For the purposes of this argument, I am going to begin from several starting premises. First, that the principles I defend apply to any form of religious ‘modesty dress’ which is imposed on biologically-defined groups by community or family pressure. This means we can set aside endless hairsplitting over whether the principles ought to apply to a hijab, burka or niqab. Second, the question whether or not Islam actually requires veiling or not is immaterial, since interpretations of what counts as “truly Islamic” are endless and cannot be resolved by any means other than consensus or fiat. Female veiling is indisputably a Muslim cultural practice, irrespective of whether it is truly “Islamic”. I hope these caveats will be sufficient to prevent detractors from misdirecting the debate to tangential issues irrelevant to my arguments.
What are the limits to the power that can rightfully be exercised by society over individual women who wish to adhere to religious dress codes? How can their desire to conform to a religious dress code be balanced against the rights of other women who wish not to conform to religious community pressure? Even fierce critics of a state ban on religious ‘modesty’ dress admit without hesitation that there are plenty of Muslim women who (due to legal, quasi-legal, or illegal-but-hidden forms of familial and/or community pressure) wear the veil involuntarily.
Historically liberals have protected both freedom of religion and freedom from it – i.e. the right of people to dress as they please. Freedom to dress however one pleases must include the freedom of people not to be told how to dress by religious authorities or others in their communities or families. Liberalism does not require us to accept the double standard by which we bar our government from “telling people what to wear” while giving conservative religious authorities freewheeling power to do so. We know only too well from the testimonies of liberal Muslim and ex-Muslims who have been liberated from family and community pressures how difficult, indeed even dangerous, it can be to dissent from community-imposed customs.
In the first Chapter of On Liberty (1859), the architect of political liberalism, John Stuart Mill, was at pains to expand the protection of the individual beyond protection from the state to a full protection from oppression by “the will of the most numerous or most active part of the people; the majority, or those who succeed in making themselves accepted as the majority.” Mill argued that the abuse of power by a tyrannous majority is as dangerous as any other abuse of power. The tyranny of the majority, while it may at first operate through the mechanisms of state, can become an even more formidable social oppressor than the state because it is more insidious and “leaves fewer means of escape, penetrating much more deeply into the details of life.” For these reasons Mill urged that protection must extend beyond protection from the magistrate to protection also against:
“the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.”
The purpose of J.S. Mill’s famous 1859 essay was to establish “the nature and limits of the power which can be legitimately exercised by society over the individual.” Mill argued for “one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control.” This harm principle has been the uncontroversial mainstay of liberal democracies for over one hundred and fifty years. It states: “The only purpose for which power may be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Countries that applied the principle have seen a gradual expansion of individual liberties to minorities of all stripes, except the most intolerant groups whose treatment of (yet other) minorities is in conflict with the very tolerance from which they wish to benefit.
The harm principle is a necessary condition for state interference with the individual’s liberty, but not a sufficient one, since allowing certain kinds of harm can sometimes be in the general interest. For example, competition in a free market economy means that some job candidates or entrepreneurs will lose, but allowing economic competition arguably produces more benefits to the general welfare than banning it. Here the harms suffered by individuals by allowing a free market are arguably insufficiently grievous to require dismantling a market economy.
Whether to resist an oppressive government or domination and violence from other individuals, the liberal ‘harm principle’ has consistently served to protect the ‘moral space’ minimally necessary for “pursuing our own good in our own way.”
Notably, no French, Belgian or Austrian Muslim who chooses to ignore the official ‘ban’ on religious dress risks being subjected to physical violence, incarceration indoors or loss of citizenship. Defenders of Muslim dress concede that, if they cannot wear religious dress, some Muslim women risk the (worse) fate of being confined indoors by controlling husbands or family members. This is supposed to be an argument against aban, yet it explodes the myth that Muslim women from conservative religious families possess autonomy. As such it serves as more evidence of the extent to which Muslim women are controlled under Islam’s conservative customs. This only bolsters the case in favour of state protection for individual women who wish to resist family or community religious pressures. It should therefore be taken as evidence weighing on the side of those who support a ‘ban’, since it implies that veiling is the thin edge of the wedge – the visible indicator of social control over women that in fact extends much deeper beyond what is visible to the public.
Fashionable left-leaning opinion is that a state would be ‘intolerant’ to restrict religious dress (never mind that no country fully bans it, and other countries besides France uphold only partial bans). Under French policy, no woman is permitted to leave her home hidden behind a full-face Islamic veil without risking a fine and anyone found forcing a woman to cover her face also risks a steep fine. In Austria, from October of last year, whoever violates a similar rule faces a maximum fine of 150 Euros.
