Disobedient subjects – constructing the subject, the state and religion in the European Court of Human Rights

Abstract

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 conceptualizations 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 socio-legal perspective. The aim is to explore what, besides providing legal solutions, the law does.Peer reviewe