Photo by 🌸🙌 فی عین الله
The question of the Islamic burqa has tortured liberal societies in recent years. Are the burqa, niqab and other religious face-coverings—I’ll use burqa to mean all such garments—merely innocuous expressions of culture? Or is the burqa an oppressive sack of cloth, which represents the subjugation of women by male-supremacist theology?
I believe it is the latter. The burqa is violently enforced in theocratic societies, as a tool to enslave women both ideologically and practically. I agree with Richard Dawkins, who has said that a burqa-clad woman is “one of the unhappiest spectacles to be seen on our streets today” and with Ayaan Hirsi Ali, who has compared the wearing of the burqa to the sporting of a Nazi swastika, in its public endorsement of a vile ideology.
But that does not mean that we should ban the burqa. I may not like it very much; I may argue against it as a symbol and as a practice, I may even mock it—and my right to do so should never be infringed—but none of that justifies its prohibition in a liberal state. I would never cite my own opinions or feelings as reason to legislate against others’ views or practices.
This is the question that Brandon Robshaw’s book Should a Liberal State Ban the Burqa? tackles. Robshaw notes that burqa-wearing poses a unique challenge to the liberal state. A theocracy has an easy answer to this question: enforcement or banning, depending usually on the state religion, but a liberal polity is forced to wrestle with the tensions in liberal theory exposed by the practice. Is it freedom of religion? Or oppression and denial of individual rights? Or both? And, if both, which should be prioritised?
Robshaw takes on the problem of particularism versus universalism, addressing the objection that, since modern liberalism is a phenomenon with roots in western European culture, westerners should not apply it to non-western practices. Robshaw argues that, “particular origins do not preclude universal application. As Chambers says, ‘Liberalism is particular in origin and universal in application.’” One essential aspect of liberalism is that its adherents view its ideals as good for everyone, everywhere. Cultural relativism is therefore dismissed early on in Robshaw’s examination.
Robshaw takes us through various aspects of liberal theory to build his case. His argument is comprehensive, sometimes wearyingly so, as he himself admits: “As I have argued (perhaps over-exhaustively).”
Though Robshaw’s clarity and impressively sustained arguments save the book, the repetition of unwieldy phrases like “voluntary habitual face-covering per se” sometimes got on my nerves and the continual reemphasis of certain points was unnecessary. Some parts of the book could have been cut entirely, without affecting the main argument—for example, the chapter on Joel Feinberg’s offence principle. In trying to be comprehensive, Robshaw is at times overzealous. Nonetheless, the author’s profound knowledge of liberal theory, and serious engagement with a huge range of liberal perspectives, is to be valued. The book engages with a diverse array of liberal thinkers: from John Rawls and Martha Nussbaum to Joseph Raz and Clare Chambers.
Robshaw builds up a useful framework, applying, refuting and modifying ideas as he goes along. The main conceptual tool he employs is to formulate a “baseline position” on “voluntary habitual face-covering per se,” shorn of cultural, religious and other concerns, to ascertain the ideal abstract liberal position on public face-covering. He concludes that there is no justification for a ban, on the basis that covering one’s face doesn’t harm or offend others enough to warrant such a ban, and temporary removal of the covering for security and identification purposes can be required at banks, airports and suchlike. This baseline is then put through the wringer of several liberal theoretical frameworks, considering real-world factors, such as the gender asymmetry involved and the importance of multiculturalism. He concludes:
A liberal state should not ban the burqa (though temporary removal may legitimately be required in certain institutional contexts, where security, identification or communication are at issue, and there is no alternative method of ensuring security, identification or communication that is a) equally effective and b) does not impose an unreasonable burden on the institution); with two provisos, viz. 1) unless burqa-wearing is shown to cause an unacceptable rise in masked crime or terrorism which could be countered in no other way; and 2) unless a significant number of women turn out to be wearing the burqa under coercion, and there is no equally efficacious method, other than a general ban, of preventing the coercion.
