At the inauguration of the European Court of Human Rights (ECtHR) at Strasbourg on 20 April 1959 Lord McNair opened with the words of Matthew 25:40: ‘inasmuch as ye have done it unto one of the lest of these my brethren, ye have done it unto me’. At the second meeting of the UN Commission on Human Rights on 11 June 1947, the delegate from Chile stated that in his opinion ‘the Committee must draw up a Charter of Human Rights giving it not only legal form but real human content …[it] should not be just a Bill but rather a true spiritual guide for humanity’. Religious ethics, therefore, seem to be at the heart of human rights and have moved to the heart of all the major religions. Thus, the subject of human rights is of importance to religious belief, not only as an abstract idea but also in its practical application. The range of issues coming under the area of law known as human rights is very wide. This means that ECtHR investigations and pronouncements have been made on many issues which have not hitherto been regarded as appropriate subjects for international adjudication. In Brems's book we find precisely such a range of issues, including those of children's rights in migration litigation, abortion rights, rights of religious minorities, same-sex marriage, mental disability and cultural traditions, among others.
However, the book is not a collection of papers on these various topics but a rewriting of the judgments made by the ECtHR. Each contributor has rewritten a judgment of their choice, and within their expertise, and brings an academic view to judicial language. The papers were first presented at the conference ‘Mainstreaming diversity: rewriting judgments of the European Court of Human Rights’ held at the ECtHR in 2011. The practice of rewriting court judgments had already been undertaken in other areas of law and has come to be called ‘the rewriting concept’, the idea of which is to bring academic analysis and judicial practice together. It is not meant to be an exercise in which academics tell judges that they can or must do better. In fact, the idea is for academics to ‘jump from theoretical analysis to technical solutions’ (p 2). As a result, the book contains 18 redrafted judgments grouped under 6 headings – children, gender, religious minorities, sexual minorities, disability and cultural minorities – and within each of the six headings there are three rewritten judgments. Each paper presents the background to the case that eventually went to the ECtHR, the author's view of the ECtHR judgment and finally that part of the judgment which is rewritten by the author. The rewritten judgment is not a complete rewriting. Each author has inserted, within the judgment or the deleted parts of the judgment, their own voice, as if in fact they had had the opportunity to contribute to the judgment when made.
Although there are no themes which run either through the six headings or through the entire book and each paper is a representation of each author's choice, certain underlining themes are inevitable and a number have a bearing on religious rights. The first part of the book concerns children and to some extent the vulnerability of children, including discrimination affecting children from minority cultures, a topic of the final part of the book, with regard to education in DH and others v Czech Republic. The authors conclude, with two significantly rewritten judgments, that the risk to children and their vulnerability highlighted by these cases must contribute to the debate on children's rights within the Convention.
Part two concerns the issues surrounding gender and the three cases are very different and to some extent rather unexpected. In the most relevant there is a call for the convention to recognise an entitlement to abortion when rewriting A, B and C v Ireland, a case which the author feels highlights the fact that human rights cases do not always reflect women's interests. As a result the judgment is significantly rewritten.
Part three concerns religious minorities and all authors substantially rewrite the judgments given. The first case, Deschomets v France, does not really touch on Article 9 but concerns divorced couples and the custody of their children when there is a diverse view on religious issues. The author considers both religious disagreement and religious discrimination in custody disputes and concludes by arguing for the concept of personal autonomy, often used in Article 8 disputes as a means of upholding religious liberty. The next two cases are concerned much more with Article 9 and particularly the right to manifest one's religion. In Leyla Şahin v Turkey a female medical student was denied access to lectures and examinations because she was wearing the hijab, and in Suku Phull v France a Sikh was compelled to remove his turban at a security check in an airport. In both cases the issue was whether there was a justifiable right to interfere with an individual's human rights. Both authors feel that the courts' reasoning is too restrictive and perhaps should have drawn more on proportionality analysis.
Part four concerns sexual minorities, first regarding same-sex marriages, second two sisters living together and third lesbian, gay and bisexual persons. Each author considers how human rights law should approach different forms of relationships, respecting diversity and approaching these relationships (those of siblings as well as those of sexual partners) in an egalitarian way. Part five considers cases arising from disability and the final part looks at cultural minorities, particularly in the light of cultural diversity and cultural identity: whether, for instance, minorities who have particular traditions such as their own cultural marriage ceremony should be recognised by the state. The authors here do not consider this to be so much an issue of discrimination as one of cultural diversity; however, they bring together these issues in rewriting the judgment.
The majority of the cases in this book are rewritten. But in doing so they highlight the difficulty which the ECtHR has in balancing the rights of the individuals, the needs of the states and the degree to which the margin of appreciation should be considered. The book is a really interesting exercise in considering how, as legal scholars, we would approach writing or rewriting a judgment, and is without doubt a valuable exercise. As a book on human rights it also adds a different dimension to the usual texts. Though it is not directed to religion and law, it contains within it issues that concern modern theologies, such as liberation theology and how human rights law perhaps could, within its limits, have the true spiritual guide for humanity that was envisaged by the Commission in its preparation for the Universal Declaration on Human Rights, a declaration that was so fundamental to the creation of the European Convention of Human Rights covered by this book.