Abstract
In the summer of 2014, the European Court of Human Rights ruled that the French 2010 law banning face-covering clothing in public spaces, the so-called burqa ban, did not violate the right to freedom of religion. Due to the ‘wide margin of appreciation’, the Court deemed the ban proportionate to the French state’s legitimate aim with the ban of preserving the conditions of ‘living together’. The paper analyses and provides an internal criticism of the Court’s justification for this judgement focusing on the aim of living together and the right to freedom of religion. The Court’s justification presupposes that (a) there is a justification for the ban in terms of the aim of living together, (b) this is a legitimate aim and (c) the ban is a proportional means of pursuing this aim. The paper analyses the Court’s justification and argues that it fails to substantiate all three conditions.
Similar content being viewed by others
Notes
The judgment (European Court of Human Rights 2014) will henceforth be referred to as “ECtHR”.
Such metaphysical claims will be inadmissible as part of justifications for political coercion according to any form of political liberalism, i.e. the view that all exercises of political power has to be justifiable in ways understandable and acceptable to all reasonable citizens (e.g. Rawls 1993). The constraints on public reason imposed by political liberalism are of course themselves disputed, so nothing in the present argument hinges on acceptance of political liberalism.
References
European Court of Human Rights (2014) Grand chamber, case of S.A.S v. France (Application no. 43835/11), judgment, Strasbourg, 1 July 2014, available at: hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-145466 .
Evans C (2001) Freedom of religion under the European convention of human rights. Oxford, Oxford University Press
Kim E-J K (2012) On the Burka Ban. Public Affairs Quarterly 26:293–312
Laborde C (2012) State paternalism and religious dress. International Journal of Constitutional Law 10:398–410
Legg A (2012) The margin of appreciation in international human rights law. Oxford, Oxford University Press
Leigh I (2011) Damned if they do, damned if they don’t: The European Court of Human Rights and the protection of religion from attack. Res Publica 17:55–73
Nigro R (2010) The margin of appreciation doctrine and the case-law of the European Court of Human Rights on the Islamic veil. Human Rights Review 11:531–564
Rawls J (1993) Political liberalism. New York, Columbia University Press
Tadros V (2007) Rethinking the presumption of innocence. Criminal Law and Philosophy 1:193–213
Taylor P (2005) Freedom of religion. Cambridge, Cambridge University Press
Weil P (2014) Headscarf versus burqa: two French bans with different meanings. In: Mancini S and Rosenfeld M (eds) Constitutional secularism in an age of religious revival. Oxford, Oxford University Press, pp. 195–215
Wilkins B (2002) International human rights and national discretion. Journal of Ethics 6:373–382.
Acknowledgments
Earlier versions of this paper were presented at the CONCEPT conference, ‘Republicanism and Secularism’, University of Nottingham, 15–16 December 2014, and in the Criminal Justice Ethics research group at Roskilde University. Thanks for comments from Cécile Laborde, Michael Freeden, Ronan McCrea, Geoff Cupit, Mark Wenman, Jesper Ryberg, Thomas Søbirk Petersen, Kasper Lippert-Rasmussen, Rune Klingenberg Hansen, Frej Klem Thomsen and Fatima Sabir.
Compliance with Ethical Standards
ᅟ
Conflict of Interest
The author declares that he has no conflict of interest.
Informed Consent
For this type of study, formal consent is not required.
Ethical Approval
This article does not contain any studies with human participants or animals performed by the author.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Lægaard, S. Burqa Ban, Freedom of Religion and ‘Living Together’. Hum Rights Rev 16, 203–219 (2015). https://doi.org/10.1007/s12142-015-0362-6
Published:
Issue Date:
DOI: https://doi.org/10.1007/s12142-015-0362-6