Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law (Abstract)

Consider the following statutory provision:

Such a law, now familiar in the wake of the recent affaire du foulard in France, appears prima facie to violate the most basic tenets of the right to freedom of religion and belief in international law. Article 18(1) of the International Covenant on Civil and Political Rights provides that everyone has the right to freedom of thought, conscience, and religion, including the freedom “either individually or in community with others and in public or private, to manifest . . . religion or belief in worship, observance, practice and teaching.”

In most religious traditions, the wearing of religious symbols or attire—for example, the Jewish yarmulke, the Sikh turban, or the Islamic hijab—is not a simple matter of choice but a matter of religious duty, ritual, and observance. Within different traditions, there are a variety of ways in which religious symbols work. In Christianity, for example, the crucifix is worn as an ornament of conviction whereas in Judaism the yarmulke is worn as a matter of religious obligation.

For certain ethnic, religious, and cultural groups (whether they comprise the majority or a minority), wearing religious or traditional dress is closely bound up with spiritual practices and is a defining element of group identity. For Islamic girls and women the wearing of the hijab may be a form of social obligation which is religiously-motivated rather than a matter of religious duty per se. This, in turn, has an intergenerational dimension with the continuity of religious tradition being seen as a critical factor in the survival of specific cultural, religious, and linguistic groups.

While the specific historical reasons for the wearing of religious symbols and attire may vary in different religious traditions, the one common feature is the centrality of such practices to the manifestation of religious belief. Given this widely-acknowledged fact, on what possible grounds—and for what reasons—can a state seek to limit this aspect of the freedom to manifest one’s religion?

Considerable scholarly attention has been paid in recent years to the French law proscribing the wearing of religious symbols in public schools and to the issue of Muslim minorities in European nation-states more generally. This Article responds to a deeper concern. Stepping back from these debates, and from some of the more comfortable philosophical and jurisprudential assumptions upon which they appear to rest, it aims at a more rigorous theoretical treatment of the subject.

The Article thus asks whether there is a coherent notion of religious freedom in international law and, if not, why not? In identifying certain problematic aspects of the extant literature, it advances an argument which seeks to overcome the current impasse in liberal theorizing: the idea of value pluralism as a theoretical basis for religious freedom in international law. By acknowledging rather than seeking to avoid the disabling indeterminacies of rights discourse, and by recognizing the intrinsic connection between individual autonomy and communal goods, value pluralism opens new pathways for reimagining the limits of liberal theory and for cultivating an ethos of engagement toward currently intractable questions of subjectivity and intersubjectivity.

The full article can be read here.