CHANCHARADE

In its plainest sense, one could suggest that freedom is to do what we want, how we want it, when we want it. Such freedom contradicts the system of law, as it implies that one may set his own norms. This is what the word ‘autonomy’ refers to, composed of the ancient Greek words auto (self) and nomos (law). A problem which political scientists have occupied themselves with, is that if all men may set their own norms, they could still end up unfree. Their freedom may be hindered by people who, by the essence of autonomy, refuse to adapt themselves to the norms of the other. They may end up having too little actual space to choose their own path and to decide on the norms by which they want to live. In the end, it is likely that the strongest person will set the norms – and all others have no choice than to submit. They are then no longer autonomous. Probably, they will also feel unfree, if they can no longer do what they want, how they want it and when they want it. But they may be willing to make some concessions in order to keep what they feel is essential for their freedom. Here then, we have the first contours of a society.

It is a paradoxical suggestion of society that we can gain freedom if we give up autonomy. We can no longer do whatever we want, however and whenever we want it, but we can do certain things in the way we wish without the risk that someone denies us that possibility. If we say that we are free to act, we refer primarily to the absence of obstacles which prevent us from doing a certain thing. This is most commonly referred to as negative freedom: “the wider the area of non-interference, the wider the freedom”. But is has been suggested that freedom has also another side to it, which hints at the state in which man could set his own norms; Berlins ‘positive liberty’ refers to the wish of the individual to be his own master, they ability to fulfil ones own potential.

In the idea of fundamental freedoms, both of these aspects are present. On the one hand, fundamental freedoms indicate the space free from interference by the authorities. At the same time, in fundamental freedoms the thought is reflected that people should be able to make their own choices in order to lead a fulfilling life. The European Court on Human Rights considered with regard to the right to privacy that “the notion of personal autonomy is an important principle underlying the interpretation of its guarantees”. But by the very creation of those guarantees, the limits of autonomy are drawn. Thus, in a system of law, freedom is defined by its limits. Only the question where those limits are put is “a matter of argument, indeed if haggling”.

Human rights conventions typically specify broad areas regarding which one should principally be free, such as speech or religion, and indicate which goals should be served with limitations that need be imposed. They are a tool to assess and discuss, yes to haggle the limits of freedom imposed by national member states. They do not set these limits, hence they cannot create freedom in a legal sense. But they form a warrant that we are still gaining freedom by giving up autonomy.

In a legal system in which freedom is defined by its limits, we may describe freedom as the absence of a duty to behave in an opposite way. Possibly, the ideal of autonomy which is reflected in the fundamental rights treaties, asks for more than non-interference of the authority. It may ask that the State somehow enables persons to fulfil their own potential, or that it provides them with an adequate range of options. At this point, confusion of language starts blurring many discussions. Legally, we have defined freedom by its limits, but philosophically, we may not find that legal freedom at all times supports autonomy. In such cases, within the legal framework, we should not expand the meaning of “freedom”, but state that freedoms are accompanied by rights.

Wesley Newcomb Hohfeld stressed the importance of distinction in legal reasoning in his few but rich articles. It is almost a century ago that he complained that “it is very common to use the term “right” indiscriminately, even when the relation designated is really that of privilege, and only too often this identity of terms has involved for the particular speaker or writer a confusion of blurring of ideas”. Hohfeld distinguished legal freedoms, which he called privileges, from rights, powers and immunities. He defined these juridical entitlements by their opposites and correlatives, thus showing the legal landscape that is formed. In this scheme, a privilege – or a liberty – may be seen as the absence of its opposite, a duty, correlating with a no-right, which indicates that another has no right to the person not exercising his freedom.
Using this distinction enables us to see that, if we speak of a legal freedom or a privilege, we cannot assume other characteristics, such as (claim-)rights or immunities:

A “liberty” considered as a legal relation (or “right” in the loose and generic sense of the term) must mean, if it have any definite content at all, precisely the same thing as privilege […]. It is equally clear …, that such a privilege or liberty …, might very conceivably exist without any peculiar rights against “third parties” as regards certain rights of interference”. Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits.

