacifist views’.59 This distinction was evidenced, in the Commission’s mind, by the fact that the leaflets


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quoted with approval a soldier who spoke of being ‘willing [to fight] for a cause I could believe in’60 – the situation in Northern Ireland not being one of those causes.

The point is that a distinction emerges here between a symbol whose use may well be consistent with, caused by, or brought about in furtherance of, beliefs, and one whose use substantially expresses such beliefs. As Commission-member Opsahl points out, this is a distinction ‘between manifestation and motivation’,61 or between manifestation and mere motivation, at any rate. If Arrowsmith’s leaflets had been more clearly expressive of her pacifism, then her distribution of them would have been considered a manifestation of her pacifism.62 Now, Arrowsmith is not a case about symbols, but it provides a definitive precedent for subsequent symbolism cases; and the consequences to be drawn from it are as follows: use of a symbol may arise from an underlying belief, that is it may be motivated by it, but this is not enough for it to be a manifestation; to be a manifestation it needs also substantially to indi-cate or express that belief itself. In Strasbourg jurisprudence, this is what is meant by the belief ’s being ‘intimately linked’ to the action.63 The sign-function of the symbol must be foregrounded for it to be a manifestation of the belief.

Such a way of putting it remains vague, however: how linked do the symbol and its underlying belief need to be for this to be characterized as ‘intimate’? And how could one measure such ‘intimacy’? In the next section, we will begin to consider more precise means of distinguishing between protected and unprotected symbols on the basis of their sign-functions.

2.3 Types of motivation

In many of the cases concerning whether certain uses of religious sym-bols really count as manifestations of the underlying beliefs, one decid-ing factor has been the nature of the relation that holds between belief and practice. The looser the relation, the less likely the use of the symbol is to be considered a manifestation of the belief. This is the point that we were beginning to develop in the previous section by referring to the Arrowsmith case and the need articulated therein for the sign-function of the symbol to be foregrounded, that is for the use of the symbol to ‘express’ clearly and substantially the belief from which it derives. In this section, we explore this further by providing a provisional typology


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of the various kinds of relationship that can exist between the use of a symbol and the belief.

2.3.1 MotivationAll symbols are to some extent arbitrarily connected to the beliefs that underlie them – that is, it will never be entirely justifiable why symbol X expresses belief Y in terms of the content of that belief alone. What is at issue therefore is the extent to which the symbol is also motivated by the underlying belief and the type of motivation that gives rise to it.

If there is one thing on which the case-law has traditionally been unanimous, however, it is that motivation alone is insufficient. As it was recently put in Eweida, ‘It cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief.’64 Just because the exhibition of a sym-bol is motivated by a religious belief does not mean it will count as a manifestation for the purposes of Article 9. We have already seen this in respect to Arrowsmith: her leaflets may have been motivated by her pacifism, but this was insufficient. The leaflets needed to express this belief in pacifism in order for their distribution to count as a manifesta-tion of the underlying pacifism. In addition, between Arrowsmith v UK in 1978 and Şahin v Turkey in 2005, this insistence that motivation alone does not guarantee that something is a manifestation was enshrined in Strasbourg case-law.65

2.3.2 The expression testIf motivation as such is insufficient, what form must this motivation take for the use of the symbol arising from it to count as a manifestation for the purposes of Article 9? This, as we have already indicated, is a matter of controversy. There are broadly speaking, however, two basic options (although in the following chapters we wish to complicate matters fur-ther): either the use of the symbol expresses a belief or it is required by a belief. The latter category is included as a sub-class of the former, but a particularly stringent one. To begin, we consider the idea of expres-sion; the next chapter is devoted to the idea of the mandatory use of a symbol.

In Arrowsmith, as we have seen, a merely motivated action is con-trasted with an action that ‘expresses’ its underlying belief and so would be counted as a manifestation for the purposes of Article 9. The relevant part of the Commission’s opinion reads:


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The Commission finds that the leaflets did not express pacifist views [even though they were motivated by them]. The Commission considers, there-fore, that the applicant, by distributing the leaflets, did not manifest her belief in the sense of Article 9(1).66

What might it have been for Arrowsmith to have expressed her pacifist beliefs? As we have already suggested, she would have done so if the leaflets had clearly and substantially referred to or set out those beliefs. Above all, it is important to note that such language does not imply that the use of the symbol be obligated or required by the belief; merely that it be substantially expressive of it.

Our analysis above is controversial: in the case-law and in legal theory, one frequently comes across the assertion that Arrowsmith established the infamous necessity test, for which only actions that are obligated by beliefs are counted as manifestations (which is the subject of the next chapter). Hence, the necessity test is often named simply ‘the Arrowsmith test’.67 We see no evidence for such identification in the Arrowsmith judgment itself. To claim that only actions that give expression to beliefs are manifestations is not to claim that only actions that are necessitated by beliefs are manifestations.68 Nevertheless, the idea of expression as articulated above does seem particularly vague and difficult to apply. This is one reason why commentators often collapse the expression test into the necessity test – and it is to this necessity test that we now turn.

Notes

Council of Europe (1950) Convention for the Protection of Human Rights 1 and Fundamental Freedoms, http://conventions.coe.int/treaty/en/Treaties/Html/005.htm, date accessed 4 May 2013. This is based almost verbatim on Article 18 of the Universal Declaration of Human Rights [1948], http://www.un.org/en/documents/udhr/, date accessed 4 May 2013, and as such is reproduced in many constitutions around the world.UK Government (2010) ‘Explanatory Notes to the Equality Act 2010’, para 2 51, http://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/2/1/7, date accessed 4 May 2013.Equality Act 2010, s 10(2), http://www.legislation.gov.uk/ukpga/2010/15/pdfs/3 ukpga_20100015_en.pdf, date accessed 4 May 2013.UK Government, ‘Explanatory Notes to the Equality Act 2010’, para 53.4 L. Vickers (2008) 5 Religious Freedom, Religious Discrimination and the Workplace (Portland, OR: Hart), pp. 13–22; D. Harris, M. O’Boyle, E. Bates,


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and C. Buckley (2009) Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press), p. 426. Trigg’s criticisms are particularly virulent: ‘The problem is that we are left with little way of deciding what counts as a religion and what does not. ... Legislators are so anxious to respect diversity and not prejudge the nature of religion that they become bereft of any criteria with which to discriminate between types of belief. ... [This] opens the floodgates to just about anything.’ R. Trigg (2007) Religion in Public Life: Must Faith Be Privatized? (Oxford: Oxford University Press), pp. 45–6.To take one example, 6 Şahin v Turkey [GC] [2005] ECHR 819, (2007) 44 EHRR 5, 125 [104]. (App no 44774/98, 10 November 2005.)Şahin7 125 [105].Kalaç v Turkey8 , Report of the European Commission of Human Rights [34]. (App no 20704/92, 27 February 1996.) It is crucial to note that the forum externum includes manifestations of belief ‘alone’ and ‘in private’. Hence, this is not a distinction between the public and private spheres, nor is it a distinction between subjective and intersubjective realms, and it certainly does not map onto the Millian distinction between self-regarding and other-regarding actions (even if it is sometimes read that way; see L. Hammer (2001) The International Human Right to Freedom of Conscience (Dartmouth: Ashgate), pp. 84–7). The ECtHR has itself not always understood this; see the opening statement to Karaduman v Turkey (1993) 74 DR 93. (App no. 16278/90, 3 May 1993.)R (Williamson) v Secretary of State for Education and Employment 9 [2005] UKHL 15, [2005] 2 AC 246.Williamson 10 258–9 [23].Campbell v UK11 (1982) 4 EHRR 293, 304–5 [36]. (App nos 7511/76 and 7743/76, 25 February 1982.)Campbell12 304–5 [36].Salonen v Finland 13 (1997) 90 DR 60. (App no 27868/95, 2 July 1997.)Salonen14 67.X v Germany15 (1981) 24 DR 137, 138. (App no 8741/79, 10 March 1981.) And almost identical language is employed by the Court itself in Blumberg v Germany in connection with a doctor’s refusal to perform a medical examination: Blumberg v Germany, App no 14618/03 (ECtHR, 18 March 2008, unreported) [4].This is the view taken in Harris and others, 16 Law of the European Convention, p. 427. For a comparison of the provisions in Article 9 and 10, see J. Murdoch (2007) Freedom of Thought, Conscience and Religion: A Guide to the Implementation of Article 9 of the European Convention of Human Rights (Strasbourg: Council of Europe), pp. 9–10, 50–3.Vajnai v Hungary 17 (2010) 50 EHRR 44, 1100 [47]. (App no 33629/06, 8 July 2008.)


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National Secular Society (2011) ‘Submissions to the European Court of 18 Human Rights on Eweida, Chaplin, McFarlane and Ladele’ [28], http://www.secularism.org.uk/uploads/nss-intervention-to-european-court-of-human-rights.pdf, date accessed 4 May 2013.Campbell 19 304–5 [36].X v Germany20 (1981) [138].The domestic precedent is 21 Williamson 257 [16] (Lord Nicholls).OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief 22 in consultation with the European Commission for Democracy through Law (Venice Commission) (2004) ‘Guidelines for Review of Legislation Pertaining to Religion or Belief ’, para II(B)(1), http://www.osce.org/odihr/13993, date accessed 4 May 2013.Alexandridis v Greece23 , App no 19516/06 (ECtHR, 21 February 2008, unreported) [38].Işık v Turkey24 , App no 21924/05 (ECtHR, 2 February 2010, unreported) [41], [42].Pichon v France25 , App no 49853/99 (ECtHR, 2 October 2001, unreported), cited in Foreign and Commonwealth Office (2011) ‘Observations on Eweida and Chaplin’ (Communication from FCO to ECtHR), 14 October 2011, para 4.Foreign and Commonwealth Office ‘Observations’, para 3.26 We are employing here (and it will be absolutely crucial to our argument) 27 a common distinction in current legal theory between the early, traditional jurisprudence of Article 9 and more recent developments. Indeed, such a distinction motivates our talk of a practical turn.Williamson 28 257 [16].See the discussion in C. Evans (2001) 29 Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press), pp. 105–7 and in M. Evans (2009) Manual on the Wearing of Religious Symbols in Public Areas (Strasbourg: Council of Europe), p. 12.See, for example, Hill, Sandberg, and Doe’s insistence that ‘the right 30 to manifest one’s religion or belief is limited by Article 9(1) in that the manifestation must be “in worship, teaching, practice and observance”’, M. Hill, R. Sandberg, and N. Doe (2011) Religion and Law in the United Kingdom (Alphen: Kluwer), para 62 (our italics).C. Evans (2006) ‘The “Islamic Scarf ” in the European Court of Human 31 Rights’, Melbourne Journal of International Law, 7.1.On the potential differences between the ‘pratiques’ of the French text of the 32 Convention and ‘practice’ in the English, see C. Evans Freedom of Religion, p. 111, and Buxton LJ’s reference to this point in R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB 1300, 1314 [35].Konttinen v Finland 33 (1996) 87 DR 68. (App no 24949/94, 3 December 1996).


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Konttinen34 75.It is hard to see why the Commission takes this line: in general one would 35 expect that if one’s rights were violated the nature of the underlying motive would be irrelevant, and one would expect that a violation could not be turned into a non-violation just by the presence or absence of a certain motive.Kalaç v Turkey 36 (1999) 27 EHRR 552. (App no 20704/92, 1 July 1997.)Kalaç 37 564 [27]–[8].Compare 38 97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia [2007] ECHR 1160, (2008) 46 EHRR 30 625 [28], 626 [36]. (App no 71156/01, 3 May 2007.) Here the police refused to come to the aid of Jehovah’s Witnesses that were being physically attacked.In 39 Eweida the ECtHR concluded that the UK courts had decided the case wrongly, and, in consequence, that Eweida’s rights had been violated: Eweida v UK [2013] ECHR 37, [2013] IRLR 231 [94] – [95] (Apps no 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013.)Some commentaries (e.g. M. Hill, R. Sandberg, and N. Doe, 40 Religion and Law, pp. 83, 85–6) consider that there are distinct tests here, (a) whether the interference is necessary in a democratic society, and (b) whether the interference fulfils one of the aims cited. We suggest that this cannot be the correct reading of Article 9(2); it must be the case that it is not necessity (in a democratic society) in the abstract that is being assessed, but, rather, necessity (in a democratic society) for the fulfilment of one or more of the aims cited.Leela Förderkreis eV v Germany41 [2008] ECHR 1269, (2009) 49 EHRR 5. (App no 58911/00, 6 November 2008.)Leela Förderkreis 42 139 [94].Dogru v France43 (2009) 49 EHRR 8. (App no 27058/05, 4 December 2008.)Dogru 44 196 [60].Eweida45 [98]–[9].Williamson v UK46 , App no 27008/95 (Commission, 17 May 1995, unreported).Williamson v UK47 .Eweida48 [109].See especially Sandberg’s recent comments in R. Sandberg (2011) ‘Submission 49 to the Consultation on Legal Intervention on Religion or Belief Rights’, paras 2–3, http://www.law.cf.ac.uk/clr/research/Russell%20Sandberg%20(Cardiff%20University)%20Submission%20to%20the%20Consultation%20on%20Legal%20Intervention%20on%20Religion%20or%20Belief%20Rights.pdf, date accessed 4 May 2013; Baroness Hale makes this point in R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, 132 [92]–[ 3].


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Arrowsmith v UK50 (1981) 3 EHRR 218 (Commission Decision) 228–9 [71]. (App no 7050/75, 12 October 1978.)On the definition of the symbol in the context of Article 9, see further 51 M. Evans, Manual, pp. 59–73.Adewole v Barking, Havering and Redbridge University Hospitals NHS Trust52 [2011] ET (unreported), summarized in H. Phillips (2011) ‘Employment E-Bulletin Cases Update 2011’, http://www.burnetts.co.uk/publications/factsheets/employment-e-bulletin-employment-law-cases-update-2011, date accessed 17 August 2013.M. Evans, 53 Manual, p. 65.Lautsi v Italy 54 [GC] [2011] ECHR 2412, (2011) 54 EHRR 3. (App no 30814/06, 18 March 2011.) On Lautsi, see D. McGoldrick (2011) ‘Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom?’, European Law Review, 11.3, p. 499.As in the case of Arthur Blessitt (http://www.blessitt.com/, date accessed 55 19 June 2013), who carried a 12-ft cross around with him wherever he went.R (Watkins-Singh) v Aberdare Girls’ High School Governors 56 [2008] EWHC 1865, [2008] 3 FCR 203, [26].R (Playfoot) v Millais School Governing Body57 [2007] EWHC 1698 (Admin), [2007] HRLR 34, 1061 [9] (our emphasis); see also 1062 [12].Lautsi 58 82, [55].Arrowsmith59 229 [75].Arrowsmith60 229 [72].Arrowsmith 61 235, Opsahl’s partly dissenting opinion [O2].There were a number of dissenting opinions that claimed that, as a matter 62 of fact, the leaflets were genuine expressions (i.e. manifestations of belief in pacifism) and therefore engaged Article 9.A v UK63 [1984] 6 EHRR 558 (Commission Decision). (App no 10295/82, 1 January 1984.)Eweida64 [82].In the domestic context see 65 Williamson (2002/3) 1373 [266].Arrowsmith 66 229 [75] (our emphasis).See 67 Williamson (2002/3) 1373 [266] (Arden LJ); Vickers, Religious Freedom, p. 98; EHRC, ‘Submission on Eweida and Chaplin’, para 13.C. Evans, 68 Freedom of Religion, p. 115, comes the closest to pointing this out.


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http://www.burnetts.co.uk/publications

http://www.blessitt.com

http://www.burnetts.co.uk/publications

DOI: 10.1057/978113735417436

2The Myth of the Necessity Test

Abstract: One test that has been advanced as an analysis of the basis of the ECtHR’s decisions is the so-called necessity test, aka the Arrowsmith test: an action is a manifestation of a belief if and only if the belief necessitates, that is makes obligatory, the action. We argue in detail that the necessity test has never been a basis for any decision of the ECtHR, at least with respect to determining manifestation. Therefore, when it comes to manifestation, the necessity test is a myth.

Keywords: necessity test, Eweida, Article 9, manifestation test, Arrowsmith test



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We have seen that Strasbourg has stated, in the case of Arrowsmith,1 that ‘the term “practice” as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or a belief.’2 This state-ment has been hugely influential, in that out of the four categories under which a manifestation of one’s religion or belief may be protected for the purposes of Article 9 – worship, teaching, practice, and observance – it is practice that has proven in the case-law to be the thorniest issue. The opinion in Arrowsmith itself did not, however, clearly lay out what more was necessary beyond motivation to make the difference between a prac-tice that was not a manifestation of the religion or belief and one that was. The opinion in Arrowsmith did say: ‘when the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by Article 9 (1), even when they are motivated or influenced by it.’3 This establishes that a necessary condition of an action’s being protected by Article 9(1) is that it expresses the belief (or religion) concerned. In practice, this condition – sometimes glossed as direct expression4 – has also been taken as sufficient for an action to be a mani-festation of the belief (or religion) concerned.5 Nevertheless, there has been no consensus among legal theorists as to what ‘ expression’ means in this context, that is, as to what, precisely, is necessary for an action to count as a manifestation of a religion or belief rather than something merely motivated by one.

1 The necessity test described

The most stringent way of conceiving the threshold for an action to count as a manifestation is the view that the action must be normatively necessitated by an underlying belief. That is, the belief–action relation-ship should not be one of mere motivation, but should be such that the belief obliges the individual to perform the action. In other words, for any system of belief or religious worldview, an action mandated by that system or worldview counts as a manifestation, and a non-mandatory action does not count as a manifestation.

In response to this, it should be noted, first, that there is no hint of the necessity test in the opinion in Arrowsmith itself. As we stated in the previous chapter, the test set out in the text of the opinion concerns whether or not the action in question (distributing some particular tracts) expressed the belief in question (pacifism). The word ‘necessity’


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does not appear in the section of the opinion ([67]–[96]) dealing with Article 9 (and the word ‘necessary’ appears there only in the quotation of Article 9 itself).

It might at first seem that the dissenting opinion of Opsahl shows that he read the opinion from which he dissented as advocating the necessity test:

One cannot in my opinion generally exclude from Article 9 all acts which are declared unlawful according to the law of the land if they do not necessarily manifest a belief, provided they are clearly motivated by it. ... I consider that Article 9 must, in principle, be applicable to a great many acts which are not, on their face, necessarily manifesting the underlying or motivating belief, if that is what they genuinely do. ... The opinion of the Commission seems to imply that Article 9 is inapplicable mainly because one might have done what the applicant did without sharing her belief in pacifism. ... The fact that the campaign and the leaflets also appealed to those other than pacifists does not create any contradiction, in my opinion, between her belief on the one hand and her participation in the campaign and the language of the leaflets on the other. Her acts were not only consist-ent with her belief, but genuinely and objectively expressed it when seen in their context. In my view, everyone is entitled to have their acts examined under the Convention in the context of their individual circumstances. It follows that the protection of Article 9 may have to be denied to one person but granted to another for the same acts, whether it is for distribution of the same leaflets, or for other alleged manifestations of a belief.6

The fact that Opsahl italicizes ‘necessarily’ may mislead the reader into thinking that here he has identified the opinion of the majority (from which he is partly dissenting) as employing the necessity test. In fact, by ‘necessarily manifest’ and ‘necessarily manifesting’ a belief Opsahl is not referring to a situation in which it is obligatory on the believer to express his or her belief in a particular action. Rather, he is referring to actions that could be manifestations of a particular belief but need not be. It is for this reason that Opsahl, in the first sentence of paragraph 3, accuses the Commission of reasoning that because a non-pacifist could have distrib-uted the same pamphlets as Arrowsmith distributed, her distribution of them did not manifest pacifism.

Although, as we noted at the end of the previous chapter, some have taken Arrowsmith itself to be the source of the necessity test for whether an action is a manifestation,7 a commoner view is that the test sprang up subsequently to Arrowsmith (despite taking its name). Nevertheless, we


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strongly deny that there is any decision of the ECtHR or the Commission that supports this view.8 Carolyn Evans has provided a lengthy defence of the view that we reject.9 She cites five Strasbourg cases that, she asserts, implement the necessity test as a test for whether an action is, or is not, a manifestation or practice of a belief. We shall consider each in turn.

2 The disputed cases

2.1 Khan v UK10

Evans states that in Khan the applicant’s complaint that there had been a breach of his rights to freedom of religion and to marry and found a family was ‘dismissed by the Commission, in part for the reason that Islam merely permitted marriage at an earlier age than the British law, it did not require it’.11 What the text of the decision actually says, however, is rather different:

While the applicant’s religion may allow the marriage of girls at the age of 12, marriage cannot be considered simply as a form of expression of thought, conscience or religion, but is governed specifically by Article 12.12

It is plain that there is simply no mention of necessity here. It is also worth noting that Evans’s own formulation does not prove her point: she states merely that the application was dismissed by the Commission for the reason that the action was not necessary. She does not state that the Commission concluded that the action was not a manifestation or a practice because of its alleged non-necessity.

