The educational competence of the European Court of Human Rights: judicial pedagogies of religious symbols in classrooms

ABSTRACT

The courts’ role in educational disputes is much researched, but while the legal and socio-political implications of judicial decisions are often scrutinised, judges’ pedagogical assumptions have generally been overlooked. This paper focuses on educational competency by considering judges’ understandings of the pedagogical effect of religious symbols in classrooms. The formal judgements of two key cases in the European Court of Human Rights are treated as textual data for qualitative analysis: Dahlab v Switzerland, concerning a Muslim teacher’s right to wear hijab; Italy v Lautsi, concerning whether the classroom display of crucifixes breached atheist pupils’ rights. Four approaches emerged: unmediated didacticism – a direct emission of meaning by the symbolic objects; mediated didacticism – when the symbols require a spoken explanation to convey meaning; contextual factors – then other factors determine or limit the symbol’s meaning; dialogical pedagogy - when education is conceived as an open encounter with different points of view. The wide variation in the judges’ pedagogical assumptions is discussed, including the implications of how educational competency affects the variable radiating effects of the courts’ decisions. Further, the concept of educational competence is developed, particularly in relation to issues of religion and belief.

KEYWORDS:

• Human rights
• religion
• law
• education
• symbols

Disclosure of potential conflicts of interest

No potential conflict of interest was reported by the author(s).

Notes

1. ECtHR Dahlab v Switzerland (2001) Application No. 42393/98.

2. ECtHR Grand Chamber Lautsi v Italy (2011) Application no. 30814/06.

3. Brown v. Board of Education of Topeka, Kansas. 1954. 347 U.S. 483Brown v. Board of Education of Topeka, Kansas. 1955. 349 U.S. 284.

4. Sahin v. Turkey, Application no. 44774/98, ECtHR, 10 November 2005.

5. ECtHR 4 December 2008 (Applications Nos. 27058/05 & 31645/04).

6. ECtHR Folgerø and others v Norway (2008) 26 EHRR 47.

7. ECtHR Zengin v Turkey (2008) 26 EHRR 44.

8. ECtHR 15 June 2010 Grzelak v Poland, Application no. 7710/02

9. ECtHR Perovy v Russia (2020) Application No. 47429/09.

10. ECtHR Keldsen, Busk Madsen and Pedersen v. Denmark [1976] 1 EHRR 711.

11. ECtHR Osmanoğlu and Kocabaş v Switzerland [2017] 14.

12. Sahin v. Turkey, Application no. 44774/98, ECtHR, 10 November 2005.

13. Akdaş v. Turkey, no. 41056/04, 16 February 2010.

14. Normal font is used to designate the person, italics are used to designate the case.

15. surahs 24:30 33:59.

16. E.g. Eweida and others v United Kingdom. Application Nos 48420/10, 59842/10, 51571/10 and 36516/10, Judgement of 15 January 2013 (Fourth Section).

Additional information

Notes on contributors

Nigel Fancourt

Nigel Fancourt is Associate Professor in Learning, Teaching and Values at the Department of Education, University of Oxford, and a research fellow at St Stephen’s House. He has published extensively on policy and pedagogy in religious education, and more widely on the relationships between research, professional knowledge and values. Twitter @nigelfancourt