TWO INTERPRETATIONS OF “LIVING TOGETHER” IN EUROPEAN HUMAN RIGHTS LAW

Abstract

AbstractThe European Court of Human Rights (ECtHR) and the Council of Europe have recently recognised “living together” as a legitimate dimension of the rights of others that could justify limitations on various European Convention on Human Rights (ECHR) rights, including the rights to freedom of religion and respect for private life. This article argues that the important, yet still unexplored in human rights law, idea of “living together” stems from the republican ideal of fraternity and supplements the distinctive links between democratic principles and rigorous human rights protection. Even so, its justifiability as a limitation ground depends on which conception of the idea is compatible with core values and functions served by human rights under the Convention. This article distinguishes between two main interpretations of “living together”, grounded on responsibility and conformity. It is argued that, in cases touching on our expressive conduct in public, including cases on the wearing of full-face veils, a conformity conception of “living together” sits uneasily both with firmly established case law of the ECtHR and with certain key functions of rights, such as the exclusion of moralistic majoritarian preferences as grounds for coercive prohibitions.