2.2 X v Austria13

Evans writes:

In X v Austria the Court [sic] held that the decision of the German govern-ment to prohibit followers of the so-called ‘Moonie sect’ from setting up a legal association was not an interference in religious freedom or the right to worship in association with others because it was not necessary to the practice of their beliefs that they be allowed to form a legal association.14

Again, this falls short of proving her own thesis: this does not say that the ‘Court’ (it was actually the Commission) decided that the formation of ‘a legal association’ was not obligatory for members of the Moonie


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sect, and so not a manifestation or practice of their beliefs. Indeed, Evans herself refers to the ‘practice of their beliefs’ when, by her lights, there was no practice there at all. The headnote for the decision removes the confusion here:

Article 9 of the Convention: Prohibition of an association with a religious aim. No factors showing that the legal structure of an association was necessary for the manifestation of the religion in question.15

The use of ‘necessary’ in this headnote is not part of an assertion that the banned action had to be necessary to have counted as a manifestation of the religious belief. The headnote is asserting that there was no interference with the right to manifest religious belief since the banned action was not necessary: the applicant could have manifested his religious belief in a different way, and, hence, his rights were unaffected. This is also the point of the decision, which makes explicit the connection with inter-ference.16 To clarify the point: the applicant’s freedom to manifest his religious beliefs would have been interfered with only if there had been no other way to manifest the beliefs in question, that is if the joining of an association with that precise legal structure had been necessary to manifest the beliefs at all. So the necessity test applies only to the ques-tion of interference, not, pace Evans, to the question of manifestation or practice.17

2.3 X v UK18

Evans cites this third case in support of her view that the necessity test shows whether or not an action is a manifestation (or perhaps a practice) of a belief. The totality of the relevant section of the decision reads:

The applicant has produced statements to the effect that communication with other Buddhists is an important part of his religious practice. But he has failed to prove that it was a necessary part of this practice that he should publish articles in a religious magazine.19

It needs to be noted that the decision does not state that his publish-ing articles in a religious magazine failed to be a manifestation of his Buddhist beliefs in virtue of its not being a necessary part of his Buddhist practice. Rather, the decision simply notes the fact that the applicant did not prove this. We suggest, therefore, that the best way to read this passage is as saying that there was no interference with the applicant’s religious freedom since he was free to manifest his Buddhist practice


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in many other ways. There would have been interference only if his Buddhist practice had obligated him to publish the articles, in which case he would obviously have been prevented from fully manifesting his practice.

2.4 D v France20

Evans’s fourth case does explicitly deal with the manifestation question. This is the relevant part of the Commission’s decision:

The Commission has first to consider whether the applicant, in refusing to hand over the letter of repudiation to his ex-wife in order that the religious divorce may be established, was thereby manifesting his religion or belief in observance or practice, within the meaning of Article 9, para 1 of the Convention. In this respect the Commission notes that the applicant does not allege that in handing over the letter of repudiation he would be obliged to act against his conscience, since it is an act by which divorce is regularly estab-lished under Jewish law; he alleges only that by reason of his family’s special status he would forfeit for all time the possibility of re-marrying his ex-wife.21

It is true that the word ‘obliged’ could be highlighted here and taken in such a way as to indicate that his refusal was no manifestation since it was not obliged by his conscience. It seems to us, however, that it is more plausible to see the Commission as contrasting on the one hand acting against conscience, which would be a manifestation of religion or belief for the purposes of Article 9, with, on the other hand, the more personal reasons the applicant actually put forward, namely his worry that he should not be able to remarry his ex-wife. The Commission, we sug-gest, did not see this personal reason as a bona fide manifestation of any cogent, serious, coherent, and important belief. The filtering takes place at the level of belief, not manifestation. A further point to note is that the Commission also did not believe that the applicant was manifesting Judaism since the Jewish authorities declared that he was not.22

2.5 Ahmad [X] v UK23

The final case cited by Evans is one in which, she asserts, the necessity test is applied to determine whether an action counts as ‘worship’ for the purposes of Article 9. She writes:

The case involved the refusal of a school to rearrange its timetable to give a Muslim teacher a 45-minute extension of the lunch hour on Friday


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afternoons to allow him to attend prayers at a Mosque. While the case was ultimately decided on other grounds, the Commission suggested that no Article 9 issue was raised because the applicant had not shown that it was a requirement of the religion that he attend Friday prayers.24

Again, it should be noted that Evans’s summary here does not prove her stated point, viz that the necessity test is a test for whether an action counts as a manifestation (in this case as worship), for the purposes of Article 9. One should also note that the UK Government conceded from the outset that attending the mosque to worship did amount ‘to mani-festing religion in worship’.25 These are the Commission’s comments that refer to the necessity test:

In the case of a person at liberty, the question of the ‘necessity’ of a religious manifestation, as regards its time and place, will not normally arise under Article 9. Nevertheless, even a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.26

It should be noted that the Commission here suggests that the question of necessity will not normally arise in the case of a person at liberty. This immediately shows that the Commission cannot be considering neces-sity as a test for manifestation as then it would always arise (whether an applicant were at liberty or not). Rather, this, the rest of the paragraph, and the statement of the Commission’s decision,27 show that the question of necessity arises in connection with interference – has the state inter-fered with the applicant’s freedom to manifest his or her religion? In the case of a person at liberty the presumption will be that the state has not, though, as the Commission asserts, one can voluntarily restrict one’s own freedom by adopting a restrictive contract or profession. In either case, there will be no interference if the action in question was optional – one can simply manifest one’s religion or belief in a different manner.

Finally, although the Commission does claim that it ‘does not con-sider that the applicant has convincingly shown that ... he was required by Islam to disregard his continuing contractual obligations ... and to attend the mosque during school time’,28 it also explicitly says in the next paragraph:

In its interpretation and application of Article 9 of the Convention, the Commission does not, however, find it necessary to pursue this matter further – e.g. by obtaining expert evidence as suggested by the applicant – because it considers that, even if such a religious obligation were assumed,


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it could not ... justify the applicant’s claim under this provision in the cir-cumstances of the present case.29

2.6 Cha’are Shalom Ve Tsedek v. France30

Finally, we wish to consider a case too recent to be discussed in Evans’s book but that might nevertheless be thought at first glance to support her thesis. In this case a religious diet was allowed to be a manifestation of the religion, but it was held that in order for that manifestation to be interfered with it would have to be impossible for the applicants to follow that diet. Although at first glance the judgment in this case might seem to support Evans’s understanding of the necessity test, we maintain that it supports our understanding, namely that it is a test that applies to interference, not to manifestation. The key section from the judgment is as follows:

It is not contested that ritual slaughter, as indeed its name indicates, con-stitutes a rite or ‘rite’ (the word in the French text of the Convention corre-sponding to ‘observance’ in the English), whose purpose is to provide Jews with meat from animals slaughtered in accordance with religious prescrip-tions, which is an essential aspect of practice of the Jewish religion. ... The Court will first consider whether, as the Government submitted, the facts of the case disclose no interference with the exercise of one of the rights and freedoms guaranteed by the Convention. ... In the Court’s opinion, there would be interference with the freedom to manifest one’s religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable.31

It might seem at first as though the use of the phrase ‘an essential aspect of practice of the Jewish religion’ in the first paragraph quoted supports Evans’s understanding of the necessity test as being relevant to manifestation. We think, however, that the Court bases its acceptance of the diet in question as a manifestation of religion on the common-sense point that ritual slaughter must be a rite, which is a form of manifesta-tion mentioned in the Convention under the English word ‘observance’ and the French word ‘rite’. In our opinion, the use of the word ‘essential’ is looking forward to what comes in paragraph 80 in which the Court holds that religious freedom is interfered with only if it is impossible for the diet to be adhered to. This is the other side of the interference test: for interference to have taken place it must be that the applicant had no


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other option in that (i) his or her religion obliged him to perform the action, and (ii) the action was impossible for the applicant to perform.

* * *

All five cases put forward by Evans have been examined in detail. It has been shown that none of them supports her contention that the ECtHR or Commission has at times adopted the view that whether a given action counts, for the purposes of Article 9, as a manifestation depends on whether it is obligated by the belief in question. We further deny that Strasbourg has produced any such cases at all. Rather, we affirm that the question of whether one is obligated by the belief in question is to be assessed in deciding whether there has been interference with one’s rights to religious freedom: if one’s action is not obligated then one is presumed to be free to manifest one’s religion in another way, and, hence, it is pre-sumed that there has been no interference with one’s religious freedom. We suggest that the case of Cha’are Shalom Ve Tsedek forms evidence for this understanding.

Thus, the necessity test for manifestation is a myth, yet this has not stopped it coming under sustained attack in legal theory. Vickers calls it ‘unfortunate’,32 Martínez-Torrón calls it ‘inadequate’ and ‘a grave and dangerous mistake’,33 Cumper speaks of it as ‘extremely narrow’,34 and Evans says that it provides ‘an inappropriately limited and conservative approach’,35 concluding that the necessity test is ‘unclear in its scope, uncertain in its application and inconsistent in its usage’.36 A recent forceful critique of the necessity test for manifestation is given in the intervention by the EHRC to the ECtHR, which asserts that, while it is true that ‘manifestation of a religious belief has also traditionally only been protected if it is required by the particular religion’, this is an ‘early restrictive approach to manifestation’ which should be abandoned.37 In our opinion, all these criticisms miss the point, since, in context, they are attacking the necessity test as a test for manifestation. The ECtHR cannot abandon this test, for Strasbourg has never employed it.

There is, however, a further criticism that has been levelled at the necessity test that seems to us to have some force, since it applies to the necessity test as it really is, that is, as a test for interference. The criticism is that the necessity test for interference involves the Court in playing God. This is because it is the Court that decides whether or not the action in question really is necessary for the applicant, that is


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whether the applicant could manifest the underlying religion or belief in a different way. This can be seen in some of the cases that we have discussed. For example, in the case of X [Ahmad] v UK one might well think that the Commission had no business suggesting (even though this was not, in fact, part of the ratio of the eventual decision) that it did not consider that the applicant had ‘convincingly shown that ... he was required by Islam to disregard his continuing contractual obliga-tions ... and to attend the mosque during school time’.38 And one might well think that in D v France the Commission had no business in stat-ing that ‘the applicant would seem to be at variance on this point with the religious leaders under whose authority he claims to be acting’,39 even though, again, this does not seem to us to have formed part of the Commission’s ratio. There are other cases in which the Court also seems to ‘play God’: in the twin cases of Valsamis40 and Efstratiou 41 the Court overrode the applicants’ statements of what offended them by saying that it could ‘discern nothing, either in the purpose of the parade or in the arrangements for it, which could offend the applicants’ pacifist convictions’.42 And likewise in the tax cases A v UK43 and C v UK44 the Court stated: ‘The obligation to pay taxes is a general one which has no specific conscientious implications in itself.’45

What is the alternative to the Court’s judging – perhaps with the assistance of expert evidence – whether the action in question really is obligated by the religion or belief in question? We endorse, in this respect, the joint dissent of Judges Vilhjálmsson and Jambrek in Valsamis and Efstratiou where they state:

In our opinion, Mr and Mrs Valsamis’s perception of the symbolism of the school parade and its religious and philosophical connotations has to be accepted by the Court unless it is obviously unfounded and unreasonable.46

Evans47 usefully compares a dictum of Judge Verdross in a case relating to a claim made under Article 2, Protocol 1, where he said, in a dissent-ing opinion: ‘These bodies have to respect the ideology of the persons concerned once such ideology has been clearly made out.’48 Adoption of this tack would not mean that the Court would have no role at all with respect to an applicant’s statement of necessity; the Court would still have to judge whether the applicant’s claim were, in the words of Vilhjálmsson and Jambrek, ‘obviously unfounded and unreasonable’.49 Perhaps another way of putting this same point is that – when it comes to interference – the Court would have to judge whether the applicant were


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both sincere and sane. One might, of course, raise doubts over whether the Court should have the right to judge this, though it does not seem unreasonable for the Court to have the authority to distinguish between honest and dishonest claims.50 In any case, if we leave aside the issue of manifestation for the moment, it does seem to us that the easiest and fairest way for the Court to decide these cases is to assume interference with a manifestation of a religion or belief, and then decide whether the assumed interference could be justified.

Notes

Arrowsmith v UK 1 (1981) 3 EHRR 218 (Commission Decision). (App no. 7050/75, 12 October 1978.)Arrowsmith2 228 [71].Arrowsmith3 229 [71].For example, 4 Jakóbski v Poland [2010] ECHR 1974, (2012) 55 EHRR 8, 239 [45]. (App no 18429/06, 7 December 2010.)Şahin v Turkey 5 [GC] [2005] ECHR 819, App no. 44774/98 (ECtHR, 10 November 2005) [6]. (This is not in the report in (2007) 44 EHRR 5.)Arrowsmith, 6 Opsahl’s partly dissenting opinion, 235–6 [O2]–[3], italics original.For example, Arden LJ (in 7 R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926, [2003] QB1300, 1373 [266]) claims, ‘[t]he act must be one which his beliefs require him to carry out. ... The Arrowsmith test draws a distinction between acts which the beliefs require to be performed and are integral to those beliefs and acts which are merely inspired by the beliefs. It is not enough to make the acts manifestations of religious beliefs that they are motivated or influenced by the actor’s religious beliefs.’The domestic situation is more complicated, since judgments surrounding 8 discrimination are often framed in terms of mandatory practices. For reasons of space, we do not discuss these cases in what follows.C. Evans (2001) 9 Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press), pp. 116–8.Khan v UK 10 (1986) 48 DR 253. (App no 11579/85, 7 July 1986.)Evans, 11 Freedom of Religion, p. 116.Khan12 255.X v Austria 13 (1981) 26 DR 89. (App no 8652/79, 15 October 1981.)Evans, 14 Freedom of Religion, p. 116.X v Austria 15 89.


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The decision states: ‘it has [not] been shown that the dissolution of the 16 association in which the sect wanted to organise itself did as such interfere with the manifestation of [the applicant’s] religion.’This is, in fact, quite consistent with Evans’s own analysis of this case. Note 17 also that on p. 180 Evans comes closer to seeing the necessity test, as we do, as one for interference, not for manifestation in general or for practice in particular.X v UK18 (1975) 1 DR 41. (App no 5442/72, 20 December 1974.)X v UK 19 42.D v France20 (1983) 35 DR 199. (App no 10180/82, 6 December 1983.)D v France 21 202.D v France 22 202.Ahmad [X] v UK 23 (1982) 4 EHRR 126 (Commission Decision). (App no 8160/78, 1 March 1981.)Evans, 24 Freedom of Religion, p. 117.Ahmad 25 132.Ahmad26 133.‘The Commission concludes that there has been no interference with the 27 applicant’s freedom of religion under Article 9(1) of the Convention’ (Ahmad 137). Note that the decision concerns interference, not simply manifestation.Ahmad 28 134.Ahmad 29 134.Cha’are Shalom Ve Tsedek v. France 30 [2000] ECHR 351, (2000) 9 BHRC 27. (App no 27417/95, 27 June 2000.)Cha’are Shalom Ve Tsedek31 [73], [75], [80].L. Vickers (2008) 32 Religious Freedom, Religious Discrimination and the Workplace (Portland, OR: Hart), p. 98.Martínez-Torrón, J. (2001) ‘The European Court of Human Rights and 33 Religion’ in R. O’Dair and A. Lewis (eds) Law and Religion (Oxford: Oxford University Press), pp. 199, 201.Cumper, P. (2001) ‘The Public Manifestation of Religion or Belief: Challenges 34 for a Multi-Faith Society in the Twenty-First Century’ in O’Dair and Lewis, Law and Religion, p. 321.Evans, 35 Freedom of Religion, p. 50.Evans, 36 Freedom of Religion, p. 202.EHRC (2011) ‘Submission to the European Court of Human Rights on 37 Eweida and Chaplin’, http://www.equalityhumanrights.com/uploaded_files/legal/ehrc_submission_to_ecthr_sep_2011.pdf, date accessed 4 May 2013, [13], [15]. Indeed, as recently as February 2013, the EHRC has claimed, ‘[u]ntil recently, the European Court of Human Rights and our domestic courts tended to take the view that a practice was protected under Article 9 only if it was required by the particular religion or belief ’ (EHRC (2013) ‘Religion or belief in the workplace: an explanation of recent European Court of Human Rights


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judgments’, http://www.equalityhumanrights.com/uploaded_files/RoB/religion_or_belief_in_the_workplace_an_explanation_of_recent_judgments.doc, date accessed 20 June 2013, pp. 4–5).Ahmad 38 134.D v France39 202.Valsamis v Greece40 (1997) 24 EHRR 294. (App no 21787/93, 18 December 1996.)Efstratiou v Greece41 , App no 24095/94 (ECtHR, 18 December 1996, unreported).Valsamis 42 316 [31]; cf. Efstratiou [32].A v UK 43 [also sub nom X v UK and Ross v UK] (1984) 6 EHRR 558 (Commission Decision). (App no 10295/82, 14 October 1983.)C v UK44 [also sub nom A v UK and Croft v UK] (1984) 6 EHRR 587 (Commission Decision). (App no 10358/83, 15 December 1983.)A v UK 45 558. The exact same wording is to be found in C v UK 147.Valsamis46 321. Identical words, but for the change of names, is found in Efstratiou.Evans, 47 Freedom of Religion, p. 124.Kjeldsen v Denmark 48 (1979–80) 1 EHRR 711, 735. (App nos 5095/71, 5920/72, 5926/72, 7 December 1976.)Valsamis49 321.Evans usefully compares the practice of the US Supreme Court in this regard: 50 Freedom of Religion, p. 124.


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DOI: 10.1057/9781137354174 49

3The Practical Turn

Abstract: We argue that the jurisprudence of the ECtHR has noticeably shifted over the past couple of decades. We call this shift from concentrating on beliefs to concentrating on actions or practices ‘the practical turn’. Before the shift, we contend, the courts tended to view actions, such as the exhibition or wearing of religious symbols, solely in the light of their function of expressing antecedent religious beliefs. The courts then asked themselves whether the actions really manifested the beliefs. Recently, we suggest, the courts have been happier to assume that the actions do manifest the beliefs, and then to weigh up the believer’s right to manifest faith in that way with the competing rights of others.

Keywords: ECtHR case-law, practical turn, Article 9 ECHR, religious symbolism and belief



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The necessity test is therefore a myth with respect to the manifesta-tion stage (as opposed to the interference or justification stages) of judgments made under Article 9. When assessing whether religious symbols count as ‘manifestations’ of religious beliefs under Article 9, the ECtHR has never demanded that they be mandated by a religion. Nevertheless, the Court has still traditionally upheld those weaker criteria for a manifestation identified at the end of Chapter 1: for a symbol to be merely motivated or inspired by an underlying belief is not enough; it must also express that belief as well or, as the ECtHR has also put it, the symbol must be ‘intimately linked’ to the underly-ing belief.1 However, as we have suggested in Chapter 1, expression and intimate linkage are difficult concepts to determine and delimit in this context; it is certainly not obvious, for example, whether an ichthys brooch worn by a Christian would count or not as an expression of Christian beliefs. In short, the manifestation test is still problematic, even cast as an expression test.

In this chapter, we want to complicate the picture further by adding a new development (and what, for our argument, will turn out to be the key development) to the above description of the manifestation test. While traditionally categories such as ‘expression’ and being ‘inti-mately linked’ have been central to how the ECtHR has deliberated on Article 9(1), since 2005 a radical shift has occurred in Strasbourg’s jurisprudence on manifestation. The very framework of the ECtHR’s approach to this issue has dramatically changed. In short, the found-ing distinction between mere motivation, which is not protected under Article 9, and full-blown manifestation, which is so protected, appears now to be relatively unimportant. Since the landmark decision in Şahin v Turkey,2 the ECtHR now seems to protect some merely moti-vated practices as manifestations. That is, one can identify a surprising shift in Strasbourg judgments, from explicitly stating in Arrowsmith v UK3 that it is not sufficient for an action to be a manifestation that it be motivated or inspired by a religious or philosophical belief to the apparent implicit acceptance of the opposite view in Şahin. In Part II, we shall argue that such a shift – what we are calling ‘the practical turn’ – has far-reaching consequences for a philosophical understand-ing of the belief–practice relation. To begin, however, we rehearse the evidence for the practical turn.


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51The Practical Turn

DOI: 10.1057/9781137354174

1 The emergence of the practical turn

1.1 Şahin v Turkey

In the judgment in the 2001 case of Dahlab v Switzerland,4 something that was then unusual occurs: rather than spending paragraphs spelling out in detail the success or failure of the claim under the belief test, the manifestation test, and the specific-situation rule, the Court bypasses these preliminaries to assess the claim in detail under the justification stage. Most of the judgment is spent weighing up the aims of the Swiss Government against the rights of the applicant. In short, 9(2), rather than 9(1), is the focus.

As remarkable as this judgment is, however, it is not until the Court’s 2004 and 2005 judgments in Şahin v Turkey that this sea change in the treatment of manifestation by the ECtHR is firmly established. The Chamber’s initial 2004 judgment included this startling paragraph, which was later quoted approvingly by the Grand Chamber:5

The applicant said that, by wearing the headscarf, she was obeying a reli-gious precept and thereby manifesting her desire to comply strictly with the duties imposed by the Islamic faith. Accordingly, her decision to wear the headscarf may be regarded as motivated or inspired by a religion or belief and, without deciding whether such decisions are in every case taken to fulfil a religious duty, the Court proceeds on the assumption that the regulations in issue, which placed restrictions of place and manner on the right to wear the Islamic headscarf in universities, constituted an interfer-ence with the applicant’s right to manifest her religion.6

The startling thing about this paragraph of the judgment is that there is no discussion of whether Leyla Şahin’s decision is intimately linked to her religious beliefs, or whether it counts as a direct expression of them. Rather, both the manifestation and interference tests are passed over with-out debate, interrogation, or qualification. The Chamber merely states that Şahin’s decision ‘may be regarded as motivated or inspired by a religion or belief ’. Yet this is almost exactly the language used in Arrowsmith and there declared to be insufficient for manifestation: the language used in the English version of Arrowsmith is ‘motivated or influenced by a religion or a belief ’,7 but the French version has ‘motivé ou inspiré par une religion ou une conviction’ – and the French version of Şahin uses exactly these words.


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The use of the same language cannot be a coincidence, especially as the Chamber in fact quotes this passage from Arrowsmith a few paragraphs earlier.8 It is hard to see the Court’s treatment of manifestation in Şahin as anything other than a repudiation of the view taken by the Commission in Arrowsmith that there is a significant difference between an action manifesting a belief and one merely motivated by a belief.

