Methodological and Theoretical Frameworks

Last chapter, I outlined the history of the western sociopolitical milieu in which current human rights institutions are located. This section will begin where chapter one left off and illustrate the ways in which secularism is perceived to be a necessary foundation for human rights in powerful western-based institutions. I will also address how this affects which kinds of religious expressions are valid in the public space and which kinds of arguments are deemed credible. Too often, secularism is assumed to be the neutral ground between beliefs rather than a philosophy that embodies its own values.106 Furthermore, as Michelle Mack argues, human rights discourses are framed by secular parameters and there is an unspoken pressure to secularize faith-based views before entering the public space.107 Ultimately, this chapter will argue that secular norms shape the parameters of discourse in major western human rights institutions.

This chapter focuses on providing important details of three religious cases brought before the European Court of Human Rights (ECHR) and the UN sponsored International Court for the Former Yugoslavia (ICTY). While, this does not represent the entire international framework for enforcing human rights, arguably the UN and ECHR are very powerful on the international stage and play an important role in setting human rights norms. It is important to note that the Inter-American Court for Human Rights would also be an interesting addition for analysis. However, since the Inter-American court includes both North and South American countries, I chose to focus on the ECHR from which we can more readily draw European and western norms.

In order to assess these case studies it is essential to briefly outline the framework through which these cases will be interpreted. Ultimately, the theoretical backdrop of this thesis in general and chapter in particular is eclectic in nature. Rarely is one theory sufficient to explain the complexities of political and social phenomena. In chapter one, a historical approach was used to give an account of how a secular political milieu was formed. This chapter takes a discourse analysis approach, specifically drawing on the Foucauldian dispositive tradition, whilst incorporating critiques from post-colonial theory, normative power theory, and post-secularism.

Discourse analysis is an umbrella term for theoretical approaches that focus on interpreting language. Within this methodology, critical discourse analysis is a widely used approach in the social sciences. This methodology grew out of the Frankfurt school, which believed that sociology ought to

106 _{Michael Freeman, “The Problem of Secularism in Human Rights Theory,” The International Human Rights Quarterly 26, no. 2 (2004): 385.} 107 _{Michelle Mack, “Religious and human rights and the International Human Rights Community: finding Common Ground–without compromise,”}

be a critical and transformative discipline.108 It focuses on interpreting structures of power as

they are manifested in language. After world war two, there was a focus on analyzing political discourses to see how regimes used language to propagate and normalize particular forms of knowledge.109 Within critical discourse analysis there are multiple theoretical approaches. Of particular interest for this study is the Foucauldian inspired stream, which focuses on both the discourses and the apparatuses that shape these logics. Siegfried Jäger and Glorentine Maier refer to this framework as Foucauldian critical discourse and dispositive analysis. They highlight that this kind of analysis asks:

What is valid knowledge at a certain place and a certain time? How does this knowledge arise and how is it passed on? What functions does it have for the constituting subjects? What consequences does it have for the overall shaping and development of society? 110

Through asking these questions about discourse it is possible to uncover the power structures that shape societal ideas about what is acceptable and what is unacceptable.

What makes a Foucauldian discourse and dispositive analysis unique is that it places a great importance on incorporating extra-discursive elements, which are the external components that shape the discourse itself. This means that this methodology specifically looks at the ways the structural apparatus (political institutions, architectures, technology, etc) is both formed by and forms discourses and when applicable, it also considers non-discursive effects this may have.111 Non- discursive effects can be understood as the way discourse shapes policy, laws, and even people’s beliefs. This is particularly relevant to our case studies as they all involve an extensive legal/political apparatus, which has the power to set certain norms. Finally, the “dispositive” is the net that links all of these elements together—it represents the threads that run between discourse, philosophies, institutions and anything else that may have bearing on the analysis.112

Normative power theory is an important theoretical addition for the discourse analysis used in this paper. This theory considers how Europe exerts its power through universalizing its own norms. Zaki Laidi argues, “Europe expresses its preferences for norms by strong support to the normative basis of global governance, which could be defined as the body of international texts and treaties that

108 _{Ruth Wodak and Michael Meyer, “Chapter 1: Critical Discourse analysis: history, agenda, theory and methodology,” in Methods of Critical} Discourse Analysis, ed. Ruth Wodak et al., 1-33 (London: Sage Publishing, 2009): 6.

109 _{Wodak and Meyer, “Chapter 1: Critical Discourse Analysis,” 17.}

110 _{Siegfried Jager and Florentine Maier, “Chapter 2: Theoretical and Methodological Aspects of Foucauldian Critical Discourse Analysis and}

Dispositive Analysis,” in Methods of Critical Discourse Analysis, ed. Wodak et. al., 34-45 (London: Sage Publishing, 2009): 34.

111 _{Jager and Maier, “Chapter 2: Theoretical and Methodological Aspects,” 40.}

112 _{For more information on dispositive analysis and Foucauldian discourse analysis in general please see: Siegfried Jager, “Chapter 3: Discourse and}

Knowledge: Theoretical and methodological aspects of a critical discourse and dispositive analysis,” in Methods of Critical Discourse Analysis, ed. Ruth Wodak et. al., 32-62 (London: Sage Publishing, 2009).

rule the international system.”113 As Brantern and Gowan have noted, the promotion of

human rights is important to both EU and UN agendas.114 Since the EU favours a “norm” based system, the norms it determines for the ECHR could have far reaching effects.

Finally, it is also important to consider critiques of current international frameworks. Post- secularism is a political paradigm that emerged in the West and asserts that religion continues to be part of the western social fabric and has valuable contributions to make to society; closed forms of secularism are outdated and are no longer viable considering current global trends.115 From within the post-colonial tradition authors like Dipesh Chakrabarty critique the way the West universalizes its norms because this constrains the voices of those from other regions, cultures, and traditions. Chakrabarty advocates that we must ‘provincialize europe’ so that the subaltern can speak.116 Similarly, Ashis Nandy has critiqued the ways in which the West universalizes a particular form of secularism. He writes that India has a tradition of fluidity between religious practices and politics, acknowledging that religious practices and traditions impact political life. Nandy calls for India to guard against following a western secular paradigm and argues that across the globe there are people who wish to call this paradigm into question.117 These theories of post-secularism and post- colonialism provide important resources for critiquing the secular discourses of the ECHR and UN sponsored ICTY. Having set out the methodological and theoretical framework through which the case studies will be interpreted it is now possible to conduct an analysis.

2.2 European Court Of Human Rights: An Analysis of Sahin v. Turkey, Dahlab v. Switzerland,