I. Introduction
“Living together”, an enigmatic term absent both from the text of the European Convention on Human Rights (ECHR) and from the legal doctrine and case law of continental European legal systems,Footnote 1 is decisively edging its way into mainstream human rights discourse in Europe. The idea of “living together” – and its justifiability as a legitimate reason for state limitations on specific human rights – first emerged in S.A.S. v France,Footnote 2 a landmark case on the French criminal prohibition on the wearing of full-face covers in public. In S.A.S., the European Court of Human Rights (ECtHR) held that “living together” was a legitimate aim, associated with the rights of others to live in a space of socialisation that makes life in a community easier.Footnote 3 As such, “living together” was held capable of justifying limitations on respect for private life and freedom to manifest religion, provided that those are also necessary in a democratic society.Footnote 4 In late 2015, a year after the Grand Chamber's judgment on S.A.S., the Council of Europe attempted to explicate the normative underpinnings of “living together” in Recommendation 2076 on “freedom of religion and living together in a democratic society”.Footnote 5 However, the scope of “living together”, along with its grounds and status under the ECHR, remain startlingly obscure.
The emergence of “living together” as a legitimate dimension of the “rights of others” under Articles 8(2), 9(2) and 10(2) ECHR that is capable of justifying state limitations has already attracted vehement criticism in human rights scholarship. More specifically, the ECtHR has been criticised for prioritising illicit majoritarian preferences over the individual right to religious manifestation,Footnote 6 for yielding to cultural biasFootnote 7 and for effectively “bulldozing” a right to personal identity “unless that identity is acceptable and permissible in the eyes of the majority”.Footnote 8 However, contrary to the prevailing view in human rights literature, this article argues that “living together” – along with its potential problems – has to be examined not exclusively with reference to questions of identity such as, for instance, questions about wearing religious symbols in public. Rather, any plausible interpretation of “living together” clings on our answers to more general questions of human rights theory, such as whether “living together” constitutes a collective good that may be balanced against rights, the circumstances under which it might justify limitations on them and how far-reaching those limitations could be.
This article will pursue two main claims. First, I will argue that “living together” constitutes another link between certain minimum social values, already established in the jurisprudence of the ECtHR, and democracy; as a result, the judicial recognition of its role in securing equal protection of our rights is far from surprising. By contrast with the prevailing analysis in human rights scholarship, this article claims that “living together” is neither a novel addition to the jurisprudence of the ECtHR nor in conflict with pluralism, tolerance and broadmindedness.Footnote 9 Rather, the ECtHR has repeatedly upheld limitations on various rights, including freedom of religion, respect for private life and freedom of expression, for reasons of solidarity and mutual respect.Footnote 10 Although those values also fall outside the text of the Convention – as much as “living together” does – the ECtHR recurrently appeals to them in order to highlight and reinforce the connections between rigorous human rights protection and core principles underlying liberal democracy. Moreover, although both the ECtHR and the Council of Europe employ “living together” as a portmanteau concept covering a plurality of values, the concept does have distinctive meaning. Its distinctiveness stems from its intricate socio-historical and constitutional connections with the republican ideal of fraternity, which are further discussed in Section III. All in all, the justifiability of “living together” as a limitation ground for our rights to freedom of religion and respect for private life does not depend on whether it is a new addition to the ECHR. Rather, it depends on which conception of “living together” (if any) is compatible with certain fundamental moral values served by human rights, which inform, in turn, the interpretation of the Convention.
Exploring the close relationship between “living together” and the constitutional virtue of fraternity is crucial, but there is another important distinction that helps us decipher the precise meaning of the idea in human rights law. More specifically, the second claim of the article is that securing “living together” is ambiguous because it alludes to two different and antagonistic goals, which I call responsibility and conformity. Under a responsibility conception, “living together” requires citizens to recognise certain minimum social values and decide reflectively, as a matter of moral importance, about whether particular forms of their public conduct are respectful towards others. A responsibility conception of “living together” is compatible with various “soft” measures such as, for instance, strengthening civic and human rights education for both sexes, combating obscurantism, and promoting a culture of openness and inter-cultural dialogue. By contrast, under a conformity conception, a state can compel its citizens to embrace only the forms of interaction that the majority believes best capture the ideals of fraternity and civility. The disagreement – crucially, among others, before the French National Assembly itselfFootnote 11 – between those who support “soft” measures and those who favour criminalisation of the wearing of the full-face veil in public mirrors the antagonism between those two very senses of responsibility and conformity. In fact, blanket criminal prohibitions on full-face covers from the general public space, such as those currently enacted in Belgium and France, make good sense under a conformity conception of “living together”.
However, this article claims that, at least in the specific case of the blanket ban on full-face covers, a conformity conception of “living together” faces insurmountable difficulties. As Section IV discusses in greater detail, conformity is at variance with elemental functions of human rights, such as their role as limits on the kinds of reason that states can legitimately invoke to justify their action. Moreover, under its most convincing reconstruction, the conformity version of “living together” sits uneasily with the republican ideal of fraternity, as well as with the constitutional principle of laïcité, both of which inform its normative bedrock in varying degrees. Those are important reasons to prefer a responsibility version of “living together” – at least in cases touching on the expressive dimensions of our rights to freedom of religion, respect for private life and freedom of expression.
