Bias and judicial narrative: a critical discourse analysis of the ECtHR and ECJ case law on religious symbols

Abstract

The use of religious symbols has sparked heated debate and numerous judicial cases across Europe. Early case law from the European Court of Human Rights (ECtHR) has been criticised for allegedly employing biased discourses. However, it remains unclear whether such biased discourses are present in recent ECtHR rulings or in comparable decisions by the European Court of Justice (ECJ). This article applies Critical Discourse Analysis, a linguistic and social science approach, to examine the narratives used by the ECtHR and ECJ in cases involving religious symbols. It argues that religious and gender biases are pervasive in ECtHR judgements. While the ECJ generally employs neutral language, biased discourses occasionally emerge in the ‘subtext’ of its decisions. These biases are not incidental but serve as strategic tools within judicial narratives, reinforcing the argumentative legitimacy of rulings for audiences influenced by societal prejudices.

1. Introduction

For decades, the use of religious symbols has sparked controversies in Europe. ¹ Some countries prohibit the use of religious symbols by school pupils, ² teachers, ³ judges, ⁴ or public officials at large ⁵ ; the use of full-face covers in public spaces is sometimes prohibited. ⁶ Moreover, bans against religious symbols introduced by private employers have been upheld by the judiciary in several states. ⁷ The bans against religious symbols are generally formulated in neutral terms but disproportionately affect Islamic garments worn by women. ⁸ In the public debate in Europe, Islamic garments are often described as threats to women’s rights, secularism, and public order. ⁹

The bans on religious symbols have been the object of multiple judicial decisions of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) (hereafter collectively referred to as ‘European Courts’).

Numerous scholars have explored the biases underlying the legal arguments made by the European Courts. For instance, Baldi alleges that ‘the ECtHR and the CJEU, by defining religion as a private matter, privilege a certain (secular/Western) way to live and experience religion’. ¹⁰ Some authors, at any rate, contend that the ECtHR has ‘abandoned’ its biased approach ¹¹ and that the judgments of the ECJ are well-balanced. ¹²

However, an analysis of the European Courts’ discourses suggests that ideological biases are systematically present in most of their judgements in this area (by ‘discourse’, we refer to the way a topic is represented). ¹³ The importance of judicial discourse has been underscored by the ECtHR itself, which has recognised the need to avoid stereotyping in judicial decisions. ¹⁴ As noted by Foucault, – who inspired our methodological approach – the reproduction of certain discourses can indeed reinforce societal power imbalances. ¹⁵ Thus, biased discourses in the European Courts’ judgments on religious symbols may potentially reinforce existing biases against minorities in Europe.

A few scholars have specifically examined the discourses of the ECtHR’s early judgments on religious symbols. For example, Peroni argued that the Court marginalises Muslim women by making headscarves or verbs like ‘the wearing’ of the headscarf the grammatical subject of its sentences, thereby reinforcing the stereotype of Muslim women as ‘victims’ rather than agents. ¹⁶ However, the literature has yet to systematically study the discourses in the ECtHR’s more recent judgments or those of the ECJ.

This article aims to fill this gap by examining the presence and role of biased discourses in the European Courts’ judgments on religious symbols. First, it argues that, while religion- and gender-related biased discourses are particularly evident in the ECtHR’s early case law as noted in the literature, they are also present – albeit in a more nuanced form – throughout the case law of the ECtHR and, over time, have even ‘spilt over’ into the judgments of the ECJ. This article thus contributes to the literature on religious symbols by highlighting a continuity in the European Courts’ case law: although they generally avoid the harsh language used by the ECtHR in the early 2000s, their discourse reveals that many of their underlying assumptions remain largely unchanged. It should be noted that, while religion- and gender- related biases may be connected to other biases (eg, against persons of a certain class or ethnicity), we did not find evidence of classism or racism in our sample.

Secondly, this article contends that biased discourses are not incidental: the European Courts have used them to construct narratives aimed at persuading their audiences. In other words, the European Courts have incorporated societal prejudices that often underpin prohibitions of Islamic headscarves in Europe to support their decisions through argumentation. ¹⁷ This analysis thus contributes to scholarship in Critical Discourse Analysis and Law and Literature by revealing how biased discourses contribute to the development of judicial narratives and, ultimately, to the justification of judicial decisions.

While the literature has often explored judicial bias by concentrating on the views of individual judges, ¹⁸ this article ascertains the influence of societal biases on adjudication by focusing on the justification of judges’ decisions. To this purpose, we employ Critical Discourse Analysis, a linguistic and social science approach aimed at examining the relationship between language, ideology, power, and social structure. ¹⁹ The article analyses the case law of two courts – the ECtHR and the ECJ – to show that the use of biased discourses is not necessarily motivated by the views of individual judges, or the lasting influence of a single court’s precedent, but can be part of argumentative strategies used by different courts to justify decisions (in the eyes of biased audiences) in comparable cases. While the ECtHR and ECJ belong to separate legal orders, they apply analogous rules and are likely to develop similar discourses. Their case law, therefore, may be compared for our purposes. ²⁰

This article is divided into ten sections. Section 2 explores, from a theoretical perspective, the influence of biased discourses on judicial argumentation and narrative. Section 3 presents our case study about religious symbols. To explore the discourses of the European Courts, we employ Critical Discourse Analysis, an approach described in the methodology (Section 4). Subsequently, we discuss the analysis results: Section 5 shows that the discourses of the European Courts denied the agency of Muslim women who wore religious symbols. This narrative enabled the European Courts to assume that Islamic headscarves ‘ostentatiously’ displayed religious belonging (Section 6) and impacted on State and employers’ neutrality (Section 7), others’ rights (Section 8), and public safety and order (Section 9). The article is concluded in Section 10, with a discussion of the methodological and practical implications of the results of the analysis.

2. The role of biased discourse in adjudication

Judicial bias has been extensively examined in both legal and social science scholarship. One may distinguish between: (a) personal bias, ie, deficit of impartiality motivated by personal reasons, such as personal gain ²¹ ; this form of bias falls outside the scope of this article; and (b) ideological ²² bias, ie, deficit of impartiality motivated by beliefs and values. ²³ A deficit of impartiality in the exercise of the judicial function may be due to the convictions of individual judges but may also be motivated by the judge’s expectations about the preconceptions of their audiences; the latter form of ideological bias is explored in this article, as shown below.

Judges routinely deny that they act in an ideologically biased manner; for instance, the current ECJ President, Lenaerts, argued that judges should not engage in ‘strategic behaviour to dispose ideological stakes’ and that the Court of Justice refrained from crossing ‘the dividing line between law and politics’. ²⁴ However, numerous empirical studies have demonstrated that judicial bias is widespread. The literature has focused particularly on the bias of individual judges, showing, eg, that, in the US, ‘being a conservative or a liberal … is highly predictive of [judicial] decision making’. ²⁵ The bias of international judges has also been explored, by alleging, for example, that ICJ judges tend to vote in favour of their home states. ²⁶ Some authors have argued that ‘ideology is present in the CJEU adjudication process’, too. ²⁷ There are relatively few studies in this area, as it is difficult to determine the political preferences of individual ECJ judges ²⁸ because their positions are not revealed by the Court’s judgements. The approach we use, ie, an analysis of the court’s discourses, bypasses this problem, by elucidating the ideological biases underlying ECJ judgements, irrespective of the personal opinions of ECJ judges (see below, Section 4).