In Britain, The LibDems pledged in their party platform to “guarantee the freedom of people to wear religious or cultural dress” and former Schools secretary Ed Balls has claimed it is “not British” to tell people what to wear in the street. I am sure most liberals would agree. I certainly do. This is exactly why we should consider implementing a restriction on wearing the hijab/niqab/burka. Such a policy would overturn an existing restriction on how women can dress that is enforced on many women and girls by family members. Patriarchal religious customs do tell women exactly what to wear, and forbid them from wearing anything else. A policy limiting religious dress would merely tell one particular subset of Muslim women (religious conservatives) not to wear one particular thing.
By contrast, the liberal state would not impose an opposite (but equally restrictive) rule to that of religious authoritarians because it would not positively prescribe what women must wear. Its sole purpose would be to overturn an existing rule that does so. Under such a policy, this particular religious ‘gender uniform’ would not be allowed, but anything else would be permitted, including long dresses or feminists with burkas bearing slogans such as “This is a sexist uniform”. At present, because of extra-judicial executions/punishment that would be carried out in response to the latter, no such feminist statement (whether by a Muslim or a non-Muslim) is permitted (even in allegedly ‘liberal’ Western Europe). This shows how far liberal freedom of expression has already been eroded by de facto punishments and intimidation. Therefore the ban would remedy a situation that already exists in order to expand individual liberty to groups to whom it is presently denied.
In a country that has grown ultra-paranoid about “race” (and has conceptually conflated it with religion), it is necessary to clarify the liberal values we ought to be defending without embracing simplistic responses to complex problems. Criticism of Muslim veiling does not stem from misguided xenophobia or intolerance towards ‘otherness’. On the contrary, it stems from a more consistent, principled defense of individual liberty for all persons, including Muslims. The right to assert one’s “otherness” must include the liberty to dissent from group ‘identity’ or ‘community standards’. Religious communities are not homogeneous. Many Muslims argue that the veil is not mandated by Islamic traditions. Communities are not made up of identical individuals who unanimously agree with “their own” community’s customs or the meaning of its symbols. Only racists think of people as undifferentiated members of ‘culture’ in this way.
However, “coming out” from one’s culture of birth often comes at a very steep price. In 2017, one Birmingham Hijabi found this out the hard way when she made the mistake of thinking she was allowed to ‘twerk’ in public while wearing a hijab. The threats and vitriol she received for doing so were reliable indicators that the hijab does not mean whatever the wearer wants it to mean. For many, it has a uniform cultural meaning that is enforced by dominant members of a community (i.e. a tyranny of the majority). If all members of a community were truly willing adherents of the rule, then examples would not need to be made of ‘deviant’ individuals such as the Birmingham girl.
Muslim theologians, from the late Moroccan scholar Fatima Mernissi to UCLA’s Khaled Abou El Fadl, and Harvard’s Leila Ahmed, Egypt’s Zaki Badawi, Iraq’s Abdullah al Judai and Pakistan’s Javaid Ghamidi, have clearly established that Muslim women are not required to cover their hair. One of the main ways in which mainstream religious conservatives have responded to scholarly theological critiques of the veil is to argue for its practical benefits instead. As John Shahryar has argued, the claim that the hijab somehow protects women against sexual harassment and/or violence is by no means a minority view. Eminent Islamic clerics like Egypt’s Sheikh Yusuf al-Qaradawi—widely considered a spiritual leader of the Muslim Brotherhood and much of Sunni Islamic thought—and Ayatollah Sayyed Ali Khamenei—the supreme religious and political authority in Iran and one of Shia Islam’s main sources of jurisprudence—have endorsed this view. Many mainstream conservative Muslim clerics and pseudo-social scientists—like Zakir Naik — who openly suggests that women who don’t wear the hijab are asking for sexualized harassment or violence. They falsely correlate a woman’s right to wear what she wants in the West with a high incidence of sexualized violence there when the real difference is owing to the underreporting of violence against women in Muslim majority countries where (a) a stigma is attached to victims, and (b) patriarchal religious authorities are uninterested in collecting data since it is not so much a ‘crime’ as a ‘mistake’ on the victim’s part.
Western law assumes that adult males are responsible moral agents and therefore capable of sexual self-control. Liberal democracies should not be supplanting their own legal system with determinist theories that treat adult males as incapable of moral agency. The just way to protect women from predatory males is to use the law to punish men who molest women. If, on the other hand, men cannot control their own actions, then they do not deserve the rights enjoyed by other adults and should not be permitted to drive, vote, hold public office, smoke, drink alcohol, buy property or marry.
Individuals in any community may wish to dissent, rebel or contest the meanings of sacred cows and “shared values”. In practice, ‘community’ can be both socialization and oppression. Genuine liberals have always feared a tyranny of the majority and have regarded it as at least as dangerous to individual liberty as state coercion, if not more so. The French, including many French Muslims and ex-Muslims, acknowledge the existence of religious intolerance and give it importance. If we concede that religious dress codes are involuntarily adopted by a subset of British citizens, then the state is justified in interfering with the practice, since the purpose of the interference would be to prevent harm to others and to protect individual liberty where it is threatened.
