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Heiner Bielefeldt
Threatened Human Right
Experiences with Freedom of Religion

German version

 

From: Herder Korrespondenz 60, 2006/2, p. 65-70
webmaster's own, not authorized translation

    After the experiences with religiously motivated terrorism of the last years the question about the limits of freedom of religion arises with new urgency. Disputed is not that there must be such limits but according to which criteria they are to be defined.

The public interest in religion - as an object of longing, curiosity or disconcertion has unmistakably increased in the last years. To the same extent also the freedom of religion has once again come into the focus of public controversies. Nevertheless in principle it is undisputed in Germany and other European states that religious freedom must be kept as inalienable human right. All the more the question arises who can lay claim to freedom of religion, which practices fall under its protection, and where exactly run the limits of freedom of religion.

Have also followers of so-called psycho-sects, neo-pagan cults or fundamentalist movements a claim to acknowledgment of their freedom of religion? Is the calling of the muezzin to be legally evaluated exactly in the same way as the bell ringing of the Christian churches, or can legitimately be differentiated between the religious interests of minorities and of the majority society? Are parents allowed, with reference to the freedom of religion, to refuse certain medical treatments for their children?

In Germany in the last years particularly violently debated was the question whether Muslim ladies in the teaching profession at state run schools were allowed to wear the headscarf. Many of the law regulations in the Lands passed about it remain disputed under the viewpoint of freedom of religion. Religious freedom plays also an important role in the discussion about the question whether the denominational religious instruction in the state run schools should be maintained or replaced by an interdenominational value instruction. That arguments about freedom of religion take place is no new feature. From the outset freedom of religion was a disputed human right.

 


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Also on the part of the Christian churches for a long time it met with reservations and partly embittered resistance. In several papal condemnations, in particular in the anti-modernistic "Syllabus Errorum" of Pius IX from 1864, the fear was leading that freedom of religion would open the way to religious indifference, to Christianity becoming a social fringe group and to atheism.

Only after the experiences with National Socialism and other forms of national totalitarianism within Catholicism the insight gained broad acceptance that freedom of religion unfolds an essential protective function just also for the faithful. Forty years ago with the Council Declaration on Religious Freedom "Dignitatis humanae" the break-through for the official Catholic acknowledgment of religious freedom was finally reached.

Very restrictive views on freedom of religion until today exist in the sphere of influence of Orthodoxy, by subjecting mission activity to partly substantial state restrictions. Thus for example in Greece in the past years it came to arrests of Jehovah's Witnesses.

The situation in some conservative Islamic states, such as Saudi Arabia, Sudan, Iran or Mauritania, is far more precarious. There "apostasy" from Islam can be sanctioned with threats of punishment up to the death penalty. Particularly dramatic is the situation of the Baha'i, a post-Islamic religious community which sprang up in the nineteenth century in Iran. Especially in Iran the Baha'i are subject to substantial national persecution and social exclusion. The acknowledgment of religious freedom, including the right of conversion from Islam to another religion, anyhow until today belongs to the difficult topics of the inner-Islamic reform debate.

It would be wrong to believe that reservations against the freedom of religion exist only in the context of monotheistic revelation religions, as this is occasionally maintained. Also some followers of Hinduism or Buddhism fear that with a religious pluralism made possible by freedom of religion their own traditions are called into question and the social peace is endangered. Out of control-political interest in the People's Republic of China religious groups evading the state control are pressurized and persecuted. In any case there are resistances and offences against the freedom of religion under completely different religious, ideological or political signs.

That the freedom of religion historically at first released fears and can up to this day contribute to uneasiness is quite easily to be comprehended. For it indeed represents an almost revolutionary change in the relationship of state and religious communities. The paradigm change lies in the fact that questions of religious conviction, orientation and life practice are from now on taken away from state regulation, and entirely left to the liberty of individual people.

This has consequences for the religious communities as well as for the state: Neither can the religious communities make use of the patronage of the state, in order to discipline dissidents, and to keep competitive confessions aloof, nor is the state allowed to use the religion as source of its legitimation or as medium of political integration. Hence the freedom of religion equally is a challenge for state, society, and religious communities.

