Veil: Mirror of Identity

The Islamic headscarf has become the subject of heated legal and political debate. France and Germany have legislated against it, and even the UK, long a champion of multiculturalism, has recently restricted the veil proper. Ever since home-grown Islamic terrorism struck Europe, these debates have become even more prominent, impassioned and wide-ranging, with vital global importance. In this concise and beautifully written introduction to the politics of the veil in modern societies, Christian Joppke examines why a piece of clothing could have led to such controversy. He dissects the multiple meanings of the Islamic headscarf, and explores its links with the global rise of Islam, Muslim integration, and the retreat from multiculturalism. He argues that the headscarf functions as a mirror of identity, but one in which national and liberal identities overlap, exposing the paradox that while it may be an affront to liberal values, its suppression is equally illiberal.

Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.