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Introduction
One of the foremost discursive aspects of today’s post-industrial living is the fact that, as time goes on; the universalist approach to ensuring people’s ability to enjoy the full scope of their human rights is being increasingly deprived of its conceptual validity. This simply could not be otherwise, because; whereas, the concept of human rights implies that, regardless of what happened to be the particulars of their ethnocultural affiliation, people are being equally comfortable with the notion of a secularized living; this is far from being the actual case. Hence, a certain paradox – in order for many individuals (which tend to perceive the surrounding reality through the lenses of their ethnicity/religion) not to suffer from the abuse of their human rights, they have no option but to adopt a strongly negative attitude towards the universalist assumption of people’s legal/social equality. However, given the fact that this assumption serves a theoretical foundation, upon which the concept of human rights is based, it presupposes that it is specifically by denying the validity of the concept in question that many people may take a de facto advantage of their endowment with constitutionally guaranteed social rights and freedoms – whatever ironic it may sound. In my paper, I will aim to illustrate the validity of this suggestion, in regards to the controversy, surrounding the law that forbids Muslim women to wear face-concealing burqas (hijabs) in public places, which was passed by the French Senate on September 14, 2010, and came into a legal effect on April 5, 2011 (Britton 2011).
Analytical part
There can be few doubts, as to the fact that the passing of the earlier mentioned law does exemplify a conflict between universalism and cultural relativism. After all, forbidding French Muslim women to wear burqas was motivated by the considerations of protecting democracy in France. Hence, the essence of legal reasoning, behind the introduction of the ‘burqa ban’, “Given the damage (the full-face veil) produces on those rules which allow the (democratic) life in community, ensure the dignity of the person and equality between sexes, this practice, even if it is voluntary, cannot be tolerated in any public place” (Heider 2012, p. 97). Apparently, those French politicians that legislated the ‘burqa ban’ never doubted the validity of their assumption that the concept of democracy represents a universally recognized social value.
French Muslims, however, have a different point of view, in this respect. This is because, unlike what happened the case with highly secularized Whites, who regard religion as merely an additional comfort in life, they consider their religion of Islam to be the actual way of life (Parvez 2011). In its turn, this suggests that, from the perspective of French Muslims, the earlier mentioned ban accounts for a blatant violation of their human rights, as French citizens. The provisions contained in the U.N. 1949 Universal Declaration of Human Rights (UDHR), support the full legitimacy of such a claim, on the part of French Muslims. After all, this Declaration does point out the fact that the people’s ability to exercise their freedom of religion does represent one of their foremost human rights, which cannot be restricted. According to the UDHR’s Article 18, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to… manifest his religion or belief in teaching, practice, worship and observance” (UDHR Article 18 2001, para. 1). In other words, while passing the infamous ‘burqa ban’, the French Senate acted in striking opposition to the UDHR’s provisions. However, because the UDHR is considered a general assembly international resolution, it does not impose any legally binding obligations on state signatories to adjust the functioning of their legal systems to be fully consistent with the humanitarian principles it promotes.
Thus, as of today, there is only one legal instrument that French Muslims can resort to while striving to ensure the French Government’s compliance with the UDHR – the so-called European Convention on Human Rights (ECHR), the provisions of which are being actually enforced by the European Court of Human Rights” (Besson 2012). Just as is being the case with the UDHR, the European Convention establishes an unrestricted right for EU citizens to practice their religious beliefs (ECHR Article 9 1953, para. 1). Nevertheless, the ECHR also contains the list of circumstances, under which it is being permissible for the European countries’ governments to introduce bylaws, potentially capable of restricting the citizens’ right to enjoy their religious freedom. Essentially, the restriction of people’s religious freedoms in the EU can only be deemed legally justified if it serves the purpose of advancing a legitimate state-aim or promoting the values of democracy. However, the ECHR makes it clear that, while assessing the validity of human rights abuse claims, concerned with the matters of religion, the European Court of Human Rights may never cease evaluating the legal appropriateness of the applied restrictive measures, in regards to what appears to be the concerned country’s cultural background (Bratza 2012). This provides us with a clue, as to what should account for the line of legal reasoning, regarding the illegality of the ‘burqa ban’, on the part of French Muslims in the European Court of Human Rights.
First, it can be well-argued that forbidding French Muslim women to wear burqas cannot be possibly referred to as such that serves a legitimate state-aim, due to the clearly identifiable discriminatory essence of this legal measure. Apparently, those French policy-makers that voted in favor of enforcing the ‘burqa ban’, were utterly unaware of the simple fact that, in order for the passing of a particular law/bylaw to be considered discursively appropriate, the law in question cannot target a specific category of citizens, especially if the affected people happened to emanate their visually observed ‘otherness’ (Cherti 2010).