Several theorists, with different perspectives, have acknowledged the role of judicial bias. Some US realists, in particular, argued that judges’ ideologies ‘influence individual judgements and patterns of decisions’. ²⁹ Biases and prejudices, as noted by Frank, affect the judge’s reasoning as they do the reasoning of ordinary people. ³⁰ A coherent theory of ideology in adjudication was developed by Duncan Kennedy, a founder of the Critical Legal Studies movement. ³¹ Kennedy argued that ‘ideology influences adjudication, by structuring legal discourse and through strategic choice in interpretation’. ³² However, the judge is also subject to an internal constraint (she is ‘looking for a legal argument that looks good to her’) and an external constraint (‘the judge is looking for a legal argument that looks good to the audience’). ³³ Judges may experience a conflict between the requirement of ideological neutrality and the inevitable impact of ideology on the decision making process. ³⁴ To dispel the ‘anxiety’ created by this conflict, judges often deny the ideological element in adjudication. ³⁵

Despite this process of denial, a judge’s bias may arguably surface in their judgements, as suggested by Lajoie, through a synthesis of rhetorical analysis and legal hermeneutics. ³⁶ Lajoie’s point of departure is Perelman’s finding whereby all argumentation in aiming to persuade, must be adapted to the audience and is, hence ‘based on beliefs accepted by the audience’. ³⁷ According to Lajoie, courts address several audiences. On the one hand, government and public opinion. ³⁸ Courts satisfy the expectations of these audiences by deciding the outcome of cases in a way that is generally consistent with what they perceive as ‘dominant interests’ in society and the ‘dominant values’ that underlie them ³⁹ ; dominant values are those of the ‘majority’, which consists of the ‘dominant groups’ in society. ⁴⁰ On the other hand, courts must address the legal community. To convince the legal community, and preserve their legitimacy, ⁴¹ courts must provide arguments that are legally consistent. ⁴² It should be noted that the legal community includes the courts themselves: each judge must convince themselves and, then, their colleagues (and, potentially, other courts). ⁴³ Given the need to preserve the ‘apparent rationality’ of the judgement and avoid accusations of arbitrariness, judges are unlikely to refer explicitly to dominant values in the text of their judgements. ⁴⁴ They tend to conceal dominant values in the ‘subtext’ of their decisions, ⁴⁵ hiding their real rationale behind a ‘screen of neutrality’. ⁴⁶

Lajoie applied this theoretical framework to the 20^th-century case law of the Canadian Supreme Court, hypothesising that it could be used in respect of other tribunals. ⁴⁷ In the present article, we apply this theoretical framework to the European courts’ case law on religious symbols. It should be noted that we do not intend to verify whether the outcome of judgments, in general terms, corresponds to dominant values. The outcomes of the judgments in our sample – the European Courts’ case law on religious signs – are quite evidently consistent with dominant European values concerning secularism and Islam. ⁴⁸ This article is concerned primarily with determining whether, in judgments whose outcome conforms to dominant values, such values appear in the ‘subtext’ of the judgments, as Lajoie suggested. Unlike that author, who used traditional legal tools, we employ a linguistic and social science approach, Critical Discourse Analysis, ⁴⁹ to better analyse the ‘subtext’ of the courts’ judgments and reveal traces of dominant values in their discourses. We thus answer our first research question: which biases are reflected in the European Courts’ judgments about religious symbols?

It may be wondered why judges, who want to be perceived as ideologically neutral, should conceal the references to dominant values in the subtext of their decisions instead of eliminating such references altogether. It is possible that courts leave traces of their biases in their judgments because such biases are a manifestation of their unexamined cultural beliefs. ⁵⁰ However, one may put forward an alternative explanation: courts consciously or unconsciously employ discourses reflecting dominant values to persuade their audiences (including themselves). The literature has already shown that courts employ specific discourses to corroborate their interpretation of legal sources. For instance, Stoppioni argued that investment tribunals employed neoliberal language in the ‘sub-textual premises’ of their awards to ensure a ‘pro-investor’ interpretation of investment treaties. ⁵¹ Garcia Blesa similarly pointed at the arbitral tribunals’ ‘use of a legal language already permeated by the assumptions and goals of neoliberalization’. ⁵² The present article suggests that courts also use biased discourses to enhance the persuasiveness of their narratives (by ‘narrative’ we mean the telling of a story, ⁵³ ie, a representation of events connected temporally and causally). ⁵⁴ Law and Literature scholars have widely explored the relationship between law and narrative. ⁵⁵ As is well known, law is permeated by narratives ⁵⁶ : no matter how strictly a case is argued, ‘it will always be a story’. ⁵⁷ Courts, as noted by Brooks, do not simply recount happenings but ‘give them a shape, give them a point’ and to do so ‘they necessarily espouse some sort of “point of view” or perspective’. ⁵⁸ Such narratives constitutes ‘an integral element of a legal argument’, which carries as much argumentative weight as legal interpretation. ⁵⁹ Lawyers persuade courts ‘by telling stories’ ⁶⁰ ; Courts must then ‘choose between competing representations of legal reality placed before them’, ⁶¹ and eventually craft their own narratives to persuade their audiences.

Judges employ various techniques to enhance the persuasiveness of their narratives. For instance, Courts introduce information that is relevant to their argument ⁶² and neglect other evidence ⁶³ ; they use the same definition for different elements, thus reducing such elements ‘to what they have in them that is identical or interchangeable’ ⁶⁴ ; they employ legal presumptions and deploy ‘the rule/exception paradigm in order to shift the argumentative burden of proof’. ⁶⁵ Courts may also resort to strategies that de-emphasise the perspective of an actor, ⁶⁶ such as: nominalisation, ie, ‘turning verbs into nouns’ ⁶⁷ (eg, the wearing of a headscarf might have some kind of proselytising effect), ⁶⁸ and passivisation, ie, privileging the use of the passive voice over the active voice ⁶⁹ (eg, the use of the headscarf is presented or perceived as a compulsory religious duty). ⁷⁰

Moreover, courts may employ what Bruner defines as ‘narrative banalisation’: a storytelling ‘so socially conventional, so well known, so in keeping with the canon’ that a reader scarcely questions it. ⁷¹ ‘That which goes without saying’, as noted by Bianchi, is legal argumentation to be particularly valued ⁷² : the more a narrative is perceived as ‘natural’, the more cogent it is. ⁷³ Narratives that ‘correspond to the dominant cultural expectations’, in particular, are often not problematised ⁷⁴ because dominant ideologies tend to be imagined as ‘naturally or irreducibly “given”’. ⁷⁵

It may be expected that judges, consciously or unconsciously, employ discourses reflecting dominant values to create socially conventional narratives likely to persuade their audiences (including themselves). This article explores the use of biased discourses as part of a court’s narrative strategy by addressing its second research question: what role do biased discourses play in the European Courts’ narrative about religious symbols?

3. Case study: the case law of the European Courts about religious symbols

In the field of religion, secularism arguably constitutes the ‘dominant value’ in Europe. To be sure, the nature of secularism varies in different States: for instance, France is characterised by a strict separation between State and religious groups (laicité), while some countries have agreements with specific religious communities (eg, Italy and Spain). ⁷⁶ However, the different forms of European secularism have a common element: they were developed in the context of predominantly single-religion (Christian) societies. ⁷⁷ As a consequence, Christianity plays a special role in most European countries. While, over the last decades, there has been a significant decline in religiosity throughout Europe, ⁷⁸ Christians continue to benefit from several privileges (eg, Christian holidays are recognised as national holidays). ⁷⁹ Moreover, ‘latent’ Christian narratives persist in the public sphere ⁸⁰ ; for instance, it is a commonplace to argue that the ‘European way of life’ is based on ‘Christian values’. ⁸¹ Even European Union (EU) institutions, as noted by McCrea, tend to perceive more readily threats to secular law when they come from minority faiths than when they come from Christianity. ⁸² This approach, which sets Christianity aside from other religions in Europe, may be termed ‘Christian secularism’. ⁸³

