Abstract
Until recently the term ‘cosmopolitanism’ was a forgotten concept in the intellectual history of the 18th and 19th centuries. The last two decades have seen a remarkable revival of interest in cosmopolitanism across a wide variety of fields. This article contends that legal developments since the 1948 Declaration of Human Rights and the rise of an ‘international human rights regime’ are at the forefront of a new cosmopolitanism. Yet there is a great deal of skepticism toward such claims on the part of those who maintain that democracy and human rights are best furthered by the nation-state framework. Still others confuse legal cosmopolitanism with the spread of a uniform system of rights across different national jurisdictions.
In several writings in the past, I developed the concept of ‘democratic iterations’ to argue against such skepticism as well as misunderstandings of legal cosmopolitanism. In this article, I show how democratic iterations unfold across transnational legal sites, which encompass various national jurisdictions and through which contentious dialogues on the application and interpretation of such fundamental rights as ‘freedom of religion’ in different jurisdictions can emerge. To document such processes I focus on the Leyla Sahin v. Turkey case which was adjudicated by the European Court of Human Rights in 2005.
I The return of cosmopolitanism
Until recently, the term ‘cosmopolitanism’ lay buried in the study of ideas of the 18th century; by the 19th century, historians were already struggling with the rise of nationalism. Cosmopolitanism seemed a forgotten expression from a discredited European and North American Enlightenment. 1
The last two decades have seen a remarkable revival of interest in cosmopolitanism across a wide variety of fields, ranging from law to cultural studies, from philosophy to international politics, and even to city planning and urban studies. 2 Undoubtedly, the most important reason for this shift in our sensibilities and cognitions is the confluence of epoch-making transformations referred to as globalization and the end of the ‘Westphalian-Keynesian-Fordist’ paradigm by many; 3 as the spread of neo-liberal capitalism by some; and as the rise of multiculturalism and the rest’s displacing the West by still others. Cosmopolitanism has become a place-holder for thinking beyond the confusing present towards a possible and viable future.
However, far from espousing cosmopolitanism, there are growing forces in our world who see themselves in the midst of a ‘global civil war’ between Islam and Europe or the West more generally. Each side provokes the other into a series of intensified confrontations: after the September 11, 2001 attacks against the US, came the subway bombings in Madrid of 2004 and in London of 2007. Add to them the Danish caricature controversy over the representation of the Prophet Mohammed (2005), the murder of Theo van Gogh in the Netherlands by a Moroccan militant, and the French ‘scarf affair’ (1989–2004), forbidding Muslim schoolgirls to attend public French schools with the hijab, and the list grows longer. The most recent and tragic iteration of these events occurred in Norway with the massacre by Anders Behring Breivik on 22 July 2011 of over 70 young people, among them many immigrants. After this event, dark clouds once more gathered over the chances of cultural coexistence and religious tolerance. Viewed against this background, cosmopolitan ideals seem like pious wishes at best and naive appeasements of dark forces of our civilization at worst. Carl Schmitt is the theorist du jour and the left and the right find satisfaction in the language of the eternal confrontation between ‘friend and foe’ in politics.
Is cosmopolitanism then the naive privileged attitude of globe-trotting and world-hugging elites, removed from the concerns of ordinary citizens? I contend that ‘cosmopolitanism’ denotes no such privileged attitude but, rather, that it suggests a field of unresolved contrasts: between particularistic attachments and universalist aspirations; between the multiplicity of human laws and the ideals of a rational order that would be common to all human cities; and between belief in the unity of humankind and the healthy agonisms and antagonisms generated by human diversity.
Cosmopolitans become naive only if they forget these tensions and contrasts and embrace instead a Pollyannaish, ceaseless affirmation of global oneness and unity. As David J. Depew wisely observes, ‘Cosmopolitanism, then, considered as a positive ideal, whether formally or materially, generates antinomies that undermine its internal coherence … Considered, however, as a critical ideal, these difficulties largely disappear. The resulting conception of cosmopolitanism [is] a negative ideal aimed at blocking false totalization’ 4 (emphases added).
As a critical ideal, cosmopolitanism has a moral, a cultural and a legal dimension: morally, the cosmopolitan tradition is committed to viewing each individual as equally entitled to moral respect and concern; legally, cosmopolitanism considers each individual as a legal person entitled to the protection of her or his human rights in virtue of that person’s moral personality and not on account of citizenship or other membership status. Culturally, cosmopolitanism insists on the hybridity of cultures and their continuous interaction with and learning from one another.
