By Dr. Niaz Murtaza
Liberal states aim to maximize personal freedom, restricting it only in cases where personal actions harm self or others. People are generally given greater license to harm themselves than others. In general, liberal states only restrict those actions which result in clear and immediate physical harm to self. So, suicide is banned. Persons who harm themselves physically repeatedly even without causing fatal injuries will likely be institutionalized. However, smoking, which causes clear but not immediate personal physical harm, is only banned in public places where it harms others. Liberal states generally deal with the lower level of self-harm caused by smoking not through bans but through awareness-raising among smokers. On the other hand, all actions that cause clear physical, economic and psychological harm to others or restrict their personal freedom, whether immediately or later, are banned. Let us view the burqa issue using this framework.
Clearly, forcing a woman to wear a burqa falls under the domain of cases where liberal states should intervene for such involuntary enforcement of burqa restricts the personal freedom of women. However, if a woman wears a burqa voluntarily, the state has weak justification to intervene based on the principle of protection from self-harm since there is no clear and immediate physical harm to self. This does not mean that the voluntary adornment of the burqa causes no harm to the woman. It very likely causes psychological and economic harm. However, the preferred way of dealing with this lower level of self-harm is awareness-raising rather than ban, as with smoking.
Some people on a related thread have given the analogy of slavery, arguing that voluntary burqa adornment is like voluntary slavery. However, this analogy is flawed for there can never be voluntary slavery. Slavery by definition is when people are forced to work against their will without monetary compensation. But if a person willingly works for someone else without monetary compensation, this will not be called slavery but in fact the highly positive and laudable act of volunteerism. Of course, slavery usually also involves physically harmful and/or demeaning work. So what if a person volunteers for another person where the work causes physical harm? Clearly, the state would then have the right to intervene based on the principle of protection from clear and immediate physical self-harm mentioned above. But then as also mentioned above, voluntary burqa adornment does not cause such harm.
Some may argue that voluntary burqa adornment does demean women. However, those women may argue that they feel less demeaned by wearing it. This is essentially a subjective debate and I think the views of the subject (the woman) must be given priority. However, one can essentially avoid the subjective element of the debate by focusing only on the objective side of it, which is: do liberal states intervene when people voluntarily participate in demeaning exercises? The answer is no, as evidenced by the fact that bondage and dominance parlors are legal in most liberal states as long as there is no physical harm involved. Begging is generally allowed so long as it does not aggressively intrude the privacy of others. Again, the usual way to deal with these lower levels of harm is awareness-raising under liberalism.
Others have argued that there cannot be any voluntary burqa adornment either for the volunteerism is based on years of childhood indoctrination. This may be true in many cases. It may also be true for other phenomena, e.g., the adoption of the gypsy way of life in Europe. If thought is not free, then actions emerging from it are also compromised. But are there any examples of where liberal states have overturned the decisions of adults based on this argument? Has the gypsy way of life been banned even though it clearly reduces the economic and political welfare of gypsies? No, the focus again is on awareness-raising rather than outright bans. The argument of indoctrination would be much stronger in totalitarian societies where there are no alternative sources of information. In france, where the dominant discourse is rightly anti-burqa, it is much more difficult to justify state action based on childhood indoctrination argument. It means that the state then starts playing God.
The only justification for state intervention in cases of voluntary adornment of the burqa then can be on the basis of likely physical or economic harm to others based on the argument that a person wearing a face cover is more difficult to identify and can therefore more easily commit crime. However, before such a law is adopted, it must satisfy two criteria. First, it must be non-discriminatory by banning all forms of face cover and not just some. The French law meets this criterion for it covers all forms of face covers and not just the burqa. Second, the law should preferably be based on solid empirical evidence that proves the links between face covers and increased crime. It is here that I feel that the French law is on weak grounds for, while there may be a lot of strong opinions, there does not seem to be any strong systematic study done by criminologists that proves the linkage between face covers and crime in recent years in France. Thus, the French govt would have done a much better job both on the fairness and public relations side if it had adopted the law by first collecting solid evidence and convincingly demonstrating the increased physical risk caused by face covers.
Others have supported this law by arguing that it helps in reducing public manifestations of religion in a secular society. However, if this is the intent, then again the law needs to be non-discriminatory. To do so, it must ban all religiously linked dresses in public, including sikh turbans, Christian priests frocks, the jewish cap etc. Not only that, it must also tear down all worshipping places that can be easily recognized as religious places (including mosques and ancient and grand Christian temples) and replace them with bland, boxy buildings that cannot be recognized as religious places from the outside. Clearly, this would be taking secularism to ridiculous heights for secularism means that the state should not get involved in religion and not that religion should not manifest itself at all in public.
Finally, others have argued that banning the burqa is about striking at the core of the extremist salafist ideology. If this is so, then again this law looks like a misplaced one for then the focus should be directly and immediately on the really extremist aspects of salafist beliefs, like a ban on speeches and materials that encourage violence or the subjugation of women rather than the much less harmful practice of voluntary burqa adornment. The focus should be on the roots rather than more benign symptoms.
Thus, the only argument that makes any sense to me is the one based on public safety and that too, as I said earlier, if it is backed by solid evidence. Finally, no discussion about the French law can be complete unless it is acknowledged that the French law pales into insignificance compared with the transgressions occurring in several Muslim countries on the rights of millions of minorities. Those transgressions must be condemned much much more.