While the European secular identity is inclusive in respect of Christianity, it tends to exclude those that are perceived as ‘non-European’ and incompatible with the secularist project, especially Muslims, as noted by Asad. ⁸⁴ Islam is often assumed to be incompatible, in particular, with women’s autonomy and freedoms. ⁸⁵ The controversies regarding the Islamic headscarf can be understood from this perspective. The visibility of the Islamic headscarf is often seen as problematic because it challenges the ‘secular normality’ of Europe. ⁸⁶ The headscarf is not necessarily intended to function as a ‘symbol’ (a sign used to represent something else) ⁸⁷ or to express religiosity, but is used for a variety of purposes, notably to comply with religious requirements. ⁸⁸ Nonetheless, in the European public debate, the headscarf is often presented as a uniform of Islamic extremism, ⁸⁹ a sign linked to terrorism, ⁹⁰ and a symbol of repressive attitudes toward women. ⁹¹ According to some critics of Islam, women with a headscarf maintain a ‘false consciousness’ and are not entirely free. ⁹² This may explain why, in various European countries, public opinion tends to disapprove of the use of headscarves by schoolgirls and workers. ⁹³ Against this background, it is perhaps not surprising that prohibitions of religious symbols in European countries, while usually formulated in neutral terms, affect mostly women who wear a headscarf because of their Muslim faith. ⁹⁴

Bans of religious symbols, introduced by public authorities or private employers, have repeatedly been brought to the attention of the European Courts. As noted by Weiler, the European Courts are likely to be wary about upending practices, such as the ban of religious symbols, ‘which are rife throughout many Member States’. ⁹⁵ In other words, there is arguably a ‘dominant interest’ in upholding headscarf bans in Europe. Some authors indeed suggested that the European Courts adopted a lenient approach in their case law, to the point that the scrutiny of headscarf bans was almost absent. ⁹⁶ The literature particularly noted that early ECtHR case law employed biased discourses, including a stereotypical representation of Muslim women as passive subjects. ⁹⁷ Skeet argued that the ECtHR’s representations ‘seemed redolent of the colonial discourses’ that ‘constructed Orientalised women differently to “Western” women and to Orientalised men’. ⁹⁸ Peroni, who conducted a Critical Discourse Analysis (an approach we also use), argued that, by ‘backgrounding’ Muslim women, the ECtHR excluded ‘all possibility of balancing the importance of their practices’ against ‘the importance of the public interests or rights of others at issue’. ⁹⁹ The literature thus suggested that the ECtHR occasionally employed biased discourses regarding religious symbols, particularly in its early case law. However, it has neither systematically investigated the discourses of the European Courts about religious symbols nor fully explained how such discourses have influenced their adjudication. The present article seeks to fill this gap by systematically analysing the discourses of the European Courts, aiming to identify the ideological biases underlying them and explaining their role in the courts’ argumentation.

4. Methodology

This article aims to explore the discourses of the European Courts about religious symbols and their influence on the courts’ adjudication. Our sample includes the judgments on religious symbols of the European Courts ¹⁰⁰ : 30 ECtHR judgments (one of which covers two cases) issued between 2001 and 2018, ¹⁰¹ and five ECJ judgments issued between 2017 and 2023. ¹⁰²

The judgments in our sample concern different religious symbols. Relatively few cases relate to crucifixes (three ECtHR judgments, one of which covers two cases; two decisions are favourable to allowing the use of the crucifix), ¹⁰³ symbols worn by Islamic or Sikh men (seven ECtHR judgments, three of which are favourable to the victims), ¹⁰⁴ and full-face veils worn by Muslim women (three ECtHR judgments, all of which are unfavourable to the applicants). ¹⁰⁵ Most European Courts’s rulings concern Muslim women wearing headscarves (17 ECtHR judgments; five ECJ judgments); in all cases but three, the European Courts generally upheld the prohibition of the headscarves. ¹⁰⁶ It is worth noting that the ECJ’s judgments in our sample – all preliminary rulings – did not resolve the disputes at issue: in the context of preliminary ruling proceedings, that task falls to the referring tribunals. ¹⁰⁷ Nonetheless, the ECJ effectively upheld employers’ right to prohibit the wearing of religious symbols or, at the very least, granted national authorities considerable discretion in supporting such a right. ¹⁰⁸ To ban religious symbols, in compliance with ECJ rulings, employers need only introduce a religious neutrality policy, apply it to all types of religious dress and apply it consistently; private employers should, in addition, apply their ban only to front-office employees and should consider whether such employees could be transferred to a back-office job. ¹⁰⁹

Our analysis focused on the courts’ argumentation: the section ‘The Law’ in the case of the ECtHR cases; the section ‘Consideration of the questions referred’ for the ECJ judgements. ¹¹⁰ We analysed the texts in the English version when a European Court published an official judgement in that language; for other cases, we used the official French version. The ECtHR decided its cases primarily based on Article 9 of the ECHR (freedom of religion or belief) ¹¹¹ ; the ECJ applied mostly the right to non-discrimination set out in Directive 2000/78/EC. ¹¹² The tests applied by the two courts are different but comparable: as noted by Howard, they all ‘include a proportionality test where the means used to achieve a legitimate and pressing aim must be proportionate and necessary’. ¹¹³ In other words, the European Courts ascertained, in each case, whether the prohibition (or imposition) of religious symbols pursued a legitimate objective (such as protecting security, public order, or the rights of others) and was proportionate and necessary. ¹¹⁴ Since the two European Courts applied similar legal standards in analogous cases, they potentially used similar discourses and narratives, which can be usefully compared for our purposes.

While traditional doctrinal analyses can occasionally reveal the presence of bias in judicial decisions (see above, Section 3), they are not meant to emphasise this issue and may fail to highlight bias that is well hidden in the ‘subtext’ of a judgment. This risk particularly concerns judgments of courts, such as the ECJ, that employ a ‘formalistic’ and ‘abstract’ style. ¹¹⁵ In the context of preliminary rulings, the ECJ must indeed answer ‘abstract’ questions of interpretation. ¹¹⁶ Moreover, the ECJ operates under the ‘principle of collegiality’ and, consequently, its decisions are unlikely to reveal the value judgments of individual judges. ¹¹⁷

To better unearth the biased discourses used by the European Courts, we employed Critical Discourse Analysis. This approach may be defined as an analysis of texts aimed at highlighting aspects that contribute to support and legitimise ‘dominance’, intended as ‘the exercise of social power by elites, institutions, or groups, that results in social inequality’. ¹¹⁸ While the dominant ideas in a society may reflect different values and interests, our analysis focuses on discursive strategies aimed at maintaining social inequality, ¹¹⁹ eg, through the stereotyping of minorities.

Critical Discourse Analysis focuses on language, taking into account lexical choices, sentence structures, and elements that are implicit or purposefully left unsaid. It is routinely employed in various disciplines and is increasingly applied to legal texts. ¹²⁰ While Critical Discourse Analysis and legal doctrine share a common interest in language, they have different approaches: one may consider a particular sentence to be sound from a doctrinal perspective and yet problematic because of its ideological assumptions. ¹²¹ For instance, from a doctrinal perspective, a court may arguably hold that religious signs can be prohibited to prevent ‘tensions’ within schools and workplaces. However, from a discourse analysis standpoint, it is problematic if the court’s language suggests that a headscarf, per se, causes such ‘tensions’ (as discussed in Section 9 below). ¹²²

It should be noted that while judges have a degree of discretion, this discretion applies to the application of the law, not to the language used in judgments. Arguably, judges should avoid stereotyping in their reasoning. ¹²³ For example, in Dahlab, the ECtHR may have deemed Switzerland compliant with the ECHR within its discretion. However, its characterisation of Islamic precepts as ‘hard to square with the principle of gender equality’ reveals a bias (see Section 5 below).

