Abstract
AbstractMultiple laws and regulations in Western Europe have been enacted on the premise that headscarves and face veils constitute an existential threat to the constitutional identity of the respective legal systems. Thus, the logic of militant democracy as a justification for restricting fundamental rights have been applied in order to restrict the freedom to manifest one’s religion. Yet, the politicymakers claiming to defend the constitutional identity through militant democracy have not been able to prove the existence of a concrete, imminent threat against the state from the women who wear headscarves or face veils. Nonetheless, the European judiciaries have taken the political claim at face value and allowed the restrictions without compelling the political decision-makers to provide substantive justifications. Thus, the cases of headscarves and face veils offer a prism, through which we can study fundamental paradoxes of liberal democracy and constitutionalism.
Highlights
Multiple laws and regulations in Western Europe have been enacted on the premise that headscarves and face veils constitute an existential threat to the constitutional identity of the respective legal systems
Jan-Werner Müller argues that “national identity and constitutional identity are not the same,”21 and that this distinction matters because “[t]hreats to the latter can legitimately be subject to militant democratic measures, constitutional identity can be interpreted more or less narrowly and give rise to more or less tolerance vis-à-vis parties and movements.”22 it is true that national identity and constitutional identity are two different concepts, I disagree with Müller on his second point; not every element of constitutional identity can legitimately be subject to militant democratic measures
Troper does not argue for the abolishment of constitutional adjudication, but rather for a more careful consideration, because the continued failure to reconcile the supremacy of the constitution and uninhibited democracy is “a failure of doctrine, not the institution itself.”124 These objections remind us that constitutional review by the judiciary is not a panacea for political pathologies
Summary
Loewenstein argued that the democratic governments of the world must apply harsher means in the struggle against the threat of fascism, “fire is fought with fire,” or else fall victim to the cruel irony of letting undemocratic powers destroy democracy from within using legal means. The measures must be apt to defend the democratic structures and not merely take the form of punishment of political opponents Falling short of these basic requirements, a militant democracy claim is illegitimate. As will be discussed further, these requirements are necessarily closely linked with the concept of proportionality
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