 

Freedom of Religion and Tolerance

The paradigm change in the relationship of state and religious communities is played down when freedom of religion is confused with religious tolerance, as it happens frequently. In particular Muslim authoresses and authors often insist that for Islam freedom of religion is actually nothing new, and as proof refer to the tolerant and peaceful coexistence of Jews, Christians and Muslims in Islamic ruled medieval Spain or also in the Ottoman Empire.

Despite all merits that must historically be attested to the traditional Islamic practice of tolerance in comparison with medieval and early modern Christian societies, it however fundamentally differs from the modern freedom of religion seen as a human right. In spite of all readiness for coexistence with certain religious minorities, at the same time the Islamic state was allotted the task to defend the primacy of the true religion. Change of faith was possible only in one direction, mixed marriages were subject to strict restrictions, and the idea of an equal status of citizenship for the members of all religious communities was completely unknown.

The often quoted word of the Koran "No Coercion in Religion" (Sura 2, 256), which reform-oriented Muslims today use as Koran given reason for a freedom of religion based on human rights, was traditionally interpreted to the effect that on the one hand nobody may be forced to the Islamic creed, but that on the other hand apostasy from Islam must in principle remain punishable. Hence there was no freedom of leaving corresponding to the freedom of entering.

 


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Similar conceptions are found in the writings of medieval Christian Doctors of the Church. Thomas of Aquinas for example called the acceptance of the Christian faith an "act of freedom", but the maintaining of the once accepted true faith a "necessity", which if necessary was to be enforced with the help of threat of punishment by the state . The parallels to the traditional Islamic understanding are obvious. Furthermore Thomas considered the social coexistence with people of different faith as under certain circumstances possible, but at the same time pleaded for coercive measures against the "pernicious" influence of Christian heretics and apostates. Thus he outlined the narrow limits of the traditional Christian tolerance teachings. Also the churches of the Reformation for a long time often moved along similar paths.

 

Expression of the Respect for Human Dignity

As human right freedom of religion does not only differ from the traditional religious tolerance, but also from the farther reaching toleration politics of the Enlightenment, as it is expressed in the famous saying of Frederic the Great, according to which "everyone may be saved after his/her own fashion". Admittedly the religion policy of Frederic II in its pragmatism went beyond the traditionally narrowly limited pluralism of denominations, but was primarily motivated by the expectation of economic prosperity, that should stand the state in good stead by the arrival of well trained religion refugees. That it had little to do with a general respect for the religious convictions of people appears for example in the discriminating practices against Jews, which partly were even intensified under Frederic's rule.

A policy of tolerance in religious questions is surely more humane than religious intolerance. But for the sake of conceptual clarity it nevertheless remains important to categorically distinguish 'tolerance' and 'freedom of religion': Whereas tolerance was granted by authority (or also refused), freedom of religion stands for an inalienable legal claim of human beings; whereas tolerance extended to a limited circle of religious groups, the right to religious freedom is meant universalistic; and whereas in the context of a policy of religious tolerance rank gradations between different religious communities remained possible, the human right of freedom of religion is connected with the right of freedom of discrimination.

Like all human rights also freedom of religion is an expression of the respect for human dignity. The dignity of man is to become effective politico-legally by means of awarding free self-determination to human beings. As dignity is equally owed to each human being, so the liberty rights are to be fashioned in accordance with the equal rights of all. "All men are born free and equal in dignity and rights", in this sense it programmatically says in article 1 of the General Human Rights Declaration of the United Nations of 1948. Also the freedom of religion is to be interpreted in the light of that postulate.

Subjects of religious freedom are not certain religions or world views as such, but human beings, whose free self-determination in religious questions is to find legal acknowledgment. This acknowledgment in the context of the human rights equally applies to each human being; hence it has to be awarded according to the principle of non-discrimination. To gradate the respect for freedom of religion according to whether certain religious practices are "customary in a country" (and therefore for example from the outset to grant the bell ringing a higher value than the call of the muezzin), consequently would not be legitimate. Also the largeness or historical importance of a religious community must not be a criterion for an unequal treatment of their members. Hence it would likewise be illegitimate to disadvantage small religious communities in German often denoted by the very negative sounding term "sects", in comparison with large ones.