Critical Discourse Analysis can be used to challenge ‘generally accepted interpretations of law by critically analysing and revealing their underlying concepts and taken-for-granted assumptions’. ¹²⁴ Such assumptions, from the perspective of the legal practitioner, may indeed ‘appear as natural’ because they are interwoven in the legal system and correspond to the prevailing discourses in their society. ¹²⁵

Since this article employs Critical Discourse Analysis, it does not focus on the application of the law in doctrinal terms but rather on the language used by the European Courts to justify their interpretation and application of the law. For instance, we do not analyse how the ECtHR applied the ‘margin of appreciation’ in Eweida (a doctrinal issue). Instead, we focus on the language the Court used to describe Ms. Eweida and her actions, and how this description shapes the Court’s narrative. We adopt this approach by combining our expertise: the first author is an EU law scholar, while the second author is a social scientist with extensive experience in Critical Discourse Analysis.

By applying Critical Discourse Analysis to the judgments on religious symbols, we sought to reveal the ‘subtext’ underlying the discourse of the European Courts and thus explore their narrative strategies (see above, Section 2). The research began by identifying recurrent (bias-related) themes and organising them through the data analysis software Atlas.ti. Then, we performed a Critical Discourse Analysis to understand how themes were discursively framed and connected to the dominant values in Europe and, thus, to social inequality. Finally, we identified the narratives created from these discourses and elucidated their role in justifying the judgements of the European Courts.

5. Agency of women wearing symbols

The most evident bias in the case law of the European Courts concerns the agency of women wearing Islamic symbols; this constitutes the first theme we identified in the case law. ¹²⁶ Consistently with mainstream discourses about Islam (see above, Section 3), the judgments of the European Courts tended to reproduce the stereotype of Muslim women as passive subjects and victims.

This stigmatisation is explicit in the early ECtHR case law. In Dahlab (2001), the ECtHR affirmed that the headscarf is ‘imposed’ on women by a religious precept, which is ‘hard to square with the principle of gender equality’. ¹²⁷ This statement or similar formulas were reproduced in subsequent ECtHR judgments (Şahin, 2005, Köse, 2006, Dogru, 2008, and Kervanci, 2008). ¹²⁸ In more recent judgments (post-2008), the ECtHR refrained from expressly stigmatising the Islamic headscarf. ¹²⁹ This change in the ECtHR’s approach might be explained, at least in part, by the criticism received on its early case law ¹³⁰ : arguably, the early ECtHR judgments did not adequately ‘conceal’ biased discourses and did not appear sufficiently ‘neutral’ to the jurists in the Court’s audience.

The ECJ, which issued its first judgment in this area in 2017, avoided any express stigmatisation of headscarves. Unlike the ECtHR, which criticised the Islamic ‘imposition’ of headscarves, the ECJ expressly refrained from assessing the ‘content of religious precepts’. ¹³¹

While explicit stigmatisation of headscarves appears only in relatively few (and old) ECtHR judgments, numerous judgments of both European Courts implicitly undermined the agency of Muslim women. According to Peroni, Dahlab and Şahin de-emphasised the perspective of Muslim women through nominalisation and passivisation. ¹³² Our analysis suggests that the ECtHR used these techniques throughout its case law. For instance, in Aktas, Bayrak, Gamaleddyn, and Ghazal (2009), the ECtHR held that ‘the fact of wearing a headscarf’ is, in itself, an ostensible manifestation of religion (an instance of nominalisation). ¹³³ Later, in Ebrahimian (2015), the ECtHR upheld a headscarf ban because the fact of wearing a veil ‘was perceived’ as an ostentatious manifestation of religion (a case of passivisation). ¹³⁴ Having de-emphasised the viewpoint of women wearing headscarves, the ECtHR focused its discourse on the perspective of their alleged ‘victims’: a headscarf ban may be necessary to protect fragile individuals from ‘any risk of influence or partiality, in the name of their right to freedom of conscience’ (in the absence of any evidence regarding such an influence). ¹³⁵

ECJ judgments are characterised by comparable (though not identical) patterns. The ECJ never referred to the intentions of Muslim women. ¹³⁶ It rather emphasised the intentions of their employers. A municipal administration ‘intend[ed] to impose on its employees’ a policy of neutrality. ¹³⁷ Private employers prohibited religious symbols out of a legitimate ‘desire to display … a policy of political, philosophical or religious neutrality’. ¹³⁸ Employers ‘wish[ed] to project an image of neutrality’ ¹³⁹ ; they could take account of the ‘legitimate wishes’ of their customers, who could ‘wish to have their children supervised by persons who do not manifest their religion’. ¹⁴⁰ In other words, employers and customers are central to the ECJ discourse: they are active subjects (and they are indeed the subjects of verbs in the active form). By contrast, the wishes of Muslim workers – and, consequently, their agency – are left in the background.

The tendency of both European Courts to background Muslim women contrasts with the emphasis the ECtHR placed on the agency of Christian women. In Eweida and Chaplin, the ECtHR did not use nominalisation when referring to the use of crucifixes (but it curiously employed this technique when discussing ‘the wearing of other … items of religious clothing, such as turbans and hijabs, by other employees’). ¹⁴¹ The Court explicitly acknowledged the personal value of religious symbols for Ms Eweida, an individual ‘who has made religion a central tenet’ of her life. ¹⁴² Additionally, the Court noted Ms. Chaplin’s ‘determination’ to wear the crucifix and emphasised that Ms. Eweida ‘decided’ to arrive at work displaying her cross due to her ‘desire’ to bear witness to her faith and her ‘desire’ to manifest her beliefs. ¹⁴³ This language contrasts, for instance, with Ebrahimian, where the ECtHR referenced neither the applicant’s ‘decision’ nor her ‘desire’ to wear a headscarf (see above). ¹⁴⁴ Furthermore, in Ebrahimian, the ECtHR stated that the applicant’s ‘religious beliefs meant that it was important for her to manifest her religion by visibly wearing a veil’ – positioning the importance of religion not as a personal choice (as in Eweida), but as a consequence of beliefs themselves. ¹⁴⁵ The ECtHR thus implicitly set Christianity aside from a minority religion, such as Islam, consistently with the approach that we termed ‘Christian secularism’ (see above, Section 3).

The European Courts’ approach to women wearing headscarves contrasts not only with the ECtHR case law on Christian applicants but also with ECtHR judgments regarding other individuals. The ECtHR never questioned the agency of men. ¹⁴⁶ This can be appreciated by comparing Hamidovic (2017) ¹⁴⁷ to Lachiri (2018). ¹⁴⁸ The cases have similar factual patterns and outcomes: both applicants were excluded from courtrooms because they wore religious symbols and both judgments favoured the applicants. However, Hamidovic was a Muslim man wearing a skullcap, while Lachiri was a woman wearing a headscarf. In Hamidovic, the ECtHR held that the applicant’s decision to wear a skullcap was ‘inspired’ by his ‘sincere’ religious belief. ¹⁴⁹ Although Lachiri quoted Hamidovic in many respects, it did not refer to the ‘inspiration’ of the (female) applicant or the ‘sincerity’ of her beliefs. Through this seemingly deliberate omission, the ECtHR seems to de-emphasise the agency of a Muslim woman wearing a headscarf.