There is an additional point that requires clarification. Should an interpretation of “living together” fall exclusively within a state's margin of appreciation? It is noteworthy that, in S.A.S., the majority of the ECtHR did not directly validate the French ban on full-face veils and did not expressly answer whether the criminalisation of full-face veils was proportionate to the legitimate aim of protecting the rights of others to “living together”. Rather, despite having significant reservations about the concept,Footnote 12 the ECtHR held that, in “general policy” questions – which seemingly do include questions about which forms of our public conduct may be compatible with the majority's interpretation of tolerance and broadmindednessFootnote 13 – states enjoy a wide margin of appreciation that constraints the ECtHR in its review of Convention compliance.Footnote 14 Crucially, here the ECtHR uses margin of appreciation in a structural, rather than a substantive, form.Footnote 15 More precisely, the majority of the ECtHR did not use the margin of appreciation in a substantive form that means that state authorities did struck a “fair balance” between individual rights and collective goals, and that the limitation in question was proportionate and therefore within the state's discretion.Footnote 16 Rather, this is a typical case where the ECtHR allows wide margin of appreciation based on arguments from institutional competence and subsidiarity; and from the more specific idea that “better placed”Footnote 17 national authorities should enjoy normative priority over international courts whenever there is lack of consensus among the Contracting States of the Council of Europe. This is a typical case where the ECtHR simply refrains from making a substantive judgment as to whether a right has been violated.Footnote 18
This structural use of the margin of appreciation is all too common in cases touching on morals, such as, for instance, cases involving blasphemous art,Footnote 19 and has been repeatedly criticised for its association with moral relativism and for compromising the universality of human rights.Footnote 20 Although a detailed analysis of the margin of appreciation falls outside the scope of this article, its structural use is deeply problematic here, for two specific reasons. First, as Section IV discusses, the danger that majoritarian arguments might have been corrupted by the wrong sort of reasons whenever states use concepts as fluid and abstract as “living together” in order to justify limitations on human rights is particularly acute. Close judicial scrutiny is crucial as a result. Second, the structural use of the margin of appreciation creates significant inconsistencies within the jurisprudence of the ECtHR. As Section III notes, the ECtHR habitually resolves questions on the proportionality of state limitations on human rights through imposing its own interpretation of concepts such as pluralism, solidarity and toleration, and it is unclear why “living together” has to be treated differently. So, reasons from both the counter-majoritarian nature of rights and from legal coherence require the ECtHR to reach a substantive judgment, rather than defer to state authorities, not only as to whether “living together” is a legitimate aim, but also as to whether, amongst various policy options, the limitations it justifies in specific cases are proportionate, all things considered. Moreover, such a substantive judgment cannot be solely contingent on theories of proportionality and deference, since their content depends on which moral theory underlies human rights.Footnote 21 In fact, the ECtHR has to resolve the legitimacy and proportionality questions surrounding “living together” exactly the way it usually does; it has to specify the normative conditions on the legitimate use of state coercion through the interpretation of legal principles and autonomous concepts,Footnote 22 such as individual autonomyFootnote 23 and equal respect.Footnote 24 Of course, the most attractive interpretation of “living together” is one that defines the concept not only as compatible, but as intertwined with equal respect, ethical independence, pluralism and fraternity. The responsibility interpretation that this article develops and defends, at least in cases touching on our expressive conduct in public, is an example of such an interpretation.
Parts of the following discussion will focus on the French ban on full-face covers and the French interpretation of fraternity, not least because they add context to the emergence of “living together” both in the policy work of the Council of Europe and in the jurisprudence of the ECtHR. Despite those references, the main question of this article does not concern the deployment of the concept in the French constitutional context. Exploring the notion of “living together” in European human rights law is crucial and timely because the idea is so flexible that it could be used to justify future state limitations on countless other forms of expressive conduct in public protected by various human rights, including our rights to privacy and freedom of thought, conscience and religion. In fact, the emergence of “living together” coincides with a shocking number of horrific terrorist attacks across Europe that fuel European-wide calls for decisive reforms of our national and international human rights agendas in order to prevent extremism and radicalisation. However reasonable, those calls require vigilance in order to filter out far-reaching limitations on our rights grounded on the pretext of securing common values. This article therefore also joins wider theoretical efforts to imbue European human rights law with an accurate account of the common values that may be legitimately protected and balanced against our rights under the ECHR, and of the type and level of state coercion that they should be able to justify.
II. “Living Together” in the Jurisprudence of the European Court of Human Rights
In July 2014, the Grand Chamber of the ECtHR published its much-awaited judgment on S.A.S. v France. Notably, this was the first time that an individual complaint about a national ban on the wearing of full-face covers reached the ECtHR. The applicant in S.A.S., a young French lady, is a devout practising Muslim. According to her submission to the ECtHR, she wears the burqa or the niqab by virtue of her religious and cultural convictions. Before the ECtHR, the applicant stressed that neither her husband nor any other members of her family has pressurised her to wear the face veil.Footnote 25 She further noted that she wears her niqab “non-systematically”, namely that she does not wear it when she visits a doctor, when meeting friends in public, when she wants to socialise or when she has to pass security checks in banks, airports or other public places where those are required.Footnote 26 Despite accepting those limitations, she wishes to have the choice to publicly manifest her religion through wearing the niqab depending “on her spiritual feelings”Footnote 27 and especially during religious events such as the Ramadan. She argued that she does not want to divide, but to “feel at inner peace with herself”.Footnote 28
The applicant complained that Law No. 2010–1192 (hereinafter “the Law”), which prohibits individuals from wearing clothing that is designed to conceal the face in public places,Footnote 29 violates, among others, her right to respect for private life, freedom of religion and freedom of expression taken separately and together with freedom from religious discrimination.Footnote 30 Amnesty International, Article 19, the Human Rights Centre of Ghent University, Liberty and the Open Society Justice InitiativeFootnote 31 intervened with support for the applicant's complaint statements.
The Grand Chamber of the ECtHR accepted that the ban on the full-face veil constitutes a form of interference with the applicant's rights and embarked on an “in-depth” examination of the legitimacy of its aim.Footnote 32 The French Government argued that the Law pursued two aims: public safety and protection of the rights and freedoms of others through securing the “minimum set of values of an open and democratic society”.Footnote 33 The ECtHR held that the public safety justification was disproportionate, but accepted the second legitimate aim behind the ban, namely the French argument that protection of the rights and freedoms of others entails securing a minimum set of values that are fundamental in a democratic society. Those included respect for equality between men and women, respect for human dignity and respect for the minimum requirements of life in society.
