كليدواژه :
حجاب كامل اسلامي , فضاي عمومي دموكراتيك , اروپا , ايالات متحده , حقوق مدون , سياست گذاري , ايدئولوژي جدايي
چكيده لاتين :
As the title of the article suggests, “The Burqa Ban”: Legal
Precursors for Denmark, American Experiences and Experiments, and
Philosophical and Critical Examinations, the authors embark on a
factually investigative as well as a reflective response. More precisely,
they use The 2018 Danish “Burqa Ban”: Joining a European Trend and
Sending a National Message (published as a concurrent but separate
article in this issue of INTERNATIONAL STUDIES JOURNAL) as a platform
for further analysis and discussion of different perspectives. These
include case-law at the international level while focusing attention on
recent rulings and judicial reasoning by the ECtHR and the ECJ; critical
thought-experiments in religion, morality, human rights, and the
democratic public space; a contextualized account of burqa-wearing
interventions by federal and state governments and, moreover, various
courts in the United States; and philosophical commentary and, in some
instances, criticism of the Danish and/or European (French, etc.)
approach. The different contributions have different aims. The section
on case-law at the international level reports on those central judgments
that, in effect, helped to pave the path for the Kingdom of Denmark’s
burqa ban. Concerning the concurring judges at the ECtHR, the
opinions served to uphold a preexisting ban and to grant a wide margin
of appreciation to the national authorities, thereby limiting the Court’s
own review.
As regards to the ECJ, the legality of company rules that contain a
policy of neutrality for the workplace was examined, with a similar
outcome. The authors who discuss religion, morality, human rights and
the democratic public space are endeavoring to, respectively, appeal to
ethics as a testing stone for law and to both challenge and address
several forms of “expressivist worry” in connection with face veils. In
doing so, the authors ask a number of thought-provoking questions that
hopefully will inspire public policymakers to careful analysis. While
the section that is devoted to American perspectives highlights a
comprehensive survey of political and legal responses to, in particular,
full-face veils like the burqa, the relevant author also incorporates
public perceptions and, in the course of examining these, draws a
parallel to “the fate” of the hoodie. The constitutionality of burqawearing in America, so it also appears, is partially an open question, but
differentiating between religious, political, or personal reasons is a de
jure premise. Given that the Danish legislators who drafted law L 219
to ban burqa-wearing in public places rely on a reference to political
Islam, they relegate religious and personal reasons to the private
domain, thereby also adopting secularism as a premise. This is explored
in the last author response of the article, more precisely, in an account
of the underlying materialism that, in turn, is applied to Muslim women.
If policymakers and legislators engaged in Thinking Things Through
exercises, they could, as a minimum, avoid law-making strategies that
are not in the spirit of the theory they themselves invoke, albeit tacitly.
While the aim of, as it were, arresting culturally self-contradicting
legislators is unique for the section in question, all the authors who
contribute to the joint research project have one end-goal in common,
namely to inform about important perspectives while at the same time
opening up for parameters for (more) fruitful, constructive and (if need
be) critical debate in the future. With this in mind, four
recommendations are presented by the research director for the project.
Legally, politically, socially and culturally, conflict-resolution should
not translate the relationship between rulers and the ruled into a
separation ideology, an instance of controllers versus the controlled. All
things being equal, that is the objective limit for a democratic society.