Perhaps counterintuitively, the ECtHR’s stressed the agency of women wearing full-face veils: ‘a State Party cannot invoke gender equality in order to ban a practice that is defended by women’ (S.A.S., 2014). ¹⁵⁰ Wearing a full-face veil, the ECtHR noted, may be a way for women to express their ‘personality’ and their ‘convictions’ (Belcacemi, 2017). ¹⁵¹ Such statements are absent from prior or successive judgments on Islamic headscarves. This apparent inconsistency in the case law may be explained, at least in part, by the ECtHR’s argumentative strategy. Since the ECtHR assumed that covering one’s face could inherently infringe a ‘principle of interaction between individuals’ ¹⁵² (as discussed below) ¹⁵³ it did not need to question whether the women concerned voluntarily covered their faces. In other words, to rule against the full-face veil, the Court did not need to downplay Muslim women’s perspectives. It could even highlight their autonomy, thus appealing to another segment of the ECtHR’s audience, ie, the commentators who had criticised the Court’s ‘paternalism’. ¹⁵⁴

One may wonder why the ECtHR emphasised the agency of Christians, men, and women wearing full-face veils, while neither the ECtHR nor the ECJ stressed the agency of women wearing headscarves. For instance, the Courts could have acknowledged Muslim women’s determination to wear the headscarf (see Chaplin), driven by a desire to manifest their religion, given that they have made religion a central tenet of their lives (see Eweida) and are inspired by sincere beliefs (see Hamidovic). Wearing the headscarf may indeed be described as a way for women to express their personality and convictions (see Belcacemi). Such a discourse would have been consistent with the intentions expressed by the women concerned. For example, Ebrahimian alleged that she ‘wore a simple head covering, which was anodyne in appearance’ and was ‘intended to hide her hair’. ¹⁵⁵

Admittedly, focusing on the perspectives of individuals wearing religious symbols may not have been essential from a strictly legal standpoint. However, it is significant that the ECtHR considered such perspectives in cases involving Christians, men, and even women wearing full-face veils, but not in cases involving women wearing hijabs. Likewise, it is noteworthy that the ECJ placed considerable emphasis on the ‘wishes’ of employers and customers, while making no mention of the ‘wishes’ of Muslim women.

A possible explanation for the limited attention to the perspectives of women wearing headscarves lies in the narrative strategy of the European Courts. To justify headscarf bans, the Courts needed to argue that these symbols had negative effects on others. Emphasising the perspectives of women wearing headscarves would have undermined the Courts’ frequent assumptions that these women were ostentatious in their religiosity, proselytised to children, or caused tensions and conflicts. For instance, the ECtHR’s argument would have been unconvincing if it had characterised Ebrahimian’s ‘simple head covering’ as an ostentatious manifestation of her religion.

Since there was no evidence that women wearing headscarves affected others, the European Courts justified their decisions by narrating ‘stories’ that ignored the women’s views. For instance, the ECtHR assumed that Ebrahimian’s head covering was ‘ostentatious’ by focusing on the alleged perceptions of others (as shown below, in Section 7).

The European Courts thus appear to have engaged in ‘narrative banalisation’: they adopted a socially conventional discourse, characterising Muslim women as passive subjects, and implicitly presented it as a ‘fact’ that underpinned their narrative. By placing the women’s views out of focus, the European Courts were able to develop assumptions about the purpose and impact of the hijabs, as discussed in the following sections.

6. Purpose of religious symbols

Since the European Courts de-emphasised the viewpoint of women, as seen in the previous section, they could integrate several stereotypes in their narration, particularly about the purpose of Islamic headscarves (this constitutes the second theme we identified in the case law). These symbols are often regarded as problematic due to their visibility. ¹⁵⁶ In the European public discourse, it is often assumed that ‘the proper place for religion is the private domain – not the public, which belongs to “the secular”’. ¹⁵⁷ The public use of garments associated with a religion, therefore, is frequently presented as an ‘ostentation’ of religious affiliation. ¹⁵⁸

Consistently with this trope, the ECtHR systematically assumed that Muslim women using the headscarf intended to manifest their religious belonging. For instance, in Ebrahimian, the ECtHR held that public authorities could prohibit ‘the wearing of a sign intended to indicate … adherence to a religion’. ¹⁵⁹ Yet, nothing suggests that the applicants wore a headscarf to express religious affiliation; in some cases, they even tried to make their religious affiliation less evident by wearing head covers not commonly associated with Islam. For example, Bayrak, Dogru, and Ebrahimian replaced their headscarves with hats (‘bonnets’ or ‘coiffes’) which, according to them, ‘did not have any religious connotation’. ¹⁶⁰ In Ebrahimian, the ECtHR even postulated, with no explanation, that the applicant’s head cover ‘resemble[d] a scarf or an Islamic veil’ and referred to the coiffe as a ‘veil’ throughout its decision. ¹⁶¹ Defining both coiffes and headscarves as ‘veils’ is a rhetorical stratagem: by so doing, the ECtHR stressed the commonality between these objects (their abstract ability to express religious affiliation) and concealed their difference (the wearer’s intention to express or conceal religious affiliation). ¹⁶² This stratagem is enabled by a narrative banalisation: the ECtHR’s approach may seem reasonable, at first sight, since there is a tendency, in the European public discourse, to label all Islamic head covers as ‘veils’. ¹⁶³ These rhetorical stratagems contribute to justify argumentatively the ECtHR’s assumption: a simple hat, in the ECtHR’s narrative, is inevitably intended to indicate one’s religious affiliation.

The ECtHR further disregarded the applicants’ views by assuming that they wore headscarves to express religious affiliation inappropriately. In its early case law, the ECtHR argued that the ‘wearing of a headscarf might have some kind of proselytising effect’ (Dahlab), thus implying that the headscarf is meant to convert others (a view reiterated in Şahin and Dogru). ¹⁶⁴ Subsequently, the ECtHR referred to the wearing of a headscarf as an ‘ostentatious’ manifestation of religion (Köse, 2006), ¹⁶⁵ an ‘ostentatious act’ (Dogru, 2008) ¹⁶⁶ or a ‘conspicuous manifestation’ of religion (Aktas, 2009). ¹⁶⁷ The ECtHR did not motivate the description of the headscarf as an ostentatious symbol. Nonetheless, it had an ‘ostentatious nature’, ¹⁶⁸ apparently, because it was ‘perceived as an ostentatious manifestation of […] religion’ (Ebrahimian). ¹⁶⁹ In other words, the ECtHR determined the purpose of the headscarf by ignoring the perspective of Muslim women and focusing on the purported views of hypothetical third parties that endorsed widespread prejudices about the Islamic headscarf.

The ECtHR’s assumptions about the purpose of headscarves can be contrasted with its depiction of other symbols. The ECtHR never described men’s symbols as ‘ostentatious’. For instance, in Arslan, the ECtHR simply spoke of the applicants’ ‘clothing’ (‘tenue vestimentaire’), ¹⁷⁰ although said clothing – including a black turban, black tunic, black trousers, and staff – is not less conspicuous than a woman’s headscarf. ¹⁷¹ The ECtHR did not employ the adjective ‘ostentatious’ in respect of the full-face veil, either (even if this object is certainly more visible than a headscarf); the ECtHR acknowledged that the full-face veil ‘is the expression of a cultural identity’, even though it ‘is perceived as strange by many’. ¹⁷² This approach contrasts with the ECtHR’s approach to the headscarf, which it labelled as ‘ostentatious’ because it was ‘perceived’ as such (Ebrahimian, see above).

The ECtHR’s judgements about Christian symbols are even more remarkable. In Eweida and Chaplin, the applicants insisted ‘on wearing a cross visibly at work’ ¹⁷³ and refused to conceal it under their clothing. ¹⁷⁴ Nonetheless, according to the ECtHR, Eweida’s cross was ‘discreet’ and was simply intended to ‘communicate’ her belief to others. ¹⁷⁵ It would seem that, according to the ECtHR, a Muslim woman ‘ostentatiously’ displays her religion, even if she makes it less visible by wearing a hat instead of a hijab; a Christian woman ‘communicates’ her religion in a ‘discreet’ way, even if she makes her symbol more visible by refusing to wear it under her clothing.

