Vol. 16 No.8 (August, 2006) pp.597-602

FREEDOM OF RELIGION: UN AND EUROPEAN HUMAN RIGHTS LAW AND PRACTICE, by Paul M. Taylor. New York: Cambridge University Press, 2005. 436pp. Hardback.  $95.00/£55.00. ISBN: 0521856493.  Paperback. $45.00/£24.99. ISBN: 0521672465.  e-book format.  $36.00.  ISBN: 0511134088.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration

University of Wisconsin-La Crosse. E-Mail: mcdougal.step [at] uwlax.edu.

Whether Paul Taylor’s work is useful or mundane – indeed, whether it is good or bad – will (I fear) depend entirely on the commitments and perspectives of the individual scholarly reader. This is not because it focuses on “freedom of religion,” which is of greater importance than many U.S. academics might admit. No, my difficulty in labeling Taylor’s work stems from the somewhat balkanized manner in which socio-legal scholarship is practiced today.

In its content, the book is the product of a skilled and experienced international human rights barrister, written primarily for human rights lawyers. It dwells entirely within a standard Anglo-American tradition of common law legal reasoning, employing both the case method and the iconography of authorial intent in quite familiar ways. Thus, to US scholars of religious liberty, for instance, Taylor’s work might be of value as a positivist summary and analysis of UN and European law and legal doctrine, against which to compare similar issues in US jurisprudence.

But, I would guess that most non-positivist readers will instinctively re-interpret Taylor’s analysis into their own – law & society reformist, legal theory deconstructionist, critical race theorist, skeptical postmodernist – whatever! As an exercise in comparing European and International legal struggles in religious liberty, Taylor’s book is worth reading. But, it was a struggle for me – who (candidly) does not see much value in limiting one’s approach to a positivist paradigm – to see the larger politics of doctrinal development at work. The elements of such a political analysis are sprinkled throughout the three main chapters and especially in the footnotes, but the work cannot be described as a work of judicial politics.

Most readers will easily recognize a traditional form of scholarly legal narrative:

First, there are the authoritative texts – Article 18 of the Universal Declaration of Human Rights (1948), Article 9 of the European Convention on Human Rights (1950, and subsequent Protocols), Article 18 of the International Covenant on Civil and Political Rights (1976), and the Declaration on the Elimination of all Forms of Intolerance and Discrimination Based on Religion or Belief (1981) in its entirety. Taylor notes how these various documents have conflicting provisions. Yet, their existence as a source of an on-going politics of religious liberty is not within the scope of Taylor’s project. Nonetheless, Taylor never hesitates to criticize a decision addressing these conflicts when it deviates from his analysis and understandings. [*598]

Second, there are the debates of the international organizations responsible for creating those texts. Taylor treats the debates as the primary foundation for his arguments about their scope and application – and subsequently, for his criticisms of the rulings of the European Court. Taylor’s use of these debates is rather like “the Intent of the Framers” is used in US legal circles: a problem with the texts, having been identified in a case, is usefully resolvable by selective resort to the formal debates, thus creating certainties as to their meaning and application; thus resolved, we should just move on! (More on this point below.)

Third, there are the authoritative interpretations of those texts – i.e., primarily formal rulings of the Human Rights Committee and the European Court of Human Rights –  further clarifying the application of the “constitutional” texts. Rulings create precedents, precedents create doctrine, and so on. Relying on scholarly arguments, his own logical formulations, and the precedents of the European Court, European Commission and the Human Rights Committee, Taylor lays out the formal legal landscape as he sees it. (More on this point below, too.)

One of Taylor’s recurrent criticisms is how the European Court has “deviated” from the trajectory of the Human Rights Committee’s rulings over the years. His analysis and arguments are quite good. Although he is not cited by Taylor (such would not be appropriate to Taylor’s project), H.L.A. Hart’s notions of “open texture” and prescriptions for the conscientious judge seem to underlie Taylor’s arguments. Whether this is a strength or a weakness, I will leave (per above) to the individual. I feel it limits Taylor’s usefulness for me, but not for all.

Taylor’s goal is reformist within a positivist tradition. He hopes that his analysis and evaluation “of apparent discrepancies within particular themes will help to expose the significant points of divergence...[and]...achieve better consistency between the United Nations and European Institutions” (p.6). These conceptual trends are then laid out, issue by issue, as read from the texts, and presented within a larger structure distinguishing claims arising from (a) religion conceived of as a personal commitment (the forum internum) and also (b) religion conceived of as a manifestation in individual or communal behavior (the forum externum).

