Le pretese divine e il diritto umano. Il lavoro, la marginalità sociale e la protezione della liberta'
Enrico Gragnoli, Professore ordinario di diritto del lavoro nell’Università di Parma
Nella prima parte del contributo l’autore prendendo spunto dalla tragedia greca di Antigone affronta l’analisi del difficile rapporto tra i principi che regolano la legge divina e quelli posti alla base della legge dello Stato, sottolineandone il difficile contemperamento.
Partendo da queste premesse giuridico-filosofiche l’autore, nella seconda parte del contributo, affronta l’analisi delle principali questioni giuridiche emerse, in materia di discriminazioni religiose, nella giurisprudenza europea e nazionale.
In the first part of the essay, taking inspiration from the Greek tragedy of Antigone, the author analyses the difficult relationship between the principles that regulate divine law and those placed at the basis of State law, underlining their difficult reconciliation.
Starting from these juridical and philosophical premises, in the second part of the essay, the author analyses the main legal issues that emerged in the European and national case law about religious discriminations.
Keywords: divine law – State law – religious discriminations.
1. The spirit of Antigone - 2. The unshakeable determination of Antigone - 3. Athens, Jerusalem … and Thebes - 4. The clothing imposed by religious denominations and devotees’ aspiration to an area of freedom - 5. Dismissal in religious organisations - 6. The display of the Crucifix - 7. The social marginality of religion, the arguments of the soul and labour - NOTE
1. The spirit of Antigone
To discuss the link between law and religious beliefs, it is admissible to refer to the pagan (yet immortal in Western thought) figure of Antigone, who bears witness to the respect for the divine message (not incompatible with that of Christ’s message, as the tragedy is about honouring deceased relatives). The assertive and extreme objection to Creon’s prescriptions remain a warning, especially because the problem was not due to the limitation to freedom of conscience in the strict sense of the term: the prescriptions did not repudiate religious practice, but prohibited a burial incompatible with the laws of pagan gods, particularly similar to the latest issues heard by courts on the use of the veil. In Sophocles’ tragedy, contrast is inherent to the concept of political power , claiming that opposing edicts could be linked to behaviour in conflict with expressed sacred norms, as highlighted by Antigone towards the start of the play , as Sophocles used to clarify the ethical problem of its protagonists in the first few verses. The spirit of Antigone emerges with the suggestions of her unwavering conviction when she underlines her own conscious and explicit dissent to the unjust norm and invokes her own power to assess the spirit of every prescription and its consistency with a higher ethical horizon, paying the price of the inevitable sanctions by the city and its deliberative body . Antigone cannot be happy about her fate, because [continua ..]
2. The unshakeable determination of Antigone
Antigone’s prevailing feature is her unyielding determination, coupled with her regret over her fate, renouncing her love for Haemon due to her desire to observe divine precepts, and it is no coincidence to find comments such as ‘Hegel assimilated her defect to Creon’s; some more recent critics uncritically hold her up as a blameless heroine’ . On the contrary, in indirect support of Hegel, the same work adds: ‘I want to suggest that Antigone, like Creon, has engaged in a ruthless simplification of the world of value, which effectively eliminates conflicting obligations. Like Creon, she can be blamed for refusal of vision. But there are important differences, as well, between her project and Creon’s. When these are seen, it will also emerge that this criticism of Antigone is not incompatible with the judgement that she is morally superior to Creon’ . Albeit not acceptable for its conclusions, the remark goes to the heart of the matter. Linked to the gods’ imperative and eager to observe it to the point of making a conscious sacrifice, Antigone offers a ‘simplified’ version of her reasoning, as she replaces the precepts of her faith with those based on earthly rationality and political expression. Creon’s ideas are in a different horizon, that of intellectual application to the solution of collective habitation issues. This idea is refused by Antigone, and not only because it puts before her [continua ..]
3. Athens, Jerusalem … and Thebes
Among the various and great works researching into the cultural link between the experience in Athens and Jerusalem , unlike theses more favourable to a reconciliation , a significant study of philosophy of religion  recalls the incident of Isaac’s sacrifice to signal the dialectic between a rationalistic conception of a Platonic and Aristotelian style and one based on faith, to the extent that it comes close to the end of his son, in the name of a plea for God . As may be noted, where God has not arrived, Antigone comes in, whose purpose is served in the name of extreme (and criticised) compliance  with religious convictions, so that, at least in its ultimate outcome, the experience of Thebes overcomes that of Jerusalem, even though the former relies on laws, not on a direct relationship with Divinity, as is the case with Abraham . On the contrary, when looking at Isaac’s sacrifice as one of the qualifying matters of the biblical message , a similarity (both partial and indirect) ought to have been found with Antigone’s lot, and the impossibility of a realistic comparison between Hebrew monotheism and Greek polytheism is unimportant . The comparison between laws and faith implies the human path and it is worth asking whether the dialectic may be summarised or whether it is destined to sanction either prevailing position, unbreakable between each other . In the [continua ..]
