Burqa ban: when legalism trumps liberty

France and Belgium’s burqa bans have recently been triumphant in the dock. This week, the European Court of Human Rights threw out the claim from a 24-year-old burqa-wearer that the law banning burqas in France infringed on her fundamental human rights. The week before, France’s highest court upheld the firing of a crèche worker for wearing a veil to work.

Some European libertarians have been very disappointed by these rulings. But the truth is that the real battle is occurring not in the rarefied world of the courts, but in tussles on the streets.

Since the ban on full-face coverings was introduced in 2011, there have been a growing number of conflicts between niqab or burqa-wearing women and police officers demanding a ‘contrôle d’identité’ (identity check). Last year, there were violent conflicts in Parisian suburbs and cities such as Marseille, when face-covered women refused to cooperate with police asking to see their papers and faces.

In each case, the woman engaged in some very forthright behaviour, in one case biting a police officer (aggression for which she was jailed), in another telling him to ‘shut your mouth, you son of a bitch’. In each case the confrontation escalated, and the woman’s family and bystanders ended up jostling or openly fighting with police officers. A man is serving a sentence for attempting to strangle an officer who challenged his burqa-clad wife. In an incident in the Parisian suburb of Trappes, an identity check on one woman led to two nights of violence. As one report described it: ‘Two-hundred-and-fifty people hurling stones and paving slabs clashed with police firing tear gas, while 400 others gathered to protest across the high-rise suburb west of Paris, torching cars, bins and bus-shelters.’

In these cases, a face-covering is becoming the focus for conflicts between particular immigrant communities and the French state. Indeed, some claim that the burqa-wearing women ‘are looking for confrontation’: the Islamic full-face covering, with the original meaning of women’s marginalisation, perversely takes on the meaning of a challenge to state authority.

Other protests take the classic French form of situationist art, including Princess Hijab, a graffiti artist who paints veils on fashion ads in the Parisian metro, and the Niqabitches, two young women who donned niqabs and hotpants for a tour of the main departments of government. In the view of these two young women, the ban represents ‘an insane need by the Republic to assert control over the bodies of its citizens’, which goes beyond all ‘legitimate’ power.

The restriction on Islamic headwear has been systematically pursued over the past decade. In a series of laws, the French state first restricted headwear for teachers, then pupils, then parents on school trips, and then on headwear in public places. So why all the fuss about a few inches of cloth? As the French sociologist Olivier Roy argues in his book Secularism Confronts Islam, the French state’s suppression of the Islamic headscarf became a means of attempting to redefine its identity in uncertain times. It is in opposition to Islamic headwear that the French state and republican identity is defined.

Yet it will be in society and not in the estranged world of the European Court of Human Rights that this conflict will play out. Yes, the courts might use much nicer language, and be free of biting and burning cars, but they are also free of any social content or any real meaning of ‘right’.

The distinctive thing about human rights (even negative rights, such as free speech or a free press) is their origin in official apparatuses or texts. The claiming of a human right occurs only in and through the state apparatus: it is a question of invoking this or that article, in the formal context of a court.

This means that human rights are in their origin and essence entirely legal. They do not have the content of an individual’s assertion of their autonomy, or of a boundary between state and civil society which is tacitly recognised and defended.

This is why these cases often use strange language, such as the ‘right to life’. In the ECHR burqa case, the claimant said that the ban violated articles in the convention concerning rights to private and family life, freedom of thought and religion, as well as articles prohibiting discrimination, prohibiting inhuman and degrading treatment, and protecting the freedom of association. Basically, she threw the book at the French and Belgian governments.

In their defence, the French and Belgian government teams invoked ‘the right to interact with someone by looking them in the face and about not disappearing under a piece of clothing’. Because a human right is not grounded in a conflict between the individual and the state, there are all kinds of rights, rights in all directions, from all kinds of actors. Others have said that the headscarf in public institutions violates people’s fundamental ‘right to neutrality’. These concepts are unhinged from social life, which is why court decisions can often appear perverse and arbitrary.

The task now for civil libertarians is not to push for more court cases but to theorise the burqa ban – work out what it means and what problems it poses. A good start comes from the unlikely quarters of a French prosecutor, who criticised the extension of the penal sphere into more and more areas of civic life. He mocks the notion that ‘if a thing shocks or annoys us, make it a crime!’ and says that it creates an ‘unacceptable precedent’ to ‘let the legislature decide how one should dress’.

The conflict over the burqa ban shows that the true terrain of liberty lies unexplored, somewhere between throwing projectiles in the street and throwing legal books around in Strasbourg.

Josie Appleton is convenor of the Manifesto Club, which campaigns against the hyperregulation of everyday life. Visit the Manifesto Club website.