In this article, I wish to focus on one aspect of cosmopolitanism, namely its legal dimension. I wish to highlight the radical transformations that have occurred in the world society of states and in the conceptualization of cosmopolitan human rights in international law after 1948. I will contend that many of these legal developments are leading us to the emergence of transnational legal and political sites of struggle. Furthermore, these new sites have created new ‘political geographies’ which, in turn, have important effects on democracy-building measures within states.
II Legal cosmopolitanism
It is now widely accepted that since the Universal Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society which is characterized by a transition from international to cosmopolitan norms of justice. While norms of international law emerge either through what is recognized as customary international law or through treaty obligations to which states and their representatives are signatories, cosmopolitan norms accrue to individuals considered as moral and legal persons in a world-wide civil society. Certainly, some cosmopolitan norms originate through treaty-like obligations, such as the UN Charter, the UDHR and the various human rights covenants – for example, the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights – are considered to be. Yet their peculiarity is that these covenants bind signatory states and their representatives to treat their citizens and residents in accordance with certain norms, even when states later wish, as is often the case, to engage in actions that contradict these terms and violate the obligations generated by these treaties themselves. This is the uniqueness of the many human rights covenants concluded since the Second World War: sovereign states through them undertake the ‘self-limitation’ of their own prerogatives.
The best-known of the human rights agreements which have been signed by a majority of the world’s states since the 1948 Universal Declaration on Human Rights (UDHR) are as follows: 5 the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the UN General Assembly on 9 December 1948 (ch. II); the 1951 Convention on Refugees (which entered into force in 1954); 6 the International Covenant on Civil and Political Rights (ICCPR; signed in 1966 and entered into force in 1976, with 167 countries out of 195 being party to it as of 2012); 7 the International Covenant on Economic, Social and Cultural Rights (ICESCR; entered into force the same year and with 160 member parties as of 2012); 8 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW; signed in 1979 and entered into force in 1981, with 99 signatories and 187 state parties as of 2012); 9 the International Convention on the Elimination of All Forms of Racial Discrimination (entered into force on 12 March 1969, with 86 signatories and 175 parties as of 2012); 10 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987, with 78 signatories and 150 parties as of 2012). 11 These are some of the best-known among many other treaties and conventions.
III The skeptical objection
The skeptic will ask: But what does all this really mean? What possible significance can these multilateral human rights covenants have, if states continuously and brazenly violate them, manipulate them to serve their own ends and the like? Are they not mere words at worst or aspirational ideals at best that have little traction in influencing and limiting state conduct? Do these developments add to a novel, enforceable and justiciable legal world order? Doesn’t the process of formulating RUDs – reservations, understandings and declarations to which states are entitled – take the bite out of the human rights treaties in particular and make them merely convenient smoke-screens for states to hide behind?
While skeptical doubts about state behavior and an international state-system that remains beset by violence, civil wars and proxy wars cannot be set aside, I remain convinced that something has changed profoundly in the grammar and syntax of the language of international law, sovereignty and human rights. 12 Just as repeated use may imperceptibly change grammar and syntax in a language – consider, for example, the frequent use of contractions such as ‘he’s’ for ‘he is’ in English – legal practice, institutionalization and adjudication by courts may change legal doctrine. In an earlier work, I described such processes of transformation in the international domain through the use of another metaphor: we are like travelers navigating a new terrain with the help of old maps; while the terrain has radically changed, our maps have not. Thus, we stumble upon streams we did not know existed, and we have to climb hills we had never dreamt of. 13
Mirroring these imperceptible but cumulative transformations of the last three decades, the status of international law and of transnational legal agreements and treaties with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue. Deep divergences have emerged among democracies normally considered allies. While Europe, under the impact of the cumulative jurisprudence of the European Court of Justice, the European Court of Human Rights and strong constitutional courts such as the Bundesverfassungsgericht, has moved towards a cosmopolitan order of strong rights-protection and the increasing harmonization of domestic laws with the UDHR and other international treaties, 14 a strong isolationist current has become visible in the US Supreme Court.
