Posted on | March 21, 2012 by Grégor Puppinck, Ph.D |
One year ago, the European Court ofHuman Rights made its final decision in the famous “Italian crucifix” case (Lautsi v Italy).With the publication of a study on his findings, I return to a case that has had a profound impact on the European Court of Human Rights and itsconception of human rights.
This study aims to give a synthesis ofthe key lessons learned from Lautsi, from institutional, legal, philosophical, political and religiousviewpoints. Upon the publication ofthe first judgment of the European Court of Human Rightson November 3rd, 2009, Lautsi became asubject of debate and a socialissue across Europe. In thisjudgment, the Court condemnedItaly for violating the negative liberty that is the freedom ofreligion, by allowing crucifixes to be displayed inpublic school classrooms. Going beyond theliteral and original meaning ofthe Convention, the Court thenstated that this combination of secularism and democracy should be the norm.European society, which was widely shocked by this decision,has since questioned the role of the Court, the relationship between human rights and our culture, the meaning of negative liberty,neutrality and secularism, and Christianity’s place within European identity.This reflection is an on-going process.
Politically, the decision of 2009ushered the Court into a new era, detaching the Court from the culture of theChristian-Democrat modernity which had inspired its creation. In fact, thisjudgment was often perceived as anabuse of the Court, and as marking the triumph ofindividual atheism over socialreligiousness. In other words, thisjudgment has been considered asmarking a double abuse of power: thatof an International Court on thenational political society, and that of the individual on the national culture. Ultimately, society in its politicaland cultural dimension was delegitimized,like being caught between the individual andinternational levels which are emerging as the only and ultimate sources of political legitimacy. The conclusive judgment finally deliveredby the Grand Chamber of the European Court,18 March 2011, corrects the judgment of 2009and provides answers to questions which it had provoked. While the judgment of2009 left a gap between the supranational authority of human and individual rights, thejudgment of 2011 restores to bothnational society and culture their quality and legitimacy of intermediate common good.
The Lautsi case took place when modernideologies were at a dead end. Europe questions itself more and more about itsvision for civilization. The question Lautsi posed was if Christianity stillhas a place in modern civilization, or if it should be erased from this futureWestern identity. The Court finally reaffirmed the social legitimacy ofChristianity, and is justified in saying “the regulations confer on the country’s majority religion preponderantvisibility in the school environment (…) in view of the place occupied byChristianity in the history and tradition of the respondent State.” Thisstatement has an impact when one notes that the Court has simultaneouslyrelativized secularism whilst denying it any form of neutrality: it is not acompulsory model that Europe must adhere to inthe future.
There are many noticeable consequences of this case: religious, geopolitical,legal, institutional. This case has strongly contributed to the ongoing reformof the European Court. The intervention of some twenty countries against thejudgment of 2009 has allowed the Court to learn how to doubt itself, somethingwhich is good and necessary when so much power is involved!
Since then, the Court began to distance itself from this postmodern ideology. This much is evident in a series of cases relating to abortion,bioethics, and homosexuality. This unreasonable ideology, a cultural tiny minorityin Europe, is still intellectually dominant ininternational circles close to the Court. It is this gap which is now being reduced: it is a return to much more reason and realism, something whichis good and necessary for any jurisdiction.
Link to the study in English: http://eclj.org/pdf/ARTICLE-LAUTSI-PUPPINCK-English-BYU-Law-Review.pdf