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While comparative constitutional law is a well-established field, less attention has been paid so far to the comparative dimension of constitutional history. The present volume, edited by Francesco Biagi, Justin O. Frosini and Jason Mazzone, aims to address this shortcoming by bringing focus to comparative constitutional history, which holds considerable promise for engaging and innovative work along several key avenues of inquiry. The essays contained in this volume focus on the origins and design of constitutional governments and the sources that have impacted the ways in which constitutional systems began and developed, the evolution of the principle of separation of powers among branches of government, as well as the origins, role and function of constitutional and supreme courts.

Contributors include: Mark Somos, Gohar Karapetian, Justin O. Frosini, Viktoriia Lapa, Miguel Manero de Lemos, Francesco Biagi, Ctherine Andrews, Gonçalo de Almeida Ribeiro, Mario Alberto Cajas-Sarria, and Fabian Duessel.
Author: Shreya Atrey

Abstract

This volume in the Brill Research Perspectives in Comparative Discrimination Law addresses intersectionality from the lens of comparative antidiscrimination law. The term ‘intersectionality’ was coined by Kimberlé Williams Crenshaw in 1989. As a field, intersectionality has a longer history, of nearly two hundred years. Meanwhile, comparative antidiscrimination law as a field may be just over a few decades old. Thus, intersectionality’s tryst with antidiscrimination law is a fairly recent one. Developed as a critique of antidiscrimination law, intersectionality has had a significant influence on it. Yet, intersectionality’s logic does not seem to have infiltrated the logic of antidiscrimination law completely. Comparative antidiscrimination law continues to develop with intersectionality in sight, but rarely, in step. On the occasion of the 30th anniversary of Crenshaw’s seminal article that coined the term in the context of antidiscrimination law, Shreya Atrey explores this irony. Her article provides a meta-narrative of the development of the two fields with the purpose of showing what appear to be orthogonal trajectories.

In: Brill Research Perspectives in Comparative Discrimination Law
Between Discrimination and Protection at the Legislative, Executive and Judicial Levels
State, Religion and Muslims: Between Discrimination and Protection at the Legislative, Executive and Judicial Levels brings together academics from different disciplines and offers an in-depth analysis of discrimination in specific areas of life which affects Muslims in Western countries. The volume undertakes a comprehensive examination of the discriminatory practices across 12 countries while situating them in their institutional frameworks.

Exploring critical aspects of discrimination against Muslims – in areas such as education, employment, exercise of religion, state relations with religious communities as well as hate crime and hate speech – the volume shows the prevalence of individual, structural and institutional discrimination against Muslims living in Western countries.

Contributors are: Amina Easat-Daas, Andrea Pin, Beesan Sarrouh, Camille Vallier, Dieter Schiendlauer, Eva Brems, Ineke van der Valk, Ksenija Šabec, Maja Pucelj, Mario Peucker, Mosa Sayed, Nesa Zimmermann, Niels Valdemar Vinding and Safa ben Saad.

Abstract

This chapter discusses anti-Muslim discrimination in a legal sense and anti-Muslim discourse or agitation with the aim of discovering the roots for some of these actions. It illustrates a high level of discrimination against Muslim in Austria -in a rule-of-law-state with a rather comprehensive anti-discrimination legislation and a historically relaxed relationship with the organised Muslim faith-. The chapter demonstrates how Muslim in Austria struggling and oscillating between acceptance and efforts of non-discrimination on the one side and rejection and even hostility on the other.

In: State, Religion and Muslims
Author: Eva Brems

Abstract

The chapter discusses discrimination against Muslims in Belgium. First it sketches the background of the situation of Muslims in Belgium, including demographics, structure of government, state-religion relations and the status of Islam. This is followed by an analysis of discrimination at the Legislative, Executive and Judicial levels. The latter is subdivided in 5 sections, respectively addressing education, employment, the exercise of religion, state relations with religious communities, and hate crime and hate speech.

As an officially recognized religion, Islam enjoys significant benefits, the most notable of which are state subventions and the teaching of Islam in public primary and secondary schools. Yet at the same time, Belgium has extensive restrictions on Muslim religious practice, in particular women’s religious dress, and un-stunned religious slaughter.

