The Religious and the Secular in European Human Rights Discourse

In this article, I present a way to approach the notion of religion in human rights law that works on the assumption that the concepts “religious” and “secular” are interrelated. The approach is used to study the reasoning of the European Court of Human Rights.

I offer an explanation of criticized trends in the Court’s case law regarding freedom of religion or belief that are not so easily understood unless we recognize that notions of religion are linked to specific albeit sometime unspoken normative ideas about society and political governance, and vice versa. When something is denoted ‘religion’, certain things are ascribed it and it is ascribed a place in society. A study of notions of religion will tell us how society is imagined and authority to be distributed in this society.

Moreover, I maintain that the essential parameters for the Court’s reasoning have a history that precedes the founding of the Court itself. The historical background of prevalent reasoning is not always taken into account. However, in order for us to understand the logic of contemporary legal argumentation, to get at that which forms ‘silent’ parameters for how religion and society is envisioned, we should study the historical grammar of concepts. In this article, I present such an historical outlook and I conclude that what we find when reviewing the case law is indirect evidence of a view of faith that can be classified as an ‘enlightenment figure’ and which developed concurrently with a particular vision of the modern liberal ‘secular’ state.