Thus, the only legal consequence of having a privilege, or liberty, is that citizens have no right to the privileged person not exercising that liberty. If, however, other citizens would happen to interfere with a persons liberty in the exercise of their own, the other person would not, per definition, have any right against their doing so. Such a right to non-interference may accompany a legal liberty. My liberty to believe and to manifest my religion for example may be accompanied by a right with regard to my employer to pray in peace during office hours, but should be distinguished from it.

Apart from a right against non-interference, a legal liberty may also be accompanied by a right to enjoy certain minimum conditions, which would impose a correlating duty on the State. Such positive State obligations may – from the viewpoint of justice and policy – be regarded necessary if too little of the original ideal of autonomy would remain under the purely negative interpretation of (legal) freedom. A state may choose to create a system of subsidies, to provide housing or care in order to improve the options available to citizens and may create rights accordingly.

Equally, powers and immunities, referring to the ability to change legal positions, may be related to a legal liberty. Churches, apart from a legal liberty to assemble, are given a power when they obtain legal personality. Moreover, they may be granted an immunity if they are exempt from general requirements on the basis of labour law. Similarly, exemptions from taxation or from military service are immunities which may accompany a liberty on the basis of belief, but which should not be regarded to form a very part of it.

Hohfeld’s scheme allows us to distinguish questions from justice and policy from strictly legal questions. What justice is in a given situation is decided in the “haggling process” and may depend in part on the legal, cultural and historical background of societies. Once certain rights or immunities have been granted, a legal relationship is formed, with strictly legal implications. The proposed distinction allows us to investigate which legal relationships are created in the framework of freedom of religion and State-religion relationships and to compare these, without being confused by the many different systems which would otherwise all claim to be an interpretation of religious freedom.

1.2 A glossary of terms referring to freedom

Having distinguished legal freedom from its broader philosophical counterpart, it is also useful to distinct between different references to freedom or freedoms which are often made in national or international legal context, the first two of which have been discussed already.

Legal freedom or liberty
In the interpretation explained in the former paragraph, legal freedom should be understood as the absence of a duty. In its broadest sense, it could be described as freedom from State interference.

Human Rights / fundamental rights / fundamental liberties
Human Rights treaties and many constitutions refer to fundamental rights or fundamental freedoms – most of the time these terms are used interchangeably. These freedoms refer to the larger, philosophical interpretation of freedom, or to natural rights, rather than legal liberty. Typically, human or fundamental rights are codified and regarded as rights against the State. They are derived from a general notion of autonomy and within this notion, the State may be seen as a possible threat to freedom. From this perspective, they are meant to set the limits between the public and the private, granting a limited space of personal autonomy to citizens. Often, human rights are distinguished in classical and social rights, the latter (rights) demanding positive State action whereas the first (freedoms) refer primarily to non-interference by the State. A distinction difficult to maintain, as it is often argued that the fundamental freedoms require positive State obligations besides the negative duty from the State.

Natural Rights
Natural rights are rights which are seen as inherent to the nature of the world and human beings and as such inalienable, regardless whether codification acknowledges or denies them. It can be hard to conceive of freedom of religion as a natural right, except when it is derived from general notion of liberty: there is no relevance to a concept of religious freedom if it weren’t for the State. Religions themselves do usually not, by their nature, acknowledge an intrinsic concept of religious freedom. Moreover, religious people do often not regard themselves as free, but rather as bound by their religion, even if voluntarily. Religious freedom as a concept presupposes the existence of a State.

Civil liberties
The term ‘civil liberties’ is most often used in the Anglo-Saxon world and refers to that situation in which positive State obligations are deemed necessary to ensure certain freedoms. Feldman explains:

Describing something as a civil liberty indicates that the State has a special obligation to protect one against interference with it, either as a matter of political morality, or as a matter of law. This marks one step beyond simple liberties, which are essentially rights not to be interfered with, or ‘negative rights’ as they are sometimes called. Civil liberties, however, impose obligations on the State to assist people in protecting or exercising the liberties”.

Libertés publiques
Libertés publiques are described by Rivero as :

Des droits de l’homme qui reconnaissent a celui-ci, dans les divers domaines de la vie sociale, le pouvoir de choisir lui-même son comportement, pouvoir organise pas le droit positif, qui lui accorde un protection renforcée et l’élève au niveau constitutionnel en droit interne, au niveau supralegislatif en droit européen”.