Finally, there is the fact that Belgium is among the worst performers in Europe when it comes to education and employment of persons with a migration background, the group to which most Muslims in Belgium belong. This is a matter of structural discrimination, in the sense of lack of equal opportunities, that affects Muslims on account of a multiplicity of factors including class, ethnicity and religion.

In: State, Religion and Muslims
Author: Mario Peucker

Abstract

After decades of political denial, Germany has come to recognise the fact that its society has become culturally, linguistically, ethnically and religiously diverse. Policymakers have started to respond to these social changes, but what remains lacking is a positive, coherent vision of how to manage ethno-religious diversity within the country’s prevalent integration paradigm and human rights based constitutional setting. The assimilationist nature of Germany’s governance of ethno-religious diversity is particularly salient in its response to the presence and claims-making of Muslim communities.

German legislature has remained reluctant to address the manifold barriers Muslims face with regard to their educational opportunities, employment and, most significantly, the practice of their faith – despite the constitutional protection of “freedom of faith” and the “undisturbed practice of religion”. In addition, Muslim communities continue to face major roadblocks in their struggle for institutional recognition.

Political passivity in conjunction with assimilationist interventions and restrictive administrative practices have often led to a situation where it has been up to the judiciary to balance constitutional principles with and political limitations of Muslims’ practice of their faith. As a result, and given Germany’s strong federal structures, the current legal and administrative landscape is highly inconsistent and varies considerably across the country.

In: State, Religion and Muslims

Abstract

The chapter discusses the situation related to discrimination and antidiscrimination of Muslims in the country. An overview is given of national and international anti-discrimination provisions guiding laws, policies, judicial decisions and practices in the Netherlands to combat discrimination. Focus of attention are the fields of employment, education, exercise of religion, state relations with Muslim communities and hate crime and hate speech.

Consecutive Dutch governments have gradually developed a detailed system of legislation, policies and related infrastructure in this area over the past fifty years. Both the Constitution, criminal law and administrative law contain instruments for combating discrimination. Instruments for self-regulation by sectors of industry and trade associations have also been devised. However many factors make the implementation of antidiscrimination legislation a complex issue. Therefor policies are devised for fine tuning dimensions of antidiscrimination that cannot be regulated by legislation alone. Moreover, there are formal shortcomings and complications when it comes to implementing the law. The author recommends that antidiscrimination policies and the protection of human rights should not only be a subject of specific legislation and policies but they should have a more prominent role in all areas of government policies.

In: State, Religion and Muslims

Abstract

This chapter investigates the question of discrimination of Muslims in the Danish context. This is considered across the branches of government, looking at political discourse and legislation, at ministerial administration and at the judiciary and quasi-judicial rulings. While both freedom of speech and freedom of religion are constitutionally guaranteed, and non-discrimination is protected across the branches of government, the current state of discourse on Muslims has the adverse effect of legitimising, condoning or even promoting discrimination of Muslims in Denmark. Analysing concrete cases across five major themes in discrimination against Muslims, the chapter finds a worrying tendency to explicitly legitimize and even normalize discrimination. National and international reports, studies and other sources all point to the particularly harsh and alienating discourse and debate on Muslims. Not only is discrimination against Muslims a challenge across all three branches of Danish government, but the perception of discrimination is particularly pertinent and little seems to be done by government to limit this. There is a political readiness and willingness to discriminate and to violate some of the foundational principles of both the constitution and Denmark’s international commitments, and government misses a number of important opportunities to right divisive wrongs in Danish society.

In: State, Religion and Muslims
Author: Andrea Pin

Abstract

This Chapter reflects on the current treatment of Islam and on discriminatory practices that target Muslims in Italy. It focuses on the presence of Islam in the country, on its social perception and on its legal regime, and it contrasts the treatment of Islam with how the State and society have interacted with other religious denominations. It traces the birth and the development of the Muslim community in Italy, provides the constitutional framework within which Islam finds its place, and breaks down the policies of religious freedom for Muslims.

In: State, Religion and Muslims
In: State, Religion and Muslims