At least two different controversies have dominated recent discussions. First, what is the status of foreign law, including the law of other nations and of international treaties in constitutional and statutory adjudication? As we know, great variations across countries exist in this regard: while international law becomes part of the valid constitutional order in many countries of the world such as the Netherlands and South Africa (referred to as constitutional monism), other constitutions are dualist with respect to treaty-based international law, and require various forms of treaty-ratification before these can become part of the law of the land.
A second controversy concerns whether recent developments in legal doctrine and practice can be seen as leading toward ‘global constitutionalism’, with or without the state. 15 Global constitutionalists point to intensifying cooperation among constitutional court justices across the globe; their learning from one another and, increasingly, their citing one another in considering similar cases, not as precedent, but as significant analytical evidence strengthening certain solutions to problems rather than others. Even some scholars, such as Jeremy Waldron, who find the concept of ‘global constitutionalism’ exaggerated, nonetheless argue that there is increasing convergence around a ‘law for all nations’. 16
I have the impression that law and legal scholarship today, much as they helped to consolidate the gains of the inter-state Westphalian peace of 1648 by providing the philosophical and jurisprudential bases of liberal bourgeois revolutions in the 18th century, are anticipating a world that is yet to be born, ‘une vérité à faire’. 17 Legal scholarship has become a constitutive element in a new world that is yet to come, but which we, as contemporaries, can only grasp with the help of various metaphors.
By contrast, political science has lost its privileged object domain – the state and inter-state relations. This observation pertains both to realists who take the unitary state as the principal actor for all reflection and investigation, and to liberal internationalists who have a more pluralist vision of the state and who analyse state behavior differently. Whether we think that states behave as self-interested principals, or as agents and principals that are susceptible to normative and value considerations and are not guided by strategic self-interest alone, the unit we are looking at remains the same, that is, the state and its institutions. Whereas the new legal scholarship has ‘disaggregated’ this unit, political science – with few exceptions – has not yet taken note of these transformations.
Let me first consider the skeptical thesis in greater detail and then outline several strategies – both normative and institutional – for thinking beyond the oppositions of the cosmopolitan vs the civic republican, the democratic vs the transnational, that dominate much theorizing in this field.
IV Robert Dahl on democracy and skepticism toward international institutions
Consider the highly influential article by Robert A. Dahl, ‘Can International Organizations be Democratic? A Skeptic’s View’, 18 and his crisp answer, ‘[A]n international organization is not and probably cannot be democratic.’ 19 Dahl argues that democracy consists ‘of rule by the people, or rather the demos, with a government of the state that is responsive and accountable to the demos, a sovereign authority that decides important political matters either directly in popular assemblies or indirectly through representatives’ (ibid.).
Having established these non-controversial features of democracies, Dahl then writes: ‘In democratic countries where democratic institutions and practices have long been and well established and where, as best we can tell, a fairly strong democratic political culture exists, it is notoriously difficult for citizens to exercise effective control over many key decisions on foreign affairs. What grounds have we for thinking, then, that citizens in different countries engaged in international systems can ever attain the degree of influence and control over decisions they now exercise within their own countries?’ (‘Can International Organizations’, p. 23). Dahl’s skeptical answer emphasizes (1) epistemic limits, (2) cultural diversity and (3) procedural factors as deterrents to citizens being able to exercise such control.
Dahl’s answer that not only international organizations, but international institutions and processes as well, cannot be democratic, is based upon the model of a conventionally state-centered and homogeneous demos with very clear lines demarcating the inside from the outside, domestic from foreign politics. 20 Dahl concedes that sometimes citizens can get sufficiently galvanized such that foreign affairs are seen along more of a continuum with domestic ones and that this can cause their passions to enflame. He also observes that ‘international organizations can help to expand human rights and the rule of law’. 21 But in the final analysis, such institutions will remain ‘bureaucratic bargaining systems’, even if we need to develop democratic criteria to judge them.
Dahl’s nation-state-centric understanding of international organizations, institutions and processes is not adequate to account for the radical interdependence of states that has emerged throughout the ecological, immunological, financial, banking, and many other global systems and networks in our days. Whereas historically, states could more or less hope to influence their external environment through their own actions and policy measures, today the scope and effectiveness of state action and capacity have been greatly reduced. States are one among many actors in transnational networks that they cannot control. The sovereign-debt crisis of the last years is the most vivid illustration of states’ dependence upon international organizations, networks and processes and shows the degree to which Dahl’s boundary categories have become irrelevant.
