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Political Philosophy

Should a Liberal State Ban the Burqa?

Brandon Robshaw wonders what the attitude of liberal states should be towards face coverings for women.

Some years ago I was teaching a Philosophy A-level class at a Sixth Form college [16-18-year-olds, for all the non-Brits, Ed], when a student entered in a long black robe with her face hidden behind a niqab, leaving only a narrow aperture for her eyes to peep through. I was taken aback. This student, it seemed to me, simply wasn’t playing by the rules. If any other student had appeared with their face covered – say by a scarf or balaclava – I would have asked them to remove it.

And yet… the niqab is a religious garment, and one feels a certain sensitivity about interfering with religious obligations. As it happened, we were beginning that term with a module on the value of tolerance, and here was a golden opportunity to practise what I preached. John Stuart Mill’s famous ‘Harm Principle’ (the idea that the only justification for restricting other people’s freedom is to prevent them doing harm to others) appeared to apply. The student wasn’t harming anyone in any way that I could see. So I said nothing, and the lesson proceeded.

And yet. Thinking it over afterwards, it seemed that there were the makings of a problem here. The student’s choice to cover her face made communication difficult (unsurprisingly, since that is what burqas and niqabs are for). In a philosophy discussion, facial expressions are important. As a teacher you can see the perplexed frown, the dawning of comprehension, the half-formed objection visible in the face. (Bertrand Russell famously said that when he was lecturing at Cambridge he knew that the young Wittgenstein was the only student who understood him since he was the only one who looked puzzled.) These visual clues were rendered impossible by the niqab – and this affected not just me but the other students too.

I asked the college management if we had a rule about face-covering in class. We didn’t, I was told; and we weren’t going to have one either. It was a diversity issue. The college didn’t want to discriminate against any cultural or religious groups. I could see the force of that. And with only a single student with an invisible face, the whole class wasn’t going to be derailed. And yet… what if not just one, but six or eight or twelve students turned up with their faces covered? Communication difficulties would multiply to the extent that whole-class discussions and groupwork would become near-impossible; and there would be problems of identification, too.

It was about this time (2010) that the Sarkozy government in France passed the law banning the wearing of burqas and niqabs in public places. This seemed to me a step too far. In certain situations where communication, identification, or security are at issue, it might be legitimate to require the temporary removal of face-coverings – but a blanket ban, in which people couldn’t even walk down the street, wait for a bus, or pop out to the shops in a burqa? Neither the laissez-faire approach of my college nor the laissez-pas-faire crackdown of the French government seemed to get it quite right.

So I decided to study the question for myself. I enrolled for a PhD with the thesis title ‘Should A Liberal State Ban The Burqa?’ I want to share some of my research and conclusions with you. What follows is necessarily a brief overview. There isn’t space to discuss such issues as the value of personal autonomy, adaptive preferences, or competing theories of multiculturalism. But in broad outline this will be true to the position I arrived at. I’ll use burqa as a generic term to include both the burqa proper - an enveloping one-piece garment worn by Muslim women (more accurately, Wahhabist women) which covers the face, and which in some versions covers the eyes with gauze - and the niqab - a face veil which leaves a slit for the eyes and is usually worn with a headscarf and a long robe. Both garments are worn primarily for religious reasons, although they may also be worn for cultural or political reasons. Both come under my remit as both conceal the face. Garments which cover only the hair, such as the hijab, are not relevant to my question, and indeed, don’t seem to me problematic in any way.

What Is A Liberal State?

‘Liberal’ is an equivocal term in political philosophy. One can be a classical liberal, a political liberal, an egalitarian liberal, a perfectionist liberal… I’ll use the word in a broad sense which would encompass all the competing conceptions. So, briefly, a liberal state is one in which all citizens are free and equal in terms of rights, and freedom is as wide as it can be, consistent with not infringing the freedoms of others.

The burqa poses a dilemma for liberalism which it does not pose for other political positions. ‘Should a theocratic state ban the burqa?’, for example, is not an interesting question, as the answer simply depends on what kind of theocracy. If it is an Islamic, Salafist theocracy, then of course not. If it is a fundamentalist Christian or Hindu theocracy, then of course. Similarily, for ‘Should a (non-Islamic) conservative state ban the burqa?’, the answer would likely be yes, on the grounds that burqa-wearing would not be in line with the culture, history, and traditions of such a nation, and conservatives by definition value and defend their culture, history, and traditions. Whether a Marxist (or self-styled Marxist) state should ban the burqa is more of a moot point. Marxist ideology does not entail a specific commitment to religious tolerance, and the burqa does not appear to advance the cause of the class struggle or of economic equality, so there is no principled reason why it should not ban it. Probably whether a Marxist state banned it or not would depend on expediency rather than principle. In most cases, then, simply naming the type of state gives a strong clue to the line that state would take on the burqa.