Howard Gilbert’s ‘Redefining Manifestation of Belief in Leyla Şahin v Turkey’ draws attention to the novelty of this judgment.9 In Gilbert’s terminology, Şahin is the first case not to put in train the whole apparatus of the ‘exclusion clause’ in relation to Article 9(1) – that is, what we have labelled the manifestation and interference tests, which, as Gilbert points out, are not explicitly called for by the wording of Article 9(1), even though they have traditionally formed a consistent part of the ECtHR’s approach. He writes:

The Court declined to consider the relevance of the situation, neither did it attempt to distinguish between an act being motivated by a religious belief or as being a manifestation of that belief. In other words, it made no attempt to operate the ‘exclusion clause’ upon Art 9(1). Instead, it accepted the view of the applicant that wearing an Islamic headscarf was a manifestation of her belief.10

Indeed, Gilbert asserts that the judgment in Şahin systematically and deliberately misreads earlier judgments by interpreting their use of the manifestation and interference tests as a matter for 9(2) rather than for 9(1). The judgment entirely transposes the apparatus of the exclusion clause from 9(1) to 9(2).11 This is, he concludes, an ‘overturning of the established jurisprudence’12; he continues, ‘[t]he judgment of Şahin is to be welcomed in that the Court has finally recognised that the application of its self-inspired “exclusion clause” to Art. 9(1) is no longer valid.’13

To repeat, the startling thing about the judgment is nothing to do with the necessity test, but to do with the use of the language of Arrowsmith to make an inference (from being motivated or inspired by a belief to being a manifestation of that belief) that had been explicitly forbidden in Arrowsmith. In addition to being approvingly quoted by the Grand Chamber, the startling paragraph has also been cited in three other cases. We discuss each briefly in turn.

1.2 Dogru v France14

In this case, the Court found that the ban on wearing the headscarf dur-ing physical education and sports classes was once more a ‘restriction


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on the exercise by the applicant of her right to freedom of religion’,15 and based this contention on the sole fact that wearing the headscarf could be regarded ‘according to case-law’ as ‘motivated or inspired by a religion or religious belief ’, citing Şahin.16

Once again, the treatment of the nature of this manifestation of reli-gion is exceedingly brief: there is no discussion or even justification for assuming Dogru’s wearing of the headscarf to be a potentially protected manifestation, other than the bare quotation of the above words from Şahin. Moreover – significantly – this was an uncontested aspect of the case: the French Government itself submitting to the reasoning in Şahin (rather than pointing to any of the preceding case-law stemming from Arrowsmith), thereby conceding that Dogru’s wearing of the headscarf did engage Article 9.17

1.3 Jakóbski v Poland18

In the 2012 case of Jakóbski v Poland, Jakóbski had been denied the right by the Polish courts to vegetarian meals in prison. The Polish govern-ment justified this by alleging that, although vegetarianism was a practice ‘ encouraged’ by the tradition of Buddhism to which Jakóbski subscribed, it was not ‘prescribed’ by that tradition. Unlike the French Government in Dogru, therefore, the Polish Government did attempt to appeal to, and thereby reinstate, the traditional manifestation test of pre-Şahin case-law, even if it seems to have misunderstood it as a necessity test.19 Against this, Jakóbski also employed the language of necessity (though it is not absolutely clear that he did so as a test for manifestation). He stated that he ‘adhered strictly to the Mahayana Buddhist dietary rules which required refraining from eating meat’,20 and that since ‘he could not eat meat for religious rea-sons he depended on food parcels from his family’ and was throwing away the meals served to him.21 The Buddhist Mission in Poland sent a letter to the prison authorities supporting Jakóbski’s request for a meat-free diet, submitting that ‘the Mahayana Buddhists had a serious moral problem when they were forced to eat meat’, and that ‘[a]ccording to the rules, a Mahayana Buddhist should avoid eating meat’.22 It should also be noted that the inspector of Szczecin Prisons himself wrote a letter to Jakóbski stating that the prison authorities were not ‘obliged to provide an individual with special food in order to meet the specific requirements of his faith’.23

What is striking is that in its ratio the ECtHR eschewed not only any talk of requirement, obligation, and necessity (as it had always done in this regard), but any scrutiny of the nature of the manifestation at all.


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The manifestation test was bypassed. That is, the ECtHR avoided pro-nouncing directly on the question of necessity, and also avoided giving a detailed argument for Jakóbski’s diet’s being a manifestation of his religious views. Instead, the Court immediately upheld the complaint on the grounds that ‘observing dietary rules can be considered a direct expression of beliefs in practice in the sense of Article 9’.24 Therefore:

Without deciding whether such decisions are taken in every case to fulfil a religious duty, as there may be situations where they are taken for reasons other than religious ones, in the present case the Court considers that the applicant’s decision to adhere to a vegetarian diet can be regarded as moti-vated or inspired by a religion and was not unreasonable.25

It will be noted that this is a loose quotation from Şahin with the addition that the belief was not unreasonable, and an explanation of the phrase ‘[w]ithout deciding whether such decisions are taken in every case to fulfil a religious duty’. Here the explanation is that, just as one might wear the veil for political reasons, so one might adopt a vegetarian diet for non-religious reasons, in which case Article 9 would not necessarily be of assistance. The main point, though, is that, even though the Court states that ‘it has already held that observing dietary rules can be consid-ered a direct expression of beliefs in practice in the sense of Article 9’,26 it again seems to think it sufficient to establish manifestation merely to point to the action’s being ‘motivated or inspired by a religion’ (and not being unreasonable). Again, the distance travelled from the doctrine of Arrowsmith is as large as the distance travelled from the words is small.

1.4 Kovaļkovs v Latvia

Another recent case that follows Şahin in the respect outlined above is Kovaļkovs v Latvia.27 In this case, the applicant, who was in prison in Latvia, complained of an ‘inability to read religious literature, to medi-tate and to pray because of being placed in a cell together with other prisoners’ and that his incense sticks had been removed.28 The Court found interference with Kovaļkovs’s rights in these regards. For us, the interesting point is that the question of manifestation is dealt with sum-marily by means of a repetition of the language of Jakóbski:

The Court considers that the applicant’s wish to pray, to meditate, to read religious literature and to worship by burning incense sticks can be regarded as motivated or inspired by a religion and not unreasonable. The Court notes that Article 9 of the Convention lists the various forms which


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manifestation of one’s religion or belief may take, namely worship, teach-ing, practice and observance. At the same time, it does not protect every act motivated or inspired by a religion or belief.29

Once more we have the same language as in Şahin with no attempt to argue for Kovaļkovs’s actions being manifestations of his religious beliefs.30

* * *

The practical turn therefore consists in a stark reversal of the way in which the ECtHR has dealt with the question of manifestation since 2005. Motivation alone is no longer – in apparent opposition to earlier case-law – insufficient to establish manifestation. Why label this a practi-cal turn, though? As we will argue in Part II, one reason for the reversal described above is that the question of motivation or even expression no longer seems central to the ECtHR’s concerns. That is, the strangeness of the tension between recent appeals to motivation as sufficient to establish manifestation and the rejection of precisely this position in judgments prior to 2005 is lessened somewhat, once one realizes that the question of motivation and expression is no longer what is at stake. Instead, it is a matter of practices and their significance in religious life.

What is taking place, we contend, is that the whole framework of understanding a manifestation as a sign of an underlying belief has been relatively marginalized and a new theoretical paradigm is now being used for understanding the status of manifestations. This change involves a reorientation of the question of symbolism away from treating the symbol as a sign derivative of a high-level belief towards treating uses of the symbol differently. Or, as the UK Government has (questionably) phrased it, what now matters is whether the use of a symbol is a genu-inely recognized practice, rather than a manifestation of a belief. This is a shift away from treating the use of a symbol as derivative from a high-level belief towards treating it as a practice.

2 The growing significance of 9(2)

The clamour in legal theory for the ECtHR to weigh up cases under Article 9(2), rather than hastily barring them at the earlier stages, is long-standing. In Gilbert’s terminology,31 the Court has traditionally


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established a series of exclusion clauses (the belief test, the manifestation test, the specific-situation rule) in Article 9(1) which were neither called for by the text of the Article itself nor strictly necessary. Article 9(1) of the ECHR seems to have been written, instead, to provide a blanket affirma-tion of freedom of religion that is then restricted by certain qualifications in Article 9(2). Hence, the text itself implies that restriction of the right to freedom of religion should be a matter for the justification stage – and thus the belief test, the manifestation test, and the specific-situation rule are unnecessary.

This is, for example, how Martínez-Torrón reads Article 9, using this reading explicitly for the purpose of arguing for the preferability of deciding questions of this sort under 9(2) rather than under 9(1):

According to Article 9(1) [of the] ECHR, freedom to practice one’s religion or belief must be understood as protecting, in principle, every act of the indi-vidual when he obeys the dictates of his own conscience; but Article 9(2) [of the] ECHR – limitations on religious liberty – shall be utilized, when neces-sary, as a corrective element for a freedom that, by its own nature, tends to be exercised in an undefined and unpredictable way. Thus, we manage to reconcile two paramount interests that are inclined to conflict with each other: the maximum degree of initial protection of the freedom of belief and the security that the legal order demands. Furthermore, we introduce an important assumption: the State has the burden of proof with regard to the necessity of a restrictive measure, i.e., it must affirmatively prove that, in a particular case of conflict, it is ‘necessary in a democratic society’ to restrict the exercise of religious freedom. Following this approach would obstruct the development of policies that ignore the needs of religious free-dom and are harmful not only to individuals but also to minority groups and, in general, to groups with distinctive beliefs.32

For Martínez-Torrón, the qualifications in Article 9(2), as opposed to those of the traditional tests in the case-law, place restrictions of exactly the right kind on freedom of religion. Similarly, Sandberg has been vocal in his support for a shift in emphasis to Article 9(2):

Strasbourg jurisprudence on Article 9 as a whole shows an increasing focus upon the question of justification under Article 9(2) rather than the question of interference under Article 9(1). The role of filtering devices is minimal and decreasing. This is surely desirable. ... The move beyond these filters at Strasbourg is therefore to be welcomed.33

Moreover, it must also be noted that the ECtHR’s traditional reliance on the manifestation test (among others) is anomalous in the context of the


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ECHR as a whole. It seems more consistent with the ECtHR’s case-law with respect to the other articles of the Convention to treat most of the cases as arising under the second paragraph: Articles 8, 10, and 11 also have two paragraphs, and almost all the case-law with respect to each of these articles comes under the second paragraph. There does not seem to be any intrin-sic reason why the right to freedom of thought, conscience, and religion, should be subject to restrictions of a sort to which other rights are not.

Hence, the shift in the case-law concerning Article 9 that we have been describing in this chapter – the practical turn – can be read precisely as a response to such concerns, and, thus, as an admission by the Court that 9(2) is indeed the more appropriate place to assess restrictions on freedom of religion. Since Şahin in 2005, if not since Dahlab in 2001, the Court has begun to bypass the traditional belief test, manifestation test, and specific-situation rule in favour of a much more sustained focus on the weighing up of rights and justifications under 9(2). This is not a trend without exception – the 2012 Sessa v Italy 34 case, for instance, was still decided on the specific-situation rule – but it remains a decisive trend. And indeed it is a trend that has been explicitly enshrined in case-law in the 2013 judgment in Eweida v UK,35 to which we turn in the Conclusion to this study. This trend, moreover, has been most pronounced in respect to the manifestation test, which, as we have seen, has gone from being a major component of judgments to a rarely mentioned eccentricity. This, more than any-thing else, has helped bring about the growing emphasis on 9(2) and the justification stage in Strasbourg’s deliberations.

* * *

Nevertheless, the bypassing of the manifestation test in particular and the shift to 9(2) in general are not without their problems, and we should perhaps not be so quick to celebrate their demise. That is, the sentiments of those like Sandberg, who insists that ‘the more recent tendency of the Court not to apply the manifestation/motivation requirement is there-fore to be welcomed’,36 should not be unquestioningly adopted.

There is, of course, the general drawback faced by all judgments in which formally articulated filters are eschewed in favour of a weighing-up procedure. The judges gain more power within each individual case over what constitutes a justifiable restriction on the applicant’s rights. Compared to rigorously devised tests in the case-law, the act of balancing is less open to scrutiny and objection.


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A difficulty more specific to trends in Article 9 concerns the possible consequences of the loss of the specific-situation rule. Suppose, for example, that an employee wishes to manifest her religion by wearing a Pagan T-shirt at work in a Christian bookshop. The advantage of the specific-situation rule was that it provided some protection for the pri-vate employer. That is, it meant that the state did not have so heavily to regulate the conduct of employers in its jurisdiction, since there would be no violation of Article 9 if the employee could resign and get another job or had freely chosen the limitations under which she laboured.37 Now that the specific-situation rule has been discarded, however, the state is in principle liable for the misdeeds of private companies in its jurisdic-tion. This means that the state may regulate more heavily the practice of private employers in relation to freedom of religion; this is especially true in the wake of the judgment in Eweida v UK in which the UK was found liable for the uniform policy of British Airways. The immediate response of the Equality and Human Rights Commission to publish new guidelines for employers confirms this.38

Finally, there is a problem that gets to the heart of the demise of the manifestation test itself. Since Şahin, the ECtHR has been happy simul-taneously to assert the sufficiency and the insufficiency of motivation as a condition for manifestation. Take this passage already cited from Kovaļkovs:

The Court considers that the applicant’s wish to pray, to meditate, to read religious literature and to worship by burning incense sticks can be regarded as motivated or inspired by a religion and not unreasonable. ... At the same time, [Article 9] does not protect every act motivated or inspired by a religion or belief.39

The same inconsistency recurs in Şahin v Turkey and Eweida v UK. ‘At the same time’ as a religious practice is deemed a manifestation because it is motivated by a religious belief, the Court reasserts the Arrowsmith prin-ciple that motivation alone is not sufficient to constitute manifestation.

In other words, remnants of the manifestation test return in recent judgments, despite sitting so uncomfortably with the practical turn. What results is an explicit inconsistency in the Court’s approach to the constitution of a manifestation of religion (or, what is the same thing, the significance of motivation). And it is precisely this inconsistency that motivates the rest of this study. How, we ask, is it possible to make the ECtHR’s new attitude to manifestation comprehensible given such


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apparent inconsistency? Can the Court’s position in its post-2005 judg-ments be conceptualized in a consistent and coherent manner? What is at stake in Part II is therefore an attempt to put in place theoretical frameworks to make sense of the practical turn.

Notes

See, for example, 1 A v UK [also sub nom X v UK and Ross v UK] (1984) 6 EHRR 558 (Commission Decision). (App no 10295/82, 14 October 1983.)Şahin v Turkey 2 [GC] [2005] ECHR 819, (2007) 44 EHRR 5. (App no 44774/98, 10 November 2005.)Arrowsmith v UK3 (1981) 3 EHRR 218 (Commission Decision). (App no 7050/75, 12 October 1978.)Dahlab v Switzerland 4 ECHR 2001-V. (App no 42393/98, 15 February 2001.)Şahin 5 120 [78]. (App no 44774/98, 10 November 2005.)Şahin v Turkey 6 [2004/5] ECHR 299, (2005) 41 EHRR 8, 125–6 [71]. (App no 44774/98, 29 June 2004.)Arrowsmith 7 228 [71].Şahin 8 [2004/5] 124–5 [66].H. Gilbert (2006) ‘Redefining Manifestation of Belief in 9 Leyla Şahin v Turkey’, European Human Rights Law Review, 3, pp. 308–9.Gilbert, ‘Redefining Manifestation’, p. 315.10 Gilbert, ‘Redefining Manifestation’, pp. 310–11.11 Gilbert, ‘Redefining Manifestation’, p. 318.12 Gilbert, ‘Redefining Manifestation’, p. 325.13 Dogru v France14 [2008] ECHR 1579, (2009) 49 EHRR 8. (App no 27058/05, 4 December 2008.)Dogru 15 193–4 [48]. Dogru16 193 [47].Dogru17 190–1 [34].Jakóbski v Poland 18 [2010] ECHR 1974, (2012) 55 EHRR 8. (App no 18429/06, 7 December 2010.)Jakóbski 19 238 [37].Jakóbski 20 233 [7] (our emphasis).Jakóbski21 233 [10] (our emphasis).Jakóbski 22 233 [11].Jakóbski 23 234 [17] (our emphasis).Jakóbski 24 239 [45].Jakóbski 25 239–40 [45].Jakóbski 26 239–40 [45], citing Cha’are Shalom Ve Tsedek [2000] ECHR 351, (2000) 9 BHRC 27 [73]–[4]. (App no 27417/95, 27 June 2000.)


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Kovaļkovs v Latvia 27 [2012] ECHR 280, App no 35021/05 (ECtHR, 31 January 2012, unreported).Kovaļkovs28 [60].Kovaļkovs29 [60]–[1], citing Jakóbski 239–40 [45].Moreover, the non-existence of the necessity test for manifestation is 30 shown by the fact that when considering the justification for the restriction on Kovaļkovs’s actions under 9(2), the Court states that the admitted interference with the manifestation of Kovaļkovs’s freedom to pray, meditate, and read religious literature, did not ‘go against the very essence of the freedom to manifest one’s religion’, and that the incense sticks of which he had been deprived were ‘not essential for manifesting a prisoner’s religion’ (Kovaļkovs [67]–[8]).Gilbert ‘Redefining Manifestation’.31 J. Martínez-Torrón (2012) ‘The (Un)protection of Individual Religious 32 Identity in the Strasbourg Case-law’, Oxford Journal of Law and Religion, 1.2, pp. 12–13.R. Sandberg (2011a) 33 Law and Religion (Cambridge: Cambridge University Press), pp. 86–7.Sessa v Italy34 , App no 28790/08 (ECtHR, 3 April 2012, unreported).Eweida v UK35 [2013] ECHR 37, [2013] IRLR 231. (App nos 48420/10, 59842/10, 51671/10, and 36516/10, 15 January 2013.)Sandberg, 36 Law and Religion, p. 84.Of course, there was, as has been noted, no similar advantage afforded to 37 employers under Articles 8, 10, or 11.The demise of the specific-situation rule may make no difference in practice 38 within those members of the Council of Europe that are also members of the EU, since EU law already heavily regulates the practice of private employers.Kovaļkovs39 [60]–[1], citing Jakóbski 239–40 [45].


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Part II Understanding the Practical Turn


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4The UK Government and Generally Recognized Practices

Abstract: In this chapter we engage in a detailed analysis and critique of the observations submitted by the UK Government to the ECtHR in connection with the case Eweida v UK. The Government asserts that past decisions of the ECtHR have been based on the principle that only generally recognized forms of religious practice are eligible in principle for the protection of the ECHR. We contend that the ECtHR has not based its decisions on this principle, and that it would be unjust for this principle to be adopted, since it would arbitrarily disadvantage minority religions, and the decision on which religious and philosophical practices were generally recognized would either presume too much religious literacy or involve the courts in ‘playing God’.

Keywords: Article 9 ECHR, Eweida, generally recognized practice, manifestation test



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In Chapter 3 we argued that after 2005 a radical shift occurred in Strasbourg’s jurisprudence on manifestation. The very framework of the ECtHR’s approach to this issue has dramatically changed. While previously judgments were framed around a manifestation test in which the type of relation holding between belief and practice was at stake, recently the manifestation test has appeared relatively unimportant. We have dubbed this shift in Strasbourg jurisprudence ‘the practical turn’ and Part II of this book constitutes a series of attempts to analyse the theory that might explain such a dramatic reversal.

Hence, while Part I of this book described this practical turn in European jurisprudence on manifestation since 2005, Part II is con-cerned with understanding it – providing the models by which one can explain the stark reversal that has seemingly led to Article 9’s now being held to protect practices that are merely motivated by religious beliefs. The following presents three such models. Chapter 4 provides a critique of a recent interpretation of the practical turn proposed by the UK Government in its defence in Eweida.1 The Government attempts to read a stringent form of the manifestation test into Strasbourg case-law, while simultaneously responding to the new emphasis therein on treating practices relatively independently of beliefs. We argue that such a modelling of the practical turn is problematic, and that there-fore the ECtHR was right not to endorse it in its judgment in the case. In Chapters 5 and 6, we then proceed to propose two philosophical frameworks for making sense of the practical turn by analysing the central concepts of symbol and belief, respectively. Chapter 5 argues that the practical turn can be understood as restoring the participation-function of the symbol – its community-forming power – against its sign-function. The very text of Article 9, however, necessitates treating the symbol as a sign of an underlying belief, to some extent at least; therefore, Chapter 6 interrogates the role of belief in recent Strasbourg jurisprudence, arguing that there has been a shift from articulating the belief–practice relation in terms of high-level, global beliefs, to doing so in terms of low-level ones. These two frameworks are not intended to stand in opposition to each other; they are rather meant as mutu-ally reinforcing and complementary explanations of the practical turn. Indeed, the weakness of either of these models taken in isolation is to be offset by the strengths of the other.


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Understanding the Practical Turn

1 The UK Government’s argument

Hence, provisionally, we wish to scrutinize the UK Government’s attempt to make sense of the practical turn in Eweida. Its argument deserves such sustained attention because it is one of the first attempts to derive general principles from the practical turn for the purpose of defining and delimiting the nature of manifestation in this new context. That is, the UK Government takes very seriously the shift in jurisprudence that cases involving religious symbolism have undergone since Şahin,2 but unlike the ECtHR itself (at least prior to its own judgment in Eweida), it proposes an explicit definition of manifestation that it sees emerging out of this shift. Moreover, even though we shall argue that the specific solution that the UK Government gives is flawed, it must be acknowledged that its argument is still the first sustained response to the major problem with the ECtHR’s recent treatment of manifestation outlined at the end of Part I: the Court’s remaining committed to the Arrowsmith principle3 that motivation alone is insufficient to constitute manifestation at the same time as designating religious practices as manifestations solely on the ground that they are motivated. The UK Government’s inference – which from the judgment of Eweida itself subsequently proved correct (if only in this respect) – was that the Court must be tacitly leaving open the possibility that some forms of ‘mere motivation’ must still be insufficient to constitute manifestation. That is, it conjectured (rightly, as it turned out) that the practical turn was not intended to open the floodgates for any practice merely motivated by an antecedent religious belief to count as a manifestation and thereby engage Article 9. Something more was needed.