There are three positions within contemporary social science that provide us with a different assessment of the relationship of democracies to international institutions. I will name these ‘the transformation of sovereignty thesis’ (TOS); the thesis that ‘democracies need international institutions’ (DNII); and the thesis that ‘international institutions strengthen human rights (IIHR)’.
Saskia Sassen, one of the most prominent defenders of the TOS thesis, notes that the national and the transnational are not binaries; they interpenetrate; the national tries to structure the transnational and the transnational is both enframed by and simultaneously pushes up against the limits of the national. Relations with other demoi are no longer intermittent and episodic but continuous and structural. ‘State sovereignty’, writes Sassen, ‘is usually understood as the State’s monopoly of authority over a particular territory, demarcated by reasonably established geographic borders. Today, it is becoming evident that even as national territories remain bound by traditional geographic borderlines, globalization is causing novel types of “borderings” to multiply.’ 22 Among those most significant novel ‘borderings’ are the ‘denationalization’ of what was once national. ‘[The] State’, adds Sassen, ‘plays an active role in this denationalizing, but this only becomes evident when we disaggregate “the” State and examine the work of particular parts of the State: particular agencies, particular court decisions, particular executive conditions.’ 23
Whereas Sassen questions the sociological adequacy of the model of state sovereignty that underlines Dahl’s concept of democracy, in an influential article entitled ‘Democracy enhancing Multilaterism’, Robert O. Koehane, Stephen Macedo and Andrew Moravscik argue ‘that participants in multilateral institutions – defined broadly to include international organizations, regimes and networks governed by formal international agreements, can enhance the quality of domestic democracy’. 24 Defenders of the DNII thesis see this ‘democracy-enhancement’ as occurring in three domains: they argue that membership in international organizations restricts the power of special interest groups within states in matters concerning the environment and global trade, for example. Such membership can enhance the protection of minority rights either through treaty membership or by belonging to regional human rights regimes such as the European Convention on Human Rights and Fundamental Freedoms, or the African Charter of Human Rights and Duties, and the like. Finally, they see such membership as enhancing the quality of democratic deliberation by ‘fostering collective deliberation in non-majoritarian institutions’, such as ‘courts, bureaucratic agencies, national executives and the military’. 25 One of the most prominent examples of such a deliberation-enhancing, non-majoritarian institution is the Intergovernmental Panel on Climate Change, formed under UN auspices in 1988.
Beth Simmons’ recent work supports the third thesis (IIHR), namely, that international institutions strengthen observance of, and respect for, human rights in non-democracies as well as democracies. Simmons has provided empirical case studies to analyse the impact of states’ ratifications of various human rights treaties on domestic adherence to human rights norms. She writes that ‘the more interesting cases … are those in which governments ratify an international human rights agreement, yet make no move to implement or comply with it. Why should a ratified treaty make a difference in such cases?’ 26 One reason may be that since treaties constitute law in some jurisdictions, they could strengthen civil rights litigation. Yet it is more challenging when ratified treaties enable citizens’ mobilization. Simmons focuses on ‘non-democratic’ states to argue that ‘ratification injects a new model of rights into domestic discourse, potentially altering expectations of domestic groups and encouraging them to imagine themselves as entitled to forms of official respect’. 27 Furthermore, ‘Treaties create additional political resources for pro-rights coalitions under these circumstances. They resonate well with an embryonic rule of law culture and gather support from groups that not only believe in the specific rights at stake, but also believe they must take a stand on rule-governed political behavior in general.’ 28
V Human rights, constitutional rights and democratic iterations: the Leyla Sahin case
In several works over the last decade, I have developed a model of ‘democratic iterations’ for thinking about the interrelationship of international human rights norms, enshrined in various treaties, and the democratic will-formation of different peoples. One of my goals in elaborating the concept of ‘democratic iterations’ has been to combat the very widespread misunderstanding about how the system of legal cosmopolitanism works. The most common misunderstanding among my critics has been that ‘democratic iterations’ imply that courts always adjudicate positively on behalf of cosmopolitan rights or that social and political actors always aim at universalistic goals. 29
What I wish to do in the following is to analyse the well-known case of ‘Leyla Sahin’ in front of the European Court of Human Rights in the light of the theoretical considerations outlined above. I will show how this case, along with others like it, illustrates the formation and significance of ‘transnational legal spheres’. While the case did not conclude in a way that defenders of cosmopolitan human rights norms may have wished, it nonetheless highlighted a number of issues that are crucial in continuing democratic struggles in and around the rights of Muslim women. These are as follows: What is the meaning of the wearing of the hijab? Does it or does it not pose a ‘security threat’, both to Muslim and non-Muslim societies? What range of variation is acceptable in the regulation of the wearing of Islamic head-covering by devout women?
