Across Europe, courts (both domestic and international) are increasingly playing a central role in dealing with identity-driven conflicts across deeply entrenched ethnocultural divides. At the outset, many of these controversies are seemingly religious or cultural disputes, involving the interpretation of individual rights such as freedom of conscience, freedom of association, and freedom of religion. Yet if we scratch beyond the surface, there is much more at stake in these disputes, or so this paper contends. Broader disagreements that confront majority and minority cultures regarding group rights and the shifting intersections between religion, ethnicity, and gender are played out in these judicial battles. The paper traces the so-called “crisis of multiculturalism” in the European political rhetoric and practice and highlights its impact on the de-juridification of cultural rights and on the tendency to seek accommodation through litigation (typically by minority litigants increasingly frustrated with the political backlash against their rights). It then inquires into the prospects of this strategy, pointing out the limitations courts face when adjudicating identity conflicts pertaining to minority groups traditionally disadvantaged in mainstream political processes. These concerns are illustrated through revisiting a number of controversies over Muslim veils that have been resolved by the European Court of Human Rights. The paper cautiously concludes that a shift toward more participatory political processes is more likely to mitigate the decline of progressive forms of multiculturalism and consolidate minority rights.
This article was written and accepted for publication in 2014; hence the analysis of some of the specific issues discussed (in particular, the European debates about Muslim headscarves) do not take into account more recent legal and political developments. I am very grateful to Nico Krisch for his valuable comments and to Patti Lenard for her support and helpful criticism. I also wish to thank participants in workshops at Universitat Pompeu Fabra, the 2014 Inaugural Conference of the International Society of Public Law in Florence, and the 2014 UK IVR Conference in London for comments and discussions.
©2016 by De Gruyter