The Burqa Affair Across Europe

Between Public and Private Space

Alessandro Ferrari, Sabrina Pastorelli

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409470656
• eBook ISBN: 9781317039662
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In recent years, the wearing of the full-face veil or burqa/niqab has proved a controversial issue in many multi-cultural European societies. Focussing on the socio-legal and human rights angle, this volume provides a useful comparative perspective on how the issue has been dealt with across a range of European states as well as at European institutional level. In so doing, the work draws a theoretical framework for the place of religion between public and private space. With contributions from leading experts from law, sociology and politics, the book presents a comparative and interdisciplinary approach to one of the most contentious and symbolic issues of recent times.

Chapter 1
In Praise of Pragmatism

Silvio Ferrari

For a Pragmatic Approach to the Burqa Question

I should like to begin on a personal note: I wish to point out straight away that I do not appreciate the use of the burqa, niqab or of other garments that conceal a person’s face. That said, however, I do not think that it is possible to forbid them without violating principles which are at the basis of liberal constitutionalism.

I do not appreciate the burqa or the niqab because they hinder communication between people. This is not only a question of words or gestures, it is also about expressions. A word or a gesture is normally accompanied by facial expression: a twitch of the lips, a frown, wrinkling of the brow. It is no coincidence that when we wish to stress the importance of something we wish to communicate we say: let’s talk about it face to face. A word or a gesture without a face is a poorer form of communication which more easily lends itself to ambiguity and misunderstandings. It is also asymmetrical communication that places the unmasked person in a position of disadvantage: any poker player can tell you that he would never sit at the same card table with a person whose facial expression is inscrutable.

It is true that similar difficulties are encountered when we speak to a person who is wearing, for instance, a pair of large dark glasses. For this reason when I was a child my mother taught me that it is good manners to remove one’s sunglasses whenever one starts a conversation. Those who do not respect this rule violate a rule of good behaviour, but they do not commit a crime. This is why I believe that hindrance to open and direct communication is not sufficient grounds for forbidding the use of the full veil except in circumstances where it is essential for the person’s face to be seen. Indeed no country in the world has laws requiring a person to remove his sunglasses when entering the public space; but in some of them there are laws which impose the removal of the burqa or the niqab in such a situation. It is therefore legitimate to suppose that there must be other reasons behind these laws.

The justifications for supporting a legal prohibition extending to any public space have never persuaded me. I do not subscribe to the view that the burqa or the niqab is always imposed on women by men, by religion, or by social convention – although it can happen1 – because this argument neglects the fact that there are women who do choose freely and wittingly to wear this garment. I remain unconvinced by the reasoning that covering one’s face with a veil is not an obligation according to the Muslim religion and so it can be forbidden without prejudicing religious freedom: also wearing a cross is not an obligation for the Christian religion, but we would consider any law prohibiting one to do so to be illiberal. And I am sceptical that the general ban on the burqa and the niqab is necessary for reasons of public security or public order. This may be true in particular circumstances but not as a general rule. Indeed wearing these garments is not the best way to pass unobserved: quite the contrary, in Europe it attracts attention.

The weakness of these arguments leads me to suspect that the ban on wearing the burqa and the niqab in the streets and in other public places is not aimed at solving the concrete problems that these garments can give rise to. Such a ban is intended to communicate a message of condemnation of a religion and of a culture that are considered backward compared to others which are viewed as more respectful of the dignity of the human being, women’s rights and gender equality. This feeling is reinforced by the ideological nature that the debate has rapidly assumed in Europe. It is almost as though this way of dressing were – always and in every case – a sign of submission of the female sex, a danger to public safety, an offence to gender equality which should be condemned outright. Or, on the contrary, as though it was an expression of religious faith, a sign of personal autonomy, a display of freedom of expression which should be safeguarded without exception.

In reality the full veil can be many of these things together and so it is necessary to conduct a lengthy and demanding study of distinctions. This can enable us to adopt only those restrictions that are indispensable in a democratic society so that all citizens may have open and orderly access to the public sphere. It goes without saying that there are situations when it is necessary to see a person’s face (such as when checking identity cards or passports); there are activities which it would be dangerous to carry out with one’s face covered (such as driving a car); there are cases when appearing in public wearing a burqa or niqab may cause social alarm. In these circumstances the question at issue is not the full veil per se, but the problems that may arise from a person’s appearing in public with his or her face concealed. It is necessary to carry out a pragmatic assessment case by case in order to adopt measures proportionate to the practical problems arising from the use of the burqa or of the niqab while respecting as far as possible the freedom of religion and expression of the women who intend to wear them.

