The ‘humanity’ of the secular legal subject’: Reading the European Court of Human Rights’ decisions over the practice of veiling

Abstract

The debate over the Muslim headscarf has become an arena of fervent discussion in Europe. Much of the debate reveals an attempt to explain the issue in binary terms, between modern, ‘secular’, universal and ‘religious’, traditional, local values. In this context, the hijab has become the symbol and mirror of the so called ‘clash of civilisations’. Through the analysis of two cases sentenced by the European Court of Human Rights (ECHR), my argument is that the passionate debate over the veil is a false one as the hijab emerges as a visible symbol of a clash between two legal-political systems, similar but contingently dissimilar: in fact, both Islamists and liberals aim at establishing a singular, universal (positivized) law within the same territory through women’s body. Thus, what the analysis of the ‘hijab cases’ reveals, is not only the emergence of a specific fixed and monolithic Christian/secular/liberal law’s subject, but also that the universality of western thought has precluded the possibility of imagining different forms of humanities and, along with it, a legal pluralism able to deal with a new multi-religious Europe.