Robshaw mostly concerns himself with voluntary burqa-wearing and argues that a ban is not justified. His last proviso above, however, suggests that a ban might be justified if we knew there was widespread coercion to don the veil. He says that we have little empirical evidence on this and that even, if it were true, other, milder approaches could be devised—and a ban could backfire, either by encouraging resistance or by causing male coercers to keep women at home, thereby restricting their freedom of movement.
Before I read this book, I believed that a ban was justified, for the reasons given by Maryam Namazie and Taslima Nasrin. Now I am less confident in that view because of Robshaw’s nuanced liberal arguments. The trade-off between violating personal liberty and protecting women is less clear cut than I realised—at least, in cases of voluntary burqa-wearing. As Robshaw argues, if a woman uses her “second-order autonomy” to choose oppressive practices, is it inconsistent to ban the burqa if we don’t also ban women from entering strict religious orders by choice?
However, I still think there are factors that militate against Robshaw’s position. Even though we don’t have empirical data on the extent to which burqa-wearers are coerced—something that social scientists ought to rectify as soon as possible—it is reasonable to assume that coercion is the dominant factor in the wearing of the burqa. Personal testimonies from burqa-wearers who have been coerced are abundant and the burqa is designed as a tool of oppression. Robshaw argues for the validity of a limited form of liberal paternalism—perhaps the nature of the burqa, as a tool of sexual oppression, and the extent to which it degrades women outweigh the constraints on paternalism proposed by Robshaw. This is what Mona Eltahawy argues in her excellent book Headscarves and Hymens, in which she notes that, after publicly announcing her support of niqab bans, she heard from many Muslim women who agreed with her, but were too afraid to speak out. Likewise, Jerry Coyne has argued that a Rawlsian veil of ignorance approach would lead us to ban such coverings.
Women are often brought up indoctrinated into believing the practice of veiling is right—so, even if it appears that second-order autonomy is being exercised, that may not be true. Just as a child indoctrinated into creationism by a faith school might retain that belief as an adult, so a woman indoctrinated from birth to believe in her inferiority might accept that in adulthood. But I cannot see much autonomy, of any order, being exercised here. Banning of the burqa could therefore be justified, just as we should ban creationism in schools (though the differences between these should be weighed).
With education and prevention of domestic abuse, the burqa might never be voluntarily chosen in adulthood—though you might say that, just as we would be unjustified in banning adults from coming to creationist conclusions, a burqa ban is unjust. Or that, if a softer approach works, a ban is superfluous. But a blanket ban might still discourage parents, teachers and imams from inculcating such harmful, dehumanising ideas. A ban would protect those girls for whom such indoctrination is stronger than other influences in their lives. The result would be that voluntary wearers would become uncommon. The small numbers of devout women can express their religious beliefs in other ways and a ban would help other girls and women exercise their rights more effectively and would prevent serious harm.
As for the danger that a ban might lead to unveiled women being forced to remain at home, other laws and norms could help prevent that. For example, we could encourage people to report instances of forced sequestration, punish the coercers more severely, and provide information and shelters to affected women and girls. The softer options espoused by Robshaw seem optimistic: he says that “the gentle sun of tolerance” could soften the hearts of burqa-coercers and wearers. This seems doubtful. But softer approaches could be used, together with a sensitively handled ban. For example, as Robshaw notes, we should support secular, liberal and ex-Muslims in their attempts to critique or reform the faith.
Much more data is needed. But Robshaw provides a comprehensive, liberal context and thought-provoking arguments. As he notes, liberalism “is a rich, living, thriving intellectual tradition … and in writing this book I have become more and more convinced that liberal principles are our best hope for achieving just outcomes in a modern, mobile, multicultural world.”
Robshaw’s arguments have modified my opinion on this issue somewhat. His book provides a solid, good-faith, intellectually honest and rigorous foundation for this discussion. He notes early on that he is not interested in casting aspersions—for example, he decries the tendency to impute bad motives such as racism to those who support a ban. He is only concerned with the arguments themselves. His brave, forthright, well-written and clear discussion is a model for how all such contentious debates should be handled.