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Muslim Women Who Veil and Article 9 of the European Convention on Human Rights: a Socio-Legal Critique

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Muslim Women Who Veil and Article 9 of the European Convention on Human Rights: a Socio-Legal Critique Muslim women who veil and Article 9 of the European Convention on Human Rights: A socio-legal critique by Tassadaq Hussain A thesis submitted in partial fulfilment for the requirements for the degree of Doctor of Philosophy at the University of Central Lancashire March 2016 STUDENT DECLARATION FORM Concurrent registration for two or more academic awards I declare that while registered as a candidate for the research degree, I have not been a registered candidate or enrolled student for another award of the University or other academic or professional institution Material submitted for another award I declare that no material contained in the thesis has been used in any other submission for an academic award and is solely my own work Signature of Candidate Type of Award Doctor of Philosophy School Lancashire Law School 1 Abstract Islamic veiling has been the subject of many theological, social and legal debates, which are fluid and their intensity has been further influenced by its contextualised meanings such as religiosity, modesty, identity, resistance, protest, choice and subjugation. Literature on Muslim veiling has either examined its treatment by legal or socio-feminist perspectives, whereas this thesis critiques the religious, socio-feministic and the legal discourses. The contemporary discourse is dominated by competing binaries that label it as a tool of oppression or one of empowerment. Many of the assertions are based not on the veil’s multiple meanings or the wearer’s true motivations but on misplaced assumptions of moral authority by those who oppose or defend the practice, as well as native informants professing to represent veiled Muslim women, leaving Muslim veiled women’s voices muted. Having examined the religious imperative that has a patriarchal basis, the thesis constructs a critique of the two dominant discourses central to the contemporary debates on veiling. One discourse defends the practice as empowering whilst the other calls for prohibitions on the practice using liberation from oppression as a justification, particularly with issues surrounding the wearing of the full face veil. This is followed by a critique of the key cases generated under Article 9 ECHR, which attempts to balance the religious rights of those who veil with the rights of others. The case law highlights that the ECtHR not only falls short in disclosing satisfactorily how it has struck a balance between these competing rights, but also fails to adopt a neutral stance to religious expression through symbols, its reasoning being based on contradictory stereotypes of Muslim women as passive and victims of gender oppression in need of liberation. The influence of such stereotypes and an inadequate application of the margin of appreciation doctrine have led the ECtHR in validating state prohibitions on the hijab and the full face veil, thereby failing to acknowledge the voices of the veiled women at the centre of a human rights claim, delivering a further blow to them. Post the case of S.A.S. v. France the ECtHR has exasperated this even further by allowing an abstract principle of ‘living together’ as a justification for the full face veil’s prohibition in public spaces, resulting in Article 9 rights of Muslim women who veil being endangered even further by the introduction of such an open-ended ground. 2 Table of Contents STUDENT DECLARATION FORM .................................................................................................... 1 Abstract ............................................................................................................................................... 2 Table of Contents ................................................................................................................................ 3 Acknowledgements ............................................................................................................................. 7 INTRODUCTION ................................................................................................................................... 8 Aims of the thesis .............................................................................................................................. 10 Definitional issues ............................................................................................................................. 11 Choice of subject area ....................................................................................................................... 13 Thesis structure ................................................................................................................................. 16 PART ONE .................................................................................................................................... 17 CHAPTER ONE –VEILING AS A RELIGIOUS IMPERATIVE .............................................................. 17 Introduction ...................................................................................................................................... 17 The veil as a cultural edict ................................................................................................................. 17 The veil as a Qur’anic commandment ............................................................................................... 20 The hierarchy of Islamic rules ....................................................................................................... 21 The specific verses in the Qur’an relating to veiling ..................................................................... 23 The hermeneutic deficit in the hijab verses ...................................................................................... 32 The veil as a deflector of the male gaze ............................................................................................ 37 Failure of the veil at averting the male gaze ................................................................................. 40 The modesty doctrine ....................................................................................................................... 41 Objectification and veiling ............................................................................................................. 45 Why is modesty so important in Islam? ........................................................................................ 49 Clothing and modesty ................................................................................................................... 50 Problems with the modesty doctrine ............................................................................................ 51 Conclusion ......................................................................................................................................... 53 CHAPTER TWO – SOCIO FEMINIST DEBATES ON VEILING ........................................................... 56 Introduction ...................................................................................................................................... 56 Why is the veil controversial? ........................................................................................................... 56 The veil as a tool of patriarchy .......................................................................................................... 59 Patriarchy in the name of Islam .................................................................................................... 60 Patriarchy beyond Muslim culture ................................................................................................ 63 Muslim households and patriarchal practices .............................................................................. 66 Gender equality and veiling .............................................................................................................. 68 3 Muslim cultures and gendering..................................................................................................... 70 Is the veil oppressive? ....................................................................................................................... 80 Freedom and choice .......................................................................................................................... 84 Positive and negative freedom ..................................................................................................... 85 Veiling and choice ............................................................................................................................. 87 Choice and false consciousness .................................................................................................... 90 Authenticity of choices .................................................................................................................. 94 Deformed desires and veiling ........................................................................................................ 94 Veiling as collective and self-contribution to oppression ................................................................. 98 Agentic empowerment through piety and resistance .................................................................... 100 The oppressive or emancipatory dichotomy .................................................................................. 103 Orientalism .................................................................................................................................
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