But for a liberal state the issue is less clear-cut. The burqa is a religious symbol, and is perceived by many if not most of those who wear it as a religious obligation. Liberalism entails a strong commitment to religious tolerance: that’s where the whole tradition of western liberalism began. Religious freedom is a cornerstone of liberal rights, and liberals are bound to take seriously any threat to it. On the other hand, liberalism also entails a commitment to equality, including gender equality. The fact that the burqa is worn only by women and could impose disadvantages on the wearer, looks like a cause for liberal concern. There is also the issue of the impact that covering one’s face in public may have on other members of society. The issue thus highlights a tension between important liberal principles.

Taking The Agenda Out Of It

I quickly found that much of the material written on this question was journalism at a polemical level, more concerned with calling out the presumed agenda of the opposing side than considering their arguments in good faith.

This seems to me an ineffective and deeply unphilosophical way to proceed. If someone offers arguments why the burqa should be banned, you can call them an Islamophobe if you like – you might even be right – but you haven’t engaged with their arguments. Even if the arguments are advanced without sincerity, they still need to be judged on their merits. Someone else who decidedly wasn’t an Islamophobe could come along and advance the same arguments, and then what could you say?

The French ban followed a specially-commissioned 650-page report, including interviews with philosophers, lawyers, anthropologists, sociologists, Islamic scholars, and representatives of feminist groups. The report was full of arguments, ideas, evidence, provisos, outlines of positions, and critiques of those positions. As it happens, I think its conclusion in favour of a general ban was mistaken. But to dismiss it as mere anti-Muslim prejudice is intellectually lazy. Equally, to assume that to oppose a ban is ‘pro-Muslim’ – ignoring the fact that Muslims themselves have differing views on the question – is also avoiding discussing the actual reasons why a ban might or might not be justified. For my PhD I decided, therefore, to consider the question at an abstract or de-politicised level and not try to second-guess the hidden agenda behind any particular view. As T.S. Eliot said, it is always possible to do the right deed for the wrong reasons: but that does not entail that there are no right reasons. Throughout my research I took the line that arguments were to be received, debated, and evaluated in good faith.

The Prima Facie Liberal Position On Face Covering

Suppose we suspend thinking of burqa-wearing as a religious or cultural practice, and treat it simply as voluntary habitual public face-covering. Obviously liberals would be against coerced face-covering: that would be an infringement of personal liberty. But voluntary face-covering is an expression of personal liberty. Is there any reason why a liberal state should ban voluntary habitual public face-covering?

Such a practice would occasionally cause difficulties, in situations where communication, security, or identification were paramount – such as in law courts, classrooms, airports, driving tests, or public examinations. In some of these cases alternative arrangements could be made to facilitate communication or identification. Where that is not possible, mandatory temporary removal of the face covering would seem a neater, more precise, better targeted solution than a blanket ban. The prima facie liberal position on voluntary habitual face-covering, then, would generally be to allow it, with exceptions for specific circumstances. One does not need to invoke arguments about religious tolerance or multicultural recognition to understand this position. Indeed, the question is whether adding in the specifics – namely, the fact that burqa-wearing is a religious/cultural practice, practised only by women, never by men – should make any difference to that basic position.

Three Reasons For A Ban

An alternative mode of disagreement.
Protest against ’Say no to burqas’ © Newtown grafitti. CC-by-2.0

The French government offered three reasons for their ban: respecting human dignity, furthering gender equality, and fulfilling the requirement of living together (vivre ensemble). These reasons broadly correspond to the French revolutionary principles of Liberty, Equality, and Fraternity.

In 2014 the French ban was contested by a French citizen known only as ‘S.A.S.’. The case went to the European Court of Human Rights (ECHR). By fifteen votes to two, the court upheld the ban as legal. Not for all three reasons, however. In fact only one of the reasons carried the day. The court found in favour of the French state because the ban was motivated by the requirement of vivre ensemble, which is linked to the legitimate aim of ‘the protection of rights and freedoms of others’. But the other stated aims, of furthering gender equality and respecting women’s dignity, were not accepted as justifications for the ban. Let’s look at these three reasons briefly.

