The Law shouldn’t be telling us what we can and cannot wear: and that includes the burqa.

By Professor Jill Marshall, School of Law

Professor Jill Marshall from the School of Law discusses that full face veil bans in all public places have no place in European liberal democracies. 

In 2011 France made it a criminal offence to wear face coverings in any public places. Although neutrally worded, it is accepted that the bans are intended to stop a small minority of Muslim women wearing the full-face veil, including the burqa and niqab. In the midst of our Prime Minister calling for withdrawal from the European Convention on Human Rights, this summer its Court decided the French law did not violate the rights of a woman who wears the burqa and niqab in France. It interferes with her right to religious freedom of expression and to personality rights derived from a right to respect for one’s private life: but this is justified by the ‘rights and freedoms of others’, as the French government presented it, in an ideal of ‘living together’.

. EPA/Yoan Valat

In previous cases, the Court said that ‘private life’ embraces gender identification, name, sex, personal development, the right to establish and develop relationships with other human beings and the outside world and appearance and clothing. This establishes a personality right enabling us to choose our own way of life and develop our own personality in line with an empowering and self-determining personal freedom. As such, human rights should protect choices and identities even if the majority of the population disagree or are shocked, offended or disturbed. [ J Marshall Human Rights Law and Personal Identity Routledge 2014].

I am particularly concerned that the judgment, in its acceptance of ‘living together’ as a concept qualifying these rights, turns the focus in human rights protection onto how the majority or others perceive another’s identity. On this basis, governments can criminally ban clothing that a person sees as part of her personality. This problematic concept called ‘far-fetched and vague’ by the two dissenting judges makes a mockery of freedom of expression, religious or otherwise, and any so called right to identity or personality.

What is more convincing is the dissenters disagreement with the French government’s reference to the veil’s ‘symbolic and dehumanising violence’, the ‘effacement’ and ‘self-confinement’ of women who wear it, cutting themselves off from others. Empirical research in Belgium and France referred to in the judgment shows women who wore the veil before the bans were happy to be socially active publically. There was harassment by others who did not want to interact with them. My colleague Irene Zempi has also found this in her empirical research amongst women in Leicester.

Referring to case law on ‘offensive, shocking and disturbing’ freedom of expression, the dissenting judges say, even if this view of the veil were accepted, there is no legal right not to be shocked or provoked by different models of identity. There is no right to enter into contact with other people in public places against their will. Communication is essential for life in society but we also have a right not to communicate, not to enter into contact with others in public places: ‘the right to be an outsider’.

The full face does not need to be shown for us to communicate as is clear when skiing, motorcycling, wearing costumes at carnivals (these are exempt under the French law). Ear or headphones could also be added to the list as can talking on the telephone, skype without a video, email, letters, social media and other virtual communications.

Full face veil bans in all public places have no place in European liberal democracies and it is a shame that the European Court of Human Rights allows them.

2 Comments

  1. Vincenzo Pacillo
    Posted 02/12/2014 at 19:04 | Permalink

    I am very thankful to Professor Jill Marshall for her interesting contribution.
    Currently, Europe – after a series of battles aimed at freeing the social clothing from a series of bourgeois stereotypes – is confronted with a changing landscape. The claims of the ’60s of the twentieth century (designed to “reveal” the female body in public space) are replaced by the demand to “hide” the bodily figure behind clothes, in order to respect cultural traditions and religious laws. Immigration and cultural globalization confront us with religious clothing, which also becomes symbol of belonging and identity. In the face of this new landscape, the social, political and juridical reaction is not unique. While some authors have highlighted the negative impact that a certain kind of religious clothing may have in terms of respect for the dignity of woman, others scholars have emphasized the fact that – in a secular, democratic State respecting fundamental rights – the freedom of clothing – when is an expression of a free and informed choice – cannot be constrained. Between these two opposed positions lie the ideas of those who believe that there are fundamental principles that can limit the freedom of clothing in public space, even when that freedom is a direct corollary of freedom of conscience and religion. In this context, the principles of neutrality of public schools and the duty of immediate identification (imposed on all individuals) in public space ought to constitute a sufficient legal basis for restricting the use of certain clothes and accessories.
    In my opinion some basic principles should organize the debate:
    a) The first principle is that freedom of clothing is a cornerstone of European constitutionalism. It is a freedom which emanates directly from personal freedom, understood as right of self-determination and to build one’s own identity;
    b) freedom of clothing is not absolute: it can be limited for two reasons
    – to ensure the right not to be subjected to an indecent display (a right which, however, should be understood as changing over time and space and not preventing the creation of special spaces for nudists);
    – to protect the prevailing fundamental rights of other people. For instance, the employer may require the employee to use a uniform, and the law may establish the duty to wear protective clothing when one carries out activities or tasks which could be dangerous to oneself or others, as it may regulate (or even prohibit) the use of especially dangerous accessories (guns, weapons etc.).
    c) By virtue of the relationship between human dignity and freedom of religion (the dignity of a human being cannot be truly protected if legal system does not guarantee the right to believe and not to believe and observe his/her own cult ), the freedom to dress using clothes, signs and symbols characteristic of his/her own faith must be guaranteed in a particular way. This freedom is necessarily linked to the ethical and religious pluralism: in fact, only a legal system in which the individual can freely make use of symbolic communication can offer a real protection to the right to pursue one’s life plan and to fully develop their personality;
    d) The freedom to dress using signs and symbols characteristic of his/her own faith may legitimately be limited only if this freedom irreconcilably conflicts with the fundamental principles expressed by the Nice Treaty, the ECHR and/or by the Constitution: moreover every limitation must always be reasonable and proportionate;
    e) every restriction of the freedom to use religiously characterized clothes must rest on a legal basis.
    All these points must be considered when we think about the choice made up by the French Parliament. It should be emphasized that also in Belgium is in force a ban of the niqab and of the burqa. I am referring to the law of June 1, 2011, which introduced a new article (the 563bis) in the Criminal Code.
    By virtue of the 2011 Act, the Belgian Criminal Code punishes with imprisonment up to seven days the public use of the burqa, niqab and any item of clothing that completely hides or significantly concerns face features. In 2012, a legal action for a declaration of unconstitutionality of this law was rejected by the Constitutional Court, which – with Decision 145/2012 of 6 December 2012 – determined that the use of clothing intended to conceal the face features is a danger to the maintenance of public safety, violates the dignity of women and endangers social cohesion within liberal democracies.
    Actually, the last two arguments of the Belgian Constitutional Court raise questions and concerns. Why the use of a piece of clothing by a person who freely made that choice ought to undermine the dignity only when “hides” and not when “reveals” the shape of the body? How does social cohesion may be affected by a peaceful and non-violent behaviour that has the sole purpose of complying with a rule (which is assumed as religious) and of marking a religious belonging, which should be guaranteed in respect of ethical pluralism that characterizes liberal democracies?
    On the other hand, may we say without any doubt that the use of garments devoted to hide face features is fully compatible with the right of security that is a cornerstone of the European legal system?
    I think that this compatibility can be recognized only when legal system is able to assure that the person can be instantly recognisable by everyone who carries out a public function: that’s the only way – in my mind – to counter potential abuses.

    [Reply]

  2. Caroline Sägesser
    Posted 21/11/2014 at 10:20 | Permalink

    And yet, our countries ban public nudity.
    it is my view that extreme behaviour preventing normal social interaction can be banned. Hiding your face is just like displaying your genitals : it impairs the ability to interact with others.

    [Reply]

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