Although the French Government has been adamant about the gender equality justification of the ban, the majority of the ECtHR dismissed that argument because states cannot “invoke gender equality in order to ban a practice that is defended by women, such as the applicant”.Footnote 34 This part of the judgment is noteworthy both because it highlights how important “living together” proved for the justification of the ban and because it marks a significant shift in the court's approach to gender equalityFootnote 35 compared with previous cases such as Dahlab v Switzerland Footnote 36 and Leyla Şahin v Turkey,Footnote 37 where the ECtHR found the Islamic headscarf hard to square with tolerance, respect for others, and equality and non-discrimination. Contrary to those much-criticised judgments,Footnote 38 where the focal point was the practice of wearing symbols in public, in S.A.S., the ECtHR placed more emphasis on the applicant's views, without associating her chosen way of religious manifestation with negative stereotypes about gender relations between Muslim women and men.Footnote 39 This approach also aligns the ECtHR with Resolution 1743 of the Council of Europe, where the Parliamentary Assembly doubted the compatibility of a general prohibition on the wearing of the burqa and the niqab with Article 9 ECHR, given that it “would deny women who freely desire to do so their right to cover their face”.Footnote 40
Similarly to the argument about gender equality, the ECtHR swiftly dismissed the French argument from human dignity because, as the majority held, respect for human dignity could not justify the general ban in question. The full-face veil expresses a cultural identity relating to a different notion of decency about the human bodyFootnote 41 and, moreover, there is no evidence that women who wear it show contempt for others.Footnote 42 With regard to respect for the minimum requirements of life in a democratic society, the French Government argued that the ban responded to an incompatible practice “with the ground rules of social communication and more broadly the requirements of ‘living together’”.Footnote 43 The ban aimed to protect social interaction, which is essential to pluralism, tolerance and broadmindedness.Footnote 44 The ECtHR conceded that the face is important to engage in open interpersonal relationships, and noted that the explanatory memorandum accompanying the Law recognised that voluntary concealment of the face contravenes the ideal of fraternity and the minimum requirements of civility that are necessary for social interaction.Footnote 45 On that account, the ECtHR accepted that the full-face veil raises a barrier in breach of “the right of others to live in a space of socialisation which makes living together easier”.Footnote 46 Although the majority expressed its concerns about the “flexibility” and “the resulting risk of abuse” of securing “living together”, it accepted that in principle “it falls within the power of the State to secure the conditions whereby individuals can live together in their diversity”.Footnote 47
Apparently, one of the arguments that led the majority of the ECtHR to find the blanket ban within the state's (wide) margin of appreciation was the lack of European consensus “against a ban”.Footnote 48 It is notable that various human rights scholars have repeatedly argued that seeking consensus among states, as part of the reasoning of the ECtHR in determining the protective scope of our human rights, is incoherent and morally controversial.Footnote 49 But there is an additional problem here. The argument about lack of European consensus regarding the regulation of full-face covers in public is of doubtful validity. More specifically, according to the recent Religare report,Footnote 50 we could distinguish between three different forms of regulation of full-face covers in Europe. The first includes national laws prohibiting any form of clothing designed to conceal the face in public.Footnote 51 At the time of writing this article, such laws exist at a national level only in France and Belgium.Footnote 52 Various human rights organisations, among others, have questioned the necessity for such legislation given that, in Belgium, for instance, it is estimated that only “several dozen out of the country's 375,000 Muslims wear the burqa”.Footnote 53 Even so, some have defended a European-wide ban on full-face covers in public.Footnote 54 That area of law continues to stir heated political debates and to be susceptible to manipulation by populist, xenophobic parties across Europe.Footnote 55
A second form of regulation of full-face covers does not involve state-wide bans, but limitations “introduced by mayor or other local authorities by means of administrative provisions”.Footnote 56 At the moment, ItalyFootnote 57 and SpainFootnote 58 follow that form of regulation. Perhaps unsurprisingly, local bans have steered constitutional controversy. For instance, in February 2013, the Spanish Supreme Court held that the ban on full-face covers in the municipality of Lleida,Footnote 59 which was introduced in 2010 to protect public order, social peace and women's rights, violated the right to freedom of religion because it was not shown to be necessary to protect women from discrimination and violence.Footnote 60 According to the Spanish Supreme Court, the most important factor is whether a woman “freely chooses to wear a full face veil”.Footnote 61
Finally, in most of the remaining members of the Council of Europe, including the UK, there are no general (legislative or administrative) prohibitions on the wearing of full-face covers at national or local level. For instance, Danish law prohibits the wearing of religious and political symbols in court, without other general prohibitions enacted on state or local level. Rather, court judgments, guidelines issued by professional bodies, as well as government directives constitute the main points of guidance on how to deal with hard cases such as, for instance, the wearing of full-face covers on means of public transport.Footnote 62
Notwithstanding the diversity of regulatory possibilities, it is noteworthy that, at the moment, only France and Belgium have opted for a blanket criminal prohibition on the wearing of full-face covers in public. Thus, even if the ECtHR did have to take into consideration the level of consensus among the members of the Council of Europe in its substantive decision, that consensus (at least at the moment these lines are written) could only be against blanket prohibitions on full-face covers from public places. Of course, the ECtHR connected the lack-of-consensus point with another, distinct claim that will be further discussed below, namely that the question of whether wearing full-face veils in public should be allowed constitutes a choice of the society. Both those arguments led the majority of the ECtHR to the conclusion that, especially given France's wide margin of appreciation in the case, the blanket ban is proportionate to the legitimate aim of preserving the conditions of “living together” as an “element” of the rights and freedoms of others.Footnote 63
III. “Living Together” and the ECHR as a “Living Instrument”
The role of “living together” as a justifiable ground for limitations on human rights was revisited in the recent Resolution 2076, which the Parliamentary Assembly of the Council of Europe adopted in October 2015. The Resolution 2076 stresses the renewed importance of the role of religion in Europe. Moreover, the Parliamentary Assembly emphasises that certain beliefs and churches that are currently developing in Europe give rise to “tensions, lack of understanding and suspicion, and even to xenophobic attitudes, extremism, hate speech and the most despicable violence”.Footnote 64 Although the right to freedom of religion is non-negotiable, Resolution 2076 adds that religious authorities have a fundamental duty “to promote the shared values and principles which underpin ‘living together’ in our democratic societies”.Footnote 65 Those values include mutual recognition and solidarity,Footnote 66 as well as respect for dignity and human rights, the rule of law and non-discrimination.Footnote 67 More specifically, the right to freedom of religion coexists not only with “the fundamental rights of others”, but also with “the right of everyone to live in a space of socialisation which facilitates living together”.Footnote 68 All in all, notwithstanding its advisory and non-binding legal nature, Resolution 2076 confirms that protection of “living together” should now be regarded as a legitimate dimension of the rights of others capable of justifying restrictions on freedom of religious manifestation under Article 9(2) ECHR, among other rights.
