Majority rule and human rights: identity and non-identity in SAS v France

Abstract

This article considers the July 2014 decision of the European Court of Human Rights in SAS v France in which the court upheld the legality of a ban on the wearing of the burqa and niqab in public places. Exploring the connection between SAS and a related trend of deference to the will of the national community in the court’s jurisprudence, it relies on Joseph Slaughter’s work to argue that the decision is best explained on the basis of what Theodor Adorno termed ‘identity thinking’ which, in a human rights context, involves the conceptualisation of human identity as something existing in and defined by the community rather than the individual. Drawing on the work of Franz Neumann, Otto Kirchheimer and Peter Mair, the article reflects on the social and political function of the ECtHR in the light of SAS and argues for an alignment between international human rights practice and the ‘non-identity thinking’ that Adorno advocated.