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

Nicholson, Matthew

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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.

Citation

Nicholson, M. (2016). Majority rule and human rights: identity and non-identity in SAS v France. Northern Ireland Legal Quarterly, 67(2), 115-136

Journal Article Type Article
Acceptance Date Mar 11, 2016
Online Publication Date Sep 1, 2016
Publication Date Sep 1, 2016
Deposit Date Sep 9, 2016
Publicly Available Date Mar 29, 2024
Journal Northern Ireland Legal Quarterly
Print ISSN 0029-3105
Publisher School of Law
Peer Reviewed Peer Reviewed
Volume 67
Issue 2
Pages 115-136
Publisher URL http://www.law.qub.ac.uk/schools/SchoolofLaw/Research/
Related Public URLs http://eprints.soton.ac.uk/390705/

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