Majority rule and human rights: identity and non-identity in SAS v France
Majority rule and human rights: identity and non-identity in SAS v France
This article considers the July 2014 decision of the European Court of Human Rights in S.A.S 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 S.A.S 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 S.A.S. and argues for an alignment between international human rights practice and the ‘non-identity thinking’ that Adorno advocated.
115-136
Nicholson, Matthew
6c0f545d-5ef6-4ae6-a078-4718a6997024
1 September 2016
Nicholson, Matthew
6c0f545d-5ef6-4ae6-a078-4718a6997024
Nicholson, Matthew
(2016)
Majority rule and human rights: identity and non-identity in SAS v France.
Northern Ireland Legal Quarterly, 67 (2), .
Abstract
This article considers the July 2014 decision of the European Court of Human Rights in S.A.S 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 S.A.S 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 S.A.S. and argues for an alignment between international human rights practice and the ‘non-identity thinking’ that Adorno advocated.
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Research SAS - October 2015 SAS v France NILQ Submission to NILQ NILQ
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67NIrLegalQ115
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Accepted/In Press date: 11 March 2016
Published date: 1 September 2016
Organisations:
Southampton Law School
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Local EPrints ID: 390705
URI: http://eprints.soton.ac.uk/id/eprint/390705
ISSN: 0029-3105
PURE UUID: bf80e2eb-0949-4aa3-9677-23ff33074d02
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Date deposited: 06 Apr 2016 13:40
Last modified: 14 Mar 2024 23:22
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Author:
Matthew Nicholson
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