This article takes violence in the law seriously, scrutinizing three sites engaged in violent subject production and resistance: the Guantanamo Bay detention center, supermax prisons in the US, and European refugee camps. The concepts of martyring and torturing serve help to untangle the dynamics of the law's violence. The violent subject production techniques used in these sites are discussed as torture practices that aim to reproduce the dominant subjectivity. As the law has often proved unable to fully address the situation of the detainee, the prisoner, and the refugee, hunger striking as martyring is discussed as a way to deconstruct hegemonic subjectivity and to force the law to face its own violence.
Can human rights law adequately address implicit modes of racism and gender discrimination? This question is discussed in this article through the analysis of the European Court of Human Rights case S.A.S. v. France (2014) concerning the ban on the Islamic full-face veil. The so-called 'headscarf cases' have been thoroughly discussed by many scholars, yet they seem to offer an endless source of different points of view. Departing from the previous discussion on the headscarf and full-face veil cases, which have largely concentrated on the questions of personal autonomy, identity and subjectivity, this article approaches S.A.S. v. France from the point of view of discrimination. It is suggested that the Court's procedural and de-contextualized approach to rights results in eroding the protection against discrimination. Procedural approach refers to the Court's tendency to emphasize procedural aspects of the Convention rights and not to engage sufficiently with substantive analysis. The de-contextual approach to rights on the other hand refers to lack of sensitivity to empirical information concerning the facts of the case at hand. Together the procedural and de-contextual approaches inadvertently erode the protection against discrimination of vulnerable groups, such as Muslim immigrant women.
In this article I analyse how the law participates in the (re)production process of the subject, the state and religion, and how the law's indefiniteness allows various constructions of them all. In the first part of the article I discuss the Islamic headscarf cases of the European Court of Human Rights as examples of how the discursive constructions of the state and the subject can be challenged by means of disobedience. Here the focus is particularly on Turkey and on France, where the principle of secularism is largely regarded as the basis of the republic and of the national identity. The law provides an arena where the disobedient subject and the state can challenge and re-establish the prevailing conceptualisations of the subject. In the second part of the article I address the Court's alleged Islamophobia. I explore how the constructions of the state and the subject contribute to the way religion is framed in the Court's argumentation in relation to the freedom of religion guaranteed under Article 9 of the European Convention on Human Rights. The analysis shows that religion can be framed as a personal belief system, a cultural tradition, or politics which, in turn, affects the course of legal argumentation. I conclude that the Court can plausibly be accused of Christian bias, but that this conclusion is often based on insufficient analysis of the Court's case law. This article contributes to the interdisciplinary discussion on the headscarf bans from the sociolegal perspective. The aim is to explore what, besides providing legal solutions, the law does.
This Chapter discusses the role of the courts in drawing boundaries of identity and belonging in the majority and minority populations and indigenous peoples. The topic is approached with two examples. First, the role of the European Court of Human Rights in the so called headscarf debate is discussed from the perspective of (re)producing the French citizen subject in the case of S. A.S. v.
This chapter examines narratives of belonging that produce imagined communities of 'us' and 'them' through claims of 'authenticity' and 'autonomy' in relation to religious identity, gender, and corporeality. We analyse the narratives circulating around two examples. First, the recent case in the European Court of Human Rights of Osmanoǧlu and Kocabaş v. Switzerland, where Muslim parents sought to exempt their daughters from mixed swimming lessons. Second, the turmoil that followed the Swedish politician Yasri Khan's refusal to shake hands with a female journalist. Both examples illustrate the ways in which the narratives about cultural differences draw upon constructions of gendered and sexualised bodies.Postfeminism invites us to acknowledge that there are no ultimate common goals or permanent indicators of justice and equality. By adopting a narrative approach, we acknowledge the ways in which feminism exists within and as part of narrative reality. This means that as feminists we admit that it is impossible to make statements from an ahistorical, neutral, and objective perspective and that we recognise that feminism, too, takes part in the reproduction of our social world by producing stories about this world. However, this need not render feminist experiences of injustice invisible or leave it inarticulate. Instead, postfeminism urges us to be conscious of whose interests the claims of 'authenticity' and 'autonomy' promote and whose gaze they authorise. Thus, the question of power has all but vanished from the centre of feminist legal thought.
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