That position is not uncontroversial though. In their joint dissenting opinion in S.A.S., Judges Nusberger and Jäderblom heavily criticised the legitimacy of “living together”. They argued that the idea is “very general”, “far-fetched and vague”Footnote 69 and that it is unclear which rights it aims to protect.Footnote 70 The dissenting judges were also concerned about the interpretation of certain Contracting States, which have conceptually relied on “living together” in order to justify limitations on rights because of fear and feelings of uneasiness associated with the presumed philosophy behind the full-face veil.Footnote 71 But, even if those interpretations of the full-face veil were correct, the dissenting judges argued that “living together” should still not be able to justify the blanket ban under scrutiny both because “there is no right not to be shocked or provoked by different modes of cultural or religious identity”Footnote 72 and because, in any event, interpersonal exchange can take place “without necessarily looking into each other's eyes”.Footnote 73
Notably, the reaction of the human rights legal scholarship to the justification of “living together” by the ECtHR and the Council of Europe seems congenial to the concerns expressed by the dissenting judges in S.A.S. For instance, Berry argues that “‘living together’ pursues a distinctly assimilationist agenda”, which risks that the majority will be permitted to dictate that minorities assimilate “instead of pursuing the more integrationist aims of ‘pluralism, tolerance and broadmindedness’”.Footnote 74 Vickers argues that “living together” is “one of the weakest legitimate aims” identified under the ECHR and that it sits uneasily with the fact that the majority in S.A.S. engaged in “a careful and well evidenced demolition of the standard arguments in favour of banning the veil”.Footnote 75 Chaib and Peroni note that the vagueness of “living together”, coupled with the vulnerability of Muslim women, require “careful examination” by the ECtHR instead of allowing wide margin of appreciation to France.Footnote 76 Brems argues that “living together” reflects “the fundamental unease of a large majority of people with the idea of an Islamic face veil, and the widespread feeling that this garment is undesirable in ‘our society’”.Footnote 77 She also contends that the “right of others to live in a space of socialisation which makes living together easier” could open the door to the coercive imposition of majoritarian preferences about how others should live.Footnote 78
I think that the compatibility of certain interpretations of “living together” with the very considerations that rights protect us from is questionable, and deserves separate examination. But, before entering that discussion, it would be useful to examine the argument that “living together” is unjustifiable because it “does not find expression” in the Convention.Footnote 79 Likewise, in their joint dissenting opinion, Judges Nussberger and Jäderblom argued that protecting “living together” cannot “readily be reconciled with the Convention's restrictive catalogue of grounds of interference with basic human rights”.Footnote 80 That is a familiar textualist argument that has been commonly employed in constitutional and legal theory to criticise judicial decisions reading principles outside the text of the Convention. Fidelity to the text and to the intentions of the drafters of the Convention is deemed important both for reasons of legal certainty and for more specific reasons of international law, including the seminal principle that states should be cognisant of the obligations they undertake by signing a treaty like the ECHR.Footnote 81
However, it is noteworthy that pluralism, tolerance and broadmindedness – which the dissenting Judges Nussberger and Jäderblom juxtaposed to “living together” in order to justify stronger protection for the right to private life and freedom of religion of Muslim womenFootnote 82 – are not amongst the legitimate grounds of interference with human rights included in the Convention, either. Thus, a textualist argument for the interpretation of the Convention would be inadequate to explain why some extra-textual principles should be taken into consideration in the examination of the scope of our rights, whereas others should not. This is not to suggest that the rights of the applicant in S.A.S. have been sufficiently protected under the doctrine developed by the ECtHR. But it is a matter of principle that, if “living together” has to be treated differently compared with other extra-textual moral principles, such as solidarity and tolerance, then the argument cannot be solely based on the text of the ECHR without contradiction.
Yet the argument that “living together” is unjustifiable because it does not find expression in the Convention could be broader than textualism. It could be argued, for instance, that “living together” should not be able to justify limitations on rights because the drafters of the Convention did not intend to protect it as a legitimate aim capable of justifying limitations on rights. But that would be another difficult argument to pursue. Intentionalist theories of interpretation have trouble explaining which intentions of the drafters of the Convention count and to what extent. For instance, do abstract intentions, such as that fundamental interests must be equally protected, count as much as concrete ones, such as that specific acts that treat people differently, such as a ban effecting that the public wearing of specific religious symbols must be prohibited?Footnote 83 Within different levels of abstraction, the choice of the relevant intention cannot but depend on a controversial political theory, such as a theory of human rights or representative democracy that would, for instance, make concrete, rather than abstract, intentions decisive for the interpretation of the Convention. So, choosing which drafters’ intentions count requires that some part of our argument stands “on its own in political or moral theory” about the object and purpose of the Convention.Footnote 84 Of course, this is not to suggest that the text of the ECHR or the intentions of its drafters are irrelevant in resolving interpretative challenges. It just shows that intentionalism, just like non-intentionalist theories of interpretation, requires independent normative foundation.Footnote 85
It is no coincidence that textualist and intentionalist theories have been overshadowed in the context of the Convention by an evolutive or “living instrument” interpretation that the ECtHR has been famously developing for decades.Footnote 86 The “living instrument” interpretation has helped the ECtHR recognise and protect various rights outside the text of the Convention, including among others the right to work,Footnote 87 equal rights to legal recognition of same-sex civil partnershipsFootnote 88 and equal rights for children born out of wedlock.Footnote 89 Moreover, it has been argued that, rather than an endorsement of moral relativism through giving prominence to the current consensus between states, the “living instrument” approach has actually been used to improve the ECtHR's understanding of the principles underlying our rights under the Convention, “regardless of how states themselves apply these principles”.Footnote 90 Although it is impossible to examine the evolution and implications of the “living instrument” interpretation in more detail here, the point that mainly concerns our analysis should be clear. Even if textualism and intentionalism, as theories of interpretation, fail to fit morally important parts of our shared legal practice under the Convention, that does not say anything by itself about the justifiability of “living together” as a legitimate ground of state limitations on human rights. Rather, its justifiability depends on substantive considerations about our protected rights and their moral truth, not on the text of the Convention, or on aggregating what most states do or prefer.
