Critical Reflections on the Structural Legal Power in Human Rights Law

Hajyahia, Alaa
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The Bernard and Audre Rapoport Center for Human Rights and Justice

In Europe, a wide range of religion-based practices have been at the center of public debate over the last two decades. This paper focuses on one such practice: the wearing of Islamic veils in public spaces in Europe. Through one representative case study, I explore how the Muslim woman is constructed by the European Court of Human Rights. I offer a diagnosis of the Court’s ontological position, which, I argue, is shared by the Court’s legal–feminist critics. Later, I turn to the fields of cultural sociology, social anthropology, hermeneutics, law, and political theory to develop an ‘alternative ontological position’, a position that situates Muslim women as neither ‘political’ nor ‘suffering’ others, but as morally evaluative humans distinctly and deeply informed by their unique cultural experiences. Having set forth that alternative position, this paper argues that in cases involving Muslim women, the determinations of the European Court of Human Rights, serve to – both actively and passively – maintain, protect, and enforce white power and control as defined by critical race scholars, all under the guise of gender equality.

Alaa Hajyahia is a J.S.D Candidate at Yale Law School and a Ph.D. candidate in the anthropology department at Cambridge University. She received her LL.M. degree from Yale Law School and her LL.B., B.A., and M.A. in social anthropology from Tel-Aviv University.