Human Rights and the Excess of Identity
| DOI | 10.1177/0964663917722598 |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| Author | Yussef Al Tamimi |
| Subject Matter | Articles |
Article
Human Rights and the
Excess of Identity:
A Legal and Theoretical
Inquiry into the Notion
of Identity in Strasbourg
Case Law
Yussef Al Tamimi
VU University Amsterdam, The Netherlands
Abstract
Identity is a central theme in contemporary politics, but legal academia lacks a rigorous
analysis of this concept. The aim of this article is twofold: (i) firstly, it aims to reveal
presumptions on identity in human rights law by mapping how the European Court of
Human Rights approaches identity and (ii) secondly, it seeks to analyse these pre-
sumptions using theoretical insights on identity. By merging legal and theoretical analysis,
this article contributes a reading of the Court’s case law which suggests that the tension
between the political and apolitical is visible as a common thread in the Court’s use of
identity. In case law concerning paternity, the Court appears to hold a specific view of
what is presented as an unquestionable part of identity. This ostensi bly pre-political
notion of identity becomes untenable in cases where the nature of an identity feature,
such as the headscarf, is contended or a minority has adopted a national identity that
conflicts with the majoritarian national identity. The Court’s approach to identity in such
cases reflects a paradox that is inherent to identity; identity is personal while simulta-
neously constituted and shaped by overarching power mechanisms.
Keywords
Bhabha, Derrida, European court of human rights, fatherhood, headscarf, identity
Corresponding author:
Yussef Al Tamimi, Researcher at Law Faculty, VU University Amsterdam, Boelelaan, Amsterdam 1081 HV,
The Netherlands.
Email: y.altamimi@vu.nl
Social & Legal Studies
2018, Vol. 27(3) 283–298
ªThe Author(s) 2017
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DOI: 10.1177/0964663917722598
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The insistence [in human rights law] that minorities should ‘preserve’ their cultural identity
rather than emerge as new formations of minoritization, or ‘partial cultural milieux’,
emphasizes the fact that minorities, amongst others, are regulated and administered into a
position of having an excess of ‘identity’, which can then be assimilated and regulated into
the state’s conception of ‘the common good’.
Homi Bhabha, On minorities
Introduction
The shift to the populist right in the United States and Europe has caused questions of
identity to dominate public debates. Unlike political, social and cultural studies, how-
ever, identity has had a relatively under-theorized role in law (Douzinas, 2002: 379). As
identity is politicized everywhere, it is imperative that human rights law, as a central
moral and political reference point, has a thorough understanding of identity. Not only do
human rights regulate how institutions engage with identity issues, they also shape
public attitudes toward these iss ues and are themselves a major referen ce point for
people’s identities.
This article seeks to address the role of identity in the case law of the European Court
of Human Rights (hereafter: Court). The focus on the Court is motivated by its rich set of
case law where identity often plays a role but which lacks a systematic approach to this
important notion. Thus, the aim of the article is twofold: (i) firstly, the article aims to
bring to light presumptions on identity in human rights law by mapping how the Eur-
opean Court of Human Rights (hereafter: Court) approaches identity and (ii) secondly, it
seeks to analyse this approach using theoretical insights on identity, drawing inspiration
from Jacques Derrida’s figure of diffe
´rance and Homi Bhabha’s postcolonial reading of
the Universal Declaration of Human Rights (UDHR).
The article continues as follows. The first section provides an overview of literature
on identity from critical legal scholarship. The second section gives an overview of the
Court’s use of identity in its case law. The third section zooms in on three cases in order
to relate the theoretical discussion from the first section to the Court’s use of identity. It
is argued that a tension between the political and the apolitical which is inherent to the
notion of identity is a common thread in the Court’s case law on identity. As such, the
Court tends to construct a notion of identity that abides by a state’s accepted norms and
assesses the applicant’s claim through that construct. Identity features that deviate from
the state’s conventional identity are considered excesses of identity, which have to be
accommodated into the state system. At times, this may obstruct the recognition of
certain identity features.
Law and Identity
Diffe
´rance and Excess
Identity refers to those attributes and qualities that enable us to recognize an individual or
collective from others. The cultural theorist Stuart Hall distinguished two ways of
284 Social & Legal Studies 27(3)
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