Abstract
The contemporary world is caught in the throes of religious and cultural conflicts which destabilize what seemed like accepted walls of separation between the state and religion, the public sphere of politics and law and the private realm of faith and belief. This article examines the destabilization of these dualisms by focusing on the constitutional and political controversies around the wearing of the “hijab,” religiously mandated clothing by Muslim women, in France, Germany and Turkey.
This article was first published as S. Benhabib, “The Return of Political Theology: The Scarf Affair in Comparative Constitutional Perspective in France, Germany and Turkey,” Philosophy and Social Criticism 36/3–4 (2010): 451–71; also included in: S. Benhabib, Dignity in Adversity. Human Rights in Troubled Times (Malden, MA and Cambridge, UK: Polity Press, 2011), pp. 166–184. It has been revised for inclusion in this volume.
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Notes
- 1.
There is, of course, a great deal of essentializing and geo-political mystification in all of this. Islam is taken as if it were a block, without any sense of its historicity, any in-depth appreciation of the complexity of its evolution, or any deep knowledge of differences between Sunnism, Shi’ism, Alevism, Suffism, etc., let alone any appreciation of the distinctions between Indonesian and Indian Islam; or Turkish versus Iranian Islam. These geo-political shorthands are another version of the ‘west’ and ‘the rest’ thinking, with Islam now coming to stand in for the ‘rest’ at large. Not only is the geopolitics of this debate based on ignorance, but the very instability of the terms of the opposition – Islamism; political Islam; Islamic fundamentalism; Jihadism, etc. – reveals that we are dealing in muddles and metaphors rather than analytical categories. I will use the term ‘political Islam’, following Olivier Roy, to refer to a very diverse, contradictory set of theologico-political movements, riven by their own rivalries and antagonisms. See Roy 2007; see also for recent accounts, Buruma 2006 and Klausen 2009.
- 2.
Weber 1946.
- 3.
- 4.
See Kanra 2009.
- 5.
Benhabib 2002.
- 6.
Habermas 2008.
- 7.
Schmitt 1985.
- 8.
- 9.
Kirchheimer 1996, 64–98. On the influence of Carl Schmitt on Walter Benjamin who wanted to dedicate his doctoral dissertation on German baroque drama to Schmitt, see Richard Wolin’s work; on Hans Morgenthau and Carl Schmitt, see Koskenniemi 2002; Scheuerman 2007; on Leo Strauss and Carl Schmitt, see Strauss 2007; Meier 1998; Mouffe 1999 and Mouffe and Laclau 1986.
- 10.
Schmitt 1985, 45.
- 11.
Schmitt 1985, 36.
- 12.
Schmitt 1985, 5.
- 13.
Agamben 2005, 1–11.
- 14.
Agamben 2005, 23–35.
- 15.
de Vries 2006, 3.
- 16.
- 17.
‘Universal Declaration of Human Rights’, available at: http://www.un.org/en/documents/udhr/ See Article 18 of ‘The International Covenant on Civil and Political Rights’, which was adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and entered into force 23 March 1976. See: http://www1.umn.edu/humanrts/instree/b3ccpr.htm Accessed 13 November 2009. The European Convention on Human Rights’ article 9 ‘provides a right to freedom of thought, conscience and religion’. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are ‘in accordance with law’ and ‘necessary in a democratic society’. See: http://www.hri.org/docs/ECHR50.html#C.Art9 Accessed 13 November 2009.
- 18.
- 19.
A note of terminological clarification first: the practice of veiling among Muslim women is a complex institution that exhibits great variety across many Muslim countries. The terms chador, hijab, niqab, foulard refer to distinct items of clothing which are worn by Muslim women coming from different Muslim communities: for example, the chador is essentially Iranian and refers to the long black robe and the headscarf worn in a rectangular manner around the face; the niqab is a veil that covers the eyes and the mouth and only leaves the nose exposed; it may or may not be worn in conjunction with the chador. Most Muslim women from Turkey are likely to wear either long overcoats and a foulard (a headscarf) or a carsaf (a black garment which most resembles the chador). These items of clothing have a symbolic function within the Muslim community itself: women coming from different countries signal to one another their ethnic and national origins through their clothing, as well as signifying their distance from or proximity to tradition in doing so. Seen from the outside, this complex semiotic of dress codes gets reduced to one or two items of clothing which then assume the function of symbols in complex negotiations among Muslim religious and cultural identities and western cultures.
- 20.
- 21.
See Gole 1996.
- 22.
Choudhury 2007, 205.
