Should a Liberal State Ban the Burqa?

Reconciling Liberalism, Multiculturalism and European Politics

Brandon Robshaw

• Publisher: Bloomsbury Academic
• Year: 2020
• ISBN:
  9781350125070
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

Debates about whether the Wahhabist practice of face-veiling for women should be banned in modern liberal states tend to generate more heat than light. This book brings clarity to what can be a confusing subject by disentangling the different strands of the problem and breaking through the accusations of misogyny and Islamophobia. Explaining and expounding the ideas of giants of the liberal tradition including Locke, Mill, and Rawls as well as contemporary thinkers like Nussbaum, Kymlicka and Oshana, the book considers a variety of conceptions of liberalism and how they affect the response to the question. Directly addressing issues facing many of today's societies, it unpicks whether paternalism on grounds of welfare can be justified within liberalism, the value of personal autonomy and the problem of whether a socially influenced choice counts as a genuine preference. Covering the role of multiculturalism, gender issues and feminism, this comprehensive philosophical study of a major political question gets to the heart of whether a ban could be justified in principle, and also questions whether any such ban could prove efficacious in achieving its end.

1

Introduction

1.1 Preliminary remarks

This book explores the question of whether a liberal state should – for liberal reasons – ban the wearing of the burqa in public. The problem is that liberalism appears to pull in two opposed directions on this question.

On the one hand, liberals strongly support religious tolerance, and the burqa is seen by many, including most of those who wear it, as a religious commitment. Or if it is not a religious commitment it may be a cultural commitment, a symbol of membership and of pride in one’s culture, and liberals tend to be in favour of protecting cultural resources. And even if it is neither a religious nor a cultural commitment it may still be a personal choice, and liberals strongly support enabling personal choice.

On the other hand, covering one’s face in public has effects on others, which need to be considered. Moreover, liberals are committed to supporting equal rights and freedoms for both sexes, and the gender asymmetry of the burqa (women wear it, men do not) combined with the fact that habitually covering one’s face in public is liable to cause disadvantages in personal, social and professional life look like plausible reasons for being wary of it. A further consideration is that liberals value personal autonomy, which may be compromised if the burqa is worn in response to cultural pressure. The issue thus exposes a tension within liberalism.

A central element of my approach is the disentangling of a number of connected but separate strands of the problem. Thus I consider: different conceptions of liberalism and how they affect the response to the question; whether paternalism on grounds of welfare can be justified within liberalism and, if so, whether it would justify intervention in the specific case of the burqa; the value of personal autonomy within liberalism and whether a concern to safeguard or promote it could justify a burqa ban; the problem of adaptive preference and whether a socially influenced choice counts as a genuine preference; the role of multiculturalism in liberalism and to what extent it could justify exemptions; whether religion should carry greater weight than other ideologies or commitments when it comes to granting exemptions; gender issues and feminism; the problem of coerced wearing of the burqa; and the problem of how likely it would be that a ban, even if justified in principle, would prove efficacious in achieving its end.

The conclusion, which I am happy to disclose at this early stage, is that banning the burqa in a liberal state is unlikely to be justified. It could not be justified in terms of the welfare or autonomy of the individual who voluntarily wears it. It could only be justified on the grounds of harm to others. A ban might, for example, theoretically be justified if coerced wearing of the burqa were widespread. Such a ban would be regrettable, however, as it would override the free choice of those who wore it voluntarily. It would first be necessary to provide empirical evidence that such coercion was occurring; and any such ban could only be justified if there were no other, equally efficacious and better targeted means of preventing coercion.

My aim is to bring some clarity to this often heated and confused debate, and to supply clear liberal principles on which to base any decision. One thing to make clear from the outset is that I do not intend to spend any time, energy or words in second-guessing and critiquing the agenda of those who argue either for or against a ban. This question has bedevilled discussion on the topic at both a journalistic and a scholarly level. For example, the French sociologist Pierre Bourdieu has written: ‘The apparent question, whether or not to accept the wearing of the so-called Islamic veil in schools, hides the latent question, whether or not to accept in France immigrants of North African origin’ (Bourdieu cited in Gordon 2008: 42). Admittedly, Bourdieu is talking about headscarves rather than burqa or niqab here. But the tactic of calling out the latent or hidden agenda behind arguments actually advanced is all too familiar. In my view such an approach is both unphilosophical and ineffective. For even if the imputed agenda were correct (and there is no reason to suppose that everyone who opposes habitual face-covering in public has the same agenda), the arguments against the hidden agenda would be different from the arguments against the ostensible agenda. One could not counter the arguments of the latter by overturning the arguments of the former. Moreover, the accusation of bad faith carried by the ‘Hidden-Agenda-Call-Out’ has the effect of making the debate unnecessarily personal and ill-tempered. Throughout this book, therefore, I take the line that arguments are to be received, debated and evaluated in good faith.

