Scolnicov, Anat
(2006)
Freedom of religion or belief: Group right or individual right?
PhD thesis, London School of Economics and Political Science.
Abstract
Freedom of religious and belief is a recognized right in international law. In order to understand, interpret, develop and implement this right, it is important to go back and analyse the fundamental reasoning behind this right. Freedom of religion and belief is a contradictory right: a freedom for self-constraint. It is a double-sided right, a right of expression and a right of identity, two aspects related to individual and group perceptions of this right. Therefore, this right must be understood through a conflict between competing conceptions of individual and group rights. International law should protect the religious freedoms of individuals, and should protect groups only as derivative from the rights of individuals, and never in contravention of them, and generally does so. Current tendencies towards recognising group rights raise concerns, highlighting the importance of this determination. The conceptual analysis of the right serves as a critical tool for discussion of specific conflicts of rights regarding religious freedom, in different area of legal regulation. Different state constitutional structures concerning religion have important implications for analysis of the group/individual conflict. A categorization of constitutional arrangements shows that each presents problems for guaranteeing religious freedom. The constitutional analysis shows religions have public characteristics, and so must abide by human rights norms. The recognition of group rights compromises state neutrality, central to liberal theory. Whatever their constitutional arrangement, states must allow participation in religious communities while protecting individual rights. Particular conflicts are analysed: A conflict between group and individual rights exists between community religious autonomy and women's rights. While international law has been decisive in mandating supremacy of individual rights in this conflict, it has not addressed some of the root causes undermining women's individual rights. Children's religious freedom, in conflict between state, religious group, family, and child, has not always been amply protected in international law, due to absence of differentiation between group and individual interests. Lastly, use of speech by individuals directed against, or in conflict with, religious groups, such as blasphemy, proselytism or hate speech, is addressed. Discussion of these conflicts examines difficulties created, and shows that although some states, based on their respective histories, religions, and cultures, protect the group over the individual, ultimately only an individualistic approach of international law is a coherent way of protecting religious freedom as a human right.
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