Since Turkey is a member of the Council of Europe, it has to be compliant with the Convention for the Protection of Human Rights and Fundamental Freedoms. Compliance or non-compliance with this convention, in turn, falls under the jurisdiction of the European Court of Human Rights (both are to be distinguished from the European Charter of Fundamental Rights and Freedoms and the European Court of Justice which govern only the 27 members of the EU). On 10 November 2005 the ECtHR ruled in the ‘Case of Leyla Sahin v. Turkey’. This was a major statement by the court on issues surrounding the wearing of the hijab not only in Turkey but throughout the member states of the Council of Europe, numbering 47.
Leyla Sahin and her attorneys lodged a case with the European Commission of Human Rights against the Republic of Turkey for preventing her from pursuing her university studies because she wore the hijab. They claimed that Turkey had thereby violated her rights and freedoms under articles 8, 9, 10 and 14, and under article 12, protocol 1. On 29 June 2004 the chamber ruled that there had been no violation of article 9 of the convention [which protects freedom of thought, conscience and religion] and that no separate questions arose under articles 8 and 10, and article 14 taken in conjunction with article 2, protocol 1 (Case of Leyla Sahin v. Turkey. Application no. 44774/98) [articles 8 and 10 concern the right to respect for private and family life, and freedom of expression respectively; while article 14 concerns the prohibition of discrimination and article 2 concerns the right to life and various prohibitions restricting the life and freedom of the individual; article 12 defends the right to marry].
Upon appeal by the applicant on 27 September 2004 the case was then referred to the Grand Chamber of the ECtHR and was accepted. The facts of the case are as follows: Leyla Sahin was born in 1973 and had lived in Vienna since 1999, because she had decided to pursue her medical studies in Vienna University instead of in Turkey. In 1997, as a fifth-year student at the Faculty of Medicine at Bursa University, she had then enrolled at the Cerrahpasa Faculty of Medicine in İstanbul. In the spring of 1998, in accordance with a circular of the vice-chancellor of İstanbul University which forbade the wearing of the hijab on the part of women and of having beards on the part of male students, she was denied access to an examination on oncology, to attend lectures in neurology and other exams and classes. When she requested the İstanbul Administrative Court that this circular be set aside because it violated her rights under the Turkish Constitution, the court affirmed the prerogative of the vice-chancellor to pass such a regulation in order to maintain ‘public order’ and denied her appeal.
The Grand Chamber found that while İstanbul University regulations restricting the wearing of the Islamic headscarf and measures taken thereupon had interfered with the applicant’s right to manifest her religion, it also held that such interference was prescribed by law and pursued one of the aims set out in paragraph 2 of article 9 of the convention. This crucial paragraph reads: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’ (http://conventions.coe.int/Treaty/EN/Treaties/Html/005.htm). The ECtHR Grand Chamber considered the actions of the Turkish university authorities to be ‘justified in principle and proportionate to the aims pursued’,” and as ‘being necessary in a democratic society’. The Court held 16 to 1 that there had been no violation of article 9 of the Convention; and ruled likewise concerning article 2, protocol 1, in a 9 to 1 vote. It also held unanimously that there had been no violations of articles 8, 10 and 14.
This decision contains a survey of most laws and regulations concerning the wearing of the hijab in the 47 member countries of the Council of Europe, and comes to the conclusion that there is no established standard across countries in this regard. In evaluating the actions of the Republic of Turkey, the court invokes the now-famous criterion of ‘margin of appreciation’ which takes into consideration the member countries’ arguments about what they consider to be necessary for maintaining ‘public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’ in a democratic society. Siding with states’ rights to ‘place restrictions on freedom to manifest one’s religion or belief’, in order to reconcile the interests of various groups, the court goes on to assert that ‘Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”’, but fails to clarify how or why exactly these values would have been endangered by women wearing the Muslim hijab in institutions of higher learning. It is stated that wearing the hijab would negatively affect the rights of Turkey’s non-practising Muslims as well as other minorities but very little is said about who these minorities are and their rights. Furthermore, the court asserts that this religious symbol was hard to reconcile with ‘gender equality’ and that ‘the wearing of the Islamic headscarf could not easily be reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society should convey to their pupils’ (para. 111).