Where the UK Government went awry was in its identification of the new criterion for this ‘something more’. And this is because it tried to put in place a test for manifestation more stringent that the ECtHR had ever accepted or was likely to accept. The criticisms of the UK Government’s position that follow turn on this point.

* * *

With this précis of the chapter in mind, it is worth turning to the mate-rial itself. The UK Government’s fullest statement of its argument can be found in its ‘Observations on Eweida, Chaplin, McFarlane and Ladele’.4 In line with the argument of Part I of this book, the Government’s first


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move is explicitly and definitively to distinguish its position from the much-maligned necessity test:

A number of the Interveners make submissions on the test for determining whether there is a ‘manifestation’ of religion or belief within the meaning of Article 9. In particular, it is suggested that it should not be necessary for a practice to be doctrinally mandated by a religion for it to constitute a ‘manifestation’. ... Whether or not a practice is compulsory according to religious doctrine (in a sense of being a rule that adherents must follow) is not the critical question in these cases.5

Moreover, this move is then radicalized by a shift entirely away from considering practices in terms of their relationship with antecedent beliefs. Indeed, the criterion the Government goes on to identify for determining manifestations that engage Article 9 is remarkable precisely for its marginalization of the notion of belief and consequently the sign-function of religious symbols in its entirety. In accordance with the practical turn, practices are now to be primarily assessed in themselves, almost independently of their relation to antecedent beliefs:

In order to come within Article 9 an Applicant must show that the manifesta-tion in question is a religious practice in a generally recognised form. Not every act motivated by a religion is a ‘practice’ of the religion. The distinction can be illustrated as follows. The wearing of a kippa (or skull cap) by some Orthodox Jewish men is a Jewish religious practice (as is not working on Sunday for some Christians or wearing a headscarf for some Muslim women). On the other hand, if a Jewish man wears a Star of David on a necklace, that may be an act motivated by his religion and by a desire to communicate mem-bership of the faith, but it is not a form of ‘practice’ of the Jewish religion.6

Notice how the word ‘belief ’ or any reference to the forum internum of individual conscience is absent here. The Government does indeed acknowledge the need for motivation, but only (following the Arrowsmith principle still enshrined in case-law) to deem it insignificant, and of itself irrelevant, for determining whether a practice is a manifestation or not. The debate has definitively moved to a different terrain – the territory of practices rather than that of belief–manifestation relations. Nevertheless, the change of terrain does not lead to an anything-goes scenario in which all of the old rules are torn up: there is a conscious attempt here to provide some form of continuity by establishing a threshold, even if there is an implicit recognition that the old paradigm by which religious symbols were understood in the courts is no longer the best.


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2 Generally recognized forms of practice

The additional condition the Government sets for the manifestation test in its ‘Observations on Eweida, Chaplin, McFarlane and Ladele’ is worth exploring at length. Embracing the practical turn, the Government offers a threshold that it claims is consonant with it: ‘generally recognised forms of practice’.7 Uses of symbols are to be protected when they are generally recognized as religious practices.

Unsurprisingly, the Government here is drawing on Strasbourg precedent. The first Strasbourg judgment to use the phrase ‘in a gener-ally recognised form’ was the Commission’s decision in the 1984 case of A v UK which stated simply:

Art. 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form.8

This language was also employed in the contemporaneous and almost-identical Commission case C v UK9 and two further Commission cases hard on their heels: V v Netherlands10 and Vereniging Rechtswinkels Utrecht v Netherlands.11 It was not, in fact, until 2001 in Zaoui v Switzerland,12 fol-lowed later that year by Pichon v France,13 that the Court explicitly used for itself the language of ‘generally recognised forms’ from the earlier judgments of the Commission. Since then it has, however, been repeated in at least six Court cases: Lazzarini v Italy,14 Porter v UK,15 Kuznetsov v Russia,16 Ribeiro v Portugal,17 Skugar v Russia,18 and Dautaj v Switzerland.19

The Government takes this rather erratically used phrase from the case-law and makes it bear the weight of a necessary condition for con-stituting manifestation. As a result of the UK Government’s argument, ‘generally recognised forms’ now assumes centre stage:

The words ‘practice or observance’ used in Article 9 are intended to con-note, as the Court has interpreted it, what in ordinary language is regarded as a generally recognised ‘practice’ – the wearing of prescribed clothing, a dietary rule, abstaining from work on a certain day, where these are matters which the religion requires or specifically encourages and which have some doctrinal basis.20

If we temporarily leave aside the final relative clause, which is presum-ably intended as a gloss, the concept of a generally recognized form of


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practice here does all the work in distinguishing a religiously motivated symbol that does engage Article 9 from one that does not. That is, if (as the post-2005 case-law still asserts) motivation is insufficient to con-stitute a manifestation, then the UK Government conjectures that the tacit further condition is provided by assessing whether the practice is generally recognized or not.

The meaning of this concept seems to be something like this: ‘ general’ here functions as a means of indicating public awareness of such practices, or even, more crudely, their popularity or prevalence. To use the Government’s own example, since it is generally recog-nized that Orthodox Jewish men wear kippas or, in other words, since there is public awareness that Orthodox Jewish men wear kippas, this practice passes the manifestation test, and (other things being equal) will engage Article 9. On the other hand, wearing the Star of David on a necklace may well be a use of religious symbolism that is motivated by a Jewish belief, it might be sincere and – the Government even seems to suggest – it might successfully communicate the user’s par-ticipation in a specific Jewish community; nevertheless, if the practice is not widespread, and so not widely acknowledged to be a conven-tional or standard Jewish use of symbolism, then the UK Government argues that it cannot count as a manifestation, and so it cannot engage Article 9.

This seems a particularly stringent condition for manifestation under Article 9, and this appearance of stringency is only underlined by the final relative clause in the above passage, which draws the new general-recognition test into the ambit of the necessity test (without quite iden-tifying the two): ‘where these are matters which the religion requires or specifically encourages and which have some doctrinal basis’. This is a revealing passage, since it transposes the Government’s position into the old Strasbourg language of the traditional manifestation test. Once again the sign-function of a religious symbol is foregrounded – the extent to which its use is mandated, encouraged, or substantiated by propositional beliefs. Moreover, what emerges is a threshold for the practice–belief link that is higher than anything traditionally to be found in the case-law of either the Court or the Commission. To engage Article 9, far more is here demanded than an expression of the antecedent belief or an intimate link to it. What the UK Government asks for in its submission to Eweida v UK is a test more severe than the ECtHR had ever countenanced, passed off in the language of the post-


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2005 practical turn. It is no wonder that when the Court summarizes the Government’s position in its judgment, it associates it closely with the spectre of the necessity test.21 We are much closer to the necessity test than the opening to the Government’s ‘Observations’ would have one believe.

We will return to the ECtHR’s response to the UK Government’s argu-ments in the Conclusion; in the second half of the chapter, we sketch in a merely preliminary fashion some immediate problems with the Government’s position.

3 Problems with the Government’s account

It is not hard to discern that there are some serious problems with setting the threshold for the manifestation test in terms of general recognition. In what follows, we enumerate both those that were mentioned during the proceedings of Eweida as well as others that seem equally difficult to answer.

3.1 Personalized practices

First, a direct consequence of the UK Government’s contention that for a practice to be protected under Article 9 it must be generally recognized is that idiosyncratic or highly personal practices are not protected. Such, of course, is the very implication of the Government’s example of the Jewish person who wears a Star of David on a necklace. Since this is a personally instituted use of symbolism, it does not obtain the widespread recognition required for protection. This is, moreover, the very thrust of the Government’s case against Nadia Eweida and Shirley Chaplin, who conceded that, despite the cross and crucifix’s being generally recognized as Christian symbols (‘the central image’ of their faith, even22), their use of them was not: ‘[e]ach wished to wear the cross visibly as a personal expression of faith.’23 Hence, argued the Government, while these practices were ‘motivated by a sincere reli-gious commitment’, they were not generally recognized forms, and ‘did not therefore fall within the scope of Article 9’.24 This is an argument brought to bear on the ECHR despite the fact that Article 9(1) seems precisely worded to safeguard more eccentric religious beliefs and practices, and despite the fact that judicial dismissal of personalized practices in the domestic context has come under fierce attack.25


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3.2 Minor religions

Second, the idea that only generally recognized practices are protected under Article 9 is extremely problematic by extension when it comes to new or non-mainstream religions. It may be generally recognized that Orthodox Jewish men wear kippas, but the practices of Scientology or even the Baha’i faith are much less likely to be generally recognized. Moreover, the fact that non-Orthodox Jewish men do not wear kippas suggests, of course, that manifestations have to be defined (at least) at the level of sub-religions, that is denominations; yet the more fine-grained the denominational distinctions needed, the less likely it is that the pertaining practices would be generally recognized. There is an issue here concerning the amount of religious expertise being ‘generally’ demanded.

In sum, ‘general recognition’ presupposes two components, which it seems unnecessary for a religion to meet for its practices to be pro-tected. First, the religion would need to have evolved established and settled practices. Again, it seems contrary to the intention of Article 9 that religions in the process of emergence be excluded from protection. Second, the religion would need to be visible in the relevant jurisdiction, since for a judge, the state, employers, or the public at large, to consider a religious practice generally recognized, some acquaintance with the religion is necessary. Of course, safeguards could be built-in to protect against discrimination against new or minority religions; it would surely always be easier, however, for there to be general recognition of a Jewish or Muslim practice than of a Baha’i or Jain one.

3.3 Playing God again

Third, in her submission to the ECtHR, Eweida argued that the UK Government’s suggested recasting of the manifestation test put judges in the undesirable position of ‘playing God’: ‘Such a test was too vague to be workable in practice and would require courts to adjudicate on matters of theological debate, which was clearly outside the scope of their competency.’26 To decide whether a practice is generally recognized or, more acutely still, to decide whether it concerns ‘matters which the religion requires or specifically encourages and which have some doctrinal basis’27 is to take a stand on religious or theological matters. Understandably, this is something the ECtHR has been loath to do; indeed, this is a juridical anxiety that pervades not only Europe, but North America too. As we saw in Chapter 2, this anxiety has traditionally


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concerned the courts’ inability adequately to police the religiosity or otherwise of beliefs and in this context the ECtHR has been adamant:

In principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed.28

Eweida’s argument is that the UK Government’s suggestion for a new threshold in manifestation tests would directly lead to an analogous polic-ing of the religiosity or otherwise of practices. The Court would have to determine the orthodoxy, legitimacy, or theological justification for such practices – a breach of the above-stated principle of avoiding playing God.

3.4 Religious literacy

Finally, the deployment of the concept of ‘general recognition’ raises the further problem of its reliance on some form of religious literacy on the part of both judges and the public at large. If the threshold for the protection of religious practices is whether there is general recognition of their occur-rence, the ‘recognition’ involved needs to be religiously informed and not ignorant of faith communities and their practices. Such a state of ignorance is precisely what many religious groups fear may well be the case, however. Clearing the Ground inquiry, which was produced by the group ‘Christians in Parliament’, for example, insists repeatedly that ‘there is a high level of religious illiteracy which has led to many situations where religious belief is misunderstood and subsequently restricted’,29 continuing that ‘the first sig-nificant theme that emerged from our evidence sessions was the deep and widespread level of religious illiteracy in public life’.30 If religious illiteracy is indeed the norm, then it is questionable whether the ‘general recognition’ threshold can really protect freedom of religion adequately.

Once again, the UK Government’s threshold for the manifestation test is found lacking, and so too is the whole framework being used here to recast the conditions for manifestation in the light of the practical turn. Another framework is required: the practical turn needs to be under-stood differently.

Notes

Eweida v UK1 [2013] ECHR 37, [2013] IRLR 23. (Apps no 48420/10, 36516/10, 51671/10, and 59842/10, 15 January 2013.)


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Şahin v Turkey 2 [GC] [2005] ECHR 819, (2007) 44 EHRR 5. (App no 44774/98, 10 November 2005.)Cf. 3 Arrowsmith v UK (1981) 3 EHRR 218 (Commission Decision). (App no 7050/75, 12 October 1978.)Foreign and Commonwealth Office (2011a) ‘Observations on 4 Eweida, Chaplin, McFarlane and Ladele’ (Communication from FCO to ECtHR), 14 October 2011.Foreign and Commonwealth Office, ‘Observations on 5 Eweida, Chaplin, McFarlane and Ladele’, paras 3–4.Foreign and Commonwealth Office, ‘Observations on 6 Eweida , Chaplin, McFarlane and Ladele’, para 5.The case judgments spell ‘recognised’ with an ‘s’; in the text we spell it 7 with a ‘z’.A v UK 8 [also sub nom X v UK and Ross v UK] (1984) 6 EHRR 558 (Commission Decision). (App no 10295/82, 14 October 1983.)C v UK9 [also sub nom A v UK and Croft v UK] (1984) 6 EHRR 587 (Commission Decision). (App no 10358/83, 15 December 1983.)V v Netherlands10 (1984) 39 DR 267. (App No 10678/83, 5 July 1984.)Vereniging Rechtswinkels Utrecht v Netherlands11 (1986) 46 DR 200. (App no 11308/84, 13 March 1986.)Zaoui v Switzerland12 App no 41615/98 (ECtHR, 18 January 2001, unreported).Pichon v France 13 ECHR 2001-X. (App no 49853/99, 2 October 2001.)Lazzarini v Italy14 App no 53749/00 (ECtHR, 7 November 2002, unreported).Porter v United Kingdom15 (2003) 37 EHRR 8. (App no 15814/02, 8 April 2003.)Kuznetsov v Russia16 [2007] ECHR 34, (2009) 49 EHRR 15. (App no 184/02, 11 January 2007.)Ribeiro v Portugal17 App no 16471/02 (ECtHR, 26 October 2004, unreported).Skugar v Russia18 [2009] ECHR 2159 App no 40010/04 (ECtHR, 3 December 2009, unreported).Dautaj v Switzerland19 App no 32166/05 (ECtHR, 20 September 2007, unreported).Foreign and Commonwealth Office, ‘Observations on 20 Eweida , Chaplin, McFarlane and Ladele’, para 6.Eweida v UK21 [58].Eweida v UK 22 [65].Eweida v UK23 [58]Eweida v UK 24 [58].See R. Sandberg (2011) ‘Submission to the Consultation on Legal 25 Intervention on Religion or Belief Rights’, http://www.law.cf.ac.uk/clr/research/Russell%20Sandberg%20(Cardiff%20University)%20Submission%20to%20the%20Consultation%20on%20Legal%20Intervention%20on%20Religion%20or%20Belief%20Rights.pdf, date


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accessed 21 June 2013, para 4; L. Vickers (2008) Religious Freedom, Religious Discrimination and the Workplace (Portland, OR: Hart), p. 130; L. Vickers (2010) ‘Religious Discrimination in the Workplace: An Emerging Hierarchy?’ Ecclesiastical Law Journal, 11.2, pp. 288–9. As Chaplin points out in her claim, the UK Government’s interpretation of the manifestation test also puts those religions that encourage personal, distinctive expression at a disadvantage: ‘[It] would give a higher level of protection to religions which include specific rules which must be adhered to, and a lower level of protection to religions without similar rules, such as Christianity’ (Eweida v UK [67]).Eweida v UK 26 [64].Foreign and Commonwealth Office, ‘Observations on 27 Eweida , Chaplin, McFarlane and Ladele’, para 6.Metropolitan Church of Bessarabia v Moldova 28 [2001] ECHR 860, (2002) 35 EHRR 13, 335 [117]. (App no 45701/99, 14 December 2001.)Christians in Parliament (2012) 29 Clearing the Ground inquiry: Preliminary report into the freedom of Christians in the UK, http://www.eauk.org/current-affairs/publications/upload/Clearing-the-ground.pdf, p. 6, date accessed 15 June 2013.Christians in Parliament, 30 Clearing the Ground inquiry, p. 14.


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5The Participative Symbol

Abstract: In this chapter we delve into the theory of the symbol, drawing on recent (and older) work in the philosophy of religion and in philosophy more generally. We examine various functions that symbols have and, in the light of the work of such philosophers as Todorov and Ricoeur, as well as philosophical theologians such as Tillich, identify for special attention the participative function, whereby the wearing or use of the symbol brings about the inclusion of the user in a certain community of symbol-users. We suggest that legal thinking in general, and case judgments in particular, would be much enriched if, in addition to that paid to the expressive function, attention were also paid to the participative function.

Keywords: participative symbol, expressive symbol, Goethe on the symbol, Schelling on the symbol, Todorov on the symbol, Ricoeur on the symbol, Tillich on the symbol



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1 The history of the symbol

It is our contention that to get to the heart of the practical turn a philo-sophical analysis of the concept of the symbol itself is helpful.1 As we shall see, a fuller understanding of what the symbol is and its relation to believers and their beliefs pushes one automatically in the direction of a practical turn – that is, one no longer conceives the symbol in terms of its sign-function alone; its role in bearing witness to com-munity becomes equally significant. So, a short theoretical summary of the structure of the symbol may well provide some orientation here. We do not intend such theory as a straightjacket into which all treat-ments of religious symbols by the courts need to be inserted; rather, our intention is to provide some rough outlines for understanding the practical turn.

In Lautsi v Italy,2 the applicant – drawing on a German judgment3 – makes the following plausible general assertions about symbols: ‘All symbols [give] material form to a cognitive, intuitive and emotional reality which [goes] beyond the immediately perceptible.’4 The applicant goes on to speak of the symbol as having ‘an evocative character’ and, in the case of religious symbolism, serving ‘as “publicity material” ’ for the contents of religious faith.5 Symbols are materializations of a reality that is not immediately perceptible.

A symbol is therefore something sensible and accessible to the indi-vidual using it that has been made to relate in some way to one or more imperceptible realities. In general, we will dub the relation that holds between the symbol and the things that it symbolizes expression. As we shall soon suggest, what is absolutely crucial to the constitution of the symbol is not that this relation of expression is singular or simple, but, rather, that symbols necessarily relate to more than one reality in more than one way. This is what is meant by the ‘multiple intentionality’ of the symbol – a concept that will form the heart of our analysis. A brief survey of the history of theories of the symbol will show the extent to which a number of very different expressive relations cluster around the concept of the symbol.

* * *

The turning point in the history of the symbol is 1790, in particular, §59 of Kant’s Critique of Judgment. Before that moment, there existed


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the ‘classical symbol’ and afterwards, alongside the various forms of the classical symbol, ‘the romantic symbol’. The classical symbol existed in roughly three forms:

First, ‘symbol’ designates those phenomena in the world around us (i) that point to a supernatural or divine presence. Symbols mediate between the world and that which transcends it. Such a usage was popular among neo-Platonic philosophers: Proclus, for example, defines symbols as ‘heavenly things on earth in a terrestrial form’.6 Early Christian theologians also deployed ‘symbol’ in this way: Pseudo-Dionysius speaks of symbols as ‘perceptible things [needed] to lift us up into the domain of conceptions’.7

Etymologically, the Greek word, (ii) σύμβoλον [sumbolon], signifies a token used in communities (and particularly secret societies or esoteric cults) as a member’s passkey. That is, such symbols were badges that revealed one’s belonging to a specific community.8 It is precisely for such reasons that Rufinus, an early Christian theologian, contends that the Christian creeds were dubbed ‘symbols’ (a name for them that persisted until the nineteenth century in all European languages):

The name [early Christians] decided to give [the Apostles’ Creed], for a number of excellent reasons, was symbol ... from the fact that in those days, as the Apostle Paul vouches and as is testified in Acts, numerous vagabond Jews, posing as apostles of Christ were going about preach-ing, their motive being the desire for gain or gluttony. They used the name of Christ, but their message did not conform to the traditional outline. The Apostles therefore prescribed the creed as a badge for dis-tinguishing the man who preached the truth about Christ in harmony with their rule.9

Symbols are the means by which one confirms whether or not some-one belongs to a community. This early use of the term ‘symbol’ (more than any other) illustrates the performativity of the concept. To recite the Apostles’ Creed was not only declaratively to assert the truth of the statements contained therein but also performatively to assert one’s membership of a specific Church through the very act of speaking. Finally, there is the representative symbol. In mathematics, ‘x’ (iii) and ‘+’ are named symbols; similarly in logic, ‘&’ and ‘∀’ are named symbols – and this is because they are signs that represent particular operations or entities. Such a usage of ‘symbol’ as a representative sign is widespread.


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As we have already suggested, a paradigm shift in understanding the symbol occurred in 1790 with the publication of Kant’s Critique of Judgment. The theory of the symbol outlined there (along with develop-ments of such a theory in the work of Goethe, Schelling, and Coleridge – to name but three) has become central to our own thinking about the concept ever since. The ‘romantic symbol’ became a popular concept for understanding art, religion, knowledge, and even dreams and medicine, in the nineteenth and twentieth centuries. For our purposes, its influ-ences in theology (through the work of Paul Tillich and Karl Rahner) and religious studies (Mircea Eliade) are particularly significant for contemporary considerations of religious symbolism.

What did the romantic symbol look like? Very crudely put, it syn-thesized the different uses of the classical symbol into one complex and multi-faceted whole. The romantic symbol evokes the supersensible, acts out membership of a community, and represents a class of objects. Take, for example, Goethe’s ‘discovery’ of the symbol in a 1797 letter to Schiller:

[Symbols] are eminent cases which in characteristic variety, stand as the representative of many others, embrace a certain totality in themselves ... and thus, from within as well as from without, lay claim to a certain oneness and universality.10

The tortuousness of Goethe’s sentence structure alone suggests the complexity of his concept of the symbol.11 The symbol represents a class of objects, but at the same time it is a self-sufficient and self-enclosed totality, and finally it lays claim to universality. In short, symbols express meaning in a variety of ways – by referring to a class of objects, by evok-ing something universal, even by cutting themselves off from the outside. This is most clearly articulated in Paul Ricoeur’s conception of the ‘dou-ble intentionality’ of the symbol12 – although often, as in the above case, one is tempted to speak of a triple or even quadruple intentionality.

