Comment: Contesting the Management of Difference—Transnational Human Rights, Religion and the European Court of Human Rights' Lautsi Decision
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Difference, as Christine Landfried defines it in her contribution to this volume, denotes deeply rooted structurally embedded social phenomena that differentiate people and practices. More than just diversity, difference is embedded in identities, status categories and in legal and political institutions that people establish and uphold to collectively make decisions. Alec Stone Sweet argues in his illuminating contribution to this volume that “the more any rights-protecting court is effective, the more rights adjudication will undermine the kinds of macro-structures that reify difference identified by Landfried” (this volume, 229). Focusing on the practice of the European Court of Human Rights and its jurisprudence on the stigmatization of homosexuality, he perceptively and persuasively highlights how the proportionality test and the idea of a margin of appreciation work as the central conceptual tools that the court uses to assess the legitimacy of difference in a given context. The story he presents of transnational human rights discourse and the European Court of Human Rights as a transnational human rights institution is a success story: Normatively troubling practices that reify difference tend to be subverted by the contextually sensitive practices of a transnational human rights court that remains sensitive to legitimate pluralism in the practice of national self-government of Member States. I believe the picture painted by Stone Sweet of the European Court of Human Rights is accurate not just in the depiction of proportionality and the idea of a margin of appreciation as the key conceptual tools that the European Court of Human Rights uses to manage difference in its human rights jurisprudence. I also think he is correct to suggest that the European Court of Human Rights' jurisprudence relating to the stigmatization of homosexuality is characteristic for how the European Court of Human Rights is able to undermine the macro-structures that reify difference in some contexts. But in the following I will add wrinkles to that story, wrinkles that do not undercut any of the arguments that Stone Sweet presents, but seek to complement and qualify the story by pointing to the limits and potential adverse effects of transnational human rights practice. Drawing on the European Court of Human Rights' freedom of religion jurisprudence and the Lautsi case in particular I will show how transnational human rights practice doesn't just have the tendency to undermine the macro-structures that reify difference, as Stone Sweet argues. At times it just leaves in place or even reifies difference in terms of rights. This is because even within the structure of human rights discourse that Stone Sweet describes, politically contested competing normative constructions of difference reappear and reproduce the kind of disagreement that characterizes national political debates on these issues. But because it does so using the language of rights on the transnational level, the stakes are rhetorically and institutionally raised. This potentially reifying adverse effect is practically mitigated in most cases by the doctrine of “margin of appreciation” which often takes on a role in these contexts to effectively neutralize and largely make irrelevant the European Court of Human Rights as a supervisory institution. In practice this has meant that the Court tends to leave Member States with something close to a free hand to continue to uphold and maintain structures that reproduce difference, by either favoring Christianity or discriminating against Muslims. It follows that when there is disagreement of this kind, we should not expect the European Court of Human Rights to play much of a constructive role. This is not the place to substantiate that general claim by a close analysis of the totality of the court's freedom of religion case law. Instead, the following will try to get a deeper understanding of the problem of contested normative constructions of difference and its implications for the practice of transnational human rights' adjudication through the prism of a high profile recent case: The Lautsi decision (ECHR 2011).
Source Publication
Difference and Democracy: Exploring Potentials in Europe and Beyond
Source Editors/Authors
Kolja Raube, Anika Sattler, Saskia Mestern
Publication Date
2011
Recommended Citation
Kumm, Mattias, "Comment: Contesting the Management of Difference—Transnational Human Rights, Religion and the European Court of Human Rights' Lautsi Decision" (2011). Faculty Chapters. 1065.
https://gretchen.law.nyu.edu/fac-chapt/1065
