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Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights

McCrea, R; (2016) Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights. The Modern Law Review , 79 (4) pp. 691-705. 10.1111/1468-2230.12206. Green open access

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Abstract

The justification for the restrictions on religion inherent in secularism is the subject of lively debate in constitutional and political theory. In Ebrahimian v France the Strasbourg Court was required to assess whether the European Convention on Human Rights can accommodate a secularism whose aims and justifications go beyond the protection of the rights of others and include abstract goals such as upholding the religious neutrality of the state. The resulting judgment highlights both the inability of rights to provide an adequate account of the relationship between religion and the state and how the text of the Convention struggles to give adequate weight to constitutional principles whose justification arises from sources other than the protection of fundamental rights. I suggest that the Court was correct to reaffirm its stance that secularism and strict neutrality can be in harmony with the values of the Convention. However, it needs to be more clear about the reasons for this stance and to be vigilant in its protection of private autonomy so that the use of abstract principles to restrict religious expression does not give excessive latitude to states to restrict individual autonomy and minority rights

Type: Article
Title: Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights
Open access status: An open access version is available from UCL Discovery
DOI: 10.1111/1468-2230.12206
Publisher version: http://dx.doi.org/10.1111/1468-2230.12206
Language: English
Additional information: Copyright © 2016 The Author. The Modern Law Review © 2016 The Modern Law Review Limited. This is the peer reviewed version of the following article: McCrea, R. (2016), Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights. The Modern Law Review, 79: 691–705. doi: 10.1111/1468-2230.12206, which has been published in final form at http://dx.doi.org/10.1111/1468-2230.12206. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving.
Keywords: Secularism, Fundamental Rights, Freedom of Religion, European Court of Human Rights, Neutrality, Islam, Symbolic Harm
UCL classification: UCL
UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/1500851
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