Margin of Appreciation in Pursuit of Pluralism? Critical Remarks on the Judgments of the European Court of Human Rights on the 'Burqa Bans'

Abstract

In 2014 and 2017, the European Court of Human Rights, respectively, upheld France's and Belgium's general bans on wearing face-covering veils in public. Whereas both the acceptance of ensuring the minimum conditions for 'living together' as a legitimate aim and the recognition of a wide margin of appreciation appear to demonstrate a pluralistic approach taken by the Court, this article examines the Court's understanding and application of the principle of pluralism in its reasoning and, in this way, explores why and how the Court's pluralistic view has led to an anti-pluralistic outcome. It purports to show that it was precisely a majoritarian conception of pluralism that has ledthe Court to make decisions to the disadvantage of minorities. Moreover, it illustrates how the European multilevel system of human rights protection should be developed in support of the realisation of pluralism.