Interview: András Sajó on Religious Freedom, Constitutionalism, and Democracy in the Jurisprudence of the Strasbourg Court

András Sajó is a former judge at the European Court of Human Rights. He is currently a University Professor at Central European University. He previously was a visiting professor and guest lecturer at University of Toronto, Columbia University, University of Chicago Law School, NYU School of Law, Cardozo School of Law (New York), Harvard Law School, Bocconi University (Milano), and other institutions. Professor Sajó received the Hungarian Academy of Sciences Book Award (1989) and The Blackstone Lecture at Oxford University (1993). He holds Honorary Doctorates from the European University Institute (Florence) and Ilia State University (Tbilisi). Professor Sajó has been involved in legal drafting throughout Eastern Europe. In addition, he participated and/or advised in drafting the Ukrainian, Georgian, and South African constitutions.

Professor Sajó has published extensively on constitutionalism, the rule of law, theory of democracy, the secular state, human rights, and media regulation. His recent publications include Routledge Handbook of Illiberalism (2022, co-edited with Renáta Uitz and Stephen Holmes), Ruling by Cheating: Governance in Illiberal Democracy (2021), Constitution of Freedom: An Introduction to Legal Constitutionalism (2017, co-authored with Renáta Uitz), and The Oxford Handbook on Comparative Constitutional Law (2012, co-edited with Michel Rosenfeld). In 2020, professor Sajó was appointed to the Meta Oversight Board, an independent body to which people can appeal if they disagree with corporate decisions about Facebook or Instagram content.

András Sajó was interviewed by Dmytro Vovk.

Do you see any comprehensive doctrine of freedom of religion or belief (FoRB) in European Court of Human Rights jurisprudence? Or does the Court use a more case-by-case approach and, as you said in one of your works with respect to national constitutional systems, has the Court “avoided arriving at unequivocal answers to the question of church-state or religion-state relations?”

If you try to make an analysis of ECtHR jurisprudence, you will see that it is significantly circumstantial. The Court got into the FoRB area relatively late, in Kokkinakis v. Greece (1993). It has a rather strong and relatively coherent approach when it comes to individual exercise of religion. However, when it comes to areas where FoRB conflicts with other rights like freedom of speech or non-discrimination, the Court’s jurisprudence becomes somewhat less clear. Think about employment and labor rights. Although the Court has decided on the matter, I’m not so sure that this is the final word, particularly because of the latest developments in the European Court of Justice, which seems to go in a different direction. The same is true regarding church-state relations. Public secondary education is an obvious example here. Compare Folgerø and Others v. Norway (2007) with Lautsi v. Italy (2011), and you will see the same principles resulted in very different conclusions. So there are some guiding principles, but the way they apply is to a very great extent determined by national differences. That makes it much more akin to a case-by-case approach.

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What Should a Constitution Contain in Regard to Religious Freedom?

Gary Doxey is Associate Director of the International Center for Law and Religion Studies at the J. Reuben Clark Law School, Brigham Young University.

On the occasion of this First Annual Forum on Law and Religion of the Southern Cone, I would like to address the following question: What should a constitution contain in regard to religious freedom? It is timely to consider this issue since the Republic of Chile is currently drafting a new constitution.

I must emphasize that I speak from an international perspective. I am not Chilean, although Chile is a country very dear to my heart. I deeply respect the responsibility of Chileans, beginning with the honorable members of the Constitutional Convention, to choose the provisions of their constitution. As a foreigner, I merely offer my observations as a student of this subject in the hope that they may be of benefit.

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¿Qué debe contener una constitución en materia de libertad religiosa?

Gary Doxey es Director Asociado del Centro Internacional de Estudios de Derecho y Religión de la Universidad Brigham Young.

En ocasión de este Primer Foro Anual de Derecho y Religión del Cono Sur, quisiera abordar la pregunta: ¿Qué debe contener una constitución en materia de Libertad Religiosa? Es oportuno estudiar esta cuestión ya que la República de Chile actualmente está redactando una nueva constitución.

Debo recalcar que hablo desde una perspectiva internacional. No soy chileno, aunque Chile es un país que me resulta muy querido. Respeto profundamente la responsabilidad que tienen los chilenos, empezando por los honorables convencionales, de elegir las disposiciones de su constitución. Como extranjero me limito a ofrecer mis observaciones en calidad de estudiante de la materia, con la esperanza de que puedan ser de provecho.

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