While it would be foolish to deny concerns about the place of toleration for non-Muslims within the context of traditional Islamic thought as well as of Islamist ideology, what is remarkable about these assertions is their paternalism, their unclarified political assumptions, and their views about Islam and gender equality in general. And these are exactly the issues that led Judge Tulkens to her dissent. She writes: The first concerns the argument the majority uses to justify the width of the margin, namely the diversity of practice between States on the issue of regulating the wearing of religious symbols in educational institutions, thus, the lack of a European consensus in this sphere. The comparative law materials [she continues] ‘do not allow this conclusion as in none of the member States has the ban on the wearing of religious symbols extended to university education, which is intended for young adults, who are less amenable to pressure.’ (para. 3, Dissent; emphases added).
With regards to ‘secularism’ [laiklik in Turkish] Judge Tulkens argues that, when it comes to article 9 of the convention, what the Sahin case is concerned with is not the freedom to have a religion (the internal conviction) but to manifest one’s religion (the expression of that conviction). The majority in the court, she claims, simply assumes that ‘the headscarf contravenes the principle of secularism’, and is particularly negligent of Sahin’s own statements and actions, and her repeated assertions that she has no intentions of questioning the principles of secularism.
Judge Tulkens then takes aim at the political assumptions guiding the ECtHR’s decision: ‘While everyone agrees on the need to prevent radical Islamism, a serious objection may nevertheless be made to such reasoning. Merely wearing the headscarf cannot be associated with fundamentalism … Not all women who wear the headscarf are fundamentalists.’ Finally, with respect to equality, she asks: ‘However, what, in fact, is the connection between the ban and sexual equality? The judgment does not say.’ Citing a decision of the German Constitutional Court, she maintains that wearing the headscarf has no single meaning, and crucially: ‘What is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to’ (para. 11).
The European Court of Human Rights did not resolve the Leyla Sahin case in a manner that many, including myself, who see the wearing of the hijab as a fundamental human right, would have wished. The cosmopolitan interpretation of article 9 of the ICCPR would have implied a different outcome than the subordination of women’s political agency and their freedom to manifest their religion to the guarantees of an unquestioned norm of public safety. Nevertheless, Judge Tulken’s dissent and the arguments she brought to light concerning the court’s hidden assumptions created a space for ‘democratic iterations’.
VI Transnational legal spheres and democratic iterations
In constitutional democracies, the courts are the primary authoritative sites of norm iteration through judicial interpretation. But the interaction between domestic and binding transnational norms can take place in courts, as well as through the contributions of other organizations such as NGOs, INGOs, Amnesty International and Human Rights Watch that can produce expert reports as well as mobilizing public opinion. A third site of iteration emerges through the interaction of judicial and transnational sources of interpretation with the political opinion-formation of ordinary citizens. In formulating the concept of democratic iterations, it is this latter process that I had most in mind, though the other two processes were not excluded.
Democratic citizens must reinterpret and reappropriate human rights principles to give them shape as constitutional rights, and, if and when necessary, suffuse constitutional rights with new content. Nor is it to be precluded that such constitutional iterations may themselves provide feedback loops in rendering more precise the intent and language of international human rights declarations and treaties.
The transnational legal dialogue enabled by the cosmopolitan rights revolution of the last half-century has an important contribution to make in this respect. As I considered in an earlier article, 30 the debate about the hijab of Muslim girls is a transnational phenomenon, engaging both European countries, such as France, Germany and Turkey, and also others in a judicial dialogue across borders.
Just as the judges of the Turkish Constitutional Court consider it necessary to uphold the ban on the wearing of the headscarves in universities for the sake of maintaining secularism and public order, judges on the German Constitutional Court, members of the French Stasi Commission and judges of the ECtHR concur with them. But in Turkey, France, or Germany, as well as on the bench of the ECtHR, there are also those who see such a high-handed defense of secularism as violating human rights to freedom of religious expression, the principles of pluralism and tolerance for the rights of others in a democratic society. There are no clear demarcations of the ‘inside’ from the ‘outside’ here. The conversation is a transnational as well as a translegal one. (I should mention here the fascinating case of the Egyptian Supreme Court’s decision of 18 May 1996 which permits the wearing of the headscarf and the turban but bans the niqab, a form of covering that leaves only the eyes naked.) 31
More importantly, through the confrontations and negotiations between state power, legislative and administrative instances and the girls and women wearing the headscarves and their supporters, the meaning of the symbol itself is undergoing changes: for the girls and women involved, the headscarf and the turban are no longer simply expressions of Muslim humility but symbols of an embattled identity and signs of public defiance. The wearing of the headscarf itself politicizes them and transforms some of them from being ‘docile objects’ into increasingly confrontational citizens.