This notion of Libertés publiques corresponds to some extent with the idea of legal freedom as described here above. The term ‘public’ indicates that these freedoms are necessarily recognised and maintained by public power. The law has a central place in the regime of Libertés publiques; according to article 34 of the constitution, only the law establishes « les droits civiques et les garanties fondamentales accordées aux citoyens pour l’exercice des libertés publiques ». It is thus only the law which determines the conditions of exercise of liberty, and only the law which can establish its limits:

The background to this lies in French legal culture and history. Contrary to what was stated about human rights here above, in French legal culture the State is primarily perceived not as a threat to but as a protector of those rights; not liberties ‘contre la loi’ but ‘par la loi’:

The idea of a State as a public entity, separate from society, endowed with legal personality, eager to oppress citizens and limit their liberty, is completely foreign to the French revolution….There is therefore no State that could be viewed as a threat to liberty and against which citizens have rights….The natural right of man does not consist in the right to an abstention by the State from invading his private sphere but in the right to obey only the general will; i.e. the right to obey only when public authorities rightfully express or execute the general will.

Moreover, unlike most constitutions, the French constitution does not include a catalogue of fundamental rights. Only since the constitution of 1946, reference is made to the Declaration des Droits de l’Homme et du Citoyen of 1789, which defines liberty as: “pouvoir faire tout ce ne nuit pas a autrui: ainsi, l’exercice des droits naturel de chaque homme n’a des bornes que celles qui assurent aux autres membres de la société la jouissance de ces mêmes droits. Ce bornes ne peuvent être déterminées que par la loi.” In absence of directly applicable constitutional texts, the Conseil d’Etat developed a doctrine of “general principles of law”, which its uses in its jurisprudence.

Horizontal or third-party effect of fundamental rights
The doctrine of horizontal effect necessarily starts from the perception of those freedoms as classical fundamental rights, primarily aimed against the State; if one speaks of a horizontal effect or third-party effect of those freedoms, it is suggested that – contrary to their classic interpretation – they apply not only to the relationship between the citizen and the State, but also to that among citizens.

Horizontal effect of fundamental rights can practically be established in two different ways. Often, the legislator may decide to create guarantees in order to ensure that citizens can exercise certain freedoms without interference. The most common example of such guarantees are non-discrimination regulations. The right not to be discriminated against is often considered to be an essential part of man’s freedom - in a broad sense. At the same time, it is a negation of freedom, as it creates a duty to act in a certain way. It is often considered important for the realization of freedoms that the State creates rights to non-interference. With regard to freedom of religion, the European Court on Human Rights has stated that:

There may be certain positive obligations on the part of a State inherent on an effective respect for rights guaranteed under article 9 of the Convention, which may involve the adoption of measures designed to secure respect for freedom of religion even in the sphere of the relations of individuals between themselves. Such measures may, in certain circumstances, constitute a legal means of ensuring that an individual will not be disturbed in his worship by the activity of others.

If such guarantees are created by legislation, strictly spoken the doctrine of horizontality or of third-party effect is no longer an issue, as it has been translated in normal rights and duties for citizens, enhancing certain liberties. Legally then, liberties are accompanied by rights against interference and their correlating duty not to interfere.

The doctrine of horizontal effect however usually refers to the second situation, in which the judge applies fundamental rights to a relationship between citizens, without the existence of a specific legal provision causing that effect. He may derive a duty from a fundamental right for someone not to interfere with the exercise of that right, without the existence of any legal provision expressing such duty. As a consequence, it may seem that this claim-right forms part of the freedom. Legally however, for the purpose of this thesis, this situation is not different than the one described above. The only difference is that not the legislator, but the judge states that a certain liberty should be accompanied by a right to non-interference from others, in order to fulfil needs of philosophical liberty.

In France, as a result of the French conception of rights “trough the State” rather than “against the State”, there is also no third-party-effect doctrine. There is no dual relationship of State and citizen in French legal doctrine, hence no third party to be affected by such relationship. According to Troper, a doctrine of horizontality in the French legal context is not only “difficult but also unnecessary”.