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Religious Pluralism versus Social Cohesion? Normative Fault Lines of Human Rights Jurisprudence in Europe

Daniel Augenstein

This essay explores the tension between religious pluralism and social cohesion in European human rights jurisprudence. Comparing the German, French, and British interpretation of the 'social cohesion limitation' of freedom of religion I argue that, at the national level, concerns for social cohesion stem from negative and defensive societal attitudes towards religious diversity that are difficult to reconcile with the normative premises of religious pluralism in a democratic society. The essay proceeds by analysing how two European courts, the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ), address the tension between religious pluralism and social cohesion identified at the national levels. More specifically, it focuses on how trans-national human rights jurisprudence protects religious diversity against the backdrop of different national traditions. While the ECtHR pursues a strategy of avoidance that fails to effectively scrutinise national social cohesion limitations of freedom of religion in the light of its own appraisal of religious pluralism, the ECJ must pursue a strategy of integration that confronts this tension on the basis of the EU legal order as an 'independent source of law'. By way of conclusion, I outline such a strategy of integration that re-interprets the relationship between religious pluralism and social cohesion in European human rights jurisprudence through challenging the association of social cohesion with the containment or suppression of religious diversity.

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