Critics of “living together” are right to emphasise the lack of meaningful guidance with regard to the scope and implications of “living together”. Both the majority of the ECtHR in S.A.S. and Resolution 2076 of the Council of Europe employ “living together” as a portmanteau concept covering various different principles, including solidarity, fraternity, civility and mutual respect. Many of those extra-textual principles are familiar from the jurisprudence of the ECtHR. In fact, mutual respect, toleration and solidarity have been repeatedly employed to outline the scope of various rights, including freedom of religion and freedom of assembly and association.Footnote 91 In Karaduman, the ECtHR found that limitations on the wearing of religious symbols in universities are justified provided that they aim to ensure “harmonious coexistence” between students of various faiths.Footnote 92 In Refah Partisi, Turkey's restrictions on the activities of an Islamist political party were found compatible with the Convention for reasons of democratic pluralismFootnote 93 and “mutual tolerance between opposing groups”.Footnote 94 In Supreme Holy Council Footnote 95 and in Holy Synod of the Bulgarian Orthodox,Footnote 96 the ECtHR found that compelling a divided religious community to a single leadership violated the rights to freedom of association and freedom of religion because pluralism requires resolving problems through dialogue, rather than violence.Footnote 97 In I.A., it was held that “pluralism, tolerance and broadmindedness”Footnote 98 could justify state restrictions on “unwarranted and offensive” attacks on matters regarded as sacred by Muslims.Footnote 99 In Perinçek, which examined the conviction of a Turkish politician for denying the Armenian genocide, in his dissenting opinion, Judge Nussberger argued that the Swiss criminal ban on denial of the genocide constitutes a justifiable “choice of society” whose aim is to express “solidarity with victims of genocide and crimes against humanity”.Footnote 100
Their factual differences notwithstanding, those cases flesh out the connections that the ECtHR draws between principles such as “pluralism, tolerance and broadmindedness”Footnote 101 and the role of the Convention as “an instrument designed to maintain and promote the ideals and values of a democratic society”.Footnote 102 Time and again, the ECtHR has held that the underlying values of the Convention are interlaced with a European “common heritage of political tradition, ideals, freedom and the rule of law”.Footnote 103 According to the jurisprudence of the ECtHR, a “constant search for a balance” between individual fundamental rights constitutes the foundation of a democratic society.Footnote 104 Those interconnections between human rights and fundamental moral principles underlying liberal democracy are characteristic of the gradual move in European political and legal discourse from an anachronistic conception of toleration as modus vivendi to a balance between what Habermas calls shared citizenship and cultural difference.Footnote 105 In the context of the Convention, that move has been associated with the decisive emergence, if not consolidation, of concepts such as respectful coexistence of different faiths, social inclusion, as well as mutual respect,Footnote 106 in the phraseology and interpretive tests of the ECtHR.Footnote 107
But is “living together” just another hue of the emphasis of the Convention on the relationship between human rights and democracy? Does “living together” possess distinctive meaning and value? Recall that, in S.A.S., the French Government entwined “living together” with the liberal democratic ideals of mutual respect and solidarity. However, it also stressed its connections with open communication and socialisation, or with what the French Conseil d’État calls “non-material dimensions of public order”.Footnote 108 Those links of “living together” with the fundamentals of social interaction – with our minimum social duties – can be usefully traced to the socio-historical pedigree of the republican ideal of fraternity in France.Footnote 109
In the French context, fraternity has been historically connected with the relationship between citizenship and national culture, and more specifically with the consolidation and protraction of a cohesive and self-governing democratic polity. For republican theorists, socialisation into national culture is one of the basic determinants of Frenchness,Footnote 110 not least because mutual identification and solidarity are essential for a polity that wishes to remain “truly democratic”.Footnote 111 The gist of the idea is that democratic self-government requires commitment to political citizenship and popular sovereignty; that commitment depends on social structures capable of systematically fostering trust, solidarity and civility amongst citizens.Footnote 112 As Habermas argues, all we can do is “suggest to the citizens of a liberal society that they should be willing to get involved on behalf of fellow citizens whom they do not know and who remain anonymous to them and that they should accept sacrifices that promote common interests”.Footnote 113 The springs of the political virtues of solidarity and fraternity are therefore pre-political: they are the fruits of socialisation, which entails a sense of being accustomed “to the practices and modes of thought of a free political culture”.Footnote 114
For revolutionaries, cultural membership was not an end in itself, but played an important instrumental role in forging political citizenship. National culture functions primarily as “a civic and democratic bond, the foundation for the affective solidarity binding together the ‘community of citizens’”.Footnote 115 According to Laborde, even the very idea of the nation “was primarily a call for social unity and the abolition of socially divisive differences”.Footnote 116 The republican conception distinguishes therefore fraternity from nationalism and nationhood.Footnote 117 Rather, the ideal makes better sense in connection with other fundamental values of political morality such as, primarily, equality.Footnote 118 For, whereas factionalism and corruption lead to inequality, the indivisibility of the French republic could safeguard equal citizenship. At least in the French republican constitutional tradition, fraternity functions as, and reflects, a distinctive social bond – a non-instrumental value central to a philosophy of society whose aim is to tie cultural association with democratic citizenship.
