Summary

In this dissertation the legal concept of religion has been researched. Firstly, this has been done by researching the phrasing of article 9 of the European Convention on Human Rights (ECHR) and article 6 of the Dutch Constitution, the settled case law on these fundamental rights provisions and comments on the subject in literature, secondly on the basis of a thematic research into subjects with a religious objective.

With regard to the first point it can be concluded that, although the legislator and the authors of the ECHR have not provided a clear definition of religion, there are a number of aspects to be identified in the formulations of article 6 of the Dutch Constitution and article 9 of the ECHR and the settled case law on these fundamental rights provisions that provide a more objective character of the religious concept and can be associated with the ideal type of denomination pluralism. This ideal type proceeds on the general liberal principles of individual human rights and the separation of the public and private domain.

In addition to this, it takes a Lockean interpretation of neutrality and tolerance as a starting point.

The liberal starting point of individual rights can be seen in the phrasing of the fundamental rights provisions of article 6 of the Dutch Constitution and article 9 ECHR because these fundamental rights objects assume that the individual itself has the freedom to practise his religion. The liberal starting point of a distinction between a public and a private domain can be seen in the phrasing of article 6 of the Dutch Constitution, the doctrine of the forum internum and forum externum and the core rights approach. Due to this distinction first-class and second-class forms of religious practice arise, as it were.

A Lockean interpretation of neutrality can be found in the settled case law on the fundamental rights provision of article 6 of the Dutch Constitution and that of article 9 ECHR. According to Locke all neutral (everyday) expressions and behaviours are not by definition a direct expression of religion. This can only be so when an unquestionable mandate has been issued for this reason. The question that Locke doesn’t answer is when one knows whether an expression or behaviour has an unquestionable mandate. We also see this problem in case law where there is a struggle with the question when an expression or behaviour is a ‘direct expression’ of religion. Everyday (Locke uses the term indifferent) expressions or behaviours that are regulated by ‘neutral’ law cannot be recognised as an expression or behaviour of religion or belief.

Finally, we can also identify a Lockean interpretation of tolerance in the case law regarding article 9 ECHR and article 6 of the Dutch Constitution. The Lockean interpretation of tolerance essentially means that this tolerance only applies to belief in the generally recognised (institutional) religions. According to Locke, tolerance should not apply to individual, singular religious beliefs. These beliefs are therefore not covered by the freedom of religion. Lockes interpretation of tolerance can be recognised in the demand that the case law of the European Court of Human Rights (ECtHR) makes that a religion or belief should be characterised by ‘... a certain level of cogency, seriousness, cohesion and importance’. The ECtHR does not accept vague opinions or ideas. There must be an identifiable religion or belief. Lockes interpretation of tolerance also echoes in the example the ECtHR provides in cases that are a direct expression of religion: ‘(…) acts of worship or devotion forming part of the practice of a religion or a belief in a generally accepted form’. Based on this ground, traditional expressions or behaviours are, since they are generally accepted, easier qualified as religious than other expressions and behaviours.

Based on the second point, the analysis of various subjects with a religious objective within the various judicial areas (see 1.7 for an overview), it can be concluded that a varying understanding of religion is applied in law. The various subjects that have been studied don't provide a unambiguous image. We also see that the concept of religion with regard to one specific subject can vary. The judge will, for instance, have a slightly different approach than the legislator. The legitimisation for the different ways in which the concept of religion is explained can be associated with the various political and philosophical ideal types (see 4.1 for an overview). One could argue that the legal concept of religion is like a mosaic of various political and philosophical perspectives. That is not surprising given the fact that law is a reflection of prolonged social and political developments. Finally, I am making four observations.

1) There are a number of subjects in which, in line with the social developments of individualisation and multiculturalisation, there is a shift from an objectifying to a subjectifying explanation of the concept of religion. Regarding these subjects, the accommodation of religious pluriformity and the accompanying subjectifying explanation meets very little resistance from the government and leads to very few practical problems. It mostly concerns subjects in which the possible (financial) consequences of the more subjectifying explanation are limited for the government. It concerns taking an oath in legal proceedings, the scope of the term church and the criminal law protection of groups against discrimination.

