Caught between Different Legal Pluralisms: Women Who Wear Islamic Dress as the Religious ‘Other’ in European Rights Discourses

Abstract

Legal pluralism is a phenomenon defined differently by scholars researching European law and scholars researching issues concerning cultural and religious accommodation. Whereas European law scholars focus on possible theoretical tools for conflict resolution between intersecting European legal systems, scholars focusing on multiculturalism argue that cultural and religious legal pluralism conveys a dynamic relationship between official and unofficial law drawn out by migration and issues of accommodating a primarily Muslim diaspora in Europe. Yet, seemingly differently defined, these pluralisms have an equally important impact on the understanding of fundamental human rights in Europe. They both influence national law and shape the boundaries of rights, such as freedom of religion.Building upon established notions of legal pluralism, the paper provides a critical analysis of the application of human rights standards in European normative orders and argues that the rights of the religious ‘other’ are caught in an interplay of various types and forms of legal pluralism(s) in which issues of inclusion often remain secondary. It focuses upon the key example of women who wear a hijab (headscarf) or a jilbab (a long coat like garment which covers the body except the hands and face) and who were the central focus of European Court of Human Rights cases such as Dahab v Switzerland and Sęhin v Turkey, and of domestic cases, for example, R (on the application of Begum) v Headteacher and Governors of Denbigh High School. The paper re-orders and re-constructs certain forms of legal pluralism and also focuses on the relationships between them.