The Legal Concept of Cultural Conflict and its Application in International and National Jurisprudence

Abstract

Cultural conflicts are a current problem the relevance of which will increase as the proportion of migrants from different cultures will increase as well. The legal concept of cultural conflict is determined by the interpretation and application of fundamental rights and freedoms. The key aspect of a legal notion of cultural conflict is the link between the cultural diversity argument on the one hand and concrete legal claims on the other. Cultural and religious diversity collides with such legal and cultural norms which are considered indispensable by the majority society. Such norms, especially in the field of fundamental rights, are conceived as part of the international ordre public. Many cultural conflicts have found an expression in legal disputes before courts. Different cultural standards have been a legal argument in relation to state power, especially in the context of non-discrimination, but also with respect to positive state obligations. Further, there have been a number of cases in which cultural differences influenced the relationship between private individuals. Court practice in Europe, however, has shown that the approach to concrete cases of cultural diversity is quite often inconsistent. In the European migration area the question is becoming more relevant whether besides general human rights principles also concrete issues, such as the wearing of the Islamic scarf in public institutions and private enterprises, should be regulated on the European level rather than on the level of individual states.