THE FRANCE PROHIBITION OF THE BURKA’S USE FROM THE PERSPECTIVE OF FUNDAMENTAL HUMAN RIGHTS: PROTECTION OF HUMAN DIGNITY OR IMPOSITION OF A CULTURAL IMPERIALISM?

Abstract

This article aims to propose a new legal and philosophical approach of fundamental human rights, in order to develop a tool that allows the interpreter to objectively assess individual cases, to differentiate a cultural practice of a violation of human dignity. We propose to adopt an ethical concept of fundamental human rights, accommodating up to relativistic theories, which are opposed to universal respect for these rights, with universalist positions, which advocate the unconditional observance of these rights in all cultures. The composition between these two currents is possible, since we understand the fundamental human rights as a subspecies of the genus human rights, which is responsible for performing human dignity in its basic dimension, protecting individuals against any form of objectification or reduction of their status as subjects of rights. So, respecting the peculiarities of each moral culture, recognized as a peculiar form of human achievement, since it does not matter in reduction of the individual to a mere instrument or object. The study begins with analysis of the morphology of fundamental human rights and its relation to the basic dimension of human dignity, building up from this analysis, a new ethical concept of this category of rights. Finally, the situation of the controversial ban on wearing the veil in public places made by the French Government is used to demonstrate the ability of this definition for the solution of concrete cases.