Fraternity, however, seems to be at risk now. Various reasons have been offered to explain the rise of critical approaches to national identity and the increasing difficulty of civic virtue and loyalty to the state to mobilise citizens. Those range from socio-economic inequalities and globalisation to the fact that “markets” and the “power of bureaucracy” are purging solidarity of many spheres of our common life.Footnote 119 Although it is not possible to further discuss those reasons here, a combination of those factors probably does fuel the increasingly worrying phenomenon of religious radicalisation. Importantly, though, those reasons also explain why post-secular societies have to be careful of the plurality of cultural sources that furnish the conscience of their citizens, as well as their conception of solidarity.Footnote 120 Meanwhile, given that social insecurity disproportionately affects the worst-off, the progressive and pro-egalitarian parts of French politics, fearful of the exclusive nationalism of the increasingly more successful far-right rhetoric, have placed significant emphasis on fraternity and successful integration. It is within that very context that the full-face veil was seen as a defiant assertion of a separate identity – one of the symptoms, rather than causes, of the ongoing erosion of the French model of social integration and “the discredit of universalist state institutions”.Footnote 121 The state ban on the wearing of headscarves – which started from schools as the paradigm labs of integration – cannot be fully understood outside the context of a society anxious about the disintegration of its model of integration; outside the diffusion of the fear that traditional authorities, patriotism and civic virtue are being discredited.Footnote 122
Of course, that model of social integration has been repeatedly criticised for relying on a contestable interpretation of the French common cultureFootnote 123 ; for placing too much emphasis on majoritarian preferences, if not stereotypesFootnote 124 ; and for obscuring the fact that patriotism and solidarity can undertake many different forms of expression.Footnote 125 Despite those worries, the French response to the risks of social disintegration has been repeatedly criticised for being reactive, and for focusing on “revalorization” of citizenship and the “reassertion of the validity and authority of the republican order”.Footnote 126 Efforts to re-establish institutional structures tailored to bolster solidarity, integration, civility and common culture have been central to that response, given the potential links between the discredit of fraternity and radicalisation, crime and insecurity. Nothing in this argument suggests that those efforts are opportunistic and ill-planned; on the contrary, they reflect an ongoing debate in France that started almost 20 years ago.Footnote 127 But, despite their importance and socio-historical pedigree, state efforts to strengthen solidarity and political citizenship should responsively recognise that some forms of expression and public conduct that may look alien to republican values, including full-face covers, often seek to redefine integration into, rather than challenge, liberal democracy.
The next section will revisit that last point, but it must be clear by now that, in the French constitutional theory and tradition, the virtue of fraternity and the aim of a self-governing democratic polity are intricately entwined. The moral distinctiveness of “living together” – as an inelegant restatement of the virtue of fraternity – lies into the connections of the concept with civic equality and the socio-historical challenges of social inclusion. Thus, precisely because of the well-established relationship between democracy and human rights under the Convention, the incorporation of “living together” amongst the legitimate aims that state limitations on freedom of religion and respect for private life should pursue is neither novel nor surprising. But does that conclusion also entail that “living together” should be able to justify wide-ranging coercive measures, such as blanket criminal prohibitions on the wearing of the full-face veil in public places? Or else, which interpretations of “living together”, as a legitimate way of strengthening a democratic self-governing polity, are compatible with the moral principles justifying the ECHR as a whole?
IV. Two Interpretations of “Living Together”
Do the Convention and the ECtHR allow states to decide not only what rights people have, but also whether “living together” is inherently valuable, why it is so and to what extent this can be enforced? We cannot resolve that question as quickly as a libertarian approach might suggest: we cannot just contend that people should be free to engage in any kind of conduct in public, including wearing any clothing they might wish. That would be at odds with the familiar idea that collective goods such as public order can generate specific social duties on others that are often reflected in state prohibitions on various forms of individual conduct in public,Footnote 128 such as nudity.Footnote 129 As the applicant herself noted in S.A.S., protection of “living together” does sometimes involve coercion when, for instance, security reasons are implicated. Crucially, the applicant maintained that she is happy to remove her full-face veil whenever she has to undergo identity checks in airports or banks without arguing that those instances of state coercion violate her rights to respect for private life and freedom of religion.Footnote 130
The idea of “living together” may well be over-broad and unclear,Footnote 131 but careful reading of the arguments of the French Government – whose conception of “living together” influenced the majority's opinion in S.A.S. – unveils an interpretation of “living together” that is more dynamic than mere conservation of a given state of affairs. The idea entails that the Government has an interest in protecting our common social life through requiring its members to acknowledge certain values, such as fraternity and the minimum requirements of civility facilitating social interaction, in their individual decisions.Footnote 132 It seems, therefore, that both the French Government and the ECtHR and the Council of Europe embrace a broader interpretation of civility that connects the idea with broader questions of political justice and fair cooperation. Their approach often seems congenial to Rawls's argument that civility entails that when deciding on constitutional essentials or matters of basic justice “reasonable citizens [should] ideally think of themselves as if they were legislators following public reason”, namely reasons that are sufficient and reasonably acceptable by other free and equal citizens.Footnote 133 Civility turns to mean more than how we dress in public.
But that dynamic interpretation of “living together” is platitudinous in the legal context of S.A.S. Throughout the consultation procedure preceding the enactment of the French blanket ban, there was no disagreement on the value of fraternity, or on the importance of open interpersonal relationships. Crucially, neither the applicant nor the third-party interveners argued (or implied) before the ECtHR that the “minimum requirements of life in society” are not worthy of protection.Footnote 134 The disagreement did not concern therefore the values underlying “living together”. Moreover, recall that the applicant stressed her willingness to remove her full-face veil whenever she visits a doctor, whenever she wants to socialise and whenever she has to undergo security checks in banks, airports and various other public places where such checks might be required.Footnote 135 But, if the parties do not dispute that sometimes securing “living together” might justify coercive measures, and do not doubt the values underlying “living together” per se, then what was their disagreement about?
The statement that the French Government has an interest in securing “living together” is ambiguous because it alludes to two different and antagonistic goals.Footnote 136 The first is the goal of responsibility. A state may aim that its citizens treat social interaction as a matter of moral importance, that they recognise that a democratic state is founded on certain values, including solidarity and fraternity, and that they decide reflectively whether particular ways of conduct are respectful towards others or not. The second is the goal of conformity Footnote 137 or homogeneity.Footnote 138 A state may compel its citizens to embrace forms of social interaction that the majority believes best capture certain values, such as fraternity and civility, and that they manifest their religion in public only in ways that the majority considers appropriate by virtue of the “right of others to live in a space of socialisation which makes living together easier”.Footnote 139 I think that the disagreement that the ECtHR had to resolve in S.A.S. concerns which of the two state goals, responsibility or conformity, is compatible with our equal entitlements to respect for private life and freedom of religion in a liberal democracy.
As Dworkin has noted, the goals of responsibility and conformity are not only different, but also antagonistic in the following way.Footnote 140 The state goal of responsibility entails that citizens should be left free to decide how they may behave because this is what a society committed to personal liberty must allow. Conversely, conformity may deny citizens that decision. Through the conformity conception of “living together”, a state may often demand that its citizens act in violation of their conscience. Citizens may also be discouraged from developing their own account of “living together” in as much compliance as possible with their religious beliefs.
