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This article examines the legal characterization of the full-face veil worn by female users of Canadian government services. Considering how various Western states perceive full-face veils, we suggest that legally defining this piece of clothing as a “religious object” is key to guaranteeing freedom of conscience and religion by the courts. By drawing on constitutional law and legal theory, we examine the legal treatment of this religious object within the analytical framework of the Supreme Court of Canada in the NS case.
In the debate over the legitimacy of judicial review, Jürgen Habermas put forward two justifications for the role of constitutional judges within deliberative democracy. Judicial review must examine the procedural conditions of the legislative process and participate within a learning process that would ensure the continuous redefinition of the Constitution. This procedural concept of constitutional justice remains subject to the scrutiny of the other procedural theories. Whereas the theory of contextual proceduralization questions the concept of the legal judgment and more specifically the habermassian conception of the application of a legal norm, the systemic theory offers the conceptual framework required to explain this learning process and the function of judicial review in the legal system. Therefore, Habermas' procedural theory is extended in line with alternative theories of the proceduralization of law.
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