1.2 Defining terms

1.2.1 What is a burqa?

Let me begin by clarifying the terms of the question. I use burqa throughout as a generic term for any garment worn by Muslim women – more accurately, Wahhabist women – which covers the face, primarily for religious reasons (because it is regarded either as a religious obligation or as a conscious demonstration of piety), although it may also be worn for cultural or political reasons. The niqab, therefore, also comes under my remit. There are differences between the burqa and the niqab, indeed: the burqa is a more enveloping one-piece garment, which in some versions also covers the eyes with gauze that can be seen through from the inside but not the outside. The niqab is a face veil which leaves a slit for the eyes; it is usually worn with a headscarf and long robe. Both types of garments, however, cover women’s faces. That is the key point. Garments which cover only the hair, such as the hijab, are not relevant to my argument. They do not raise the issues that face-covering raises and as far as I can see, they are, from a liberal perspective, no more problematic than a hat. There may be other names for garments worn by women in different parts of the Islamic world. If they cover the face, then my arguments apply to them; if not, not.

1.2.2 What is a liberal state?

There are many conceptions of liberalism. My argument, however, is not tied to any particular conception. I explore different conceptions of liberalism in Chapter 4 in some detail, but here I need only state that the overall argument employs a broad concept of liberalism, which encompasses competing conceptions. I adopt the following definition of the minimal requirements of liberalism from Jonathan Quong, which all liberals, of whatever stripe, would accept:

a) Persons are free and equal, at least from the political point of view. Persons are free in the sense of being rational agents, capable of practical reasoning, with plans and projects for their own life, and with the capacity to understand and respond to moral reasons. Persons are equal in the sense that each person has the same fundamental moral status: there are no natural superiors or inferiors among us.

b) All sane adults have certain basic rights and liberties which include at least some form of freedom of thought and conscience, freedom of expression and association, rights to democratic participation and other political rights that are essential or important for a functioning democracy, a right to bodily integrity and freedom from assault, a right to private property (however property is justly distributed), as well as equal rights under the rule of law.

c) The protection of these rights and liberties should be one of the main functions of any legitimate state.

d) Even if these rights are viewed as defeasible, they have a certain priority in our political reasoning, and are not easily defeated by conflicting considerations.

(Quong 2011: 14–15)

1.3 Why focus on a liberal state?

There are two reasons why the issue of the burqa is of especial relevance and interest to liberal states. One is a contingent reason, tied to a specific place and time. The other is a more general and timeless reason.

The contingent reason is that it happens to be a fact, in the early years of the twenty-first century, that burqa-wearing is on the rise in Western liberal states. This is a recent phenomenon and it raises questions about secularism, security, transparency, communication, multiculturalism and feminism, which liberal states must address. Some liberal states have already addressed these questions by banning the wearing of the burqa in public: France in 2010, Belgium in 2011, Bulgaria in 2016 and Denmark in 2018. In 2015, the Netherlands put into law a partial ban, whereby face-covering is not permitted in public buildings or on public transport, but is still permitted on the street (Agerholm 2016). These are all liberal democracies, which have advanced liberal reasons for their bans or restrictions on burqa-wearing.

Other European liberal states, however, have so far not followed suit, and some liberals have critiqued the bans for restricting those personal rights and liberties which liberalism ought to protect (Nussbaum 2012). Yet even in those liberal states where it is not banned, burqa-wearing causes frequent controversy and has been the subject of numerous court cases and tribunals. For example, in 2006 a British Muslim woman, Ms Azmi, who was suspended from her post as a primary school teacher, took the school to an appeals tribunal alleging unfair discrimination. The tribunal found in favour of the school, although Ms Azmi was awarded compensation for the way the dispute was handled (Wainwright 2006). In 2010, Judge Shauna Dean in a court in Perth, Australia, ruled that a witness, ‘Tasneem’, must remove her niqab to give evidence in a fraud trial, despite her protests and representations from the prosecution team who called her as a witness (The Times, 2010). In 2013, Whipps Cross Hospital in East London ruled that all employees must remove face-coverings when treating patients; the imam of a local mosque spoke out against the decision (Burr 2013). The issue, then, is a live one for liberal states.

The more general reason is that the burqa issue 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. The answer simply depends on the 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. ‘Should a (Christian) conservative state ban the burqa?’ The likely answer would 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 any 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 ...

Table of contents

• Cover
• Half-title Page
• Also available from Bloomsbury
• Title Page
• Contents
• 1 Introduction
• 2 Reflections on the French ban
• 3 The liberal position on habitual public face-covering per se
• 4 What kind of liberalism?
• 5 Paternalism considered
• 6 Personal autonomy and the burqa
• 7 Adaptive preferences and the burqa
• 8 The burqa and multicultural theory
• 9 Gender and the burqa
• 10 The effect of the burqa on others: Offence
• 11 The effect of the burqa on others: Harm
• 12 Conclusion
• Bibliography
• Index
• Copyright Page