Human Dignity

The human dignity argument proceeds from the assumption that it is demeaning to cover one’s face: it renders one invisible, marginalised, unable to participate as an equal in social interactions, and debarred from any form of public career. Perhaps this is true, or partly true, or sometimes true. But what if an individual chooses to be invisible and marginalised, as far as the public or social sphere is concerned? We might note that monks and nuns who join enclosed orders also thereby retreat from public life, and nobody is suggesting that they should not be allowed to do so.

The whole point about liberal states is that they are pluralist. It is not for the liberal state to lay down which kind of lifestyles are compatible with dignity and which are not. That would be unacceptably paternalistic, and, indeed, illiberal.

Gender Equality

The argument from gender equality seems to me more potent. Political equality of citizens regardless of gender is a fundamental liberal principle. And there is no doubt that habitual public face-covering does disadvantage the individual in a variety of ways. But – as the ECHR pointed out – as long as the practice is voluntary, freely adopted, and defended by the women concerned, then the state has no right to ban it. To do so would ride roughshod over the very rights and freedoms it is duty-bound to protect.

Liberals do of course believe in gender equality, and wish to enable, promote and safeguard it. This entails a commitment to preventing unfair discrimination against women, providing legal protection against coercive behaviour towards them by men (or other women), and ensuring that women are well-informed about their rights. But liberals also do not believe that equal outcomes are to be imposed. If a woman freely chooses to occupy the domestic sphere almost exclusively, or to be deferent and obedient to her husband, then that is no concern of the liberal state.

Vivre Ensemble

The vivre ensemble defence is qualitatively different from the other two reasons as it focuses not on the effects on the wearer, but its effects on others. And it was for this reason that the ban was accepted by the ECHR. In its ruling it said:

“The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”

This view is in line with the French republican tradition, which stresses the duties of citizens to the state.

A more liberal view, with greater emphasis on the freedom of the individual, would note first that many things are needed for people to live together – to form interpersonal relationships, and for strangers to meet in the public sphere and perform transactions together with ease and trust: politeness, smiles, good manners, handshakes, expressions of thanks, a degree of concealment of true feelings, a common language, and so on – but these requirements would lose much of their value if legally enforced. Since liberals generally highly value personal autonomy, they would to that degree incline to the view that it is up to the individual how open they are to others in the public sphere: individuals must be legally allowed to be shy, private, uncommunicative, even rude and misanthropic in their daily dealings with others (to a certain extent at least); or indeed, to reject society altogether for the life of a hermit.

The Problem Of Coercion

So far we’ve assumed that burqa-wearing is voluntary. The picture would be different if burqa-wearing is to a significant degree coerced. Then the liberal state would have a duty to intervene, since forcing somebody to cover her face against her will would be a serious infringement of her liberty, and indeed, a serious harm to her.

Of course, we cannot really tell to what extent such coercion is occurring. Perhaps it isn’t at all. But if there were good reason to think it were occurring, the liberal state ought to do something. But what? A general ban on burqa-wearing could lead to undesired consequences, leaving the coerced women worse off. Suppose for instance a woman is oppressed by her husband and/or male relatives to the extent that they refuse to let her out in public if her face is uncovered. In that case if face-covering is banned she finds herself under effective house arrest: she is then more oppressed than before. A softer or more tactical approach than an outright ban would possibly prove more efficacious in ending coerced burqa-wearing, and more liberating to the women involved. I am reminded here of Aesop’s fable about the sun and the wind arguing about who is the more powerful. To put the matter to the test, they decide to see who can force a traveller to remove his cloak. The wind tries first, and furiously buffets the man about, trying to rip the cloak off him; but the man simply clutches it tighter to his body. Then it’s the sun’s turn. The sun beams down, warming the man until he voluntarily takes off his cloak.

The analogy is not exact. In cases of coercion it is not the women themselves who can choose to remove their burqa, but their husbands or male relatives who must permit them to do so. Nevertheless, the gentle sun of tolerance might be the most effective way of getting those men to relent. At the same time the liberal state could require removal of the burqa when the situation demanded – in schools, airports, banks, law courts, etc. In this way the burqa might come to be seen as a garment one slips on and off rather than a permanent barrier between the wearer and the world; and the task of dissuading men from forcing their wives or daughters to wear one might become easier, as the stakes would be less high. Such an approach would not create problems where none need exist. And it could help in dealing with the problem of invisible students.

Brandon Robshaw lectures in Philosophy for the Open University. His book, Should a Liberal State Ban the Burqa? will be published by Bloomsbury in May 2020. He is also the author of a philosophical YA novel, The Infinite Powers of Adam Gowers.