How are we to understand these various modes of meaning-creation that are found in the symbol? Paul Tillich’s criteria for recognizing a symbol are helpful here. First, a symbol is a sign. Before anything else, symbols pos-sess a ‘representative function’,13 which means that they indicate or express something (typically a belief). Second, however, the symbol is more than a sign. It operates not only as a sign but also in additional ways. This is pre-cisely what Ricoeur’s conception of the ‘double intentionality’ of the sym-bol is attempting to articulate: Ricoeur claims that the symbol ‘presents a


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first or literal intentionality that, like every significant expression, supposes the triumph of the conventional sign over the natural sign. ... But upon this first intentionality there is erected a second intentionality’.14 As far back as 1801, A.W. Schlegel speaks in a very similar manner of symbolic significa-tion: ‘A second ... intuition is built into language on the basis of the first representation of the sensible world.’15 Over and above the sign-function of the symbol, the symbol works in another way.

What is this second way? For Tillich, symbols ‘participate in the power and the meaning of what they symbolize and signs do not’:16 this partici-pation in what they express gives symbols an ‘innate power’.17 As well as expressing a belief, symbols participate in a meaning; they possess an ontological connection to it and, consequently, perform this meaning within themselves. Now, there are a number of highly controversial philosophical moves in the above and there is, of course, little need for the courts to take account of some of this more metaphysical specula-tion. Nevertheless, it seems to us that the idea that symbols participate as well as express is significant. We contend that some form of very weak ‘multiple intentionality’ is a necessary aspect of symbolism. The role of participation in the classical symbol provides a gloss on this point: symbols consolidate one’s membership in a community.18

The conclusion of this theoretical excursus is the following: symbols are fundamentally complex, and they generate meaning in more than one way. Schematically, one can speak of the ‘sign-function’ of a symbol (it expresses beliefs like an ordinary sign) and the ‘participation-function’ of a symbol (it is a token of membership in a community).

2 Bearing witness

It is therefore important to stress that both legally and theoretically the sign-function of the symbol does not exhaust its properties – even if traditionally when it comes to Article 9 this property of the symbol has been foregrounded to the extent of obscuring other characteristics. Over and above the sign-function of the symbol, the symbol works in another way. As we have seen theoretically, it possesses a ‘multiple intentionality’. The practical turn can be read as an implicit acknowledgement of the complexity of the symbol.

It is in Kokkinakis v Greece19 that the religious right to bear witness to one’s faith was established on the basis of Article 9: ‘Bearing witness in


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words and deeds is bound up with the existence of religious convictions.’20 Article 9 protects the individual’s act of bearing witness and of course the wearing of religious symbols forms one way of bearing witness; it is a way of exhibiting in the forum externum one’s commitment to a faith and one’s belonging to a faith community. The judgment in Lautsi v Italy speaks in this regard of the ‘ “identity-linked” value’ of symbols.21 The way Shirley Chaplin justifies her wearing of a crucifix at work makes this participation-function particularly clear: ‘Christians are called by the Bible and God to tell others about their faith and the wearing of a Cross is a visible means of manifesting that calling. ... If others know I am a Christian because they see the Cross on my necklace, I tend to focus more on my actions and words to keep them as consistent as possible.’22

Part of why a Christian wears a cross is to bear witness to his or her position in the Christian community and part of why a Sikh wears a Kara is to bear witness to membership of the Sikh people. Note the use of ‘part’ here: as we pointed out in Chapter 1, the Kara is also a reminder of specific Sikh beliefs (God’s infinity, most obviously) and the cross can be a reminder of Jesus’s Crucifixion and Resurrection. That is, these symbols have a sign-function as well as a function of bearing witness. We contend that it is essential that these two functions be kept separate, even if they sometimes seem to collapse into each other: a symbol can express a spe-cific religious belief or it can make known one’s belonging to a particular community; and often a given symbol is chosen precisely because it does both. A symbol need not do both, however: a secret symbol worn under one’s clothes may well remind the user of a specific belief that he or she has, but it does not particularly bear witness to his or her faith, whereas a Jewish skull cap may not put the user in mind of a particular Jewish belief, but it nevertheless acts as a symbol that identifies the wearer as Jewish.23

Muslim dress provides another helpful example – and here we return to the justification for treating items of dress as a type of religious symbol (an issue raised in Chapter 1). The niqāb, for example, is not a symbolic expression of a particular Islamic belief. That is, the niqāb is a way of remaining faithful to beliefs surrounding modesty, but it seems incorrect to say that the niqāb ‘symbolizes’ these beliefs. To use the terminology of the ECtHR, it is a symbol that is consistent with particular Islamic beliefs, even encouraged or motivated by them, but it does not express them. The niqāb itself is not what is important; it is what it does (or what it protects) that is at stake – and any garment that achieved this would be equally acceptable. To put it baldly, the Muslim veil does not have a particularly


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obvious sign-function. Nevertheless, what it does do is bear witness to the user’s religious identity. One of the many reasons users feel so attached to a specific form of the veil is that it clearly makes known to which commu-nity one belongs. It is, of course, this property of the veil that makes it so problematic in the French context: one is putting one’s religious identity above one’s national identity (as a citizen of the French Republic). One is making an assertion about which community one belongs to – and this is sometimes (as in France and Turkey) a very controversial assertion to make. The point, therefore, is that insofar as it bears witness to one’s belonging in a specific community, the veil does possess symbolic prop-erties. And this to some extent explains the courts’ inclination to treat religious dress, including the veil, in the same way as symbols.

Another way of approaching this issue is through the notion of speech-acts. When an individual says ‘I promise’, it is not so much the precise words that he or she says that are important (one can perfectly well imagine that different words with different, although not opposed, meanings might have operated equally well in these circumstances); it is that he or she says it that counts. The meaning being articulated is not primarily at issue; rather, it is the action or gesture in which the articulation consists that does the work here. The words (to put it crudely) perform something, as well as expressing something. A simi-lar pattern is in play with the recitation of creeds. Creeds are of course expressions of underlying beliefs and they standardize these beliefs in ritual form; nevertheless, when one recites a creed, it may be not only to remind oneself of these beliefs, but also to reinforce one’s identity in a community. The recitation of creeds is a way of consolidating com-munities as well as manifesting beliefs. In addition to meaning some-thing, they do something as well. Creeds have a sign-function and a participation-function – a ‘multiple intentionality’. It is not surprising, then, that traditionally creeds have also borne the name ‘symbol’ (as discussed earlier in the chapter): ‘symbol’ was employed here precisely to flag up the participation-function of creeds. Symbols are ‘passwords’, the reciting of which determines to which community one belongs.

* * *

Hence, one should separate out the sign-function of the symbol from its capacity to bear witness. The symbol has a ‘multiple intentionality’, operating as sign, and also as a badge or emblem of one’s identity. What,


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however, is the point of separating out these two functions? What more does it gain us?

The sign-function of the symbol expresses a religious belief; the partic-ipation-function of the symbol makes manifest a religious identity. The purpose of the latter is not to instruct or remind the viewers of the symbol of a particular belief, but to identify the user as a member of a particular community. And – this is the key move – there is very little reason to reduce this participation-function of bearing witness to a matter of belief (at least, not to theoretical religious beliefs, as opposed to specific practi-cal ones). Insofar as a symbol bears witness to the user’s membership of a religious community, it seems odd to claim that it is manifesting a private belief in the theoretical truths of that religion. As Trigg puts it, ‘[i]t is not just what I believe, but a question of which religious community, if any, I choose to identify with.’24 The symbol is a token of belonging to, or par-ticipation in, something public and intersubjective; to reduce it (in this respect) to the expression of something intensely personal sits uncom-fortably with this. In short, the community, rather than a private belief, becomes the referent of one’s symbol. Underlying this suggestion is again a question of whether Article 9 gets religion right. Is not the communal nature of religion at least as fundamental as the existence of a set of cogent beliefs in the forum internum? According to the traditional interpretation of Article 9, all practices and symbols are dependent on original beliefs, but this seems an extremely limited conception of religion. Religious communities seem obvious candidates for entities in which the social, intersubjective dimension can exist alongside, rather than subservient to, personal conscience; praxis, cultic action, and communal worship do not necessarily need to play second fiddle to beliefs. We return to this discus-sion at length at the end of the chapter.

At any rate, the above shows how the practical turn in Strasbourg jurisprudence can be read in terms of a growing emphasis on the sym-bol’s participation-function alongside its sign-function.

3 Passive symbols

The theory of multiple intentionality of the symbol not only confirms recent trends in Strasbourg jurisprudence, but can also be employed critically to flag up tensions in previous judgments. In this section, having set forth the above understanding of the practical turn, we wish


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to turn to a part of the jurisprudence on manifestation and religious symbolism where it has yet to take effect. This is the distinction between active and passive symbols; it is on this distinction that the judgment of the Grand Chamber in Lautsi turns.

The case concerns the protection that should be accorded to crucifixes displayed on the walls of state-school classrooms in Italy. A parent com-mitted to secularism challenged their presence on the grounds that they interfered with her children’s right to determine their religious iden-tity free from undue influence (a ‘negative freedom of religion’ as the Chamber put it25). She claimed ‘[i]n a State governed by the rule of law, no one should perceive the State to be closer to one religious denomination than another, especially persons who were more vulnerable on account of their youth.’26 Now, many questions surrounding secular power and the role of religion in the public sphere were in contention in this case, but one of the most crucial aspects was the right of children to grow up without undue influence from symbols – that is, did the crucifixes give rise to some form of indoctrination of their beliefs or practices?

In the first hearing of Lautsi before the Chamber in 2009, the judges returned a judgment in favour of the applicant. They concluded that the presence of crucifixes affixed to the walls of Italian state-school classrooms was an excessive impediment to the pupils’ freedom from religious coercion in their education. The judges argued:

The presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion. What may be encour-aging for some religious pupils may be emotionally disturbing for pupils of other religions or those who confess no religion.27

Symbols, that is, always have a participation-function and make a claim on the user’s behalf concerning the community to which they belong. Moreover, the user of the symbol in this case is of course any member of a class over which the crucifix presides. Contra the Italian Government’s argument, which the Chamber quickly dismissed, that the crucifix does not lay claim to a particularly Christian community but to a secular one, it is clear that pupils in Italian state schools ‘use’ a symbol that is emblematic of their participation in a Roman-Catholic community. The court agreed with the applicant that in this context the crucifix could be considered a ‘powerful external symbol’.28 And on the basis of such an argument, the Chamber concluded that the Italian Government’s duty


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to preserve ‘confessional neutrality in public education’29 was thereby undermined.

When the case was re-heard in 2011 in front of the Grand Chamber, however, this whole debate was reframed in terms of the concept of the ‘passive symbol’. Here is the first occurrence of this concept in the judges’ paraphrasing of the Government’s original claim that the cru-cifix did not pose a threat of indoctrination: ‘Whatever the evocative power of [this] “image” might be, in the Government’s view, it was a “passive symbol”, whose impact on individuals was not comparable with the impact of “active conduct”.’30 The applicant’s response is also then reorientated around this distinction between passive and active symbolism:

As to the assertion that it was merely a ‘passive symbol’, this ignored the fact that like all symbols – and more than all others – it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible. ... The presences of crucifixes in classrooms had an evocative character in that it represented the content of the faith it symbolised and served as ‘publicity material’ for it.31

In other words, on the one hand, the Italian Government argued that the crucifix need not have any insidious, indoctrinating effect on a pupil, presumably because its religious meaning did not force itself on the user, but was available only to those who actively searched out the beliefs underlying the symbol in a spirit of rational curiosity. For the applicant, however, the ‘realities’ evoked by the crucifix might be religious beliefs but could equally be emotions stirred up in the viewer. Symbols, that is, actively make a claim on those who come in contact with them and unavoidably demand a response. According to the applicant, the cruci-fixes affixed to the walls of Italian classrooms therefore force a response from any pupil – both a reaction to the cognitive beliefs expressed and an emotional reaction. Following the applicant’s reasoning, one can con-clude: symbols always do something to us, and what they do does not affect only the realm of rational, voluntary deliberation. In other words, there is no such thing as a passive symbol; all symbols are active.

These concepts of active and passive symbols are not new to the re-hearing of Lautsi; they had previously been a recurrent feature in cases surrounding Islamic clothing – most critically in Dahlab v Switzerland.32 In this case, the ECtHR judged in a similar fashion, and presumably for similar reasons, that the wearing of a headscarf


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was a ‘powerful external symbol’,33 ‘emotionally disturbing’, and with the potential to indoctrinate. It stated ‘[i]t cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect.’34 The use of a headscarf, the Court concluded, is never a passive symbol – and it is for this reason that Lautsi’s application repeatedly refers to this judgment.

In Lautsi, on the contrary, the Grand Chamber concludes that a cru-cifix on the wall of an Italian school is ‘an essentially passive symbol’.35 Indeed, it explicitly takes issue with the Chamber’s original decision on this point.36 The crucifix affixed to the wall of an Italian state-school classroom is here categorically asserted to be passive. Nevertheless, one must distinguish between what was necessary for the Grand Chamber’s ratio and the vehemence of its rhetoric. As McGoldrick argues, behind the Grand Chamber’s reversal of the original decision in Lautsi is a question over the margin of appreciation afforded to individual nation states. The Chamber had reduced this margin drastically in concluding (implicitly) that the Italian Government had to understand the crucifix as an active symbol. The Grand Chamber – in reaffirming a more sub-stantial margin of appreciation – needed only to insist that the Italian Government could or might find the crucifix to be passive in this con-text.37 Such would have sufficed for the Court’s purposes. This, however, is not what the rhetoric of the judgment quoted above suggests; indeed, it seems that the Grand Chamber overstates what is necessary by assert-ing that the crucifix (in this context) is a passive symbol. Thus the judg-ment states ‘[a] crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view. ... It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.’38 And the judges go on explicitly to contrast their findings here with those of Dahlab. While this is not to go as far as Judge Bonello’s concurring opinion, which speaks of this use of the crucifix as having ‘the mere silent and passive presence of a symbol’39 that has ‘quietly and passively been for centuries’40 – ‘the mere existence of a mute object’41 – it is still to insist on the display of the crucifix in Italian classrooms as an unmistakeably passive symbol.

* * *

What is at stake here is whether symbols can ever be passive. It is difficult to ascertain the reasons with which the Grand Chamber undermines the


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Chamber’s original analysis, which was that a symbol necessarily made a claim on the perceiver and therefore was active. Moreover, this lack of reasoning has serious consequences, for (as the Grand Chamber makes explicit) the ECtHR has now ruled on the one hand that crucifixes (used in certain contexts) are passive and innocuous, whereas on the other hand Islamic clothing is active, and therefore potentially pernicious, as a means of indoctrination. If there is no sufficient reason for such a dis-tinction, then it gives the appearance to many of political expediency.42

We contend, however, that our analysis of the symbol’s sign-function and participation-function can help illuminate the Grand Chamber’s discussion of passive symbols, and its limitations. We suggest that the Grand Chamber in this case failed to appreciate the participation-func-tion; it limited its understanding of the crucifixes affixed to the walls of the classrooms to the sign-function alone. This is because only insofar as a symbol expresses a belief can it possibly be considered passive. Insofar as the crucifix makes a claim that the classroom space over which it pre-sides belongs to a particular religious community (Roman Catholicism), its effects on the pupils in that classroom cannot be considered passive. This is a key point: this use of the crucifix does not merely express a belief that perceivers may voluntarily accept or reject; it also makes a statement on behalf of the members of the classroom concerning the community to which they belong. It makes a statement concerning, and on behalf of, all pupils, which cannot be ignored. This is something, we suggest, of what the applicant was articulating when she spoke of the emotional reality of the symbol; it is, moreover, we contend, the Chamber’s rationale behind its insistence that the crucifix is a ‘powerful external symbol’ with the ability to ‘encourage’ and ‘disturb’ in equal measure.

To this extent, therefore, the crucifix on the classroom wall is an active symbol, and can be considered a passive symbol only if one neglects the participation-function. The Grand Chamber is wrong to claim that ‘a crucifix on a wall is an essentially passive symbol’ and Judge Bonello is certainly mistaken in his assertion that it is ‘the mere existence of a mute object’. It follows that the Grand Chamber’s judgment in Lautsi is an element of the ECtHR’s jurisprudence that ‘the practical turn’ has yet to permeate. For, after the practical turn, there is no such thing as a passive symbol: all symbols bear witness to membership of a certain community and such witness-bearing cannot be ignored or neutralized.43

Of course, there still may be a spectrum of more or less active sym-bols, and it may be possible to locate the crucifix affixed to an Italian


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classroom at the lower end of this spectrum.44 Nevertheless, it follows from our analysis of the practical turn that there are no passive symbols, and it is incumbent on the ECtHR, if it intends to pursue the practical turn thoroughly, to recognize this.

4 Praxis and belief in religion

Finally, in this chapter, we consider a number of arguments, with which the one made in this chapter may seem aligned, asserting the priority of practices over beliefs. These considerations of the nature of belief and its role in religious practice will be crucial to the subsequent chapter. In the first half of this chapter, we argued that one way to understand the practi-cal turn in Strasbourg jurisprudence since 2005 is through the category of the participation-function. The changing jurisprudence seems to be moving away from attending solely to the manner in which symbols express beliefs (the sign-function) to a consideration of the manner in which they bear witness to the user’s participation in a community as well (their participation function). The emphasis on the communal, practical, and public nature of religious symbolism is now much more evident.

Such an argument has something in common with those recently put forward by Roger Trigg in works such as Religion in Public Life45 and Equality, Freedom, and Religion.46 For Trigg, ‘[w]hen religion is pitted against rights, religion is often sidelined.’47 That is, judges have tended to minimize the significance of religion by understanding it through the alien and distorting categories of human rights. In particular, according to Trigg, religion has been mistaken as a matter for the individual rather than the community, a matter of beliefs held in the individual’s private conscience rather than public practices, and a matter of autonomously chosen beliefs rather than those into which we are born.48 On all three counts, according to Trigg, the courts’ language of the autonomous beliefs of individuals is falsifying the nature of religion: not only misunderstanding it, but playing down its centrality to public life and human existence in general – reduc-ing it, that is, to one more freely held opinion.

For Trigg, nothing is more symptomatic of this than the phrase found in the ECHR (as elsewhere): ‘religion or belief ’. This is to make explicit the idea that religions can be legally treated as a specific subset of beliefs – and thereby to play out the reduction of religion rehearsed in the previous paragraph. Trigg treats the distinction in Article 9 between


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the forum internum and the forum externum similarly: ‘From many reli-gious points of view, the contrast between belief and manifestation is obnoxious.’49

* * *

Our argument in this Chapter has similarly questioned the traditional (i.e. pre-2005) emphasis on individual beliefs at the expense of the prac-tical and the communal. The stress placed on the participation-function of the symbol is an attempt to rectify this imbalance. Indeed, throughout this book, the question ‘is religion really like that?’ has bubbled under the surface: does the framework implied by the ECHR (especially in its division of religion into a forum internum of beliefs and a forum externum of manifestations) really get all religions right? Or does it necessarily privilege some religious traditions over others in the way it frames the concept of religion? These are big questions, the answers to which for the most part lie outside the present analysis. It is certainly true, however, that much theoretical weight has recently been placed on the claim that the importance of belief in religion is contingent on a specifically Christian stress on the orthodoxy–heresy divide. Boyarin makes a convincing case here, and much of the visibility of ‘praxis’ in religious studies since the 1980s has been premised on similar claims.50

Ultimately, however, we want to distance ourselves from arguments like those reproduced above, for which Trigg has served as the main representative. And this is for three reasons.

First, it seems odd to argue that the courts in general and the ECtHR in particular neglect the communal, public, and practical aspects of religion, when, since 2005 – the inauguration of Strasbourg’s ‘practical turn’ – these are precisely the aspects of religion that have been given increasing weight at a European level. The practical turn is no longer an argument against the jurisprudence of the ECtHR, but one for its new orientation. There is no longer a wholesale critique of Article 9 to be made on these grounds – even if some criticisms, such as those proposed in the previous section against the concept of passive symbolism, are still necessary. Moreover, it follows from this that there is nothing about the law of human rights per se, or even about a piece of human-rights legisla-tion like Article 9, that necessarily prevents judges from recognizing the participation-function of symbols in particular, or religion’s communal, practical elements in general. Even a convention such as the ECHR,


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which primarily protects the beliefs held in the forum internum, and only secondarily protects manifestations of those beliefs, still does not exclude a proper appreciation of religion’s cultic value.

Second, in the context of the ECHR (and it must be acknowledged that Trigg does not limit himself to this context), the insistence on a notion of practice that makes no reference to prior beliefs held in the forum internum is impractical to the point of being useless. This is because it is very rare for applicants – twenty-first-century European subjects that they are – to justify or explain their religious practices without refer-ence to such beliefs. And the law has to recognize this. Moreover – and more prosaically still – it is a fact that the text of Article 9 does frame its protection of religious practices in terms of their manifestation of prior beliefs. The ECHR is here to stay, and analysis of the Strasbourg jurisprudence cannot avoid this. Judges are necessarily constrained by the text of Article 9.

Finally, to take a theoretical perspective, the wholesale rejection of belief in favour of practice is insufficient to achieve what any human-rights legislation must. This is because attention to practices alone cannot discriminate between trivial and non-trivial variants of such practices. Compare, for instance, a user who wears a crucifix purely for cosmetic reasons with a user who wears the same type of crucifix for religious reasons. In terms of practice, the two uses of this symbol could easily be indistinguishable. An appeal to practices alone may not always be able to discriminate between a practice that is eligible for protection and one that is not. Only by bringing beliefs (or at least mental states of some kind) into play can one make sense of the difference between the two practices. Practices cannot be considered independently of beliefs; both concepts are necessary for any adequate characterization of manifestation.