There are several ways to explain the inconsistency in the ECtHR’s assessment of the symbols’ purposes. The ECtHR might have perceived the headscarves worn by women as more ‘ostentatious’ than the symbols worn by men because the former are more visible in European societies. The applicants in Hamidovic and Arslan, in fact, belong to small Islamic movements, which, in the eyes of national authorities, are a ‘curiosity’ more than a threat. ¹⁷⁶ Similar considerations apply to the full-face veil, which, as noted by the ECtHR, only affects ‘a small number of women’ in France. ¹⁷⁷ The ECtHR’s even friendlier attitude towards the crucifix might be motivated by what we termed as ‘Christian secularism’, ie, considering Christianity compatible with secularism (unlike Islam). A complementary explanation relates to the narrative of the ECtHR, and is presented at the end of this section, after discussing the ECJ case law.

Unlike the ECtHR, the ECJ did not make any explicit assumptions about the purpose of the headscarf and employed more neutral language. While the ECtHR labelled the headscarf as ‘conspicuous’, the ECJ refrained from distinguishing between conspicuous and non-conspicuous signs ¹⁷⁸ : the wearing of ‘any’ religious sign, according to the ECJ, may impact neutrality (see below, Section 7). ¹⁷⁹ The ECJ did not even use the word ‘symbol’ to describe headscarves, preferring the more neutral words ‘sign’ or ‘clothing’. In addition, the ECJ acknowledged that a person may use headscarves to observe ‘a precept’, rather than manifest religion (WABE and Müller and S.C.R.L.). ¹⁸⁰ Possibly, the ECJ was cautious because it sought to avert the criticisms previously received by the ECtHR.

However, the subtext of ECJ judgements suggests some similarities with the approach of the ECtHR. In WABE and Müller, the ECJ assumed that workers with a headscarf engaged in proselytism or other untoward behaviour: employers may prohibit religious symbols, notably headscarves, because they need to guarantee ‘the free and personal development of children’ ¹⁸¹ and avoid ‘social conflicts’. ¹⁸² More generally, the ECJ appears to have presumed that Muslim women wore head coverings to ‘manifest their religion or belief’. ¹⁸³ In S.C.R.L., in particular, the worker offered to wear ‘another type of head covering’, different from the hijab, but the employer prohibited it. ¹⁸⁴ The Court did not address the issue directly but seemingly postulated that, regardless of the specifics, the employer’s measure was aimed at prohibiting any visible sign of ‘belief’. ¹⁸⁵ It thus appears that even a head covering that does not have any religious connotation, when worn by a Muslim woman, expresses religious beliefs, consistent with the ECtHR’s approach in Bayrak, Dogru, and Ebrahimian.

The attribution of ‘ostentatious’ purposes to the headscarf – as made, to varying extents, by both the ECtHR and the ECJ – could be explained from a narrative perspective. As anticipated in Section 3, a significant part of the European Court’s audiences (states and public opinion) expected them to uphold headscarf bans. To fulfil such expectations and preserve the formal coherence of their decisions (as expected by the legal community), the European Courts needed to demonstrate that headscarf bans were proportional and pursued legitimate aims. It was, therefore, necessary to show that the headscarf had a negative impact on others, although such an impact was far from evident.

Nothing suggests that the women concerned by the European Courts’ judgments intended to ostentatiously display religion or proselytise. In fact, an object, such as a headscarf, is unlikely to influence others as much as an improper manifestation of religion. ¹⁸⁶ To justify headscarf bans, the European Courts narrated ‘stories’ where these objects were presented as dangerous. Ignoring the actual intentions of the women concerned (as discussed in the previous section), the European Courts characterised any head covering worn by Muslim women as inherently capable of manifesting beliefs, and even as ostentatious or proselytising per se (as discussed in this section). This narrative is effective because it is consistent with widespread stereotypes: it is, in other words, a narrative banalisation. ¹⁸⁷ Once they assumed that headscarves are ostentatious, the European Courts could easily stigmatise the headscarf’s impact on the neutrality of state authorities and employers (see the next section), the rights of others (Section 8), and public order (Section 9).

7. Impact on neutrality of state authorities and private employers

Because the European public space is often presented, in the dominant discourse, as ‘secular’, the public use of garments associated with religion can be construed as an affront to neutrality in religious affairs. Accordingly, both European Courts affirmed that the headscarf has a negative impact on religious neutrality (this constitutes the third theme we identified in the case law).

In the first place, the ECtHR argued that the headscarves worn by any woman in public establishments may threaten State neutrality. This is, in particular, the case of students. According to the ECtHR, a headscarf ban targeted at students might be necessary to preserve the ‘neutrality of secondary education’ (Köse). ¹⁸⁸ This finding seems to apply to any person in ‘public establishments’ (eg, tribunals): in these places, the ‘respect for neutrality regarding beliefs may prevail on freedom of expression of religion’ (Lachiri). ¹⁸⁹ Apparently, other religious symbols worn by private citizens do not affect the neutrality of public establishments. In cases concerning men’s symbols, the ECtHR held that, unlike public officials, ‘private citizens’ are normally not under a duty of neutrality in either public streets (Arslan) or public establishments (Hamidovic). ¹⁹⁰ Remarkably, despite the factual similarity between Hamidovic and Lachiri (see above, Section 5), the ECtHR mentions a potential impact on State neutrality only in the latter case. ¹⁹¹ A woman’s headscarf potentially threatens the neutrality of a tribunal but a man’s head cover does not.

Secondly, both the ECtHR and the ECJ held that the headscarves worn by public servants threaten State neutrality. The ECtHR argued that school teachers wearing a headscarf question ‘denominational neutrality in schools’ (Dahlab ¹⁹² ; Kurtulmuş ¹⁹³ ) and ‘neutrality of teaching’ (Tandoğan). ¹⁹⁴ Headscarves also threaten neutrality in public service at large: public servants are ‘representatives of the state’ and, consequently, are bound ‘by a duty of discretion in the public expression of their religious beliefs’ (Arslan). ¹⁹⁵ The ECJ implicitly followed this approach in Commune d’Ans, by holding that the ‘wearing of any sign’ by public employees may undermine the provisions of ‘an entirely neutral administrative environment’. ¹⁹⁶ However, one may wonder why a public employee who wears a religious sign – in most cases, a headscarf – should automatically threaten State neutrality. The ECJ did not provide any explanation in Commune d’Ans. The ECtHR did, in Ebrahimian, by finding that patients ‘cannot harbour any doubts as to the impartiality of those treating them’; in other words, citizens may legitimately doubt the impartiality of public servants who wear a headscarf. ¹⁹⁷ Once more, the ECtHR (and, possibly, the ECJ) shifted attention away from the perspective of the women who wore a headscarf ¹⁹⁸ and concentrated on the (hypothetical) views of their (prejudiced) ‘victims’: since public opinion allegedly sees the headscarf as incompatible with state neutrality, the state can assume that the wearing of this sign threatens neutrality and, therefore, may prohibit it. ¹⁹⁹ By contrast, the crucifix does not seem to impact State neutrality, at least according to the ECtHR: in Lautsi (Grand Chamber), the ECtHR held that a crucifix on a wall is ‘an essentially passive symbol […] having regard to the principle of neutrality’. ²⁰⁰ It would thus seem that ‘passive’ Muslims (who do not intend to ostentatiously display religion) have ‘active’ religious symbols, while ‘active’ Christians (or Christian-oriented institutions) have ‘passive’ symbols. ²⁰¹

