Religious Symbols between Forum Internum and Forum Externum
Religious symbols through the lens of expression present a challenge – what hermeneutic tools could lawyers employ to take into account the complex dynamics of freedom of religion and freedom of expression which play a part in dealing with religious symbols cases? Can we separate the religious symbols cases in a narrow sense (those which consider the issues of religious dress or particular display of specific religious signs) from religious symbols cases in a broader sense (which deal with the symbolic appearance of religious buildings, processions and other visible forms of religion or belief)? It seems that the court cases dealing with religious symbols in these two categories have developed a discourse which focuses primarily on the former but, through the narratives emerging in such cases, has an impact on the way the latter is perceived in subsequent cases. The limitation of the approach in relation to religious symbols is seen most clearly in the cases where ethnicity and race and their visible symbols are treated differently from religious identity and its symbols. It suggests that there is something in the characteristics of race and ethnicity which makes its external manifestations more solid and easy to accommodate from a legal point of view. This requires an enquiry into the different aspects of religious symbols. What makes religious symbols different from symbols of ethnic communities? What makes them more dispensable in the public sphere (forum externum)?
The answer to this question is partly contained in the minefield that the forum externum/forum internum dichotomy has introduced into the human rights discourse. While questions of race and ethnicity are substantive enough and their externalizing and symbols could not easily be restricted without becoming forms of racism and xenophobia, religious freedom remains largely in a mystical domain between the visible and the invisible. Its private sphere (forum internum) is something we do not interfere with. The way forum internum is construed within the human rights’ narrative as a Kantian/Rawlsian private autonomy makes the notion of religious freedom, with its complexity, vulnerable.1 It suggests a forum but is not quite clear in what way this forum works on the level of personal autonomy. It also reduces freedom of religion or belief to something which could be autonomous on this ‘mystical’ internal level and could be restricted at the moment this ‘mystical’ element is spelled out and externalized. When dealing with questions of race and ethnicity the private sphere and the public sphere are generally considered as inseparable (believing and being a member of an ethnic group). The freedom of religion or belief approach appears to be marking a departure from the complex understanding of phenomena such as race and ethnicity and has focused its attention on what we can and cannot determine about the shape of religion or belief by using common scientific tools. This approach separates forum externum as something we can study from forum internum as something which we cannot and should not study and does not focus on the deeper synthesis of the two in the context of the exercise of freedom of religion or belief. In this respect the human rights’ use of forum internum is a departure from the classical Canon law use of forum internum as a triad of personal autonomy, hearing behind closed doors (confession) and parallel jurisdictions. This departure from the classical understanding has to some extent trivialized the notion of forum internum and has made freedom of religion or belief vulnerable as a right in areas where race and ethnicity attract stronger protection (the relationship between the notion of identity, its collective dimension and exclusivity).
Having considered the dynamics of religious freedom jurisprudence alongside that of ethnicity-religion one can not help but come to the conclusion that while in the ethnicity-religion cases symbols are seen as a coherent part of an ethnic-religious identity, religious symbols which are exhibited as part of a non-racial or ethnic context, do not form part of a religious identity. This is easy to understand and identify as part of a Kantian forum internum/forum externum dichotomy. In fact a more authentic understanding of forum internum/forum externum would consider religious symbols, as part of a person’s multiple identity, within parallel normative systems where personal choices are determined by a relational, participatory normative system which might be parallel to the civic normative system and may develop concepts of identity which are different from the ways in which civic normative systems articulate identity.
By being placed entirely in the context of the civic secular framework, forum internum/forum externum has been fragmented as a concept and at the same time assigned to address the question of identity without access to the complex tools identity systems deploy. On grounds of neutrality the civic normative order cannot take into consideration reasoning regarding identity which originates from a parallel legal system. And yet the civic normative system does in practice make such considerations in order to determine whether something is or is not part of the religious identity.
Compared to the ethnicity-religion cases, the narrowly construed religious symbols cases are generally considered as something which deals with vague identity, which cannot and should not be identified in the way race and ethnicity are. Belief can change – race or ethnicity cannot. It is therefore generally considered that religion or belief lacks the substantive elements of race and ethnicity (and it is denied that the notion of race and ethnicity are also a product of complex philosophical construct). Religious symbols are therefore considered through the paradigm of private–public and internal–external. This is considered to be the only solid test that could be applied in relation to religious communities. This is very culturally specific and does not answer the question of why we apply internal–external criteria and why we do not apply other substantive tests that are more appropriate to determine identity similar to those we apply in relation to ethnicity and race related symbols. These criteria would include looking into existing normative systems, into the broader narrative which defines religious identity to the same extent that there are broader narratives which define race and ethnicity.2
So what are the possible ways of thinking about religious symbols? The original Christian language of symbols refers to a way of life, a guiding principle, a focus. The Creed is known as a Symbol of the Faith, symbolical is contrasted with diabolical (meaning off-line, de-contextualized, astray, deceiving, false, wrong, etc.). In this sense the public–private divide, which we often aim at articulating, might be false from a religious perspective. The fact that one wears a cross or a veil, prays on Friday or goes to church every Epiphany, even if one does not go to church every Sunday presents a complex code of who we are within which the cross or the veil is very difficult to separate as an external dimension and a matter of a specific choice against other available choices (school, job, etc.). Articulated as ‘religious symbols’ particular aspects of a belief become isolated and thus limit the broader meaning of symbol. It reduces something which is perceived as an all-embracing faith-based lifestyle to a mere public display.
Similar concern in relation to the headscarf as a religious symbol was articulated in the January 2004 declaration of the European Council for Fatwas and Research:
wearing the headscarf is a devotional commandment and a duty prescribed by the Islamic Law, and not merely a religious or political symbol. Islamic women consider this to be an important part of their practising of the teachings of their religion. This adherence is a commandment that has not been made conditional on any (specific) public place, regardless of whether this is a place for religious service or an official or non-official institution. By their very nature, the teachings of Islam do not know any contradiction or division in the life of a Muslim practising his religion. This is a matter upon which all Islamic schools in past and present have agreed and which has been confirmed by specialised Muslim scholars in all parts of the world.3