It is pointless therefore to attempt to sever understanding of religious practices from their expression of beliefs; rather, the challenge is to attempt to come to terms with the practical turn while retaining reference to this constraint. And it is precisely this challenge that we attempt to meet in the next chapter – that is, how must this ineluctable reference of practices back to prior beliefs be understood in the light of the practical turn?

Notes

For a fuller discussion of some of the concepts introduced in this section, 1 see D. Whistler (2013) Schelling’s Theory of Symbolic Language (Oxford: Oxford


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University Press), chapter 1. A further interesting, if brief, discussion of the philosophical context to symbolism in relation to Article 9 can be found in P. Petkoff (2010) ‘Religious Symbols between Forum Internum and Forum Externum’ in S. Ferrari and R. Cristofori (eds) Law and Religion in the 21st Century (Farnham: Ashgate), pp. 299–301.Lautsi v Italy 2 [GC] [2011] ECHR 2412, (2012) 54 EHRR 3. (App no 30814/06, 18 March 2011.)BVerfGE3 93.1, 11 BvR 1087/91 Kruzifix-decision, 1 May 1995, translated and available at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=615, date accessed 25 June 2013.Lautsi 4 78 [42].Lautsi 5 78 [42].Quoted in N. Halmi (2007) 6 The Genealogy of the Romantic Symbol (Oxford: Oxford University Press), p. 107.Pseudo-Dionysius (1987) ‘The Ecclesiastical Hierarchy’ in 7 The Complete Works, tr. C. Luibheid (New York: Paulist Press), 376d.See H-G. Gadamer (2004) 8 Truth and Method, 2nd edn, tr. J. Weinsheimer and D. Marshall (London: Continuum), p. 63.Rufinus (1955) 9 A Commentary on the Apostle’s Creed, tr. J. Kelly (London: Longmans), p. 30.J. Goethe and F. Schiller (1914) 10 Correspondence between Schiller and Goethe, tr. D. Schmitz (London: Bell), vol. 1, pp. 372–3.Goethe’s prose on the symbol never loses this tortuous aspect. Take, for 11 example, the following commentary on a painting of ‘Saint Peter near the fire’, ‘Natural fire will be presented, subjected only to the most limited extent to an artistic purpose, and we are right to call such presentations symbolic. ... It is the thing itself, without being the thing, and yet the thing; an image summarised in the mirror of the spirit and nevertheless identical with the object.’ Quoted in T. Todorov (1982) Theories of the Symbol, tr. C. Porter (Ithaca: Cornell University Press), p. 174.P. Ricoeur (1974) 12 The Conflict of Interpretations, tr. D. Ihde (Evanston: Northwestern University Press), p. 289. See also Todorov, Theories of the Symbol, p. 203; T. Todorov (1983) Symbol and Interpretation, tr. C. Porter (London: Routledge), p. 11; C. Müller (1937) Die geschichtlichen Voraussetzungen des Symbolbegriffs in Goethes Kunstanschauung (Leipzig: Mayer), p. 14.P. Tillich (1987) ‘Religious Symbols and Our Knowledge of God’ in J. Clayton 13 (ed.) Main Works, vol. 4 (New York: De Gruyter), pp. 396–7.Ricoeur, 14 Conflict of Interpretations, p. 289.A. Schlegel (1989) 15 Vorlesungen über schöne Literatur und Kunst (Berlin 1801–1804) in E. Behler (ed.) Kritische Ausgabe der Vorlesungen (Paderborn: Schöningh), vol. 1, p. 211.


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Tillich ‘The Word of God’ in Clayton (ed.), p. 412.16 Tillich ‘The Religious Symbol’ in Clayton (ed.), p. 254. The difference can 17 be measured in the attention we pay to the symbol, as opposed to the sign. Gadamer defines signs as follows: ‘Pure indication ... is the essence of the sign. ... It should not attract attention to itself in such a way that one lingers over it, for it is there only to make present something that is absent and to do so in such a way that the absent thing, and that alone, comes to mind’ (Gadamer, Truth and Method, p. 145). The ‘innate power’ of the symbol, however, means that it draws attention to itself, as well as expressing an external meaning. The German Sinnbild suggests this to the extent that it implies an image which is already itself meaningful.Indeed, Tillich himself recognizes this crucial aspect of symbolism: 18 symbols gain and retain power only insofar as they are recognized by a ‘group unconscious’. Tillich ‘Religious Symbols and our Knowledge of God’, p. 398.Kokkinakis v Greece 19 (1994) 17 EHRR 397. (App no 14307/88, 25 May 1993.)Kokkinakis20 418 [31].Lautsi 21 65 [15].Chaplin v Royal Devon and Exeter NHS Foundation Trust22 [2010] ET 1702886/2009 (unreported).The Coptic practice of tattooing the inside of one’s wrist to indicate 23 membership of the religious community is a particularly clear example of the participation–function of the symbol. Our thanks to Rt. Rev. Michael Nazir-Ali for this example.R. Trigg (2012) 24 Equality, Freedom and Religion (Oxford: Oxford University Press), p. 47.Lautsi v Italy 25 [2009] ECHR 1901, (2010) 50 EHRR 42, 1064 [55]. (App no 30814/06, 3 November 2009.)Lautsi26 (2009/10) 1059 [31].Lautsi27 (2009/10) 1064 [55].Lautsi28 (2009/10) 1063 [54]; this is a reference to Dahlab v Switzerland, which we shall explore further below.Lautsi29 (2009/10) 1064 [56].Lautsi 30 (2011/2) 76 [36].Lautsi 31 (2011/2) 78 [42].Dahlab v Switzerland 32 ECHR 2001-V, no paragraphs. (App no 42393/98, 15 February 2001.)Dahlab33 .Dahlab.34 Lautsi 35 (2011/2) 87 [72].Lautsi 36 (2011/2) 87 [73]: ‘The Chamber found that, in the context of public education, crucifixes, which it was impossible not to notice in


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classrooms ... could therefore be considered “powerful external symbols” within the meaning of the decision in Dahlab. The Grand Chamber does not agree with that approach.’See D. McGoldrick (2011) ‘Religion in the European Public Square and in 37 European Public Life – Crucifixes in the Classroom?’, Human Rights Law Review, 11.3, p. 484.Lautsi 38 (2011/2) 87 [72].Concurring opinion of Judge Bonello, 39 Lautsi (2011/2) 96 [O-II19].Bonello, 40 Lautsi (2011/2) 95 [O-II16].Bonello, 41 Lautsi (2011/2) 96 [O-II21].Note, for example, the different ways in which the lack of evidence for 42 indoctrination is treated in the two cases: in Dahlab, despite there being no evidence one way or the other, ‘it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect’ (Dahlab); whereas in Lautsi (2011/2) the Grand Chamber states ‘[t]here is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons. ... The applicant’s subjective perception is not in itself sufficient to establish a breach of Art. 2 of Protocol No. 1’ (Lautsi (2011/2) 85 [66]).Kenneth Burke’s insistence on the symbol 43 as action is a helpful antidote here (see K. Burke (1967) The Philosophy of Symbolic Form: Studies in Symbolic Action, 2nd edn (Baton: Louisiana State University Press), esp. pp. 8–9).One should also bear in mind Judge Power’s comments that not all symbols 44 are active in the same way: symbols may ‘speak volumes without, however, doing so in a coercive or in an indoctrinating manner’, Concurring Opinion of Judge Power, Lautsi (2011/2) 98 [O-III6].R. Trigg (2007) 45 Religion in Public Life: Must Faith Be Privatized? (Oxford: Oxford University Press).Trigg (2012) 46 Equality, Freedom and Religion (Oxford: Oxford University Press).Trigg, 47 Equality, p. 8.For examples of these arguments, see Trigg, 48 Equality, pp. 14, 42.Trigg, 49 Equality, pp. 101–2. Like many others before him, he goes on to uncover deep historical roots behind this tendency in the law of human rights. It is, he contends, a consequence of Lockean understandings of religion forged in the context of Latitudinarian Anglicanism. See Trigg, Equality, pp. 100, 117.See D. Boyarin (2004) 50 Border Lines: The Partition of Judeao-Christianity (Philadelphia: University of Pennsylvania Press) and the summary of his argument in D. Barber (2011) On Diaspora: Christianity, Religion, and Secularity (Eugene, OR: Cascade), pp. 91–6.


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6High-Level and Low-Level Beliefs

Abstract: In this chapter we formulate in more detail one understanding of the practical turn, namely the understanding that the practical turn consists principally in a shift from the consideration of high-level theoretical systems of religious or philosophical belief to the consideration of individual low-level practical beliefs. This translates into a shift in the burden of the courts’ argument: previously it was difficult to say whether an action manifested a belief, but easy to say whether, if it did, it would be protected, but now, after the practical turn, the situation is reversed: it is easy to say whether an action manifests a belief, but difficult to say whether it is protected.

Keywords: practical turn, Article 9 ECHR, manifestation test, Williamson v Secretary of State



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We have been considering various ways of understanding the practical turn. One way was that proposed by the UK Government, which we have examined and found wanting. Another way to understand the practical turn, proposed in the previous chapter, is as a turn from the considera-tion of the sign-function to the participation-function of symbols. In this chapter, we propose a third framework for the practical turn: a turn from the consideration of high-level theoretical beliefs to the consideration of low-level practical beliefs. That is, while in the previous chapter we analysed the concept of the symbol in the context of the practical turn, in this chapter we turn to the concept of belief.

To begin, we shall consider some philosophical background, in order to fill out our understanding of both the nature and the importance of the distinction between high-level and low-level beliefs.

1 Philosophical background

First, we must consider what we are not suggesting here by this distinc-tion. The distinction we have in mind is not that between so-called state-ments of fact and so-called statements of value. Rather, the distinction that we have in mind is that between beliefs about general normative principles on the one hand, and beliefs about specific or particular normative principles on the other. The distinction here between general and specific is not fine-grained, but, nevertheless, clear examples can be given of each.

A classic example of the first kind – a general principle – is Kant’s cat-egorical imperative. The first formulation that Kant gives of this principle is ‘act only according to that maxim through which you can at the same time will that it become a universal law’.1 It might be thought that such an austere philosopher as Kant would not be prepared to come down from such lofty heights of abstraction, but, in fact, he immediately follows the discussion of this categorical imperative with the remark ‘We shall now enumerate some duties, according to their usual division, into duties to ourselves and to other human beings.’2 Kant then gives four examples of particular duties: whether one has a duty not to commit suicide, whether one has a duty not to make promises that one cannot keep, whether one has a duty to cultivate one’s natural gifts, and whether one has a duty to help others struggling with great hardships.3 It can thus be seen that Kant is not aloof from the particular – that is, from providing examples


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of practical, low-level beliefs in addition to the categorical imperative (abstractly articulated). At this point, it might be retorted that these par-ticular duties are still general, since they cover many different instances. This is true, but misses the point about the relativity of the distinction: a principle may be at a higher level than another principle while still being at a lower level than a third. While the ultimate low-level belief would be one such as that expressed by a person who says ‘I just feel that on this particular occasion in these particular circumstances it would be wrong for me to tell this lie, even though I don’t know why’, it does not follow that all low-level beliefs need to be that specific. What, then, is the relationship between high-level and low-level principles?

* * *

The relationship between the two is application, that is, low-level prin-ciples are applications of high-level ones. Some kind of analysis of the concept ‘application’ is thus required.

A lower-level principle applies a higher-level principle if it is an instance of the higher-level principle, if, that is, it is logically implied by the higher-level principle together with a supporting premise describing the nature of the situation to which the higher-level principle is applied. As Aristotle put it in his description of what has come to be called ‘the practical syllogism’:

One belief (a) is universal; the other (b) is about particulars, and because they are particulars perception controls them. And in the cases where these two beliefs result in (c) one belief, it is necessary ... in beliefs about produc-tion (d) to act at once on what has been concluded.4

Let us take Aristotle’s own example:

If, e.g., (a) everything sweet must be tasted, and (b) this, some one particular thing, is sweet, it is necessary (d) for someone who is able and unhindered also to act on this at the same time.5

So here ‘everything sweet must be tasted’ is the high-level general belief (it could, of course, be itself derived from a belief of an even higher level such as ‘everything that affects the taste buds must be tasted’), and ‘this, some one particular thing, is sweet’ is the supporting premise. Aristotle does not here give the actual low-level practical belief, but it is obviously ‘I must taste this particular thing.’ The process of derivation is self-evident.


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It is not surprising to find that Aquinas follows Aristotle in this under-standing of how to derive low-level practical beliefs from high-level theoretical ones. As he says in the Summa Theologiae:

Now practical reason and speculative reason proceed in similar ways, since, as was established above ... , both proceed from given principles to given conclusions. Accordingly, then, just as, in the case of speculative reason, conclusions in the diverse sciences, which are not naturally known to us but are instead discovered by the activity of reason, are brought forth from naturally known indemonstrable principles, so too from the precepts of natural law, which are, as it were, common and indemonstrable princi-ples, human reason must proceed to determine certain matters in a more particular way.6

It is this process of reasoning that Kant also employs, albeit in a more complicated way, to derive his particular principles from the categorical imperative. Here is his famous (attempted) derivation from the cat-egorical imperative of the wrongness of making promises one knows one cannot keep:

The universality of a law that everyone, once he believes himself to be in need, could promise whatever he fancies with the intention not to keep it, would make the promise and the end one may pursue with it itself impos-sible, as no one would believe he was being promised anything, but would laugh about any such utterance, as a vain pretense.7

Notwithstanding the details of Kant’s derivation, it is hoped that the idea of high-level beliefs and their application in low-level beliefs has been sufficiently developed to see in what follows the very same distinction at play in the practical turn.

2 The practical turn again

The suggestion that we wish to consider, then, is that previously the Strasbourg institutions had adopted something like the following deci-sion procedure for cases considered under Article 9: to decide whether there is a genuine manifestation at issue, first find the applicant’s belief, then see whether this is eligible in principle to have protected manifesta-tions, and then see whether the action in question really is a manifesta-tion of the religion or philosophy in question. Now, the point on which we wish to concentrate is that there are two ways in which one could take


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the applicant’s belief: one could consider the applicant’s high-level theo-retical religion or philosophy, such as Christianity or pacifism, and then see whether the action is a direct expression of, or is intimately linked to, this religion or philosophy. It is our view that the Strasbourg institutions have historically taken this approach. Alternatively, one could consider the applicant’s belief as the low-level practical ‘I should wear this cross’ or ‘it would be a good thing for me to distribute these leaflets opposing the presence of British troops in Northern Ireland’. It is our view that, more recently, the ECtHR has inclined to this approach.

The advantage of the first approach is that it is usually uncontroversial whether the religion or belief is eligible, in principle, for the protec-tion of its manifestations. Hardly anybody doubts, for example, that Christianity, Islam, and Judaism are religions, and few would quarrel with the Commission’s decision that pacifism was a philosophy. The dis-advantage of the first approach is that the decision whether the action in question is a manifestation of such a high-level belief becomes very hard: for example, different schools of Islamic thought have different opinions concerning whether the wearing of the niqāb directly expresses Islam, and concerning whether the wearing of the hijāb directly expresses Islam. The advantage of the second approach, then, is that it makes the decision whether the action in question is a manifestation of the specific belief easy: obviously, the wearing of the cross can be a direct expression of the belief that one should wear the cross, and, obviously, the distribution of pamphlets urging the withdrawal of troops from Northern Ireland can be a direct expression of the belief that it would be good for one to distribute pamphlets urging the withdrawal of troops from Northern Ireland. The disadvantage of the second approach is that it is often hard to decide whether the belief in question really is eligible under Article 9 to have its manifestations protected.

3 The Williamson case

To show the struggles that one might have with this question – namely, the question whether to identify the belief with which the court should be concerned as high-level and theoretical, or, rather, as low-level and prac-tical – we shall now look in detail at the various stages of R (Williamson) v Secretary of State for Education and Employment. Although this case was never heard in Strasbourg,8 the three stages through which it went in the


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UK – High Court,9 Court of Appeal,10 and the House of Lords11 – form a most interesting study of the different ways to approach our question. The case concerns whether the ban on corporal punishment in inde-pendent schools constitutes a violation of the human rights of parents who want their children to be subject to a regime of corporal punish-ment, and of the rights of the teachers who would be entrusted with the administration of this regime.

At the High Court, in the first hearing, Elias J takes the belief at issue to be the belief that corporal punishment is the ‘more efficacious method of securing appropriate discipline’;12 this is clearly a low-level and practi-cal belief. Although it would be easy to show that Williamson’s actions in inflicting corporal punishment on the children under his care constitute a manifestation of this belief, it is not so easy to show that the belief itself is eligible under Article 9 to have its manifestations protected. And, in fact, Elias J finds that it is not so eligible: he goes on to reject Williamson’s case on the grounds that he does not think it ‘appropriate to describe a belief that one measure is more effective than another as a philosophical or religious conviction even if the reason for holding that belief is that it is supported by a religious text’.13

When the case comes to the Court of Appeal, however, things are rather different. The first judgment is given by Buxton LJ. He explicitly states that there is a ‘significant degree of unclarity’ as to what the belief actually is on which the practice of corporal punishment is based;14 but, insofar as he is able to discern the belief in question, he does not seem to take it as Elias J took it.15 Instead, Buxton LJ considers three different ways of identifying the belief in question: (i) as the (low-level, practical) belief that certain texts from the book of Proverbs should be literally implemented, which belief he then finds not to be expressed or mani-fested in practice,16 (ii) as (the high-level, theoretical belief system of) Christianity, in which case the action of corporal punishment fails to be a manifestation on the grounds that it is not ‘a clear, uniform and agreed requirement of the religion in question’,17 and (iii) as the (low-level, practical) belief that there is a ‘need to confront the evil heart of man’, which belief he finds to possess ‘too generalised an objective to qualify’ for having its manifestations protected under Article 9 (or the first pro-tocol to Article 2, concerning the rights of parents over the education of their children).18 The second judgment from the Court of Appeal, that of Rix LJ, proceeds differently from that of Buxton LJ: although he too rejects Elias J’s characterization of the belief as one concerning ‘a more


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efficacious method of securing appropriate discipline’,19 he finds that what he calls ‘the belief in favour of the use of corporal punishment in schools as here described’20 is in principle eligible for protected manifestations, further finding, unsurprisingly, that the action of corporal punishment does indeed manifest this belief.21 It is clear that Rix LJ is considering a low-level practical belief. The third judgment, that of Arden LJ, also considers the beliefs in question to be low-level practical ones: she finds the belief shared by all the applicants to be ‘that the Bible instructs them to apply correction to children in appropriate cases’,22 and the belief shared by a significant sub-group of those applicants to be the belief that ‘correction, when appropriate, should be applied without delay at school and in the school context’.23 Arden LJ finds that in the majority case this belief is manifested by the practice,24 but (on the mistaken basis of the necessity test for manifestation) that in the case of the significant sub-group it is not.25

In the House of Lords, Lord Nicholls, who delivers the leading judg-ment, in effect draws the distinction between high-level theoretical and low-level practical beliefs when he contrasts ‘familiar instances of conduct shaped by particular religious beliefs’ such as ‘the days or times when worship is prescribed or encouraged, the need to abstain from work on certain days, forms of dress, rituals connected with the prepara-tion of food, the need for total abstinence from certain types of food or drink, and the need for abstinence from all or some types of food at certain times’26 on the one hand, against the ways in which in ‘a more generalised and non-specific form the tenets of a religion may affect the entirety of a believer’s way of life: for example, “thou shalt love thy neighbour as thyself ” ’.27 In a similar vein, he also describes the particular low-level belief in question as taking ‘the form of a perceived obligation to act in a specific way’,28 where ‘obligation to act’ makes clear that the belief is practical, rather than theoretical, and ‘in a specific way’ makes clear that the belief is low-level rather than high-level.

Moreover, Lord Nicholls himself identifies the belief in question in this case as the low-level practical belief that ‘as part of their proper upbring-ing, when necessary children should be disciplined in a particular way at home and at school’.29 Unsurprisingly, he then finds that ‘the claimant parents manifest their beliefs on corporal punishment when they place their children in a school where corporal punishment is practised’.30 Lord Walker seems also to have taken the belief to be a low-level one, the ‘belief in a scriptural basis for smacking children’.31 He also clearly takes


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the view that low-level practical beliefs fall within the ambit of Article 9 because he remarks:

Pacifism, vegetarianism and total abstinence from alcohol are uncontrover-sial examples of beliefs which would fall within article 9 ... of course pacifism or any comparable belief may be based on religious convictions, but equally it may be based on ethical convictions which are not religious but humanist.32

Finally, Baroness Hale characterizes the parents’ and teachers’ belief as the low-level, practical belief ‘that it is their Christian duty to employ mild physical correction as a last resort in order to bring up their chil-dren properly’,33 and, unsurprisingly, declares herself prepared to accept that the practice of corporal punishment in the schools in question is indeed a manifestation of the parents’ and teachers’ beliefs.34

4 Strasbourg case-law

The next step, therefore, is to see if the distinction we have posited between high-level theoretical and low-level practical beliefs is borne out in the case-law emanating from Strasbourg.

