Ethicization of constitutional public order in the European multicultural State

Abstract

The concept of ‘public order’, despite being common to almost every European legal system, is extremely difficult to grasp, as it suffers from a high degree of indeterminateness that makes it impossible to develop a universal definition. In constitutional law, public order traditionally serves as a limit to fundamental rights. The article argues that globalization and the advent of the multicultural State kickstarted a deep transformation in the meaning and scope of constitutional public order, with a growing tendency among European legislators and judiciaries to define it by resorting to extralegal concepts such as majoritarian ‘values’ and ‘ways of life’ to justify the ban of ‘unwanted’ minoritarian cultural practices (cases analysed include: face-veil; burqini; kirpan; swimming lessons). The article argues that constitutional public order should be re-anchored to a strictly legal dimension, preventing it from drifting towards the moral sphere (ethicization), which would enable a revival of assimilationist integration models.