- 23.
- 24.
I have discussed this case previously as well in Benhabib 2004, 198–202.
- 25.
BVerfGe (German Constitutional Court), 2BvR, 1436/02, IVB 1 and 2 (my translation).
- 26.
BVerfGe, 2BvR, 1436/02, 6.
- 27.
The German legislators responded to the mandate of the court rather speedily, and after Baden-Württemberg, Bavaria as well passed a bill banning the wearing of headscarves in the schools. Christian and Jewish symbols were not included in this ban. Civil rights organizations and groups representing Muslims living in Germany (estimated at 3.2 million) have criticized the proposed ban.
- 28.
Quoted by Joppke 2009, 53.
- 29.
Joppke 2009, 70.
- 30.
Joppke, 2009, 71.
- 31.
Joppke 2009, 72–3.
- 32.
Emcke points out that in an earlier decision concerning the presence of crucifixes in the classroom, what the German Supreme Court declared to be unconstitutional was not the existence of religious symbols in public spaces or public schools, but rather the obligation to display the crucifix regularly. ‘In this sense’, she concludes, ‘there are no constitutional grounds against religious symbols as such.’ (Emcke 2000, 284). On January 27, 2015, after nearly 12 years, the German Constitutional Court reconsidered the question whether those active in teaching or service in public schools should be prohibited from expressing their ‘religious faith’ through their external appearance. In a six to two decision, the Court found North-Rhine-Westphalian’s laws, which like Baden Wurttemberg’s, restricted the wearing of certain items of clothing since they manifested religious convictions, to be against the German Constitution. (http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2015/bvg15-014.html)
- 33.
As the sociologist Faruk Birtek points out, the parliamentary vote to reverse the ban on the headscarf, strictu sensu, contradicted the supplement 17 to the legislation known as ‘YOK Kanunu’, i.e. the Law of the Council of Higher Education. In order for the wearing of the headscarf to become fully legal this clause needed to be rescinded and this was never the case. See interview with Faruk Birtek in Taraf by Nese Duzel, available at: http://www.taraf.com.tr/Detay.asp?yazar=7&yz=21 Accessed 29 June 2008.
- 34.
Rifat Bali, Cumhuriyet Yillarinda Turkiye Yahudileri: Bir Turklestirme Seruveni [Turkish Jews in the Epoch of the Republic: An Adventure in Turkification (1923–1945) (Istanbul: Iletisim, 1999)].
- 35.
For an extensive discussion of the transformations of Turkish society within the context of global Islam see my Introduction, in: Seyla Benhabib and Volker Kaul, eds. Toward New Democratic Imaginaries – Istanbul Seminars on Islam, Culture and Politics (Springer: 2016), pp. xxix–xlviii.
- 36.
See Benhabib 2004, 179–81.
- 37.
On the relationship between normative validity and democratic legitimacy, see Seyla Benhabib 2006, 45 ff. For a clarification of the status of democratic iterations as processes of generating democratic legitimacy, see the symposium on ‘The Rights of Others’, in European Journal of Political Theory 6(4) (2007): 395–463 and Seyla Benhabib, ‘Democratic Exclusions and Democratic Iterations: Dilemmas of “Just Membership” and Prospects of Cosmopolitan Federalism: Reply to my Critics’, in the same issue, pp. 445–63.
- 38.
Democratic iterations are not always processes of meaning-enhancement and enrichment; they can lead to stifling, sterile interpretations and to narrowing the circle of interpreters of norms as well. We may name such processes ‘jurispathic’, following Cover at a distance. See Robert Cover, ‘Foreword: Nomos and Narrative’, the Supreme Court 1982 Term, Harvard Law Review 97(4) (1983/4): 4–68; for ‘jurispathic’, see 18. Let me clarify that my reliance on Cover’s concept of ‘jurisgenerativity’ does not mean that I minimize or disregard the ‘legal origins of legitimacy’; jurisgenerativity is not a process of law-making but one of law-interpreting, or, more properly speaking, it is about the interplay of legal and non-legal sources of normativity. See for further discussion, see Benhabib 2009.
- 39.
Habermas 2008.
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Benhabib, S. (2017). The Return of Political Theology: The Scarf Affair in Comparative Constitutional Perspective in France, Germany and Turkey. In: Speight, C., Zank, M. (eds) Politics, Religion and Political Theology. Boston Studies in Philosophy, Religion and Public Life, vol 6. Springer, Dordrecht. https://doi.org/10.1007/978-94-024-1082-2_14
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