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Legal pluralism and islam in the scales of the European Court of Human Rights : the limits of categrorical balancing

Karen Meerschaut, Human Rights HUMR @ Vrije Universiteit Brussel
Serge Gutwirth, Law, Science, Technology & Society LSTS @ Vrije Universiteit Brussel

Abstract

Starting from the Refah v. Turkey case we dig deeper in the issue of conflicting rights in pluralist legal systems, comparing the Strasbourg Court’s case law with solutions devised in the Malaysian legal system. Legal pluralism generally includes a set of tensions between the minorities’ rights to live following their own norms and rules (article 27 ICCPR and article 8 ECHR), the religious freedom (article 9 ECHR) and, the equality and non-discrimination principles. The idea of the separation of state and church and the principle of secularism are also often brought up as an argument against legal pluralism. How to deal with these tensions?

Suggested Citation

Karen Meerschaut and Serge Gutwirth. "Legal pluralism and islam in the scales of the European Court of Human Rights : the limits of categrorical balancing" Conflicts between fundamental rights. Ed. Eva Brems. Antwerp: Intersentia, 2008. 431-465.
Available at: http://works.bepress.com/serge_gutwirth/25