The first case that we shall consider, Bayatyan v Armenia [GC],35 was a judgment of the Grand Chamber in a case concerning conscientious objection by a Jehovah’s Witness to conscripted military service. The Grand Chamber stated:

The Court notes that art.9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of art.9.36

Note that here the Grand Chamber states that opposition to military service itself, not just the ‘serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs’ that motivates that opposition, is eligible to have its manifestations protected. McClean’s commentary on this passage seems apt to us:

What the Court is doing there is holding that religious belief can lead to an individual taking a position of principle which itself constitutes a ‘belief ’ which is protected by Article 9.37


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Moreover, McClean himself clearly allows that low-level beliefs can fall under Article 9 when he, in commenting on the word ‘belief ’ in Article 9, says: ‘It is important to stress the reference to “belief ”: it may be that “religions” can be seen as rather tidier; they tend to come with a code of doctrine and of ethical rules, whereas “beliefs” may vary almost infinitely.’38 So, this judgment clearly considers that the low-level belief that one should not serve in the armed forces falls under Article 9 just as much as high-level belief systems, such as being a Jehovah’s Witness.39 It should also be noted, in passing, that the practical turn regarding the word ‘philosophical’ seems to have begun rather earlier than the turn we trace in connection with the word ‘religious’ or ‘religion’, since in 1982 in Campbell v UK40 the ECtHR rejected the view that to be counted as philosophical for the purposes of Article 2 a conviction had to be ‘a fully-fledged system of thought’.41

* * *

We turn now to some of the cases that we considered earlier as illustrat-ing the practical turn.

The first case that we considered in Chapter 3 was Şahin v Turkey.42 Unfortunately, it is very unclear in Şahin whether the belief in question is high-level or low-level. The judgment states:

The applicant said that, by wearing the headscarf, she was obeying a reli-gious precept and thereby manifesting her desire to comply strictly with the duties imposed by the Islamic faith. Accordingly, her decision to wear the headscarf may be regarded as motivated or inspired by a religion or belief and, without deciding whether such decisions are in every case taken to fulfil a religious duty, the Court proceeds on the assumption that the regulations in issue, which placed restrictions of place and manner on the right to wear the Islamic headscarf in universities, constituted an interfer-ence with the applicant’s right to manifest her religion.43

Was the belief in question here the high-level theoretical belief system of the Islamic faith? Or was the belief the low-level practical belief that she should wear the headscarf? Or does the Court’s use of the word ‘desire’ indicate that desires can also be counted as beliefs for the purposes of Article 9?44 It is not clear to us.

In Dogru45 the judgment attempts to quote Şahin, but with an inter-esting variance: ‘The Court reiterates that, according to its case-law, wearing the headscarf may be regarded as, “motivated or inspired by a religion or religious belief ”.’46 What had in Şahin been ‘religion or belief ’


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here becomes ‘religion or religious belief ’. At any rate, the judgment in Dogru inherits the ambiguities of that in Şahin.

In the third case considered in Chapter 3, Jakóbski v Poland,47 the Court insists ‘that the applicant’s decision to adhere to a vegetarian diet can be regarded as motivated or inspired by a religion’.48 This use of the word ‘religion’ (Buddhism in this case) without the subsequent ‘or belief ’ or ‘or religious belief ’ seems to count against the thesis here advanced. But the judgment here makes reference to Cha’are Shalom Ve Tsedek v France.49 This judgment seems to us to exhibit some confusion: it is true that the ritual method of slaughter at issue in this case was described by the Court (and this was what Jakóbski picked up on50) as ‘an essential aspect of practice of the Jewish religion’,51 but in the very same paragraph the Court says ‘[i]t is not contested that ritual slaughter, as indeed its name indicates, constitutes a rite or “rite” (the word in the French text of the Convention corresponding to “observance” in the English)’,52 and in the next paragraph adds ‘ritual slaughter must be considered to be covered by a right guaranteed by the Convention, namely the right to manifest one’s religion in observance, within the meaning of Article 9’.53 In other words, the Court here seems confused as to whether it finds the activity at issue to fall under ‘practice’ or under ‘observance’. It may be that since ritual slaughter fitted so obviously under the phrase ‘l’accomplissement des rites’ in the French text of 9(1), which corresponds with ‘observance’ in the English text, the Court’s primary intention in Cha’are Shalom Ve was to avoid the question whether the activity at issue was also the practice of a low-level belief, by simply considering it under ‘observance’ rather than under ‘practice’.54 It seems possible to us that Jakóbski inherits the confusion here in Cha’are Shalom Ve, and that the decision in Jakóbski was really meant to be formulated under ‘observance’ rather than ‘practice’.

To turn to the last case invoked in Chapter 3 as evidence of the practical turn, Kovaļkovs v Latvia:55 it is, once more, unclear whether the belief was taken to be a high-level, theoretical belief (in this case the ‘fundamental requirements of Vaishnavism’56) or a low-level, practical belief (perhaps the belief that it would be good for Kovaļkovs ‘to pray, to meditate, to read religious literature and to worship by burning incense sticks’57).

Before we finish looking at the Strasbourg case-law, however, we should look briefly at the most recent judgment on religious symbols and Article 9, that in Eweida v UK. Here the Court said:

It was not disputed in the proceedings before the domestic tribunals and this Court that Ms Eweida’s insistence on wearing a cross visibly at work


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was motivated by her desire to bear witness to her Christian faith. Applying the principles set out above, the Court considers that Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9.58

It is not altogether clear whether ‘religious belief ’ is meant here to refer to ‘her Christian faith’ or to ‘her desire to bear witness to her Christian faith’ or, perhaps, her belief that she should, or that it would be a good thing for her to, bear witness to her Christian faith.

While these last cases considered do not explicitly support the inter-pretation here offered of the practical turn, and, indeed, do stand in some tension with it, we suggest that they do not form sufficient counter-evidence to overturn the clear example of Bayatyan, carrying with it the authority of the Grand Chamber. We stress that the practical turn does not mean that no considerations of high-level theoretical belief systems can be brought or are being brought. Rather, it consists in a switch away from exclusive emphasis on these to a more emphatic consideration of low-level practical beliefs.

5 Objections

One objection to the suggestion that the practical turn can be under-stood as a turn from the consideration of high-level theoretical beliefs to the consideration of low-level practical beliefs (or an objection to the contention that the practical turn so understood is a good thing) is that if the beliefs really are low-level and practical it is impossible to tell whether or not they are religious – the belief that it would be good for one to wear a cross, for example, might be religious or might be purely cosmetically motivated – yet the case-law of the ECtHR has made it an explicit condition that the belief be religious or philosophical to be eligible for protected manifestations.

A response to this objection is to return once more to the practical syllogism and the concept of application. That is, a sufficient condition for a belief ’s being religious is that it is derived from religious sources,59 so if one has the religious belief that God wants one to apply corporal punishment in certain circumstances, and the religious belief that one should do what God wants one to do, then the belief, derived from these two, that one should apply corporal punishment in certain circum-stances, is thereby a religious belief. Moreover, this goes even if the exact


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same belief might not have been religious if held for different reasons. In fact, it might have been a philosophical, rather than a religious, belief: suppose one had the philosophical belief that one shouldn’t let children misbehave in certain ways without their being appropriately punished, and the belief that one’s forbearing to punish them corporally would lead to their not being appropriately punished,60 then the belief, derived from these two, that one should apply corporal punishment in certain circumstances, would thereby be a philosophical belief. Of course, this approach requires that some religious or philosophical beliefs be identi-fied as such, independently, else the argument will never get going. But everyone is faced with this problem since the case-law around Article 9 is explicit that its protection extends only to those activities that manifest religious or philosophical beliefs.

Another objection is that, to be eligible to have its manifestations protected by the ECHR, the belief must be on a ‘fundamental problem’ – it might be argued that low-level beliefs of the form ‘I ought to wear a cross’ do not satisfy this condition. There is no reason, however, why low-level practical beliefs cannot be on fundamental problems, and it is noteworthy that in the judgment of the House of Lords in Williamson Lord Nicholls states that the belief in question ‘must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied’.61 It is to be noted that Lord Nicholls uses the phrase ‘religious belief ’ here, rather than the simple word ‘religion’, and that, as we showed above, he elsewhere identifies the belief at issue in the case as a low-level practical one, which he here readily takes to satisfy the criterion of being on a fundamental problem.

In sum, we suggest that it seems plausible to understand the practical turn in terms of a shift towards considering low-level practical beliefs rather than high-level theoretical beliefs – and, what is more, that this provides a means to conceptualize the practical turn adequately without losing the necessary recourse to beliefs (as well as practices) that the very text of Article 9 demands.

Notes

I. Kant (2012) 1 Groundwork of the Metaphysics of Morals, revised edn, M. Gregor and J. Timmermann (eds) (Cambridge: Cambridge University Press), p. 34 (4:421).


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Kant, 2 Groundwork, p. 34 (4: 421).Kant, 3 Groundwork, pp. 34–6 (4:422–3).Aristotle (1985) 4 Nicomachean Ethics, tr. T. Irwin (Indianapolis, IN: Hackett), 1147a25ff (p. 180).Aristotle, 5 Nicomachean Ethics, 1147a29–31 (p. 181).T. Aquinas (2013) 6 On the Law (Summa Theologiae I-II), Q. 91, tr. A. Freddoso, http://www.thomasinternational.org/projects/step/treatiseonlaw/delege091_3.htm, date accessed 4 June 2013.Kant, 7 Groundwork, p. 35 (4:422).Williamson v UK8 , App no 55211/00, inadmissibility decision of 7 September 2000, unreported, no judgment, mentioned in Council of Europe (2005) Eliminating Corporal Punishment (Strasbourg: Council of Europe), p. 26.R (Williamson) v Secretary of State for Education and Employment9 [2001] EWHC Admin 960, [2002] HRLR 14.R (Williamson) v Secretary of State for Education and Employment10 [2002] EWCA Civ 1926, [2003] QB 1300.R (Williamson) v Secretary of State for Education and Employment 11 [2005] UKHL 15, [2005] 2 AC 246.Williamson 12 [2001/2] 363 [45].Williamson 13 [2001/2] 363 [45]Williamson14 [2002/3] 1309C [19(i)].At 15 Williamson [2002/3] 1324B [67] Buxton LJ agrees with Elias J’s comments in the abstract, but he does not seem to agree that they are premised on a fair characterization of the beliefs of Williamson and his fellow applicants.Williamson16 [2002/3] 1311B [24].Williamson17 [2002/3] 1314D [35]. It should be noted that Buxton LJ here appears to fall prey to the myth of the necessity test for manifestation, despite his comments about ‘impossibility’ at 1325F [75].Williamson18 [2002/3] 1324C [68].Williamson19 [2002/3] 1336C [121] and 1345G [152].Williamson20 [2002/3] 1345F [152].Williamson21 [2002/3] 1349A [163] and 1349B [164].Williamson22 [2002/3] 1364B [226].Williamson23 [2002/3] 1365G [233].Williamson 24 [2002/3] 1380C [291].Williamson 25 [2002/3] 1380A [290].Williamson 26 [2005] 257C [17].Williamson 27 [2005] 257D [17].Williamson 28 [2005] 261C [32].Williamson 29 [2005] 261G [35].Williamson 30 [2005] 261H–2A [35].Williamson31 [2005] 267A [56].


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Williamson 32 [2005] 266D [55].Williamson 33 [2005] 271F [73].Williamson 34 [2005] 273G [78].Bayatyan v Armenia35 [GC] [2011] ECHR 1095, (2012) 54 EHRR 15. (App no 23459/03, 7 July 2011.)Bayatyan 36 493 [110].D. McClean (2013) ‘A critical reflection on the “Lautsi case”’, https://www.ekd.37 de/download/2013–02–21_McClean_A_critical_reflection_on_the_Lautsi_case.pdf, date accessed 5 June 2013; italics original.McClean ‘A critical reflection’.38 A less authoritative, but older, case that is also concerned with low-level 39 beliefs is the case of H v UK, in which the Commission finds that ‘vegan convictions with regard to animal products fall within the scope of Article 9(1) of the Convention’. This case from 1993 – while not itself part of the practical turn – anticipates it in many ways. H v UK [also sub nom CW v UK and W v UK] (1993) 16 EHRR 44 (Commission Decision). (App no 18187/91, 10 February 1993.) The conclusion quoted above was, moreover, cited in an important domestic case, Grainger Plc v Nicholson [2009] UKEAT 0219_09_0311, [2010] ICR 360.Campbell v UK40 (1982) 4 EHRR 293. (App nos 7511/76 and 7743/76, 25 February 1982.)Campbell 41 304 [36].Şahin v Turkey 42 [GC] [2005] ECHR 819, (2007) 44 EHRR 5. (App no 44774/98, 10 November 2005.)Şahin43 [2005/7] 120 [78], citing Şahin v Turkey [2004] ECHR 299, (2005) 41 EHRR 8, 125–6 [71] (29 June 2004).The Equality and Human Rights Commission also links desire and belief 44 when it says ‘the Commission invites the court to find that Article 9 applies ... if an individual’s desire to manifest a belief is motivated by a genuinely held belief that attains a certain level of cogency and seriousness and is not unreasonable’ (EHRC (2011) ‘Submission of the Equality and Human Rights Commission in Eweida and Chaplin v United Kingdom’, http://www.equalityhumanrights.com/uploaded_files/legal/ehrc_submission_to_ecthr_sep_2011.pdf [16], date accessed 5 June 2013). It is sometimes said that desires were ruled as not falling under Article 9 in X v Germany (1981) 24 DR 137 (App no 8741/79, 10 March 1981), but what the Commission there asserts is not that the applicant’s wish to have his ashes scattered on his own land fails to come under Article 9 in virtue of simply being a wish, but, rather, that it fails in virtue of the fact that it is not ‘a manifestation of any belief in the sense that some coherent view on fundamental problems can be seen as being expressed thereby’.


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Dogru v France 45 [2008] ECHR 1579, (2009) 49 EHRR 8. (App no 27058/05, 4 December 2008.)Dogru46 193 [47].Jakóbski v Poland47 [2010] ECHR 1974, (2012) 55 EHRR 8. (App no 18429/06, 7 December 2010.)Jakóbski 48 240 [45].Cha’are Shalom Ve Tsedek v France49 [2000] ECHR 351, (2000) 9 BHRC 27. (App no 27417/95, 27 June 2000.)Jakóbski50 239 [45].Cha’are Shalom Ve Tsedek51 [73], italics added.Cha’are Shalom Ve Tsedek52 [73].Cha’are Shalom Ve Tsedek 53 [74], italics added.Cha’are Shalom Ve Tsedek54 [73]–[4].Kovaļkovs v Latvia55 [2012] ECHR 280, App no 35021/05 (ECtHR, 31 January 2012, unreported).Kovaļkovs 56 [59].Kovaļkovs 57 [60].Eweida v UK58 [89].Interestingly, Arden LJ seems to reject the necessity (but not the sufficiency) 59 of the suggested condition in Williamson [2002/3] 1375B [270]. Her reasoning in that paragraph, which is in fact to do with the supposed necessity test, is not wholly clear to us.This second belief may well not be philosophical (it might be empirical, for 60 example). This shows that it is not necessary for a belief to be philosophical that all the beliefs from which it is derived be philosophical. Similarly, we suggest that it is not necessary for a belief to be religious that all the beliefs from which it is derived be religious.Williamson61 [2005] 259 [23].


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Conclusion: Why Eweida Won

Abstract: In our conclusion we recap our argumentative strategy and apply it to the most recent high-profile judgment on Article 9, Eweida v UK. We examine to what extent Eweida exhibits the practical turn, and wrestle with an apparent contradiction in the judgment, based on an earlier precedent from the case of Arrowsmith v UK. We note the understanding of the manifestation test in Eweida, and its rejection of the necessity test and of the UK Government’s argument concerning ‘generally recognized practices’. We conclude by looking at the role that the Court sees the symbol as playing.

Keywords: Eweida, practical turn, Arrowsmith test, necessity test, manifestation test, generally recognized practices, Article 9 ECHR, religious symbolism and belief



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107Conclusion: Why Eweida Won

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1 Theoretical frameworks for the practical turn

Over the last two chapters, we have proposed two complementary ways of understanding the practical turn. First, Strasbourg jurisprudence since 2005 can be understood in terms of an increasing emphasis on practices in their own right and on their role in constituting the public, communal aspects of religion, and so in terms of an increasing marginalization of the role of private beliefs in determining manifestation. The concept of belief cannot be erased entirely from the picture, however: for both theoretical and pragmatic reasons, judgments under Article 9 cannot determine whether a use of a symbol counts as a manifestation without recourse to beliefs. Therefore, second, a new framework is required for understanding belief, and this is what we provided in Chapter 6. We argued that the practical turn could also be understood in terms of a shift away from considering the belief–manifestation relation in terms of high-level theoretical beliefs (such as Judaism) towards considering it in terms of low-level practical beliefs (such as ‘it is good to wear a cross’).

It is important to note that both frameworks are necessary for an adequate interpretation of the underlying conceptual structure of the practical turn. And, indeed, this is what we shall argue in the Conclusion. That is, we shall apply the theoretical findings of Part 2 in a concrete and sustained analysis of the recent judgment in the case of Eweida v UK,1 and we shall use this reading to demonstrate that a naïve reading of the practical turn as merely consisting in a shift from beliefs to practices considered in their own right cannot make sense of this judgment. Only a more nuanced reading that retains reference to the significance of belief for the manifestation test can get to grips with what is going on in Eweida.

2 Eweida after the practical turn

The judgment in Eweida v UK unmistakably takes place in the wake of the practical turn. Its attitude towards the belief test, manifestation test, and specific-situation rule bears the hallmarks of a post-2005 ECtHR judgment, that is, it downplays such tests in the name of proceeding hur-riedly to the justification stage.

With respect to manifestation, this is nowhere clearer than in the Court’s insistence – once again – that motivation is both sufficient and


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insufficient to characterize a symbol as a manifestation of religion. Thus, when it comes to the status of Nadia Eweida’s cross, the Court states:

It was not disputed in the proceedings before the domestic tribunals and this Court that Ms Eweida’s insistence on wearing a cross visibly at work was motivated by her desire to bear witness to her Christian faith. Applying the principles set out above, the Court considers that Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9.2

The implication seems to be that there is something in the first sentence of this passage – presumably the fact that her wearing of the cross was motivated by a religious desire – that, conjoined with the general princi-ples the Court sets out earlier, constitutes proof that this wearing of the cross counts as a manifestation of religion for the purposes of Article 9. Yet when one turns to the section, ‘General principles under Article 9 of the Convention’,3 it is very explicitly stated that a motivated practice does not in itself constitute a manifestation: ‘Even when the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief.’4 We shall consider the prin-ciples set out here in more detail in a moment. For now, all it is necessary to note is that the ECtHR here affirms an implicit contradiction that is common to all the post-Şahin 5 case-law on religious practices, but here becomes even more flagrant than before. The ‘General principles’ section asserts that motivation is insufficient of itself to constitute manifesta-tion; nevertheless, the ‘application of [these] principles’6 to a case where wearing a symbol is solely stated to be motivated by a belief is enough to constitute manifestation.

This is odd, to say the least; it is, moreover, symptomatic of the practical turn. And so it is no surprise that alongside this disregard for tensions in its characterization of the sign-function of the symbol, the ECtHR focuses intently on its participation-function instead. Thus, the Court not only characterizes Eweida’s underlying belief as a matter of making visible her belonging to a particular Christian community (‘her desire to bear witness to her Christian faith’7), but it also reaffirms the Kokkinakis principle,8 which has proven central to the growing emphasis on practices in their own right, ‘Bearing witness in words and deeds is bound up with the existence of religious convictions.’9


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Of course, the characteristic of the Eweida judgment that marks it out most flagrantly as partaking in the practical turn is, as we intimated above, the speed with which it proceeds to the justification stage. And the most remarkable means by which it does so is its marginalization of the specific-situation rule. It is here that the judgment is at its most radical. Thus, the ECtHR twice quotes the key domestic articulation of this principle in Begum,10 where Lord Bingham speaks of ‘a coherent and remarkably consistent body of authority [from the ECtHR and the Commission] which our domestic courts must take into account’ assert-ing that an applicant’s right to freedom of religion has been interfered with only when it is shown to be impossible (or at least extremely dif-ficult) for them to avoid such interference through resignation or, in the case of Begum, transferring to another school.11 Yet, despite acknowl-edging the coherence and consistency of its own jurisprudence on this matter, the ECtHR explicitly disavows it for the first time. The judgment states under its ‘General principles’ section:

Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibil-ity of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.12

While in Şahin and similar cases the specific-situation rule had been implicitly ignored, in Eweida the ECtHR acknowledges it as problematic and so discards it – or, to put it more precisely, the Court now considers that the issues of the sort at stake in the specific-situation rule should now be treated as part of the justification stage, under 9(2) rather than 9(1). The specific-situation rule as an interference test to discern whether a claim engages Article 9 is no more.

In consequence, Eweida becomes one of the first cases heard under Article 9 to use extensively and explicitly language expressive of the justi-fication stage: weighing-up rights and striking the right balance between competing interests. Eweida is a case that turns on 9(2) rather than on 9(1) – and, while it is not the first recent case to do so, it is the first that knowingly draws attention to such a shift in the wake of the criticism we considered at the end of Chapter 3 around the inadequacies of the Court’s traditional approach to 9(1). Hence, the judgment makes reference to individual rights ‘on one side of the scales’ competing against corporate


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rights ‘on the other side of the scales’, and concludes that Eweida’s claim is successful since in the domestic hearings ‘the employer’s wish to project a certain corporate image [was accorded] too much weight’.13 The UK ‘did not strike the right balance between the protection of her right to manifest her religion and the rights and interests of others’.14 When it came to Chaplin’s wearing of a crucifix, on the other hand, the ECtHR found in favour of the UK Government, because this time the individual rights were not merely being balanced against corporate image but also being balanced against health and safety in the hospital – and in this case the domestic courts’ adjudication in favour of the hospital’s concerns about health and safety was felt to be proportionate.

