Immunity or Regulation? Antinomies of Religious Freedom

Abstract

A central claim of the right to religious liberty is to protect the right of individuals and groups, particularly religious minorities, to practice their beliefs freely without state coercion and threat of discrimination. Through a comparative reading of Egyptian and European Court of Human Rights case law, this article argues that in authorizing the state to intervene in what appear to be mere expressions of religious belief the right to religious liberty in fact involves the state in making substantive judgments about religion, a domain toward which it claims to be neutral. This paradox is shown to haunt the jurisprudence of the Egyptian courts in seeking to uphold the principles of the sharia, as much as the European Court, which understands itself to be secular. Both systems are shown to face irreconcilable conflicts in maintaining that religious belief is immune from state intervention while at the same time sanctioning its outward expression. In noting remarkable similarities in legal reasoning, the authors suggest that rather than a corruption of the right to religious liberty these antinomies are internal to the conceptual architecture of the right itself.