4. The clothing imposed by religious denominations and devotees’ aspiration to an area of freedom
Ms. Achbita’s case is only apparently unimportant in comparison to the dramas of Antigone and Abraham . On the contrary, the principle of respect for the person is infringed by the idea whereby ‘the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief’. It is of little consequence that, simultaneously , it has been stated: ‘the pursuit by an employer to take into account the wishes of a customer based on the fact the services of said employer are no longer ensured by an employee wearing an Islamic headscarf cannot be considered an essential decisive requirement to do the job’. With various Italian solutions , the first decision affects the aspiration to freedom , as to ban the right to wear a symbol of one’s own beliefs, in an unfounded way, it erects the employer’s alleged power to create a professional context not influenced by religion ; it is no coincidence, perhaps unwittingly due to the seriousness of the claims, that the following is stated, ‘the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate’ , since ‘the fact that [continua ..]
5. Dismissal in religious organisations
The same view returns in a well-known precedent  where, if a Church or another organisation, the ethos of which is based on religion or belief, in support of an act or decision, rejects a candidate for a job that, due to the nature of the activity or context, religion is an essential requirement, this must be subject to judicial review and amounts to ‘a requirement that is necessary and objectively dictated (…) by the nature of the occupational activity concerned’, without ‘considerations which have no connection with that ethos or with the right of autonomy of the Church or organisation’, or rather in accordance with the principle of proportionality. The justification is much more ponderous in that it contains, and in fact excludes religious freedom; so much so that it is referred to a balancing with individual rights, which cannot happen for the protection of an essential liberty. As contained in the grounds, ‘if review of compliance with those criteria were, in the event of doubt as to that compliance, the task not of an independent authority such as a national court but of the Church or organisation (…) it would be deprived of effect’ ; it is quite the opposite. An evaluation of the collective expression of a religious mission is repulsed for an objective ‘examination’, because that is impossible. For many denominations, starting with mine, certain behaviour subject to rights granted by [continua ..]
6. The display of the Crucifix
In the abstract, one might think that an extension of the hypotheses of conscientious objection would meet the essential requirements of many people, where, on the contrary, many activities would be excluded, starting by many healthcare practices, given the current regulations and those on the verge of being modified in Italy for end-of-life, with an obvious incompatibility with traditional ethical beliefs. Specifically, when moving on to legal analysis, the claim to ground a contractual breach on conscientious objection is not compelling, like the hypothesis of refusing the registration of a civil act contrary to subjective moral evaluations. The freedom of religious profession does not amount to the freedom of complying according to one’s own beliefs, but, if any, to that of refusing contractual stipulations to prevent conflict at the root. The problem is to speculate about ideological organisations; it is not apparent why they must have managerial staff members who behave in the opposite way to the ideas of the group, but, likewise, it is not understood why an employer without similar characteristics should accept a breach based on subjective values. The state of freedom connected with religious profession is not an imposed choice, but an exclusion of intrusion by behaviour irrelevant to the corporate purpose. An insurance company can achieve maximum efficiency regardless of the clothing of its workers, the government must record all legal acts, a healthcare [continua ..]
7. The social marginality of religion, the arguments of the soul and labour
Much as they may dislike it, Churches as a whole must become accustomed to a condition of social marginality, as attested by case law and the very idea whereby a company could impose its claim of secularity, to the extent of banning the wearing of religious symbols . This makes the demand for freedom more urgent, as a recognition of the right to express one’s beliefs, without falling into a justification of the contractual breach , outside cases of conscientious objection. Conversely, the imposition of behaviour or signs of a non-existent collective faith is outdated and must be set aside, as in the case of displaying the Crucifix in offices. Social marginality provides protection from discrimination and makes believers one of the tolerated groups, in the convulsive evolution of Western civilisation, based on Creon’s political rationality and bound to end in the same failures; indeed, the cases of discrimination based on religion are rare, at least in Italy, and a recent decision on Good Friday does not set an example  in terms of its facts and unconvincing solution. In any country, not only European and Christian ones, the identification of holidays must be in keeping with a logic of compromise, so as not to hinder business objectives (completely neglected in the grounds) and facilitate worship for anyone who wants it and, at any rate, accommodating the wish to prioritise rest and family. No State can guarantee the holidays of [continua ..]