In multiple cases across Europe, a growing list of rulings by the European Court of Human Rights (ECHR) converges on an apparent consensus: the expanding presence of Islam throughout Europe presents a pronounced challenge to Western conceptions of secular law and human rights. Several analysts have argued that behind this apparent consensus lurk various strains of European nationalism (Asad 2003: chap. 5; Asad 2006; Scott 2007;Bowen 2012). These nationalisms manifest tendencies to reify the identity of an internally distinct yet putatively inassimilable “other.” They then, in effect, scapegoat that other—in the present cases, through the socio-cultural, political, legal, and religious construction of Islamophobia (Springs 2015).
The most conspicuous strains of European nationalisms take form in unapologetically xenophobic, chauvinistic, self-identified nationalist voices. This poses a deceptive complication for understanding and adequately responding to nationalist reactions to Muslims in Europe. It is illusorily straightforward to limit one’s conception of nationalism to its most extreme manifestations, such as abhorrently radical fringe elements (e.g. the case of Anders Breivik in Norway), political groups that clearly deviate from the politics of the mainstream (e.g. Marine Le Pen and the National Front Party in France), self-avowedly less extreme but nonetheless vocally xenophobic public figures (e.g. the legacy of Pim Fortuyn and politics of Geert Wilders in Holland), or those who declare that Islam’s increasingly visible presence in Europe vindicates the inexorability of Samuel Huntington’s “clash of civilizations” thesis (e.g. Ayaan Hirsi Ali). The attention commanded by such pronounced examples draws attention away from forms and effects of nationalism that interpose themselves in the reaction to Muslims in Europe in less conspicuous ways. The latter occur more subtly, at times surreptitiously, as modes of exclusion, inequality, and humiliation. And these may crop up within even the languages and norms that have been developed to protect against nationalism’s more egregious effects.
What options are available for illuminating and protecting against effects of nationalism when, for instance, nationalist strains of Islamophobia become subtly articulated and enforced in the application of human rights norms and institutions? It is this question to which the following paper poses an answer. I examine the 2004 law banning the wearing of conspicuous religious symbols in contemporary France, taking as a test case the ECHR upholding that ban in 2008 in Dogru v. France (ECHR 2008). I argue that international human rights norms and institutions, while insufficient alone, are nonetheless indispensable for protecting against the encroachment of subtle forms of religious nationalism and for the protection of religious freedom in contemporary European contexts. I propose to illuminate and then critically assess the ways that human rights discourse (and recent adjudications by the ECHR, in particular) has come to subtly collude in anti-Muslim currents of European nationalism. At the same time, my critical exposition aims to lead to a refined understanding of the constructive roles that human rights might play in European contexts. I seek to demonstrate that human rights discourse can be, and needs to be, applied in conjunction with analytical tools that guard against its unjust applications.
Part I of this paper places my engagement with the French headscarf law and ECHR ruling within the context of recent debates over human rights and religious freedom. These debates question the viability and/or incapacity for human rights adjudication regarding religious freedom to cut against the influence of Islamphobic tendencies inscribed in European state interests. Yet these debates, I argue, are prone to excessive discursive analytical tendencies. They risk concluding that human rights, and religious freedom more specifically, serve (however tacitly) purely as means by which modern states impose and reinforce the regulatory powers of their sovereignty (as tentacles of the Leviathan, one might say).1 I unpack the case at hand, examining how the banning of headscarves in French public schools relied upon quite specific conceptions of French national identity and French state sovereignty. I then examine the abortive effort to challenge the headscarf ban on the basis of human rights norms as codified in the “freedom of religious expression clause” of Article Nine of the ECHR (ECHR 2008). Article Nine appears to directly counter the ban’s legal justifiability. On what grounds did the ECHR application of principles of freedom of conscience and religious expression as codified in Article Nine—ultimately justify upholding the ban on religious symbolic dress in public spaces? Answers to this question become available, I argue in part II, only when one includes the influence of national culture, and particularly the impact of the laic ethos of French society as a form of ethno-religious nationalism, in assessing this case. Attending to the subtle dynamics of French religious nationalism illuminates tendencies toward a secularist cultural hegemony in the current ECHR ruling. Within this hegemony, the valorization of human rights (and application of the “conscience clause” itself) ultimately comes to perpetuate forms of social exclusions, inequality, and humiliation.
The purpose of my critical analysis, however, is to forward a corrective approach to human rights. Such an approach aims to enrich and alter it as a normative discourse by illuminating its inevitably political and cultural dimensions. Such an approach factors into its analyses the context-specific interests and purposes that inevitably influence adjudication of human rights cases. The results of attending to nationalism, I argue in part III, do not necessitate abandoning or vilifying human rights as inexorable tools of state power dressed in nationalist trappings. I propose, rather, to reconceptualize nationalism as interdependent with, and yet simultaneously distinguishable from, state purposes and interests. This permits recognizing the multiplicity of ways that, in practice, processes of selective cultural and religious negotiation constitute national identities and associations. These might afford multidirectional resources for immanent critical resistance to, and imagining constructive transformation of, state interests and human rights applications.