Finally granting freedom of religion can also not be made dependent on certain dogmatic positions - for instance on the profession of monotheism, or also only on believing in God. The protection of religious freedom applies also to atheistic world views; so that one, strictly taken, should not only speak of "freedom of religion", but more comprehensively of a human right to "freedom of religion and world views". In the English linguistic area the term "freedom of religion and belief" has gained acceptance.

Even if freedom of religion as human right is owed to each single human being, it must not in a narrow sense be interpreted individualistically only. It covers also common practices, for instance services, processions, instructions and rites of initiation. Apart from the personal freedom of conscience and faith (forum internum) freedom of religion protects also the outward confession (forum externum), including public manifestations of religious or ideological conviction and practice. Hence a policy aiming at defining religious confessions as mere "private matter" and at keeping them away from the public area runs into conflict with the comprehensive claim to religious freedom.

Important is in addition the distinction between positive and negative freedom of religion: While the positive freedom of religion designates the protection of religious or ideological activities (in the broadest sense of the word), negative freedom of religion is understood as the legitimate claim of human beings not to be pressed by the state to a certain religious or ideological confession or activity. Both aspects together belong to the human right of freedom of religion.

 


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Limits of Religious Freedom

After the experiences of the last years with religiously motivated terrorism the question about the limitation of freedom of religion arises with new urgency. In this connection it is not disputed that there must be such limitations, but according to which criteria they are to be drawn. In order to counter the danger that the content of religious freedom is at will relativized, when the state fixes the limits, the European human right convention of the Council of Europe of 1950 formulates so-called "barrier barriers", which are to ensure that restrictions of religious freedom possibly ordered by the states do not go too far: "The freedom to confess one's religion or world view may be submitted only to restrictions legally provided for, and necessary in a democratic society for its public security, for the protection of the public order, health, moral, or the protection of the rights and freedoms of others." (art. 9 exp. 2 EMRK)

More strongly yet the freedom of religion is formulated in the Basic Law (art. 4). In contrast to most other fundamental rights it contains no law reservation. According to the predominant legal opinion restrictions of the religious freedom are therefore possible only if they immediately serve the protection of other fundamental rights, or similarly important legal goods. In this connection one also speaks of the "constitution-immanent" barriers of religious freedom.

Undisputed is for example that religious freedom must not be played off against the human right of life. Therefore it is by no means left open to parents for religious reasons to risk the lives of their children, and to refuse for instance an urgently necessary medical treatment. That calls to kill persons of different religions or internal dissidents go beyond the limits of religious freedom is likewise obvious.

But how is it with less dramatic examples? So for instance the demand is plausible that bell ringing or the call of the muezzin must be held within certain limits of sound volume, in order to protect the neighbours' right of physical health, to which also an unimpaired night sleep belongs. But a general prohibition of the muezzin's call or also only an unequal treatment in relation to bell ringing cannot be deduced from such considerations. Since also the general compulsory school attendance has constitutional rank, it cannot altogether be questioned with reference to religious freedom; possible are only partial exemptions, for instance from the co-educational sport or swimming lessons, provided that only in this way an otherwise threatening conflict of conscience can be avoided.

The for years controversially debated question, whether Muslim lady teachers are allowed to wear kerchiefs in school teaching, is not last for that reason so intricate because there two aspects of religious freedom can get into conflict with each other: the lady teacher's positive freedom of religion, and the negative freedom of religion of the pupils taught by her. In my opinion the restriction of the lady teacher's freedom to dress on duty in accordance with her own religious conviction, is only justified if in the lady teacher's entire behaviour clear clues for an impairment of the pupils' negative freedom of religion are given.

 

Realization in the Secular Constitutional State

The correct comment that also the freedom of religion must have limits, must not lead to an impairment of the standing of that human right. Therefore care is required, in possibly weighing religious freedom with other legal goods. Apart from the fact that only highest legal goods - in particular other human rights - can restrict the freedom of religion, the principle applies that only in a real case of conflict weighing may take place. Points of view of general conflict prevention, as they are at present brought up especially opposite Muslim minorities, however give no legitimate reason for restrictions of the religious freedom.

A consistent realization of religious freedom is possible only in a secular state founded on the rule of law. For, as already mentioned, all human rights include the legal title of being guaranteed without discrimination. But as long as the state feels bound to a certain state religion, it will at least symbolically award a priority to the members of that state religion, and will so offend against the right of non-discrimination. To take that demand seriously exacts from the state to do without the identification with a certain religion, and to strive for religious and ideologicall neutrality. Hence the principle of non-identification of the state with a certain religion or world view is the result of the demand of non-discrimination.

