Orientalism in the European Court of Human Rights

Abstract

Abstract This article provides an anti-Orientalist critique of jurisprudence within the European Court of Human Rights. Discussion is located in the context of the longstanding debate over what it is to be “European” and an awareness of how these wider discourses shape rights adjudication at national and intra-national levels in Europe. Argument draws on literature from post-colonial theorists, cultural studies, and feminist legal theory which identify and discuss “Orientalist” discourses to analyse the production of legal knowledge and jurisprudence from the European Court of Human Rights. The article argues that Orientalist discourses affect the ways that the Court constructs and positions both the claimant and the respondent state in human rights claims. These constructions influence cases involving Muslim claimants and have a particularly negative impact on the outcome of claims by visibly-Muslim women. The final part of the article suggests ways that these negative discourses and constructions can be countered.