In Turkey, in the wake of the disappointment following the Leyla Sahin decision, the Adalet ve Kalkinma Partisi (AKP) tried to change the law through the National Assembly, which they controlled, and were prevented from doing so by the Turkish Constitutional Court which declared that such action would violate the Turkish Constitution. The result was a political stalemate, only to be resolved in part by the AKP’s changing the composition of the court, in the wake of its third electoral victory in 2012. So far, the hijab question has not been reopened in Turkish legal and political life. An odd eclecticism prevails in the country across institutions of higher learning and great variations are noted with respect to the regional enforcement of the hijab rule.
Nevertheless, both the transnational debate aroused by Sahin and similar cases, and, equally significantly, a dissent like Judge Tulken’s, introduce new elements into the public argument and carry a cosmopolitan potential.
VII Human rights, cosmopolitan norms and public reasons
In ‘Human Rights and the Legitimacy of the International Legal Order’, Alan Buchanan writes: ‘The more seriously the international legal system takes the protection of human rights and the more teeth the commitment has, the more problematic the lack of a credible public justification for human rights norms becomes.’ 32 What may be ‘the epistemic virtues’ of institutions through which such norms are specified, contested and revised over time? 33
Given that human-rights norms are necessarily abstract, they need contextualization and specification. But to avoid the parochialism and a free-for-all pluralism that may result from such contextualization, we need institutional processes of a certain epistemic quality. First and foremost, the legal translation of human-rights norms cannot involve the mere mechanical applications of moral norms, but should constitute ‘modes of public practical reasoning that contribute to our understanding of moral rights and to their justification’. 34 Epistemic virtue in these matters then entails ‘modes of public practical reasoning’ that are publicly accessible and justifiable.
What might such public practical reasoning involve? Again quoting Buchanan: … institutions that contribute to the articulation of human-rights norms ought to provide venues for deliberation in which the authority of good reasons is recognized, in which credible efforts are made to reduce the risk that strategic bargaining or raw power will displace rational deliberation, in which principled contestation of alternative views is encouraged, in which no points of view are excluded on the basis of prejudicial attitudes toward those who voice them, and in which conclusions about human rights are consonant with the foundational idea that these are moral rights that all human beings (now) have, independently of whether they are legally recognized by any legal system.
35
Returning to the Leyla Sahin case discussed above, if we consider Judge Tulken’s dissenting challenge, we can see that she uncovers several assumptions concerning gender equality and the headscarf, the autonomy of university students, and the meanings of secularism in liberal democracies that the other judges of the ECtHR either take for granted or simply leave unexplained. The ‘authority of good reasons’, exercised by the ECtHR, is here upended by the ‘power of better reasons’ voiced by the dissent. And neither are Judge Tulken’s arguments confined to the ECtHR case alone: they can be extended and are extended by democratic citizens and stake-holders, whether or not they are familiar with her specific formulations, to the public arena of debate in their own societies. In conclusion then, we may say that the ‘law’s facticity’ must always be mediated through its ‘validity’ in being subjected to the test of ‘good reasons’. 36 Cosmopolitan norms do not present Pollyannaish wish-lists intending to bend the behavior of recalcitrant states. Even in the case of states like the Republic of Turkey, whose human rights record on many fronts is far from stellar, the new cosmopolitan norms open spaces of democratic iterations which may or may not always yield the predictable political outcomes. Yet to be named democratic iterations, these processes must bring to the citizens and transnational legal activists’ attention the power of good reasons and arguments, thus mediating the law’s force with its capacity to convince.
Footnotes
A version of this article was presented at the Reset-Dialogues İstanbul Seminars 2012 (‘The Promises of Democracy in Troubled Times’) that took place at İstanbul Bilgi University from 19–24 May 2012.