My colleague Jill Marshall published, some weeks ago, an interesting article concerning the ban of burqa and niqab in French legal system.
The article can be read following this link:
I wrote to Jill my comments on her interesting point of view. I think that they could be useful to other scholars, so here they are.
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 dress 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 dress 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.