Thirdly, both the ECtHR and the ECJ affirmed that the religious symbols worn by private sector employees question the neutrality of their employers. According to the ECtHR, employers may, in theory, ‘wish to project a certain corporate image’, which might be threatened by a religious symbol ²⁰² ; however, the ban in Eweida was unjustified because there was ‘no evidence’ that the applicant’s crucifix ‘had any negative impact’ on the employer’s image. ²⁰³ Similarly, the ECJ recognised that employers may desire to display a policy of ‘religious neutrality’ ²⁰⁴ and may prevent employees ‘who interact with customers’ from using religious signs, such as a headscarf. ²⁰⁵ Unlike the ECtHR in Eweida, the ECJ did not mention the need for evidence of the impact on the employer’s neutrality ²⁰⁶ ; yet, it is hard to believe that anyone thinks that the beliefs of an employee reflect the official position of a company. ²⁰⁷

The European Courts’ discourse on neutrality reveals that they allocated the argumentative burden of proof to support a specific narrative. Both the ECtHR and the ECJ argued that headscarves can impact the neutrality of the State and private employers, providing little explanation for this argument (eg, ECtHR, Ebrahimian) or no explanation at all (eg, ECtHR, Lachiri; ECJ, Commune d’Ans, Achbita). By contrast, it seems that, according to the ECtHR, the impact of the crucifix on neutrality cannot be presumed (Eweida) and that it may even be excluded a priori (Lautsi Grand Chamber). A crucifix does not question the neutrality of a State’s school, but a woman who wears a headscarf threatens neutrality in public and private environments because others might associate her with Islam. The use of different narratives for Christian and Islamic symbols seems consistent with the approach that we termed ‘Christian secularism’ (see above, Section 3) and appears grounded on a narrative banalisation: the European Courts presented the headscarves’ impact on neutrality as a fact – without discussing it – thus reproducing a widespread trope about the incompatibility between the public use of Islamic symbols and secularism in Europe.

8 Impact on the rights of others

In the narration of the European Courts, the attribution of ‘proselyting’ or ‘ostentatious’ purposes ²⁰⁸ to the Islamic headscarf means not only that they impact neutrality, ²⁰⁹ as seen above, but also that they might affect others’ rights, particularly in the case of vulnerable persons (this constitutes the fourth theme we found in the case law).

In Dahlab, the ECtHR held that ‘it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect’. ²¹⁰ Since assessing the actual impact of the headscarf would be ‘difficult’, ²¹¹ the ECtHR assumed that a ‘powerful external symbol’ such as the wearing of a headscarf may impinge on the freedom of religion of young children. ²¹² However, the applicant was never accused of proselytism: apparently, she never even talked to her pupils about her beliefs. ²¹³

Dahlab was cited approvingly in Şahin and Dogru (2008); subsequently, the ECtHR changed its phrasing but maintained the same premise: the ostentatious character of headscarves means that they can impinge on the freedom of religion of vulnerable persons. The ECtHR argued that headscarves can be prohibited because the use of religious symbols by students should ‘not become ostentatious and thus a source of pressure and exclusion’ vis-à-vis other students (Köse, 2006). ²¹⁴ The ECtHR also stigmatised the impact of headscarves on the freedom of religion of patients: bans against religious symbols in hospitals may serve to protect them ‘from any risk of influence or partiality, in the name of their right to freedom of conscience’ (Ebrahimian, 2015). ²¹⁵ Of course, these assumptions were unsupported by any evidence. ²¹⁶

The ECJ apparently embraced this rhetoric, albeit implicitly: employers can take account of parents’ ‘wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children’, with the aim of ‘guaranteeing the free and personal development of children as regards religion’. (WABE and Müller, 2021). ²¹⁷ In other words, parents can expect schools not to hire women using headscarves because these symbols might per se impinge on the ‘free development’ of children, ie, their freedom of religion. While the ECJ does not employ the scathing language of Dahlab, it endorses the same postulate, twenty years later. And, like Dahlab, WABE and Müller is unsupported by any evidence: nothing suggests that the worker was ever accused of proselytising at work.

The ECtHR described only one other religious sign – the full-face veil – as a threat to others’ rights. In S.A.S., the ECtHR held that a ban against the full-face veil may ensure ‘the preservation of the conditions of “living together”’, which are an element of the ‘protection of the rights and freedoms of others’. ²¹⁸ Indeed, ‘individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships’. ²¹⁹ Like the ECtHR case law on headscarves, the judgments on full-face veils justify the prohibition of an object based on the hypothetical, and unsubstantiated, views of third parties. ²²⁰

In contrast to Islamic symbols, the crucifix does not appear to affect the rights of others. In Eweida, the ECtHR held that there was ‘no evidence of any real encroachment on the interests of others’. ²²¹ The crucifix does not even affect vulnerable persons. According to the ECtHR Grand Chamber, the crucifix on the wall of a classroom, being a ‘passive symbol’, does not necessarily ‘have an effect’ on young persons. ²²² And there was ‘no evidence before the Court’ that demonstrated the offensiveness of the crucifix. ²²³

The European Courts’ narration about religious symbols’ impact on others’ rights rests, once more, on shifting the argumentative burden of proof. While both European Courts presumed that Islamic symbols affected others’ rights, the ECtHR assumed that the impact of crucifixes must be proven. This rhetorical stratagem is supported by a narrative banalisation: arguably, the European Courts implicitly or explicitly echoed the widespread trope of Islam as alien to European values and, therefore, incompatible with human rights and dangerous for individuals’ rights (see above, Section 2). The European Courts embraced this trope to the point of alleging that headscarves threaten not only the rights of others but also public safety and public order.

9. Impact on public safety and public order

According to the European Courts, headscarves have such a forceful impact on society that they threaten, besides the rights of others, public safety and public order. This constitutes the fifth and last theme we identified in the case law.

The ECtHR repeatedly argued that headscarves may threaten security, public order, and safety (in the ECtHR case law, these legitimate aims are often taken together). ²²⁴ In Şahin (2005), the ECtHR linked the Islamic headscarf to extremism and thus, to a threat to public order. According to Turkish authorities, approvingly cited by the ECtHR, the headscarf had taken on political significance in this country, where ‘extremist political movements’ sought to impose on society ‘their religious symbols’. ²²⁵ The ECtHR did not speak of extremism in subsequent cases, ²²⁶ but unquestioningly accepted the arguments of the defendant State (France) about security and public order. In Dogru, in particular, the ECtHR acknowledged that the applicant’s refusal to comply with the headscarf ban had led to a ‘general atmosphere of tension’ within the applicant’s school. ²²⁷

The ECtHR disregarded the perspective of the women wearing headscarves, reiterating the gender and religious stereotypes discussed above (see Section 5). Arguably, the threats to public order came, not from women wearing headscarves, but from other subjects: supposed ‘extremist political movements’ (Şahin) or national authorities themselves (Köse, Dogru). It is indeed the headscarf bans that created ‘unrest’ and ‘tension’, not the people that resisted such bans by invoking their rights: a State can hardly justify a ban by arguing that the (otherwise legitimate) resistance to the ban causes ‘disturbances’. Strikingly, the ECtHR blamed the applicants for the ‘disturbances’ even when they agreed to compromise, ²²⁸ eg, by wearing a hat instead of a headscarf; by contrast, it praised national authorities for their attempts ‘to enter into dialogue’ with the applicants, even when the authorities refused to consider any compromise. ²²⁹ The ECtHR’s judgments arguably reflect a widespread stereotype, which forms the basis of another narrative banalisation: in the ECtHR’s narration, the headscarf is a symbol of extremism and is connected to violence ²³⁰ ; therefore, its symbols can be prohibited.

It should not be surprising, at this point, that the ECtHR did not describe other religious symbols as a threat to public order and security. ²³¹ For instance, the full-face veil cannot be presumed to constitute a ‘general threat to public safety’: France had ‘not shown’ the existence of this threat. ²³² Similarly, the objects worn by male applicants were not presumed to threaten public security: in Arslan, ‘the file [did] not show’ that the conduct of the applicants ‘constituted a threat to public order’ ²³³ ; Hamidovic was not a threat to public order because ‘there [was] no indication’ that he had a ‘disrespectful’ attitude towards a tribunal. ²³⁴ It seems, therefore, that the ECtHR made, once more, a strategic use of the argumentative burden of proof: headscarves can be presumed to impact public safety and public order, but such an impact must always be demonstrated in respect of other religious symbols.