Second, the introduction of the ‘burqa ban’ cannot also be defined as such that serves the cause of promoting democracy in France. The reason for this is apparent – the notion of democracy is synonymous with the notion of a ‘majority rule’. Yet, the qualitative essence of demographic trends in today’s France suggests that it is being only a matter of a decade or two, before Muslim Arabs and Blacks (with French passports) will attain the majority status in this country (Westoff & Frejka 2007). Therefore, there can be very little rationale in continuing to believe that it is specifically the French Whites/Christians, who are being in a position to enforce their vision of ‘democracy’ upon others.
Third, the French ‘burqa ban’ is being thoroughly unobservant of what accounts for the specifics of a cultural climate in France. This climate’s foremost specific is being concerned with the existence of racially/religiously secluded conclaves in just about every French city, exclusively populated by Muslims, where French secular laws simply do not apply de facto. The validity of this statement can be well illustrated in regards to the 2005 racial riots in France, during the course of which French police officers were ordered not to venture into the ‘Muslim territory’, in order not to provoke rioters even further (Brown 2007; Schneider 2008).
Apparently, the reason why the European Court of Human Rights continues to remain ignorant of the fact that the French ‘burqa ban’ violates basic human rights, on the part of French Muslims, is that the Court’s juries remain largely unacknowledged of the specifics of a cultural climate in France. Therefore, in order for French Muslims to be able to prove an anti-constitutional nature of the ‘burqa ban’, they must be willing to apply an additional effort into prompting the EU’s bureaucrats to recognize the legal implications of the ‘multiculturalism’ policy, the implementation of which they have been so eager to support. In other words, French Muslims should act in such a way that even blind French citizens would be left with no option but to acknowledge their presence, and consequently, their entitlement to take pride in their religious affiliation with Islam. The best way for French Muslims to go about pursuing their agenda, in this respect, is to simply disregard the ‘burqa ban’ while setting cars on fire and looting department stores because only this can provide the European Court’s juries with powerful enough incentives to acknowledge the specifics of a cultural climate in today’s France. In its turn, this would make them more likely to pass the verdict that would force the French Senate to delegitimize the earlier mentioned discriminatory law. Apparently, people’s constitutionally guaranteed rights are not given but taken. In this respect, the French Muslims’ right to exercise freedom of religion is not different. Thus, just as it was implied in the Introduction, it is specifically by denying their legal equality with the rest of French citizens, while insisting on being ‘other’, that French Muslims may achieve the removal of discriminatory restrictions on their right to believe in Allah and to follow His commandments.
Conclusion
I believe that the provided line of argumentation, in regards to the discussed subject matter, is being fully consistent with the paper’s initial thesis.
References
Besson, S 2012, ‘The extraterritoriality of the European Convention on Human Rights: Why human rights depend on the jurisdiction and what jurisdiction amounts to’, Leiden Journal of International Law, vol. 25 no 4, pp. 857-884.
Bratza, N 2012, ‘The “precious asset”: Freedom of religion under the European Convention on Human Rights’, Ecclesiastical Law Journal, vol. 14 no. 2, pp. 256-271.
Britton, D 2011, ‘Lifting the veil: France’s new crusade,’ Boston College International & Comparative Law Review, vol. 34 no. 1, pp. 117-145.
Brown, B 2007, ‘God and man in the French riots’, American Foreign Policy Interests, vol. 29 no. 3, pp. 183-199.
Cherti, M 2010, ‘The politics of Muslim visibility in Europe’, Public Policy Research vol. 17 no. 3, pp. 157-161.
The European convention on human rights. n.d. Web.
Heider, J 2012, ‘Unveiling the truth behind the French burqa ban: The unwarranted restriction of the right to freedom of religion and the European Court of Human Rights’, Indiana International & Comparative Law Review, vol. 22 no. 1, pp. 93-129.
Parvez, Z 2011, ‘Debating the burqa in France: The antipolitics of Islamic revival’, Qualitative Sociology vol. 34 no. 2, pp. 287-312.
Schneider, C 2008, ‘Police power and race riots in Paris’, Politics & Society, vol. 36 no.1, pp. 33-159.
UDHR: Article 18. n.d. Web.
Westoff, C & Frejka, T 2007, ‘Religiousness and fertility among European Muslims’, Population and Development Review, vol. 33 no. 4, pp. 785-809.
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