ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

are at stake, administrative courts should depart from
their traditionally ‘marginal’ mode of review and opt for
stricter scrutiny. Based on the information provided to
the authorities, they may ‘re-do’ the decisions made.
The paper analyzes the tension between human rights
review and administrative discretion. It is argued that
stricter scrutiny is sometimes defendable, as long as it
has an individual focus and concerns truly fundamental
rights. Thus in times in which the scope of human rights
is understood very broadly not every individual interest
that is covered by these rights should trigger a more
activist judicial role.
Melina Girardi Fachin: The New International Public
Order And Human Rights: The Necessary
Dialogue In The Judicial Decision-Making Process
The new paradigm of public order arises from the
intersection of constitutional law and international human
rights law. It is with the impact of the international
law of human rights that this new theme arises in the
border of the until then consolidated spaces of international
and local jurisdictions, resizing its barriers.
Therefore, as a direct consequence of this movement,
stands up the duty to dialogue among the various
actors involved in the decision-making process of
human rights enforcement. The responsibility for human
rights calls this obligation up, since this matter is
no longer internal-only or international-only and has
effects globally. To think how to function this dialogue
is almost as important as the duty to dialogue itself.
With this, opens up new debates about the democratization
of the jurisdictions – internally and internationally
– consolidating the rule of law through the
pro persona principle with contemporary examples
of this interchange.
97 INCLUSION AND EXCLUSION UNDER
FRENCH REPUBLICANISM
This panel brings together scholars of French law and
politics whose research on nationality, race, secularism,
and gender equality looks at the contemporary
outcomes of mechanisms and policies that are
purportedly based on a “Republican tradition”. While
French republicanism is often presented as universal
and inclusionary, the papers presented challenge that
assumption from a variety of perspectives. Historically,
the principle of equality was always accommodated to
exclusionary regimes both in 1789 and in 1946 (Fondimare).
The avoidance of this fact can be related to
the profound ambivalence of contemporary projects
articulated around an ideal of color-blindness (Lepinard),
as well to the reluctance and timidity of contemporary
French legal actors vis-à-vis the concept
of gender stereotypes (Fercot): these appear as two
expressions of a difficulty for the republican project
to reflect on the structural dimension of hierarchies
and domination. Nationality and Citizenship are also
terrains on which the contribution of French republicanism
to the production and exclusion of an “Other”
is increasingly conspicuous. Contemporary shifts in
the legal scope and meaning of the principle of laicité
(Bourdier) are very congruent with current practices
of naturalization (Mazouz).
Participants Elsa Fondimare
Céline Fercot
Eléonore Lépinard
Sarah Mazouz
Elsa Bourdier
Name of Chair Stéphanie Hennette-Vauchez and
Mathias Möschel
Room BE2 326
Concurring panels 141
Elsa Fondimare: The legal principle of Equality
and the construction of French republican
universalism: between inclusion and exclusion
Contemporary legal (scholarly) and political (institutional)
discourses in France commonly associate
the principle of equality with republican universalism,
as a legal principle, “Equality” is presented as
a contemporary heritage of the French Revolution’s
ideals. However, it seems that this rhetoric is based
upon an ideal of equality that is misleading, because
the political projects of French Revolution and French
Republic never considered this principle only as a way
to include all people in the sphere of citizenship. As
it confronts contemporary French legal and political
thought in the field of equality with the ways in which it
was articulated in 1789 (elevation of the principle in the
Declaration of the Rights of Man and the Citizen), the
proposed paper examines how French conceptions
of equality and universalism have been historically