JURIST Guest Columnist Maurits Berger of Leiden University says the legal arguments in support of the burqa ban are feeble because their alleged rationale differs distinctively from the true aim: societal discomfort and the attempt to define national identity in European nations…

The Dutch cabinet announced on January 27 that it will submit to parliament a bill banning burqas and niqabs, full casket helmets and balaclavas from Dutch streets. The latter are only meant to answer the need for non-discriminatory legislation, because the true intention of the bill was effectively a “burqa ban.” If the bill becomes law, offenders will have to pay a €390 fine.

Whether the bill will pass the two houses of parliament remains to be seen. A burqa ban has been submitted twice in the Netherlands before, in 2007 and 2008, but both came to naught, not in the least because several committees, institutions and the State Council strongly advised against it.

This third time, however, there is more political clout to pass such a bill, because the burqa ban was made conditional to the formation of the current government. An example has been set by France, where their parliament passed the bill in 2010 despite the French State Council strongly advising against it.

It is clear that the burqa ban is not a legal necessity, but a political one. The exact number of women wearing the burqa is not known, but is estimated to be few: several hundred in the Netherlands (out of a population of 16 million) and about 2,000 in France (out of a population of 65 million). And while such attire may be a nuisance or a shocking experience to people encountering them, these women have not manifested themselves as a threat.

Although certain behavior creates disquiet in society, solid legal arguments must support any prohibitions. If, for example, people find it discomforting to stand in the schoolyard among several face-covered black-clad mothers when picking up their children, what exactly are the elements that make up this discomfort? We may not want it or like it, but there are lots of things we do not want or dislike. When do we cross the line where prohibitions are required in order to maintain society’s sense of peace and comfort?

It comes as no surprise, then, that the law passed in France and Belgium, and those recently submitted in Netherlands and Spain, are a wondrous jumble of arguments justifying the burqa ban, ranging from a revival of the “social contract” that allegedly demands open-face encounters to condemnations of Islamic oppression of women. Central themes in the recent Dutch bill are integration and gender equality, with communication as a common denominator (interestingly, freedom of religion is not mentioned).

The integration argument, in short, is as follows: to advance one’s situation one needs to participate in society, and because the Netherlands is “an open society” one can only successfully interact by means of open-face interaction. Covering one’s face is an impediment that, even when self-inflicted, needs to be avoided at all costs — or at least at the cost of €390.

Gender equality is also a recurring theme, but with various twists. The Dutch legislature condemns the face veil as a symbol of women’s oppression, as a means to set women apart from men as non-communicable objects, and as an indicator that men are sexual predators.

These arguments are feeble because their alleged object or aim of protection differs distinctively from the intention of that protection. The aim of the integration argument basically is that women need to be protected against themselves, because wearing the face veil cuts them off from society. The aim of the gender argument is the legislators’ concern with the plight of oppressed women.

Quite awkward, then, to fine the women one wants to protect. However, the intention of the bill is not the welfare of these women, but society’s discomfort with their behavior. Moreover, the ban’s justification is based on the protection of women who have not asked for it.

This was also the main point of critique raised by the French State Council. It stated that the “principle of personal autonomy” is one of the fundamentals of French society, and as long as these women voluntarily choose to wear these garments, one needs to come up with justifiable arguments to impose any prohibitions. And the State Council had not found such arguments.

The Dutch State Council, after its rejection of the burqa ban bill proposed in 2005, was quick in its rejection of the 2012 bill. In doing so it followed its French colleague: women have a basic right to wear what they want, and any legislation imposing a ban on certain garments must have a solid reason to do so.

All of these arguments are legal in nature, however, and will clearly not deter the political will of parliament. Neither does the distinct risk of such a ban being nullified by a higher court such as the European Court for Human Rights. Such a response would take years, and during that time one could successfully impose the ban. A legal loss, but a political gain.

The main political gain, to my mind, is national identity. It is not coincidental that the Dutch and French bills considered in 2005-2007 and 2009-2010, respectively, happened at exactly the same time that the two countries were involved in nationwide debates on their national identities. Since it’s nearly impossible to define one’s identity, it is easier to say what it is not. The burqa served that purpose: wearing the burqa was definitely not French or Dutch.

No wonder that the burqa bans have such feeble legal arguments. Laws are not suitable tools to shape or maintain identities. If one wants to eliminate the burqa — and it is perfectly understandable why one wants to do so — one needs to turn to other measures rather than legislation.

Maurits Berger is the chair of Islam in the contemporary West at the Institute for Religious Studies at Leiden University, and is a senior research associate with the Clingendael Institute for International Relations in The Hague. His research includes the relation between law and religion and the role and influence of Sharia in Western countries.

Suggested citation: Maurits Berger, Banning the Burqa and the European Identity Crisis, JURIST – Forum, Feb. 10, 2012, http://jurist.org/forum/2012/02/maurits-berger-burqa-ban.php.