This is by no means an easy task because it requires a careful analysis of the various components of the public sphere. Such an analysis has already been carried out elsewhere (S. Ferrari and Pastorelli 2012) so I will not repeat it here. I would just like to stress that the deconstruction of the notion of public sphere according to its spatial and personal elements makes it more difficult to adopt general and uniform solutions which do not take into account the coexistence of many, different and overlapping public spaces and which neglect the specific role that each of them plays in the promotion of a democratic society. One issue is the common space (the street, the square) which is a space each of us is obliged to enter to satisfy the fundamental necessities of our lives (to buy food, to go to work); another issue is the political space, where we discuss questions of common interest (TV talk shows; a street protest by the indignados or by Occupy); yet another issue is the institutional space (the courtroom; parliament) where binding decisions are taken for all citizens. The rules that apply to these different spaces, which together make up the public sphere, are not the same. Nor are the same rules applied to a person who enters these spaces as a private subject or as the representative of a public institution: teachers and students share the same physical space – school – but their behaviour (and clothing) is regulated by different criteria. It is not possible here to go beyond this extremely brief overview (for a more detailed analysis see the work cited at the previous note in this paragraph). But this spatial and personal deconstruction of the notion of public sphere can be a helpful starting point for a pragmatic orientation, focused on a practical evaluation and case by case examination of the problems arising from a person’s manifestation of religious convictions in the public sphere.

A general ban on the full veil extended to all the common space seems hard to justify not only because it limits freedom of religion and expression but above all because it touches the everyday and in a certain sense ‘pre-political’ life of individuals. The freedom to wear garments ascribable to a religious or cultural conviction should not be limited in this common space unless it can be demonstrated that their wearing causes concrete damage to other people’s enjoyment of it. A similar reasoning regards the political space. By definition the political space must be free and plural: in it the visible manifestation of different religious and cultural convictions is indispensable for guaranteeing the pluralism on which a democratic society is founded and so this works in favour of the freedom to wear the burqa or niqab. In the institutional space things may be different: a judge who wears such garments could raise issues that are not so very different from those arising from the presence of the crucifix in courtrooms. The guarantee, not only in substance but also in appearance, of the impartiality of the institutional space can prevail over the freedom of the subjects who work there in the name of the public powers.

In the grey areas where the common, political and institutional space overlaps a little healthy pragmatism will do no harm: the patient who asks to be admitted to hospital while her face is covered is one thing; the teacher who wants to teach behind the screen of a burqa or niqab is another.

In conclusion, apart from in specific and well-defined cases I think that criminal law is not the best instrument for dealing with the problems raised by women who want to wear the burqa or niqab. Criminal law is the extrema ratio, the last resort for when it is not possible to protect a fundamental individual or community good in another way. Even though the full veil makes inter-personal communication less open and transparent, I do not think that there are sufficient grounds for invoking the force of law. In this situation a genuinely liberal society uses other instruments – education, debate, persuasion – aimed at encouraging an open discussion within the Muslim community on the opportuneness of women covering their faces when they enter the public space.

The Legislative Panorama in Europe

This pragmatic approach which is attentive to the different character of each particular case has not been adopted by all European countries. The contributions collected in this volume show that each country has followed a different route to regulate the question of the full veil.2

The first and best known is the prohibition to circulate in public with one’s face covered. This is the route France took with the law of 11 October 2010.3 In this case the prohibition is contained in a state provision which is extended to all public space. The breadth of the ban marks a significant escalation in the application of the principle of laïcité in France. Previously the ban was applied within the institutional space: laïcité forbade exhibiting religious symbols in public institutions and barred public officials from manifesting religious convictions when carrying out their duties. More recently the ban was extended also to state school students, who were forbidden to wear religious symbols considered too visible:4 but also in this latter case the space covered by the ban was that of a public institution. With the law on the full veil the ban has been extended beyond these limits and it covers all public places (squares, streets), places open to the public (a shop, a supermarket; although not a place of worship) and places providing a public service (such as a post office). According to a speech by the French Minister of Justice in the parliamentary debate, the justification for such a broad provision is that the full veil respects neither liberty, nor dignity, nor equality:5 it therefore has to be outlawed in all of the public space. But this explanation seems to go over the mark (if the burqa and niqab do not respect these fundamental rights they should be banned also in places of worship and in the private space) and it betrays the intention to extend the principle of laïcité from the state sphere to the social and political spheres: in this perspective laïcité pervades not only the institutional space but also the common and political spaces. The same route of legislative bans was followed by Belgium, which outlawed the full veil with a law of 2011. However, the provision is formulated in a different way from the French law: it forbids appearing with one’s face covered or concealed ‘in places accessible to the public’.6 This formulation is juridically more correct and ideologically less demanding than the one adopted by the French law. The expression ‘places accessible to the public’ has a precise legal content and it does not evoke the political desire to confine religious symbols to the area of private life in the way that the French provision does with the expression ‘public space’.