* * *

While the reception of the components of the case involving Ladele and McFarlane has been ‘mixed’,15 and, sometimes, hostile,16 the ECtHR’s rea-soning when it came to Chaplin and Eweida has been warmly welcomed. Peroni concludes her assessment as follows: ‘All in all, and regardless of the outcome of all the cases ... the reasoning in Eweida and Chaplin takes the freedom of religion case-law to another level. ... In essence, all this shows that the Court takes freedom of religion more seriously.’17 This positive reaction has a twofold basis: first, the judgment in Eweida provided vindication for critics of the specific-situation rule; second, it was said to provide explicit guidelines for understanding what counted as a manifestation in the wake of Şahin. In relation to the first reason, McIlroy, for instance, writes of the specific-situation rule and its treat-ment in the Eweida judgment: ‘[t]his is a significant change of direction in the law relating to freedom of religion which is to be welcomed.’18 And in relation to the second reason, the following assertion by Peroni is representative: ‘[t]he Court does a great job in unpacking what counts as a “manifestation” of religious belief.’19 Indeed, in general, Eweida has quickly come to be seen as a crystallization of the jurisprudence con-nected with Article 9 in the wake of the practical turn. This is especially true of the ‘General principles’ section, which seems to provide a clear summary of the state of the jurisprudence for Article 9 in 2013.

In the next section, however, we want to argue that – despite the obvi-ous progress made in this judgment with regard to the specific-situation rule – things are not quite as clear as they first appear when it comes to the Court’s ‘unpacking what counts as a “manifestation of religious


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belief ” ’.20 Indeed, we have already suggested that the confusion over the role of motivation in constituting manifestation not only remains in Eweida, but is exacerbated. In what follows, we further contend that where Eweida does suggest some positive guidelines for the manifesta-tion test, it does not say anything new, but returns wholeheartedly to the language of jurisprudence before the practical turn, harking back to the framework of the Arrowsmith case in particular.21

3 Eweida and the legacy of the practical turn

3.1 Incorrect understandings of the manifestation test

To begin, it is necessary briefly to flag up those conceptual frameworks for the manifestation test that the ECtHR definitively rejects in Eweida. First, the Court explicitly rejects the necessity test, as it has always rejected it: ‘[t]here is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question.’22 This is not a particularly surprising admission. Second, and most forcefully, the Court is clear that the UK Government’s contention that only ‘gener-ally recognised practices’ can be protected under Article 923 is false:

In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts.24

The setting of the threshold for protection in terms of ‘generally recog-nised practices’ is therefore rejected. And while there is no reason given why it is to be rejected, the Court is presumably endorsing the objections of the applicants that we rehearsed at length in Chapter 4; for example, because this criterion for protection could discriminate against newly established or lesser-known religions, or that it relies on levels of public and judicial religious literacy that are seemingly absent. ‘Generally recog-nised practices’ are protected, the above makes clear, but they are not the only form of religious practice protected; they are merely a sub-group of the set of protected practices that is itself much broader and presumably constituted through less stringent thresholds. In the passage above, the Court goes on broadly to identify some less stringent criteria for consti-tuting manifestation, and we return to these later in the section.


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Moreover, at the same time as the ECtHR here rejects the UK Government’s rather stringent threshold for manifestation, it also implicitly rejects a view that removes all thresholds whatsoever. This had been proposed to the Court by some of the interveners in the form of a sincerity test.25 The sincerity test is a test for distinguishing between pro-tected and unprotected beliefs, and is widely used in North America as the sole filter for engaging legislation pertaining to freedom of religion – that is, as long as a belief is sincerely held by the applicant, all practices that emanate from it (whether directly or indirectly) thereby engage the right to freedom of religion.26 In short, to recommend that the only test in place be a sincerity test is to dismantle the manifestation test entirely. And the ECtHR does not take up this approach either. As the above quo-tation, for example, makes clear, it still thinks that certain thresholds can be put in place not only for belief (and in this respect it also goes beyond the sincerity test in upholding the principle that beliefs must ‘attain a certain level of cogency, seriousness, cohesion and importance’27) but for manifestations qua manifestations as well. A manifestation test of some kind is still in place after the practical turn, but there remains a question over its precise nature.

3.2 The correct understanding of the manifestation test

If the above presents the Court’s negative remarks on what the mani-festation test is not, then in order to understand how the Court in fact understands it, we need to return to that key section, ‘General principles under Article 9 of the Convention’,28 from which we quote at length again:

Even when the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9(1). ... In order to count as a ‘manifesta-tion’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a gener-ally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case.29


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This crucial passage begins with a reiteration of the Arrowsmith prin-ciple30 (as already discussed) that not all practices ‘inspired, motivated or influenced’ by an underlying religious belief (which itself meets the criteria of cogency, seriousness, cohesion, and importance) constitute manifestations. Unlike most cases heard under Article 9 since 2005, however, the judgment in Eweida then goes on to attempt to provide a positive criterion to distinguish unprotected practices that are merely motivated by a belief, from protected ones.

There are two seemingly synonymous ways in which this criterion is articulated:

Criterion 1: A protected practice must be ‘intimately linked to a religion or belief ’.

Criterion 2: There must exist ‘a sufficiently close and direct nexus between the act and the underlying belief ’.

And the Court goes on to provide three ‘examples’ of what such a criterion might look like more practically:

Example 1: A protected practice could ‘directly express the belief concerned’.

Example 2: A protected practice might not merely be ‘remotely connected’ to its underlying belief, that is it could be closely connected to it.

Example 3: Protected practices include ‘the practice of a religion or belief in a generally recognised form’.

As already discussed, the final example is considered by the ECtHR to be a particularly niche sub-group of protected practices and not representa-tive of the array of different practices that could be protected. The first two examples on the other hand seem – despite the Court’s use of the phrase ‘for example’ – not really to be examples at all, but rather further ways of articulating the threshold distinguishing protected and unpro-tected practices as such. That is, the second example, especially, in insist-ing on a close connection between belief and practice, merely repeats the emphasis on a close nexus or intimate linkage between practice and belief set out in the two versions of the criterion. Therefore, they should perhaps be rewritten as follows:

Criterion 3: A protected practice must ‘directly express the belief concerned’.


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Criterion 4: A protected practice cannot merely be ‘remotely connected’ to its underlying belief, that is, it must be closely connected to it.

Three of these versions of the criterion (1, 2, and 4) state practically the same thing – that to constitute a manifestation of religion under Article 9, a practice must have a close or intimate connection or link to an underlying belief that meets the threshold set out in the belief test. Of course, in many ways this is to say very little, as the wording ‘sufficiently close’ makes clear; for this gives no guidance as to what constitutes suf-ficient closeness, and what does not. This tendency to leave the threshold open and flexible is in fact explicitly underlined in the quotation above through the appeal to discriminating between protected and unpro-tected practices on a case-by-case basis: ‘the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case.’31

A good example of the vagaries such a porous boundary can give rise to can be found in the reasoning of Judges Bratza and Björgvinsson (which here closely follows the majority’s ratio) as to why Eweida’s wear-ing of the cross constitutes a manifestation:

Provided a sufficiently close and direct nexus between the act and the underlying belief exists, there is no obligation on an applicant to establish that he or she acted in fulfilment of a duty mandated by the religion. In the present case, we have no doubt that the link between the visible wearing of a cross (being the principal symbol of Christianity) and the faith to which the applicant adheres is sufficiently strong for it to amount to a manifestation of her religious belief.32

The two judges have ‘no doubt’ that Eweida’s wearing of a cross is suf-ficiently close to, or linked with, an underlying belief to constitute a manifestation. Nevertheless, there is absolutely no justification given why or how this use of a symbol crosses the protection threshold. It is unclear even why the judges believe this to be so evident. Beyond the judges’ bare assertion, there is nothing here to help one understand the difference between a sufficiently and an insufficiently ‘close and direct nexus between the act and the underlying belief ’.

The third version of the criterion (a protected practice must directly express the belief concerned) does, however, provide some help here. It articulates the difference between a protected and an unprotected belief in terms of direct expression. Eweida’s wearing of a cross directly expressed ‘her desire to bear witness to her Christian faith’.33 And it does


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here seem fair to suggest that it is obviously the case that wearing a cross for religiously motivated reasons is a means of directly expressing a desire to bear witness to that religion. It is therefore with the concept of expression that one finally puts some meat back on the bones of the manifestation test. The ECtHR’s own understanding of the manifesta-tion test in the wake of the practical turn is therefore given through the category of expression.

We hope that the significance of this position is not lost on the reader: for expression is the very category the Commission had first used to understand the manifestation test in the Arrowsmith case. As we discussed at the end of Chapter 1, when it came to the relation of Arrowsmith’s leaflets to her pacifist beliefs, ‘[t]he Commission finds that the leaflets did not express pacifist views. The Commission considers, therefore, that the applicant, by distributing the leaflets, did not manifest her belief in the sense of Article 9(1).’34 The expression of religious belief is the neces-sary condition for a practice to count as a manifestation in Arrowsmith, just as the direct expression of religious belief is the necessary condition for a practice to count as a manifestation in Eweida.35

In reaffirming the threshold for protection by means of the category of expression, the Court thus implies that the practical turn – whatever else it has been – is not a turn away from the Arrowsmith test. This test had not been explicitly used or even mentioned in the key decisions since Şahin; it is now clear, however, that it had still been lurking in the background. Eweida makes the role of expression in the jurisprudence concerning Article 9 explicit once more. The judgment then returns us to the beginning. The outcome of Eweida is a reaffirmation of the tradi-tional expression test. Once one is clear that the ECtHR never subscribed to the necessity test when it comes to manifestation, then one can see that Eweida cements back into place the traditional jurisprudence on the manifestation test.

Yet, prima facie, there seems something worrying about Eweida’s reaf-firmation of the expression test after the practical turn. For the emphasis on expression in the Court’s reconstruction of the manifestation test seems to sit very uneasily with the distinctive tendency of the practi-cal turn away from providing criteria for manifestations in terms of the belief–practice relation towards considering practices in themselves. Since 2005, practices have no longer been treated as mere signs, shackled to their role as expressions of belief. In Eweida, however, the sign-function comes back to the fore. A symbol is to be considered a manifestation


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according to Article 9 only insofar as its relation to an underlying belief is strong enough to be described as a direct expression of it. It could be argued that the very tenor of the practical turn in its liberation (however partial) of symbols from being treated as derivative of, and secondary to, beliefs is radically reversed here. The practical turn seems to be disman-tled in Eweida.

This is to interpret the practical turn in too naïve a manner, how-ever. It is to endorse the claims made about the marginalization of the sign-function of the symbol in Chapter 5 without bearing in mind the necessary supplement that the framework proposed in Chapter 6 provides. In other words, to return to an argument given at the end of Chapter 5: despite critical prejudice and pressure to the contrary, the jurisprudence related to Article 9 must retain a substantive interest in the practice–belief relation when applying the manifestation test, since (among other reasons) the very text of Article 9 frames the definition of manifestation in terms of such a relation to belief. Whatever the practi-cal turn is claimed to be, it cannot be characterized as a wholesale shift from the belief–practice relation to practices in their own right. Hence, a more nuanced understanding of the practical turn is required – one that treats the frameworks proposed in Chapters 5 and 6 as comple-mentary and thus retains the reference to belief in the manifestation test. This remains a practical turn because it still makes claim to the foregrounding of the value of practices in judgments. Moreover, on such a nuanced account of the practical turn, the Eweida judgment makes sense: like other judgments subsequent to the practical turn, it hur-ries through to the justification stage, but it does so – as all judgments under Article 9 on the use of religious symbols ultimately must – while retaining a threshold for the manifestation test that makes recourse to the belief-practice relation.

Notes

Eweida v UK 1 [2013] ECHR 37, [2013] IRLR 231 [89] (App nos 48420/10, 59842/10, 51671/10, and 36516/10, 15 January 2013).Eweida 2 [89]. Identical reasoning is employed when it comes to Shirley Chaplin’s crucifix: ‘As with Ms Eweida and in accordance with the general principles set out above, the Court considers that the second applicant’s determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to


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remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion’ (Eweida [97]).Eweida 3 [79]–[84].Eweida4 [82].Şahin v Turkey 5 [GC] [2005] ECHR 819, (2007) 44 EHRR 5. (App no 44774/98, 10 November 2005.)Eweida 6 [89]–[101].Eweida7 [89].See 8 Kokkinakis v Greece (1994) 17 EHRR 397. (App no, 14307/88, 25 May 1993.)Eweida9 [80].R (Begum) v Denbigh High School Governors 10 [2006] UKHL 15, [2007] 1 AC 100.Begum11 113–4 [24].Eweida12 [83].Eweida13 [94].Eweida14 [114].D. McIlroy (2013) ‘A Marginal Victory for Freedom of Religion’, 15 Oxford Journal of Law and Religion, 2.1, p. 210.M. Hill (2013) ‘Lillian Ladele is the real loser in Christian discrimination 16 rulings’, The Guardian (London, 17 January 2013), http://www.guardian.co.uk/commentisfree/belief/2013/jan/17/lillian-ladele-loser-christian-discrimination-rulings, date accessed 11 June 2013.L. Peroni (2013) ‘17 Eweida and Others v UK: Taking Freedom of Religion More Seriously’, Strasbourg Observers (Ghent, 17 January 2013), http://strasbourgobservers.com/2013/01/17/eweida-and-others-v-the-united-kingdom-part-i-taking-freedom-of-religion-more-seriously/#more-1965, date accessed 31 May 2013.McIlroy, ‘Marginal Victory’, 212–3; see also H. van Ooijen (2013) ‘18 Eweida and Others Judgment Part II: The Religion Cases’, ECHR Blog (Utrecht, 31 January 2013), http://echrblog.blogspot.co.uk/2013/01/eweida-and-others-judgment-part-ii.html, date accessed 31 May 2013.Peroni, ‘19 Eweida and Others v UK’.Peroni, ‘20 Eweida and Others v UK’.Arrowsmith v UK21 (1981) 3 EHRR 218 (Commission Decision). (App no 7050/75, 12 October 1978.)Eweida 22 [82].See Chapter 4.23 Eweida 24 [82].Eweida 25 [76].See the brief discussion in C. Evans (2001) 26 Freedom of Religion under the European Convention of Human Rights (Oxford: Oxford University Press), p. 124.Eweida 27 [81].Eweida 28 [79]–[84].


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Eweida 29 [82].Arrowsmith30 228–9 [71].Eweida 31 [82].Eweida32 , Joint Partly Dissenting Opinion of Judges Bratza and David Thór Björgvinsson [2].Eweida 33 [89].Arrowsmith34 229 [75] (our emphasis).There does not seem to be any substantive difference between ‘expression’ 35 and ‘direct expression’ to the extent that in Arrowsmith what was at stake was more direct expression than expression as such. Eweida’s emphasis on direct expression is therefore merely a clarification of the traditional position.


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Index

actionbased on motivation, 28–9and belief, 29criteria for protection by

ECHR Article 9(1), 37EctHR’s view of, 50, 52, 54as a manifestation of a belief,

5, 31, 36and the necessity test, 37–46worship, 41–2

active symbols, 84application, concept of, 93, 101Arrowsmith case, 28–30, 38Arrowsmith principle, 5, 58, 64,

65, 113Arrowsmith test, 31, 36, 115

see also necessity test

beliefsand action, intimate link

between, 29, 37, 38, 111conditions for protection

of, 18high-level, 92, 94, 95, 99high-level and low-level,

92, 94distinction explained, 92objections to, 101philosophical

background, 92practical turn, 94Strasbourg case-law, 98

identification of, 96

low-level, 92, 93, 94, 97, 99, 100, 102

philosophical, 17, 50, 102praxis and, 85–6protected and unprotected,

19, 112and religion, 17tests, 20–5see also religion/religious;

testsbelief–practice relation, 50, 63,

65, 97, 113, 115–16

Chaplin, S., 2, 24, 26, 68, 78Clack, B., 9classical symbol, 75Clearing the ground, 3corporal punishment, 96–8Cottingham, J., 8, 9court, playing God, 44–5, 69creed, 75, 79cross, 2, 3, 23, 25, 26, 27, 68, 78,

95, 108crucifix, 25, 81–4, 87, 110

direct expression, 37, 54, 95, 113–15

ECtHR case-law, 18, 21, 22, 23, 39

Equality Act 2010, 17Equality and Human Rights

Commission, 58


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Index

European Convention on Human Rights (ECHR), 2

Article 2, 96, 99Article 9, 16, 17, 21, 26, 40, 64, 66,

67, 68, 80, 85, 86, 87, 94, 96, 98, 101, 102

bearing witness, 77–8General principles section, 108,

109, 110, 112manifestation, as a religious

practice, 65manifestations of religious belief,

categories of, 4, 22, 37, 55role of motivation, 5, 25, 29–30

Article 9(1), 4, 19, 20, 31, 52, 109Article 9(2), 23, 24, 51, 109

justification stage, 23, 51, 56, 57significance of, 55–6

Article 10, 19–20Articles 8, 10, and 11, 57

European Court of Human Rights (ECtHR), 2, 3

high-profile cases, 2inconsistent approach to

manifestation, 51–5, 58novel judgment regarding

manifestation, 51playing God, 69and religious symbolism, 27shift in case-laws, 56–7

Evans, C., 22, 39, 40, 41, 42, 43, 44exclusion clause, 52, 56expression, 3, 5, 30, 31, 50, 74Eweida, N., 2, 4, 23, 34, 68–70, 100–101,

106–116expression test, 5, 30–1expressive symbol, see symbol

forum externum, 18, 20, 21, 28, 78, 86forum internum, 18, 20, 21, 65, 80,

86, 87freedom of religion, 2, 7, 16, 17, 21, 22,

39, 40, 43–4, 109, 110ECHR Article 9(2), restrictions on,

23, 57‘negative’, 81

and personal worship, 21, 39, 41–2, 54–5, 58, 66

right to, 7, 25, 53, 70

general recognition, 67, 69generally recognized practices, 6, 66,

111and minor religions, 69personalized practices, 68problems with UK government’s

account, 68religious literacy, 70UK government, argument for

manifestation, specific definition, 64

recognized forms of practice, 66–7

Gilbert, H., 52, 55Goethe, J. W. 76Grand Chamber, see European Court

of Human Rights (ECtHR)

health and safety, protection of, 24high-level/theoretical beliefs, 92, 94, 95hijāb, see niqābHRA 1998, 17

inspiration, see motivationinterference, 22, 23, 54

legal basis of, 24intimate linkage, 3, 4, 16, 29, 50, 66, 95,

111, 113see also expression

Kant, I., 74, 76, 92, 94categorical imperative, 92, 94Critique of Judgment, 74, 76and high-level and low-level

principles, 93–4Kara, 28, 78kippa, 65, 67, 69Kokkinakis principle, 77–8, 108

Le Poidevin, R., 9, 10low-level/practical beliefs, 92–4, 95,

96, 97


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127Index

DOI: 10.1057/9781137354174

manifestation, 4, 5and action, 5, 30, 31, 37, 42definition by the UK Government, 64and motivation, 29, 30, 58protected, 21, 53, 94, 97, 101–2revised definition of, 64UK Government’s condition under

ECHR Article 9 for, 67manifestation test, 3, 4, 5, 16, 18, 21, 25,

56, 94, 96, 98–102bypassing of the, 56–7and motivation, 58pertinent questions, 25threshold of, 68, 70understandings of the, 111–12

Martínez-Torrón, J., 44, 56Moonie sect, 39–40motivation or inspiration, 5, 51, 54,

55, 99–100expression test, 30

necessity test, 5, 39–44critique of, 44description of, 37and interference, 40, 42, 43see also Arrowsmith test

Nicholls, Lord, 18, 21, 97, 102niqāb, 2, 3, 26, 78, 95

observance, 43, 66, 100Observations on Eweida, Chaplin,

McFarlane and Ladele, 64, 66Opsahl, T., 29, 38

pacifism, 28, 38, 95participative symbol

praxis and belief, 85–6see also symbol

passive symbols, 80, 83, 84and active symbols, distinction, 81, 82

philosophical convictions, 19, 20philosophy of religion, 8–10Playfoot, L., 28practical turn, 5–6, 21,

55, 94emergence of, 51

and the Eweida judgment, 64, 107–8, 115–16

objections, 101–2significance of ECHR Article 9(2),

55–7and symbols, 74, 77, 80, 84–5

practice, 22, 37, 40, 65, 66protected vs unprotected, 113–14

practices, see generally recognized practices

protected vs unprotected uses of symbols, 4–5, 6, 25, 29

public morals, protection of, 24public order, protection of, 24

religionand belief, 17and expression test, 30minor, 69and motivation, 22, 30, 53, 54, 55personalized practices, 68playing God, 69see also tests

religious belief, manifestation of, 21, 25, 100–1, 108

religious diet, 43, 53, 100religious literacy, 70religious practices, 40, 58, 64, 65, 66religious signs, 27religious symbols, 2

and ECHR Article 9, 78, 100–1assessment of use of, 21and beliefs, 3, 4and dress, 78–9and general recognition, 68meaning and intention of use, 27participation function, 6, 84, 108protection of, 2, 4, 19, 66, 78sign-function of, 4, 28–9, 67, 76,

78, 84undue influences of (alleged), 81see also religious signs

religious symbolism, 2, 4, 7, 17, 25, 27–8, 74

influences in theology, 75–6representative symbol, 75


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Index

Ricoeur, P., 76rights and freedoms of others, 24rite, see observanceromantic symbol, 75, 76

Schlegel, A. W., 77specific-situation rule, 23, 58, 109

bypassing of the, 56–7Strasbourg jurisprudence, 5, 29, 30, 107

and filtering devices, 56and the practical turn, 63, 80, 85

symboland beliefs, 28–30concept of, 26, 74, 76and expression, 28–9, 74functions of, 76, 77Goethe’s concept of, 76history of, 74multiple intentionality of, 74, 76,

77, 79participation function of, 77, 78purpose of, 28

as a badge of religious identity, 78, 79–80, 81

secret, 78sign-function of, 77, 78uses of, 75see also religious symbols

tests, 18Arrowsmith, 31, 37belief, 20, 114expression, 30interference, 22justification, 23manifestation, 21necessity, 31, 37sincerity, 112

Tillich, P., 73, 76, 77Trigg, R., 7, 80, 85, 86, 87

UK Government, 64, 66–7

Wynn, M., 9


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Documents

The Right to Wear Religious Symbols ||