Let me use one theme of the forum internum to illustrate. The ICCPR, Article 18 provides for “freedom to have or to adopt a religion of belief of [one’s] choice” (section 1); that no one “shall be subject to coercion which would impair his freedom of religion” (section 2); and further that manifestations of religion “may be subject only to such limitations as are prescribed by law and are necessary to protect...[among other things]...the fundamental rights and freedom of others” (section 3). The European Convention, Article 9(1), also provides that “this right includes freedom to change his religion” with the remainder essentially the same.

Taylor analyzes the issue of whether religious proselytism is protected by [*599] these provisions, or whether States can legislatively prohibit and punish proselytism. Relying on the ICCPR debates, he presents in summary form the arguments of “certain States” against giving proselytism full protection: some religious traditions treat a change of religion as apostasy; a change of religion might make one abandon obligations under a particular tradition’s religious law; maintenance of religion is essential to the “moral condition of the individual” in that being induced to change might be from personal weakness or credulity, not “legitimate intellectual or moral reasons” (Taylor quoting the Saudi delegate). He also quotes the Afghani delegate at length:

If an individual who had freely accepted a certain religion was told that he was free to change it, the idea was put into his head that he was believing in something which he could change if given the right to do so. Doubt would be instilled and his belief damaged. That would be tantamount to interference with his freedom of thought and conscience. (pp.44-45)

So, the debates diverged into notions of “proper” and “improper” proselytism, which (Taylor rightly notes) were never spelled out in any detail (pp.27, 66-67). The European Court’s decisions under the European Convention, which replicated the good-bad notion without more, are subjected to extended criticism by Taylor:  “Unfortunately, the European Court paid lip-service to the right to manifest religion through proselytism, referring to it in the narrowest possible terms and in a way that did not adequately confront the true purpose of the [State] legislation” (p.69).

In passing, Taylor notes the historical roots, especially in non-Western nations, of the suspicion of proselytizing Christian missionaries. But, he merely discounts the reality of the problem, and attributes a lot to self-interested efforts by States to protect an official State Church, or to instill nationalism through shared religious sentiments. He reviews the debates on the matter quite well. But, the conclusion he draws is that the fears of non-Western delegates were overblown or exaggerated, again without anything more! More to my point that this is not a work of legal politics, Taylor notes how this issue of proselytism was part of the debates of each and every one of the international documents upon which he relies.

Here, then, is exactly the kind of problem of religious liberty that I can only view as politics – not law, and as requiring a political – not legal, solution. Taylor made his judgments as to the “problem” of proselytism. Supporting those choices from the debates, he is satisfied as how the matter ought to be adjudicated. He praises the Human Rights Committee and the Special Rapporteur – whose judgments are technically advisory – while reproaching the European Court for being “slow in giving acknowledgment to the complete range of manifestations of religion or belief that have long been recognized at United Nations level” (p.235), and for failing to “take into account...the different courses and guises of intolerance” (p.7). Consequently, in Taylor’s view, “the absolute, unimpugnable and fundamental nature of the forum internum has been undermined by European institutions through [*600] persistent avoidance of principles that permit the forum internum rights to be asserted” (p.202).

This pattern of analysis repeats throughout the larger part of the book: Text explained in light of Logic and the Debates, creating Meaning which has (or has not) been actually implemented by the various interpretive institutions. The specific matters considered by Taylor include mandatory automobile insurance, paying income taxes to support military activities, compulsory military service, compulsory pension laws, circulating anti-militarist literature at a military base, prisoners’ access to religious materials, State land use and registration regulations, misuse of priestly garb, state-controlled access to food and articles of religious ritual significance, along with lots of others. In most every instance, Taylor shows how the decisions of European institutions have shortcomings, engage in mischaracterizations of appellants’ actual legal claims, and so on – in other words, the politics of it all.  In Taylor’s view, the Human Rights Committee seems far more generous and inclusive in its approach (p.221).

