When the European Court of Human Rights encounters the face

Abstract

François-Xavier Millet* There are instances in which judges prove to be philosophers without knowing it. One could wish that this happened more often when human rights are concerned. There is probably not enough thinking about the philosophy that actually underpinsor should underpinhard cases in the 21 st century. It is assumed that liberalism is the main underlying philosophy in Europe. It praises the multifaceted individual and values free choice. However, judges should always keep in mind where human rights come from, what conditions their exercise and what their function is in a democratic society. The burqaalso sometimes (and inaccurately) referred to as niqabraises key questions as to the competing concepts of rights and religious freedom in Europe. 1 The answer will vary according to one's point of view. For instance, a strictly liberal approach should not see major problems in wearing the full-face veil as long as it is the result of a free choice. For the libertarians, the burqa is most probably an acceptable garment inasmuch as it does not cause any harm to others. 2 Although they will start with utterly different philosophical premises, communitarians 3 1 On the different aspects of this issue, see D. Koussens and O. Roy (eds.), Quand la burqa passe à l'Ouest. Enjeux éthiques, politiques et juridiques (Presses universitaires de Rennes 2014). 2 See in general J. Brennan, Libertarianism: What Everyone Needs to Know (Oxford University Press 2012). For a forerunner of libertarianism, in connection with the so-called harm principle, see

The “living together” argument in the European Court of Human Rights case-law

“…Most of all, the rapport de face à face is a minimal precondition for building mutual trust, for a peaceful cohabitation in society and is an essential ingredient of ethical behaviour. 25 This idea was also cited during the French and Belgian political debate as a rationale in support of what is known as the burqa ban. Indeed, the French drafters of the 2010 law considered that the regular wearing of the veil corresponds to a systematic betrayal of the fundamental values of democracy and a threat to national cohesion.…”