The secularity of the constitutional state has its positive reason in the respect owed to the religious freedom of man. Therefore it is reasonable to qualify more in detail the non-identification demanded from the state, and to designate it as "principle of respectful non-identification". Similarly important is that the religious and ideological neutrality of the state is not to be confused, as this often happens with a general "value neutrality".

 


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As consequence of a high "constitutional value", namely the human right to religious and ideological freedom, it is the opposite of ethical indifference, with which it is often equated in a caricaturing way.

The principle of respectful non-identification, which is the basis for the secular constitutional state, does not exclude by any means that state and religious communities formally cooperate with each other. It does not demand to replace the cooperative relations, which in Germany (and similarly in many other European states) have developed between state and religious communities by a lay model of strict separation, as it in France was carried through a hundred years ago (1905). In so far it is meaningful to conceptually differentiate between secularity and laicism. Under the viewpoint of respectful non-identification it is however required that any co-operation conditions between state and religious communities do justice to the meanwhile developed religious and ideological pluralism of the society.

How difficult it is to consistently redeem this postulate is shown by the current debate about the religious instruction in the public educational system. The confessional religious instruction, as it at present exists in most of the Lands of the Federal Republic, can probably in the long run only be maintained if it is opened for all religious and ideological communities settled in this Land. If this should not be possible for practical-organizational or other reasons, demands for an interdenominational instruction about religious matters might in the course of time gain plausibility.

 

Religious Discrimination in the Name of "Leading Culture"?

That the state - as for instance in Iran or Saudi Arabia could see itself as executive organ of religious truth or divine commandments, is in Europe at present no real danger. There are no longer European theocracies, and the state-church structures still existing in some countries - for instance in England or Denmark - are rather a matter of historical relics.

The danger of discrimination of religious minorities in the European states today no longer threatens in the name of religion, but rather in the name of culture - respectively of a "leading culture". The historically correct reference to the moulding role of Christianity for the European culture in general, and for the development of the European constitutional states in particular, in this connection frequently serves as an argument to grant Christian symbols in the realm of the state a privileged status; which - intentionally or unintentionally - amounts to the discrimination of the members of non-Christian religions or ideologies.

 


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Most well-known example for that are the regulations for religious symbols recently issued in the school laws of various Lands of the Federal Republic or at present in preparation. The advocates of such regulations occasionally state the argument that freedom of religion, and the secular constitutional state established in it, came into existence on the cultural soil of Christianity, and in the long run were only to be secured in the framework of a Christian shaped "leading culture". Faded out in this connection remains the fact that the Christian churches seized religious freedom as chance only in a lengthy and over long distances conflict-rich learning process.

Jesus' word, "Give to the emperor what belongs to him" (Mt 22:21), made fruitful today by representatives of the Christian churches for a theological appreciation of the secular constitutional state, is by no means the religious-cultural root from which in the course of nearly two thousand years the secular state had arisen more or less organically. It is rather the other way round: On the soil of the modern age that word of Jesus retrospectively gets a symbolic meaning, by which it becomes possible to interpret the secular constitutional state also theologically as meaningful.

But against the pocketing of religious freedom as an exclusive cultural heritage of Christianity speaks especially its universalistic claim as human right. It urges to transcend also that cultural horizon, in which freedom of religion was formulated historically for the first time. Those who stylize - in the name of an obligatory "leading culture" - that specific cultural horizon as condition for the full awareness of the right of religious freedom question thereby - implicitly or explicitly - the character of religious freedom as human right. That de facto means a relapse into pre-modern tolerance politics, to which also European democracies are not from the start immune. Hence the human right of religious freedom remains politically topical as a challenge for the non-discriminating organization of a religious and ideological pluralism.

    The habilitated philosopher Heiner Bielefeldt (born in 1958) since 2003 has been director of the German Institute for Human Rights in Berlin. Since the beginning of 2000 he teaches as a private lecturer of philosophy at the University of Bremen. Bielefeldt published several books on questions of political ethics and philosophy of law. He advises the German commission Justitia et Pax in questions of human rights.

 

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