Table Of ContentIslam, Europe and Emerging
Legal Issues
Edited by
W. Cole Durham, Jr, Rik Torfs,
David M. Kirkham and Christine Scott
Islam, EuropE and EmErgIng lEgal IssuEs
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Islam, Europe and Emerging
legal Issues
Edited by
W. ColE durham Jr.
Brigham Young University, Utah
rIk Torfs
Catholic University of Leuven, Belgium
davId m. kIrkham,
Brigham Young University, Utah
and
ChrIsTInE sCoTT
Brigham Young University, Utah
© W. Cole durham, Jr, rik Torfs, david m. kirkham and Christine scott 2012
all rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
W. Cole durham, Jr, rik Torfs, david m. kirkham and Christine scott have asserted their
right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of
this work.
published by
ashgate publishing limited ashgate publishing Company
Wey Court East suite 420
union road 101 Cherry street
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surrey, gu9 7pT vT 05401-4405
England usa
www.ashgate.com
British Library Cataloguing in Publication Data
Islam, Europe and emerging legal issues.
1. Islam – Europe. 2. Islam and state – Europe. 3. Islam
and secularism – Europe. 4. muslim women – Civil rights –
Europe. 5. hijab (Islamic clothing) – law and legislation –
Europe. 6. legal polycentricity – Europe. 7. European Court of human rights.
I. durham, W. Cole, 1948-
322.1’088297’094-dc22
Library of Congress Cataloging-in-Publication Data
Islam, Europe and emerging legal issues / [edited by] W. Cole durham ... [et al.].
p. cm.
Includes bibliographical references and index.
IsBn 978-1-4094-3444-3 (hardcover : alk. paper)—IsBn 978-1-4094-3445-0
(ebook) 1. muslims—legal status, laws, etc.—European union countries. 2.
European Court of human rights. 3. hijab (Islamic clothing)—law and legislation. 4.
Islam—Customs and practices. 5. Islam—Europe. I.
durham, W. Cole, 1948-
kJC5144.m56I84 2011
346.2401’3--dc23
2011026566
IsBn 9781409434443 (hbk)
IsBn 9781409434450 (ebk)
III
printed and bound in great Britain by the
mpg Books group, uk.
Contents
List of Figures vii
List of Contributors ix
List of Abbreviations xv
Acknowledgements xvii
Introduction 1
W. Cole Durham, Jr and David M. Kirkham
PART I IslAm, HumAn RIgHTs, And seculARIsm In
euRoPe: An oveRvIew
1 Islam in Strasbourg: Can Politics Substitute for Law? 19
Javier Martínez-Torrón
2 The European Court of Human Rights: Between Fundamentalist and
Liberal Secularism 63
Ingvill Thorson Plesner
3 Wearing the Hijab: Some Reflections from a Muslim Woman’s
Perspective 75
Amal Idrissi
4 International Human Rights Law and the Islamic Headscarf:
A Short Note on the Positions of the European Court of Human
Rights and the Human Rights Committee 83
Martin Scheinin
PART II euRoPeAn APPRoAcHes To THe IslAmIc
HeAdscARf conTRoveRsy
5 The Hijab in Strasbourg: Clear Conclusions, Unclear Reasoning 89
Njål Høstmælingen
6 Religious Symbols in Public Schools: The Islamic Headscarf and the
European Court of Human Rights Decision in Şahin v. Turkey 111
T. Jeremy Gunn
vi Islam, Europe and Emerging Legal Issues
7 The Strasbourg Court Dealing with Turkey and the Human Right to
Freedom of Religion or Belief: An Assessment in Light of Leyla
Şahin v. Turkey 147
Tore Lindholm
8 The Religious Headscarf (Hijab) and Access to Employment under
Norwegian Antidiscrimination Laws 169
Ronald Craig
9 The Headscarf Issue: A German Perspective 185
Richard Puza
PART III THe euRoPeAn couRT And THe lImITs of
PluRAlIsm: THe welfARe PARTy cAse
10 The Dubious Foundations of the Refah Decision 209
Ann Elizabeth Mayer
11 Refah Revisited: Strasbourg’s Construction of Islam 235
Christian Moe
12 The Principles of Legal Pluralism and Militant Democracy 273
Javid Gadirov
13 The European Court’s Freedom of Association Cases and the
Implications for Islam 291
Lance Lehnhof
Bibliography 311
Index 325
List of Figures
12.1 Atomized Modern Society 279
12.2 Pluralized Society 280
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List of Contributors
Ronald Craig is a senior advisor to the Equality and Anti-Discrimination
Ombudsman of the Kingdom of Norway. He has also served as a legal advisor at
the Norwegian Center for Combating Ethnic Discrimination. He received a legal
education both in the United States and in Norway, receiving his doctorate of
law from the University of Oslo. His doctoral thesis “Systemic Discrimination in
Employment and the Promotion of Ethnic Equality” was recently published as a
book.
W. Cole Durham, Jr is the director of the International Center for Law and Religion
Studies and the Susa Young Gates University Professor of Law at J. Reuben Clark
Law School, Brigham Young University (BYU). Professor Durham’s multiple
responsibilities include serving as a member of the Organization for Security
and Cooperation in Europe/Office for Democratic Institutions and Human Rights
(OSCE/ODIHR) Advisory Council on Freedom of Religion or Belief, and as vice
president of the International Consortium for Law and Religion Studies. A graduate
of Harvard College and Harvard Law School, Professor Durham has been heavily
involved in comparative constitutional law and church–state relations throughout
his career. He has published widely on comparative law and has served as secretary
of the American Society of Comparative Law and as chair of both the Comparative
Law Section and the Law and Religion Section of the American Association of
Law Schools. He is a member of several US and international advisory boards
dealing with religious freedom and church–state relations.
Javid Gadirov is an Assistant Professor at the Faculty of Law, Baku State
University (Azerbaijan). He was also an intern for the Representative on Freedom
of the Media at the OSCE. He received his PhD in comparative constitutional
law magna cum laude and an LLM in human rights from the Central European
University. He was also a graduate visiting student at the University of Oxford and
a visiting scholar at the Columbia University School of Law.
T. Jeremy Gunn is an associate professor of international studies at Al Akhawayn
University in Morocco and senior fellow for religion and human rights at the
Center for the Study of Law and Religion at Emory University School of Law.
He also is a member of the OSCE/ODIHR Advisory Council on Freedom of
Religion of Belief. His previous positions have included director of the American
Civil Liberties Union (ACLU’s) Program on Freedom of Religion and Belief and
senior fellow at the US Institute of Peace; and he has held several positions in the
US government, including the US Department of State’s Office of International
