Islam, Europe and Emerging Legal Issues PDF
Preview Islam, Europe and Emerging Legal Issues
Islam, Europe and Emerging Legal Issues Edited by W. Cole Durham, Jr, Rik Torfs, David M. Kirkham and Christine Scott Islam, EuropE and EmErgIng lEgal IssuEs This page has been left blank intentionally Islam, Europe and Emerging legal Issues Edited by W. ColE durham Jr. Brigham Young University, Utah rIk Torfs Catholic University of Leuven, Belgium davId m. kIrkham, Brigham Young University, Utah and ChrIsTInE sCoTT Brigham Young University, Utah © W. Cole durham, Jr, rik Torfs, david m. kirkham and Christine scott 2012 all rights reserved. no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. W. Cole durham, Jr, rik Torfs, david m. kirkham and Christine scott have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. published by ashgate publishing limited ashgate publishing Company Wey Court East suite 420 union road 101 Cherry street farnham Burlington surrey, gu9 7pT vT 05401-4405 England usa www.ashgate.com British Library Cataloguing in Publication Data Islam, Europe and emerging legal issues. 1. Islam – Europe. 2. Islam and state – Europe. 3. Islam and secularism – Europe. 4. muslim women – Civil rights – Europe. 5. hijab (Islamic clothing) – law and legislation – Europe. 6. legal polycentricity – Europe. 7. European Court of human rights. I. durham, W. Cole, 1948- 322.1’088297’094-dc22 Library of Congress Cataloging-in-Publication Data Islam, Europe and emerging legal issues / [edited by] W. Cole durham ... [et al.]. p. cm. Includes bibliographical references and index. IsBn 978-1-4094-3444-3 (hardcover : alk. paper)—IsBn 978-1-4094-3445-0 (ebook) 1. muslims—legal status, laws, etc.—European union countries. 2. European Court of human rights. 3. hijab (Islamic clothing)—law and legislation. 4. Islam—Customs and practices. 5. Islam—Europe. I. durham, W. Cole, 1948- kJC5144.m56I84 2011 346.2401’3--dc23 2011026566 IsBn 9781409434443 (hbk) IsBn 9781409434450 (ebk) III printed and bound in great Britain by the mpg Books group, uk. Contents List of Figures vii List of Contributors ix List of Abbreviations xv Acknowledgements xvii Introduction 1 W. Cole Durham, Jr and David M. Kirkham PART I IslAm, HumAn RIgHTs, And seculARIsm In euRoPe: An oveRvIew 1 Islam in Strasbourg: Can Politics Substitute for Law? 19 Javier Martínez-Torrón 2 The European Court of Human Rights: Between Fundamentalist and Liberal Secularism 63 Ingvill Thorson Plesner 3 Wearing the Hijab: Some Reflections from a Muslim Woman’s Perspective 75 Amal Idrissi 4 International Human Rights Law and the Islamic Headscarf: A Short Note on the Positions of the European Court of Human Rights and the Human Rights Committee 83 Martin Scheinin PART II euRoPeAn APPRoAcHes To THe IslAmIc HeAdscARf conTRoveRsy 5 The Hijab in Strasbourg: Clear Conclusions, Unclear Reasoning 89 Njål Høstmælingen 6 Religious Symbols in Public Schools: The Islamic Headscarf and the European Court of Human Rights Decision in Şahin v. Turkey 111 T. Jeremy Gunn vi Islam, Europe and Emerging Legal Issues 7 The Strasbourg Court Dealing with Turkey and the Human Right to Freedom of Religion or Belief: An Assessment in Light of Leyla Şahin v. Turkey 147 Tore Lindholm 8 The Religious Headscarf (Hijab) and Access to Employment under Norwegian Antidiscrimination Laws 169 Ronald Craig 9 The Headscarf Issue: A German Perspective 185 Richard Puza PART III THe euRoPeAn couRT And THe lImITs of PluRAlIsm: THe welfARe PARTy cAse 10 The Dubious Foundations of the Refah Decision 209 Ann Elizabeth Mayer 11 Refah Revisited: Strasbourg’s Construction of Islam 235 Christian Moe 12 The Principles of Legal Pluralism and Militant Democracy 273 Javid Gadirov 13 The European Court’s Freedom of Association Cases and the Implications for Islam 291 Lance Lehnhof Bibliography 311 Index 325 List of Figures 12.1 Atomized Modern Society 279 12.2 Pluralized Society 280 This page has been left blank intentionally List of Contributors Ronald Craig is a senior advisor to the Equality and Anti-Discrimination Ombudsman of the Kingdom of Norway. He has also served as a legal advisor at the Norwegian Center for Combating Ethnic Discrimination. He received a legal education both in the United States and in Norway, receiving his doctorate of law from the University of Oslo. His doctoral thesis “Systemic Discrimination in Employment and the Promotion of Ethnic Equality” was recently published as a book. W. Cole Durham, Jr is the director of the International Center for Law and Religion Studies and the Susa Young Gates University Professor of Law at J. Reuben Clark Law School, Brigham Young University (BYU). Professor Durham’s multiple responsibilities include serving as a member of the Organization for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Advisory Council on Freedom of Religion or Belief, and as vice president of the International Consortium for Law and Religion Studies. A graduate of Harvard College and Harvard Law School, Professor Durham has been heavily involved in comparative constitutional law and church–state relations throughout his career. He has published widely on comparative law and has served as secretary of the American Society of Comparative Law and as chair of both the Comparative Law Section and the Law and Religion Section of the American Association of Law Schools. He is a member of several US and international advisory boards dealing with religious freedom and church–state relations. Javid Gadirov is an Assistant Professor at the Faculty of Law, Baku State University (Azerbaijan). He was also an intern for the Representative on Freedom of the Media at the OSCE. He received his PhD in comparative constitutional law magna cum laude and an LLM in human rights from the Central European University. He was also a graduate visiting student at the University of Oxford and a visiting scholar at the Columbia University School of Law. T. Jeremy Gunn is an associate professor of international studies at Al Akhawayn University in Morocco and senior fellow for religion and human rights at the Center for the Study of Law and Religion at Emory University School of Law. He also is a member of the OSCE/ODIHR Advisory Council on Freedom of Religion of Belief. His previous positions have included director of the American Civil Liberties Union (ACLU’s) Program on Freedom of Religion and Belief and senior fellow at the US Institute of Peace; and he has held several positions in the US government, including the US Department of State’s Office of International
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