At the opposite end there is Great Britain, where the minister for immigration has qualified any provision aimed at banning the burqa or niqab as ‘unBritish’.7 As Mark Hill writes in the essay contained in this volume, ‘Britain has no official policy on headscarves or veils’. In this country not only are there no legislative or administrative provisions forbidding the burqa and the niqab at the national or local level, but there are no directives by professional organisations on this matter. When the question was raised about jury members, lawyers and witnesses wishing to appear in court with their faces covered, the Judicial Studies Board (a body that works as a ‘training academy’ for judges) did not take a position, leaving the decision up to the discretionary power of each judge.8 Even the jurisprudence is very meagre and in substance it boils down to a sentence by the Employment Tribunal which states that it is legitimate to dismiss a teacher who wants to wear a niqab when another male teacher is in the classroom. One element (though certainly not the only one) which goes towards explaining such a radical difference between this legislation and that of France is the different importance of the principle of state laïcité. As Hill concludes, ‘the United Kingdom does not have a tradition of laïcité and enforced secularism. On the contrary, its patrimony lies in an established state church which affords liberal tolerance to those of all religious persuasions and none’.

A third route hinges on local law. In this case the state abstains from outlawing the use of the full veil throughout its territory but the ban is introduced by the mayors or by other local authorities through administrative provisions. This is what has happened in Spain, where it is forbidden to enter public buildings in Lerida, Barcelona and other municipalities with one’s face covered.9 The justification for this strategy is that the burqa/niqab has to be forbidden only where it creates real social alarm. But it is doubtful whether this objective has in fact been achieved. An examination of the individual cases shows that the prohibition does not depend on the occurrence of episodes that actually did disturb the peace and public order of a particular community, but rather on the existence of a political majority convinced that the full veil was against the safety or dignity and equality of citizens, irrespective of the local situation.

A strategy that I find more convincing has been followed in Denmark.10 Also in Denmark there is no law that forbids the wearing of the full veil and, unlike in Spain, there are no local administrative provisions outlawing its use. There are instead court sentences, documents by professional bodies and government directives which supply guidelines for dealing with the most controversial cases. In this way it has been established that all those who work in Danish courts have to have their faces visible so as to be recognisable to the public;11 that women wearing the burqa or niqab can ride public transport but they cannot use season tickets which require the identification of the bearer; that schools and universities may (but are not obliged to) prohibit the full veil because this hinders non-verbal communication between...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• 1 In Praise of Pragmatism
• 2 Burqa and Islam
• 3 Burqa, Niqab and Women’s Rights
• 4 A Besieged Right: Religious Freedom and the Italian War on the Burqa and the Niqab
• 5 The Burqa Affair in France
• 6 Legal and Social Issues Concerning the Wearing of the Burqa and Other Head Coverings in the United Kingdom
• 7 Introducing a General Burqa Ban in the Netherlands
• 8 The Burqa Affair in Spain: Legal Perspectives
• 9 The Belgian ‘Burqa Ban’: Legal Aspects of Local and General Prohibitions on Covering and Concealing One’s Face in Belgium
• 10 A Quest for Open Helmets: On the Danish Burqa Affair
• 11 Burqa in Germany – Not Really an Issue: A Short Note
• 12 The Anti-Burqa Movement in Western Europe
• 13 The Burqa in Europe: European Institutions and the Comparative/Interdisciplinary Approach
• Conclusion: The European Burqa Debates: Past, Present and Future
• The RELIGARE-Como Declaration on the Issue of the Burqa
• Index