The Headscarf Controversy: A Response to Jill Marshall

Abstract

This paper argues that Article 8 of the ECHR, as applied to the protection of a person's right to wear a headscarf, is an inappropriate locus for thrashing out arguments about the right to protection of religious freedom, and that Article 9 allows for a broader legal and political analysis of the multiple meanings and impacts of religion in our lives. However, the law should not prohibit women from wearing the headscarf. Legal regulation of the headscarf should be replaced with robust political debate about the many diverse and intersecting ways in which it is possible to experience womanhood, sexuality, culture, religion, race, nationality and economic security in the twenty-first century.

A Critical Legal Pluralist Analysis of the Begum Case

“…61 Cowan contends, instead, that "[l]ike culture, religion is not (per)formed and developed by one individual in isolation from each other, but by the interactions and lived interwoven experiences of individuals and groups". 62 Both culture and religion are interwoven experiences of groups and their members.…”