The legislative history of the ban on the full-face veil in France echoes those two different goals. Before the French Parliamentary Commission and the Conseil d’État, a stark contrast emerged between “soft” approaches (e.g. raising awareness, strengthening education for both genders, a declaration against oppression of women) and “hard” ones that included criminalisation of the wearing of full-face veils in public.Footnote 141 That contrast mirrors the antagonism between exactly those goals of responsibility and conformity. Likewise, the applicant's submission followed an interpretation of “living together” through the lens of responsibility. Through a series of carefully framed qualifications (i.e. no systematic wearing of the full-face veil in public, willingness to remove it for security checks), the applicant attempted to convince the ECtHR that she takes social interaction as a matter of moral importance. However, according to her submission, reconciling her religious commitments with the prevailing social norms of the French society should be part of her own personal responsibility.
I have to clarify an important point here. The distinction between responsibility and conformity is not to suggest that every rule designed to secure conformity in our common social practices is ipso facto morally wrong. Demanding conformity in urban planning, environmental protection or prohibition of violence is right and expectable in a just and caring political community. However, conformity to “virtuous citizenship” and civility is different because, as Laborde rightly notes, “the exact content” of those elements of our common culture that “immigrants are expected to endorse” is not sufficiently specified.Footnote 142 It is unclear and widely debated, for instance, how a religious woman, anxious to comply with a society's secular norms about good citizenship, should behave in public.Footnote 143 There is no comparable disagreement in the case of the other values I mentioned above. It could not be plausibly argued that treating people as equals is at variance with equal protection against unlawful violence, or that it is unclear whether respect for future generations requires collective action to secure environmental protection and sustainable urban development.
There is an additional reason connected to that last point. A political community that requires us to pay taxes, to respect scarce environmental resources, to wear clothes in public and to drink no more than a small glass of wine if we are to drive home afterwards does not deny our personal responsibility to define ethical value for ourselves.Footnote 144 None of those rules aims to usurp our responsibility to define success in our lives, despite having serious consequences on how we design our lives. By contrast, conformity to virtuous citizenship reflects an “increasingly moralistic approach” to the perceived failures of the national model of integration, which are worryingly attributed to the corrupt disposition of “ungrateful” immigrants, without paying sufficient attention to the effects of their socio-economic exclusion.Footnote 145
Human rights protect us from exactly those kinds of majoritarian moralistic preferences – that is, preferences that some people should suffer disadvantage in the distribution of goods or opportunities just because of who they are or what they believe, or because others care less for them.Footnote 146 So, to return to our question, does a policy that aims to secure our common social life through demanding conformity to the majority's interpretation of the values underlying “living together” violate our rights to freedom of religion, respect for private life and freedom from discrimination under the Convention? In the specific case where a Government imposes a blanket ban on full-face veils in public, the answer has to be affirmative. Without questioning the importance of fraternity and civility, demanding conformity in order to secure those virtues suffers from significant problems. First, despite its neutral formulation, the blanket ban on full-face covers is suspect, to use a familiar term from discrimination theory,Footnote 147 because of its disparate impact on Muslim womenFootnote 148 who have to choose between their faith and facing criminal sanctions. Second, and perhaps more importantly, the argument that concealing our face in public is so inescapably incompatible with civility that its criminal prohibition is imperative is questionable. As the dissenting judges argued, it is a mystery how we can distinguish between “other accepted practices of concealing the face, such as excessive hairstyles or the wearing of dark glasses or hats” and the wearing of the full-face veil.Footnote 149 In fact, familiar activities such as skiing, driving a motorcycle with a helmet or wearing costumes in carnivals pose no problems for social interaction. As Nussbaum notes, during the freezing Chicago winters, people are used to covering their faces with scarves and hats but that is not considered troubling for transparency, solidarity or security.Footnote 150 But if the notion of civility cannot be extended to cover those practices, then why is wearing the full-face veil different?
Those difficulties are complemented by the fact that commitment to pluralism and tolerance is compatible with a plurality of forms of public conduct; it is, in other words, at variance with conformity. More specifically, as the ECtHR has recognised in cases under the right to respect for private life, although there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”,Footnote 151 respect for the right to private life entails a right not to interact with others in publicFootnote 152 – a “right to be an outsider”.Footnote 153 Moreover, in cases involving registration rights of religious groups, the ECtHR has held that treatment with equal respect commands an integrationist approach that does not restrict pluralism by eliminating the cause of the tensionFootnote 154 but ensures tolerance “between the vast majority and the small minority”.Footnote 155 In cases on public expression of disturbing views, such as Mouvement Raëlien Suisse v Switzerland Footnote 156 (involving advocacy of “geniocracy” and sensual meditation) and Stoll v Switzerland Footnote 157 (involving dissemination of confidential information about compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts), the ECtHR consistently holds that the Convention protects offensive, shocking or disturbing opinions because “such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’”.Footnote 158 In the recent Perinçek v Switzerland case, the ECtHR held that the applicant's criminal conviction for denying the Armenian genocide was disproportionate – and therefore in violation of his right to freedom of expression – because his statements “cannot be regarded as affecting the dignity of the Armenian community” and, most notably, because he was censured “for voicing an opinion that diverged from the established ones in Switzerland”.Footnote 159 Despite their factual differences, all those cases demonstrate a well-established commitment to reasonable pluralism not as a value per se,Footnote 160 but as prophylaxis against illegitimate coercion – that is, against coercion grounded on impermissible kinds of reason such as majoritarian preferences that some people should enjoy less because of their beliefs or religious affiliation.
