A Closer Look at Law: Human Rights as Multi-Level Sites of Struggles Over Multi-Dimensional Equality
In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for men, and transgender identities fail to be recognized entirely. Examples include not only the Muslim headscarf, Jewish yarmulke or Sikh turban cases, but also the cases around swimming lessons or litigation for prayer time at school which I use as focal points in this paper. And, at present, such conflicts surface in surprising numbers. Therefore, I will place them in discussions of constitutionalism, secularism, multi-level regulation, and, of course, religious freedom and equality. With this multi-layered analysis, I propose to seek a deeper understanding of these struggles, eyond a portrayal of them as mere clashes of rights. Such an understanding needs the tools of discourse analysis, in that it should uncover which rights are claimed by whom with which effect on whom. We need to acknowledge that rights are often an issue, since human rights are a point of reference both for moral claims as well as for political suppositions, used as illustrations in many academic fields way beyond legal studies. But often, turning to rights does not do justice to the law. Instead, we need to understand law's specificities, as regulation, and decentre law,' simultaneously. Then, any doctrinal response to conflicts of religion and equality may be grounded in what is usually called a socio-legal analysis, and what I would call a reflexive understanding of the law. Based on this, I propose to search for solutions to the conflicts by relying on individual and not on collective fundamental rights read in the light of each other, with substantive equality as one corner of a fundamental rights triangle.
Baer, Susanne. "A Closer Look at Law: Human Rights as Multi-Level Sites of Struggles Over Multi-Dimensional Equality." Utrecht L. Rev. 6 (2010): 56-76.
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