Under liberalism, the conditions for interfering with individual liberty are quite strict. In the case of restricting religious dress, there is little doubt that religious dress does harm those who are coerced to adopt it, and the harm caused to this minority from religious compulsion is not in the public interest. This provides the justification for making exceptions to the general rule of religious freedom. As George Suchett-Kaye argued in a recent Conatus News piece on ‘tolerance’, where the reasons for rejecting the freedom to dress religiously are stronger than the reasons for its acceptance, there is a valid case for restricting it. The same principle applies to analogous cases such as whether religious liberty ought to extend to allowing a particular religion to sacrifice virgins or to enforce alcohol or pork bans on non-believers. Courts in liberal states have traditionally ruled against religious practitioners where the exercise of their religion is instrumental to harming others or restricting their liberty.
While the state ban on public religious veiling denies those Muslims who do choose to adopt it one means of symbolic religious expression in certain public spaces, this particular form of religious freedom of expression in turn conflicts with the freedom of other Muslims not to adopt religious dress. There is nothing controversial about limiting the freedom of expression of individuals to those behaviours that do not deny it to others. The same would be true of any other form of self-expression. So for example, you cannot listen to your music so loud that others cannot listen to theirs. You cannot smoke cigarettes if your doing so will force others to passively “smoke”. You cannot drive over a certain speed limit because doing so endangers the lives of others with whom you share the roads. The freedom of one group cannot be so pervasive and intrusive that it encroaches upon the freedom of others.
It need not be this way, but for the present time, veiling is not only a symbol of individual expression, like a T-Shirt or a tattoo. Its primary theological significance often makes it exactly the opposite. It denies individual women self-expression or sexual autonomy and instead defines them chiefly in terms of their biological difference to men, as a generic group. If any group less despised than women were required to wear a modesty uniform because of their biological differences to another group, then this would be glaringly obvious. Modest religious dress only reinforces a form of sexual apartheid that contributes to denying many other rights to women and girls. (When was the last time you saw a woman in a burqa riding a bicycle?) The veil may be said to symbolize many things, but it is without doubt a sign of religious conformity and obedience, since stigma and/or punishment often accompany its rejection. If interfering with the practice of veiling will prevent harm to a sub-set of Muslim women for whom it is not a choice, then this justifies state interference in the practice.
What would the godfather of liberalism have said about a ban on religious dress?
John Stuart Mill’s 19th century England presented a different set of religious issues to those of multicultural Britain today, but Mill considered three cases contemporaneous to his writing that offer a prism through which we can discern how he might have responded to the question of a state ban on Muslim veiling.
First, he considers whether a ban on eating pork would be acceptable in a Muslim minority country like his own. He concludes that the ban on pork-eating would be unacceptable since many would want to resist the ban because they do not accept Muslim disgust as legitimate grounds for preventing other people from eating pork.
Next Mill looked at the Christian Puritans’ ban on various forms of recreation, such as music and dance. Mill remarked that the moral and religious sentiments of Puritans were inadequate grounds to restrict other peoples’ leisure activities.
Finally, he considered the Mormon minority in the United States, who practiced (male only) polygamy and were persecuted for it. Mill’s response was that interference in the Mormon way of life would be unjustified on the condition that the practice is undertaken with the full consent of all participants. He also stipulated that it should be permitted only if people living in Mormon communities were free to leave.
Mill’s various responses to these cases illustrate that mere offence or distaste is nota good reason for society to constrain what people do. The Mormon example can be extended to any case in which a host society seeks to change the practices of a minority when those practices are not enforced on people against their will. If we accept that religious dress codes are sometimes forced on people against their will, then the state is justified in interfering with the practice, as it would be in cases where the practice of male polygamy did not have the full consent of those impacted by it.
The Anglo-Austrian political scientist and philosopher, Karl Popper (1902 – 1994), recognized the danger in censoring intolerant attitudes. He thought it preferable to counter them with rational argument and balance them by public opinion. However, he believed that society has a right to suppress intolerant attitudes if their spokespersons refuse to engage in rational argument and refuse their followers the right to hear alternative views. He concluded that:
“Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.” [Karl Popper, The Open Society and it’s Enemies, 1945]
No one should be
made, by legal or political force, to conform to ideological values that are
not his or her own, so Ed Balls may be right is saying that it isn’t “British”
to tell people what to wear (or not to wear) in the street, but that goes for Salafi-Wahhabists
and fundamentalists as well as for us.
 John Stuart Mill, ‘On Liberty’, Chapter 1 in Collini, Stefan, Ed., On Liberty and Other Writings, Cambridge University Press, 1989, p. 8.