Genealogien des Religionsbegriffes und die Grenzen der Religionsfreiheit in Europa

This contribution addresses the extent to which the cultural – mainly Christian-Protestant – underlay to the concept of religion which became hegemonic in the 19th century has made its way into European law, shaping how religious freedom rights of Muslims are defined today. I begin by describing studies that examine the nexus between freedom of religion and the normativity of the concept of religion. These studies focus on the way ‘religion’ is closely associated with ‘faith’ or ‘belief’ and the concomitant location of religion in the innermost being. They argue that this association is mirrored in aspects of European legislation, e.g. in the European Convention on Human Rights which distinguishes between an unconditional right to freedom of thought, conscience and religion, on the one hand, and, on the other, a restrictable right to manifest one’s religion or beliefs. This limited protection granted to the manifestation of belief correlates with the secondary importance assigned to external practice in this normative concept of religion. Here I reconstruct the concept of religion as applied by the European Court of Justice (and, previously, by the European Commission) and examine whether this concept is normatively European in the above sense. I show that the Court’s concept of religion is relatively unstable and fragmentary and does not a priori exclude the Islamic practices reviewed by the Court or normatively downgrade their protection.