To be clear, a political community must somehow decide collectively, through courts or legislatures, whether wearing the full-face veil violates the personal responsibility of women to make their choice of ethical values independently and authentically. If the full-face veil does upset women's dignity by denying them independence and authenticity, its ban does not violate respect for private life or religious freedom because no plausible interpretation of those rights could justify protection of practices that destroy their very point.Footnote 161 But that was not the case in S.A.S. Recall that the ECtHR accepted that the interpretations of the niqab and the burqa as symbols of hostilityFootnote 162 and subservienceFootnote 163 were not the only available,Footnote 164 and rejected the argument that the full-face veil flouts gender equality and human dignity.Footnote 165 However, banning the full-face veil because that would satisfy the majority's conception of what constitutes a good and respectful life is at odds with respect for our ethical independence. It contradicts seminal principles underlying the rights to freedom of expression and freedom of religion, such as that beliefs that offend, shock or disturb ought to be protected because pluralism, tolerance and broadmindedness would be meaningless otherwise.Footnote 166
But there is an additional problem. The interpretation of “living together” pursued by the French Government in order to justify the blanket ban sits uneasily with core principles of secularism. This is a significant challenge to a conformity interpretation of “living together”, not least because parts of the reasoning underlying the French ban,Footnote 167 along with arguments put forward by intervening human rights organisationsFootnote 168 and the ECtHR itself,Footnote 169 seem to conceptually associate it with the constitutional implications of laïcité. Notwithstanding the plurality of “ideal types” of laïcité,Footnote 170 according to its best interpretation in political theory and constitutional history, it aims to reinforce civic equality and social inclusion,Footnote 171 rather than exclude certain people (e.g. Muslim women) from the public sphere on grounds of their religious conduct.Footnote 172 More than just an institutional principle of church–state separation, laïcité thus understood encompasses the state duty to treat religious and non-religious people with equal respectFootnote 173 including a strong anti-discrimination principle that covers believers of all faiths.Footnote 174 As the General Assembly of the Council of Europe recognises in Resolution 2076, “secularity … properly interpreted and implemented, protects the possibility for the different beliefs, religious and non-religious, to coexist peacefully while all parties respect shared principles and values”.Footnote 175 Inclusive state neutrality and even-handed justice require seeking non-confrontational ways to tackle those issues by carefully assessing the different problems that public concealment of faces may pose to an orderly enjoyment of our common space.Footnote 176
So, if we adopt a better interpretation of “living together” in light of secularism – given its central constitutional role in a number of European states including FranceFootnote 177 – then the wearing of the full-face veil does not infringe the principle of “living together” correctly understood. Just like laïcité, “living together” is intended as a guarantee, not a limit, to freedom of religion.Footnote 178 But, if solidarity and fraternity are indeed some of the foundational underpinnings of “living together”, as the ECtHR also accepted in S.A.S., then the idea is intertwined with promotion of social inclusion in a way that it is hard to see how excluding veiled women from the public space can be compatible with its very essence. Ensuring that citizens treat social interaction as a matter of moral importance and decide reflectively without coercion seems the best way to promote solidarity and fraternity in our social communication and interaction. Grounding our normative commitment to religious pluralism on the fundamental moral principle that our common culture should be formed organically through individual ethical choices and not through collective action leads to the conclusion that, at least with regard to the wearing of full-face covers in the general public space, it is a responsibility, rather than a conformity, conception of “living together” that has to be preferred.
Of course, the state has an interest in fostering solidarity and fraternity, along with a plurality of other values potentially underlying “living together”, but that interest has to be satisfied in ways compatible with the fundamental political duty to treat everyone as an equal. Raising awareness, strengthening education for all sexes and advancing our collective commitment against oppression of women – the “softer” measures that parts of the French Parliamentary Committee recommended over a criminal banFootnote 179 – do not usurp our personal responsibility to develop our public religious conduct in as much compliance with the civic values of a society as possible. Recall that, if parts of the normative justification of the right to freedom of religion rest on the need to protect our ethical independence from coercive manipulation motivated by the moralistic preferences of the majority about how everybody should live, any answers on what the right to freedom of religion requires in more specific cases have to be fixed and defended by asking what that abstract right requires. Any contrary argument about the scope of the right to freedom of religion and its interaction with equality and discrimination has to fit that principle.
V. Conclusion
It is a significant development that both the jurisprudence of the ECtHR and the work of the Council of Europe have recently identified “living together” as a legitimate dimension of the rights of others that could justify limitations on various rights secured by the ECHR. It could be safely assumed that “living together” will be employed again in future cases in order to justify state limitations on the expressive dimensions of a plurality of rights, including our rights to privacy and freedom of thought, conscience and religion. But that probability should not be worrying per se. In fact, close inspection of the jurisprudence of the ECtHR suggests that the emergence of “living together” is less surprising than initially thought. This article argued that “living together” is closely linked to the republican ideal of fraternity, which reflects a particular kind of social bond between cultural association and democratic citizenship. Given the recurrent emphasis of the ECtHR on the links between liberal democracy and rigorous human rights protection, the emergence of “living together” fleshes out an existing, yet distinctive, dimension of that relationship.
Answering whether protection of “living together” constitutes a legitimate aim, and therefore whether it could be balanced against our rights, is crucial and timely. But, even so, the inherent flexibility of “living together” entails that its main contours could be secured in various ways. As a result, it becomes all the more important to explicate which of those ways are compatible with European human rights law and which are not. Apart from the grounds of “living together”, this article argued that there is another, separate question concerning which interpretation of the concept is most compatible with fundamental moral principles underlying the rights to freedom of religion and respect for private life under the Convention. I distinguished between two main conceptions of “living together”, based on responsibility and conformity, and argued that a responsibility interpretation of “living together” is more attractive, coherent and plausible, not least in cases of blanket bans on full-face veils in public. Important reasons of human rights theory such as that the function of rights is to exclude majoritarian moralistic preferences as grounds for coercive prohibitions support a responsibility conception. Other important legal reasons, stemming from the constitutional role of fraternity and laïcité as well as from legal coherence, also support a responsibility conception in the cases under consideration. Recall that a blanket criminal prohibition on the wearing of full-face veils in public is at odds with a responsibility interpretation of “living together”.
Both the ECtHR and the Council of Europe are right to insist on the importance of democracy and mutual respect for strong human rights protection. But it is those very values that require the ECtHR to interpret open-ended and fluid ideals such as “living together” in ways that are least restrictive of individual rights. In various cases ranging from state limitations on freedom of political associationFootnote 180 to denial of registration rights to specific religious groupsFootnote 181 to public expression of disturbing viewsFootnote 182 to restrictions on various instantiations of our private life in public,Footnote 183 reasons associated with fairness and equal respect have guided the ECtHR to successfully block moralistic majoritarian preferences from justifying limitations on rights. Instead of critiquing “living together” as an arbitrary value under the Convention, it is time to imbue European human rights law with the interpretation that is most compatible with the fundamental values of mutual respect and equal protection that underlie human rights, political morality and the ECHR as a whole.
