The Judicial Politics of Burqa Bans in Belgium and Spain—Socio-Legal Field Dynamics and the Standardization of Justificatory Repertoires

Abstract

Over the past decade, controversies over Muslim women's face veiling have become increasingly widespread in societies across Europe. This article comparatively explores the socio-legal dynamics of claims making by proponents and opponents of prohibiting full-face coverings in Belgium and Spain. In Belgium, a federal ban of full-face coverings was adopted in July 2011 and, after intensive judicial struggles, received judicial validation by the Constitutional Court in 2012. In Spain, local burqa controversies led to municipal bans in the region of Catalonia in 2010, which were annulled by the Supreme Court in 2013 after effective legal counter-mobilizations. In spite of the diverging legal outcomes, we argue that justificatory repertoires have become increasingly standardized as burqa controversies are transposed from locally embedded political fields to transnationally structured judicial fields. We suggest that this standardization of justificatory repertoires in the long run facilitates the rapid spread of burqa bans across Europe.

Precarious bodies: The securitization of the “veiled” woman in European human rights

“…It seemed as if the ideal of “living together” was a legally justifiable aim which could undermine fundamental freedoms if abandoned as well as individualization and the maintenance of public order. This exposed how the ECtHR accepted the French and Belgian defenses based on the appropriation of a concept originally embodied in the French Constitutional Court's judgment which implied that individualization, and thus even democracy itself, was threatened by face covering (Burchardt et al., 2018). The ECtHR’s assimilationist and secularizing stance meant that its decision making was more allied with the retreat of multiculturalism than the protection of minority rights and religious freedoms.…”

The Process of Legal Institutionalization: How Privacy Jurisprudence Turned towards the US Constitution and the American State

“…3 More generally, the focus on landmark cases in each of these two approaches also risks obscuring developments that galvanized legal thought and judicial practice even if they were ultimately abandoned and written out of the canon of legal precedent. It thereby hinders the study of law as “an arena of conflict within which alternative social visions contended, bargained, and survived” (Hartog 1985, 934–35) and avoids “a more rigorous analysis of socio-legal field dynamics” during the process of legal institutionalization (Burchardt, Yanasmayan, and Koenig 2019, 4).…”