In all this, I found a standard, perhaps mundane, struggle for legal uniformity. Although presented as a comparative analysis, most of Taylor’s commentary is evaluative around an implicit hierarchy of value choices necessitated by the conflicts possible among the authoritative texts. This is not nit-picking on Taylor’s part, however; rather, it is his traditional professional task. But, without some attention to the politics, it is all too easy to read Taylor’s analysis as reflecting his value choices; and, even as I share those value choices, they are not acknowledged adequately as such by Taylor. Also somewhat traditionally, Taylor makes maddening use of passive verb forms wherever he articulates such a value choice, rather masking it linguistically as a choice.

Given the scope of Taylor’s professional project, my only real criticisms of this book lie in something beyond the author’s stated goals. How justified is that? Not much, normally. It is far too easy to throw stones at someone standing someplace else on the canonical landscape of socio-legal studies; “you didn’t study this like I study this” gets us nowhere, really.

On the other hand, I must share the two aspects of Taylor’s book that I feel severely limits its usefulness. The first I have discussed: the lack of much sensitivity within the narrative to the politics of his topic, issues and cases. The underlying – indeed, recurrent – problems of State control of religious commitments and practices are only mentioned. Yet, the political incentives for totalitarian regimes to control religious sentiments as an alternative source of loyalty, for authoritarian regimes to use religious fervor and/or hatred as a technique of political control – even in democratic nations, for fundamentalist religious groups to demand that the law of the State replicate some narrow, religiously-based view of reality (some would find an example in the United States with the current conflict over same-sex marriage) – these forces are not going away. Nor, will they be countered merely by the [*601] rulings of a committee of international experts or a panel of judges. Personally, I share in Taylor’s implicit hope for the efficacy of the Rule of Law, but as only one facet of the tremendously complex human problem.

My second extrinsic criticism is that, as I read it, Taylor’s view of religion is – well – hopelessly liberal. But, then again, so are the authoritative texts. Therein, the social phenomenon of religion is conceived as arising entirely from the choices and commitments of individuals; religious organizations are, then, the product of voluntary communities; everyone can claim to have “the true religion” and the State stays strictly neutral.

However compelling as an ideological vision (one which I share), this is not the only way religion is, in fact, manifested across cultures and societies, wherein the causalities are reversed: religion as a characteristic of a community into which the individual is socialized, moralized and thereby made competent. In this vision, maintenance of the community rests (ideologically, at least) in the maintenance of its religious traditions. In this view, therefore, proselytism can easily be interpreted as coercion, and its suppression can easily be justified as protecting “the fundamental rights and freedoms of others.” Taylor uses the debates to characterize this viewpoint fairly well. Yet, he never engages it, since perhaps he did not have to, given the tight analytical focus of his work. Nevertheless, this communitarian take on religion is far older and far more pervasive, in fact, than the modern liberal view.

These divergent perspectives on religion do not reflect any East-West or Christian-Muslim divide. They are inherent in the very phenomenon of religion (see, generally, Pals 1996). They lie at the core of the of religious politics in the United States (e.g., Fowler, Hertzke, and Olson 1999; Tanner 1992); “fundamentalism,” as an extreme form of the communitarian approach, is potential in most any religious tradition (Marty and Appleby 1994; cf. Rouner 1986); and claiming to hold “the truth,” fundamentalism does not compromise well with others. The politics, therefore, is more powerful than the law.

All together for me, therefore, Taylor’s work, although many readers will find it to be quite valuable, only examines the mountain tops of a cultural divide of tectonic proportions.

REFERENCES:

Fowler, Robert Booth, Allen D. Hertzke, and Laura R. Olson.  1999. RELIGION AND POLITICS IN AMERICA: FAITH, CULTURE AND STRATEGIC CHOICES (2^nd ed). Boulder: Westview Press.

Rouner, Leroy S. (ed).  1986. CIVIL RELIGION AND POLITICAL THEOLOGY. Notre Dame, IN: University of Notre Dame Press.

Tanner, Kathryn. 1992. THE POLITICS OF GOD: CHRISTIAN THEOLOGIES AND SOCIAL JUSTICE. Minneapolis: Augsburg Fortress Press.

Marty, Martin, and R. Scott Appleby (eds). 1994. ACCOUNTING FOR [*602] FUNDAMANTALISMS: THE DYNAMIC CHARACTER OF MOVEMENTS.  Chicago: University of Chicago Press.

Pals, Daniel L. 1996. SEVEN THEORIES OF RELIGION. New York: Oxford University Press.

*************************************************

© Copyright 2006 by the author, Stephen McDougal.