What Legal Identity for the "Open Society" in European Law?

The “open society”, as opposed to the “ethical State” model, is usually perceived as an empty  box where anyone is enabled to pursue his/her own identity and values, with no pressure  from a totalitarian government. Yet one could wonder whether, like the “ethical State” model, the “open society” reflects identity values, i.e. values whose breach would lead to a crisis of the “open society”. In other words, the issue arises as to whether, in legal terms, certain measures or restrictions may be justified as safeguards for the “open society” ─ “democratic society” in accordance with the common contemporary vocaboular ─, either in the short or even in the long run. Every time measures of this kind have been applied recently (i.e. the prohibition on burkini issued by some local governors in France in the aftermath of the Nice attacks in July 2016), they have polarized public opinion and proved extremely divisive. The paper builds on the alleged identity of those measures as protective of the “open society” and explores their compatibility with the constitutional principles of the European Union and with the ECHR. Should such a compatibility prove feasible, the legal milieu of the “open society” would not be merely that of an “empty box”. The cases on the prohibition of islamic scarfs at work pending before the Court of Justice of the European Union at the time of writing will be considered as case-studies.