This development can be interpreted as the consequence of a more accommodationist approach that is gaining influence at the expense of an approach that is more suitable to the ideal type of the liberal denomination pluralism. The main criticism that can be given to the ideal of the liberal denomination pluralism from a accommodationist perspective is that it assumes certain majority opinions on religion and favours the ensuing expressions and behaviours as compared to less known (exotic) religions and atypical religious expressions and behaviours.

Accommodationists believe that anyone who appeals to religion or ideology in law should be equally entitled to rights (including exemptions, privileges, freedoms and so on). Not just traditional religions and ideologies should be protected, but every religious or ideological claim should be honoured, unless there is a legitimate restriction on the grounds of urgent considerations of public interest, such as public order, safety or protection of the rights of others. This view corresponds with a subjective explanation of religion where the individual decides what he or she considers religion and what the associated expressions and behaviours are. The legal subject is the individual within this approach. The self-definition is guiding for the legal question what religion is.

2) There are a number of subjects that we can consider remnants of the system of compartmentalisation (verzuiling). In this context, a collective-subjectifying explanation of the concept of religion is applied that can be associated with the communautarist ideal type. Religion is seen as more than just the private practice of religion within the communautarist perspective. Religion is perceived as a phenomenon that is given shape within the collective. A certain collective has the freedom to define itself. This definition is then binding to all the individuals that belong to that particular collective. The collective has the autonomy to determine for itself what it believes to be religious. The communautarist ideal type has influenced the Netherlands through the Catholic social doctrine that assumed the principle of subsidiarity and the Calvinistic Protestant doctrine that assumed the principle of sovereignty amongst ourselves. These social perspectives are moderately communautarist since one doesn't only assume the self-definition of the collective but also the self-definition of the individual.

The collective-subjective explanation of the concept religion in the light of the freedom of association of churches and denominational education can be associated with the communautarist perspective. The explanation of the concept of religion on the grounds of the freedom of association and assembly is, with regard to churches, based on article 2:2 of the Dutch Civil Code and, with regard to denominational schools, based on article 23 of the Dutch Constitution. The ECtHR reads – regarding the freedom of religion of religious communities (including churches, schools and so on) – article 11 ECHR (freedom of assembly and association) in light of article 9 ECHR (and article 2 Protocol 1 ECHR). The foundation of the assembly or association in theological sources means that, at first sight, non-religious subjects: the organisation, membership and so on can be given a religious dimension and can therefore be considered a religious expression or behaviour. For example, the non-gender neutral filling of positions within a church or the selection of teaching materials by a denominational (special) school. Consequently, the freedom of association and assembly of religious communities is an expansion of the problems regarding the explanation of the concept of religion.

To what extent the communautarist approach in the Netherlands is future-proof will be depending on the degree in which society keeps supporting the idea that religion is a legitimisation for an extensive autonomy of institutions. It is possibly declining thanks to the fading influence of the Christian political principles of ‘sovereignty amongst ourselves’ and ‘subsidiarity’. Over the last few years such support for, at least, denominational education seems to be decreasing. On the other hand, there are still groups in society that organise in themselves in this traditional manner. As long as these groups exist, their rights will not be taken away without reason and in that case the collective-subjectifying explanation of the concept of religion that accompanies these rights will remain. When a collective and an individual right within a religious community collide, the consequence will then be that the law, against the tendency of an individualising society, will attach greater importance to the self-definition of the religious group than to the self-definition of the individual.