Unlike the ECtHR, the ECJ did not expressly characterise headscarves as a threat to security and public order; nonetheless, the ECJ arguably implied such a characterisation. In WABE and Müller, the ECJ held that, by prohibiting ‘large’ religious symbols (viz. headscarves), the employer sought the legitimate objective of avoiding ‘social conflicts’, particularly because of ‘tensions which occurred in the past in relation to political, philosophical or religious beliefs’. ²³⁵ In other words, the ECJ assumed that headscarves were per se capable of causing ‘tensions’ and could, at least in principle, be banned, thus echoing the ECtHR in Dogru (see above). ²³⁶ Like the ECtHR, the ECJ disregarded the conduct of women wearing headscarves: nothing suggests that they engaged in any disrespectful or aggressive conduct. One may surmise that tensions arose, not because of headscarves, but because of the employer’s intolerance: as recognised by the very ECJ, the employer had introduced a discriminatory policy, by prohibiting the use of ‘conspicuous, large-sized’ symbols, ²³⁷ which targeted headscarves de facto if not de jure.

This European Courts’ approach to security and public order is, once more, explained by their narrative strategy. In the cases concerning Muslim men, the ECtHR focused on the coherence of its reasoning (as expected by the legal community), since States and public opinion were unlikely to be invested in the outcome of these cases. By contrast, States and public opinion strongly expected the European Courts to rule in favour of the prohibition of headscarves; to justify such prohibitions, while maintaining an appearance of logical coherence, the European Courts had to ‘narrate’ a presumed impact on security and public order. Since there was no evidence of any such impact, the European Courts centred their narration on the headscarf’s presumed effects (‘tensions’, ‘conflicts’, and ‘disturbances’). The European Courts possibly expected such a presumption to convince a part of their audiences because it constituted a banalisation of widespread tropes about the alleged violent nature of Islam (see above, Section 3).

10. Conclusion

The use of religious symbols is one of the most controversial issues in European societies. The prohibition of certain symbols (notably, the Islamic headscarf) has formed the object of several disputes before the ECtHR and the ECJ. By employing a linguistic and social science approach – Critical Discourse Analysis – we assessed the language used by the European Courts regarding religious symbols to identify biased discourses and determine how they have influenced adjudication.

Our analysis addressed two research questions. In the first place, which biases are reflected in the European Courts’ judgements about religious symbols? The article demonstrated that the judgments of the ECtHR and the ECJ often reflected religious and gender biases, as demonstrated by the themes discussed in Sections 5–9. These results confirm Lajoie’s intuition and the results she reached in another context ²³⁸ : the ‘dominant values’ that inspire judicial decisions are not expressly acknowledged in their text but remain present in their ‘subtext’. The European Courts used biased language about the agency of Muslim women, their intentions, and the impact of their headscarves on other persons and society at large. Biased arguments are particularly evident in the early ECtHR case law (2001–2008). Subsequently, the ECtHR changed its approach, perhaps to avoid criticism. Nonetheless, biased discourses did not disappear from the ECtHR case law but were better hidden in the ‘subtext’.

The language employed by the ECJ was apparently more ‘neutral’. The ostensible neutrality of the ECJ is not surprising, given its ‘formalistic’ style. ²³⁹ It is possible that the ECJ – whose judgments are more recent than most ECtHR decisions – recognised the criticisms directed at the ECtHR and intentionally avoided the overtly biased language of the Strasbourg Court. However, the application of Critical Discourse Analysis to ECJ judgements reveals that, despite their appearance of neutrality, they reproduce at least some of the biased discourses developed by the ECtHR. For instance, in WABE and Müller (2021), the ECJ assumed that headscarves might proselytise children, an idea originally introduced by the ECtHR in Dahlab (2001). In other words, biased discourses characterise, not only the early case law of the ECtHR – as the literature has shown, ²⁴⁰ but also most judgements of both European Courts.

This article also addressed a second research question: what role do biased discourses play in the European Courts’ narrative about religious symbols? Our analysis suggests that both European Courts, consciously or unconsciously, used biased discourses to better persuade their audiences. They employed biased discourses to narrate ‘stories’ where the Islamic headscarf improperly displayed religious belonging, threatened state and employers’ neutrality, proselytised children, and disturbed public order. This narrative suggests that headscarf bans are necessary to achieve legitimate aims, such as the protection of children’s religious freedom. This argument is persuasive to a certain extent, as it relies on a ‘narrative banalisation’: it employs ‘socially conventional’ discourses that most readers are likely to accept as given. ²⁴¹ The credibility of this narrative is further increased by recourse to other rhetorical stratagems, such as shifting the argumentative burden of proof or de-emphasising the perspective of social actors: the European Courts were able to presume the purpose and effects of headscarves because they ignored Muslim women’s opinions. It is to be noted that both European Courts used this technique: the ECJ’s biased discourses are less obvious than those of the ECtHR, but they were nonetheless effective in developing narratives that justified its decisions.

Thanks to their narrative strategies, the European Courts issued judgments in line with the desires of States and public opinion, justifying them in a seemingly coherent manner, as expected by the legal community. ²⁴² These findings suggest that biased discourses play a relevant role in judicial adjudication because they contribute to justifying decisions consistent with dominant values. Courts do not necessarily use biased discourses in a deliberate manner, in a conscious attempt to convince their audiences; they simply select the (biased) arguments that they consider more persuasive – and they may find them persuasive precisely because they are based on biased premises. Had the European Courts fully acknowledged the existence of these biases, they might have considered different solutions for the cases before them. They might have emphasised, in particular, the perspective of women wearing headscarves, showing that they did not intend to ostentatiously display religion or to threaten the rights of others. This might have suggested imposing further limits to the prohibition of religious symbols. For instance, in WABE and Müller, the ECJ might have held that private employers could prohibit educators from wearing a headscarf, provided they proved that the use of this garment impacted the ‘free development’ of children, instead of implicitly assuming that such an impact was inevitable. ²⁴³

The findings of this study suggest that integrating Critical Discourse Analysis with traditional legal approaches can enhance both types of inquiry. Considering the legal perspective can aid discourse analysts in assessing the rationale and impact of discourses used by courts. It is probable that a discourse analyst without specific legal training may identify discourses in legal texts. ²⁴⁴ Nonetheless, insight into the legal reasoning that underpins the interpretation of the law can be useful for understanding the role that discourses play in justifying a court’s argumentation.

Conversely, Critical Discourse Analysis can serve as a complement to legal doctrinal analysis. To be sure, some judicial discourses are overtly biased and can be detected through a traditional doctrinal approach, as seen in early ECtHR judgements such as Dahlab or Şahin. In other cases, however, biased discourses are concealed beneath seemingly neutral language, as in later ECtHR judgments and, especially, ECJ case law. In such instances, Critical Discourse Analysis may assist in identifying biased discourses within the subtext of judicial decisions. For example, Critical Discourse Analysis has proven effective in highlighting the differences in language used by the ECtHR when describing a man and a woman in Hamidovic and Lachiri, ²⁴⁵ the ECJ’s subtle framing of headscarves as problematic for public order and the rights of others, ²⁴⁶ and the assumption, apparently shared by both European Courts, that any head covering worn by Muslim women has proselytising purposes. ²⁴⁷

Even subtle biases can influence judicial reasoning and reinforce societal prejudices. Critical Discourse Analysis offers judges and jurists at large a tool to better recognise and challenge such discourses, fostering a reassessment of judicial narratives and promoting more balanced decisions.