3) There are a number of subjects where, in line with the social developments of individualisation an multiculturalisation, a more subjectifying explanation of the concept of religion is becoming increasingly common but where, with regard to a mere individual (singular) exercise of religion, an objective explanation is still applied. This can be implied as an accommodationist approach that is not followed to the extreme, since people, on some points, insist on an approach that suits the ideal type of the liberal denomination pluralism. The legal order does not seem inclined to accommodate a solely singular way of religious practice when it concerns clothing and etiquette, ritual slaughter and applications for asylum. It is likely that a completely accommodationist approach is deemed undesirable in these subjects because of fear of misuse of law or of situations in which the law would be unmanageable. This could be the case in the situation of an individual claiming the right to ritual slaughter based on a made-up religion or, in the context of a dismissal, saying to be the victim of discrimination because of wearing an absurd outfit (a colander?) for religious reasons in a position where representativity is important. The reluctance can also be motivated by the fact that certain matters are politically sensitive, such as the granting of residence permits. One could be afraid that an approach that fully accommodates the religious perspectives of asylum seekers (when not weeding out insincere claims) could lead to an increase in the number of refugees.

4) There are a number of subjects in which, in spite of the social developments of individualisation and multiculturalisation, a more objectifying explanation of the concept of religion is maintained. Within these subjects, the concept of religion can be associated with the liberal denomination pluralism. Ideally based on the traditional and generally recognised religions. Furthermore, these religions must be specific. We see this approach in Dutch tax law with regard to the regulation for public welfare institutions (ANBI) and the church exemption, and in education with regard to the explanation of the term orientation. The emphasis on objectification within these components of law can be explained by the idea that it concerns legal subjects that require a financial favour from the government. That is evident for the tax benefits of churches, but also for the existence of denominational education. It then concerns the arrangement for the transportation costs to the nearest school of the desired orientation and the funding of the establishment of a new school. It is conceivable that, with regard to these subjects, the government fears that a subjective concept of religion will lead to high expenses and it therefore adopts an objective-restrictive position.

In this dissertation I will demonstrate on the basis of aforementioned conclusions that it is better to abandon an approach that can be associated with the ideal type of the liberal denomination pluralism (including the objectifying approach) in all areas of law and to switch to a combination of an accommodationist and communautarist approach. The question of what religion or religious is, will then, in large part, fall outside the scope of the government and society as a whole (generally accepted social views). Instead, it will primarily be the legal subject who is entitled to the right of self-definition, unless it concerns a dispute between a religious community and a voluntary member of a religious community. In that case the self-definition of the collective should prevail. Otherwise it will become impossible to establish a religious community.

To prevent problems with a subjectified religious concept, I propose three solutions. First, a minimal objectification of the legal concept of religion that allows for a manageable freedom of religion. The minimal objectification is that a religious or ideological view should have a certain degree of comprehensibility, cohesion, significance and earnestness. The aspect of cohesion relates to fundamental life questions that should be made more explicit, such as questions relating to the origin, meaning and purpose of existence. Views that are not related to such questions should fall outside the legal concept of religion or belief. Secondly, a strict assessment of the sincerity of the legal subject. This assessment should not be theological in nature, but should be focused on 1) the facts of the context in which the religion is exercised, 2) the conformity (consistency) of the behaviour of the legal subject in relation to his beliefs. Thirdly, incorporation of a restrictive clause identical to the one article 9 ECHR has for every right with a religious objective. With such a restrictive clause, a qualification as religion or religious does not automatically have legal (deemed unwanted) consequences. Government and law will then have the option to weigh those consequences against other interests such as public order, safety, health and the rights of others. This can prevent a successful appeal to a right with a religious right by adherents of undesired religions. A restrictive clause can also be the solution when there is doubt about the sincerity of a religious claim, because then the judge can give the legal subject the benefit of the doubt and qualify his beliefs as religious since he will always have the option to mitigate the consequences of this qualification by applying the restrictive clause. Obviously, there must actually be important interests. The freedom of religion should not be eroded due to the application of a restrictive clause.

My proposal ensures that the self-definition of the legal subject is awarded with a larger role in law and that the doctrine of interpretative restraint is respected. In addition, it prevents the unequal treatment of adherents of religions.