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February 28th 2011 print

Peter Smith

Struggling with the Burka

At school, boys all, we were studying The Thirty-Nine Steps, the espionage thriller by John Buchan. Our English literature teacher thought it would be good idea, and a rare treat in those days, to give members of the class the opportunity to see the movie of the book made in 1959. Kenneth More took the part of Richard Hannay, the main character, who had made a fortune in Rhodesia (as it was then). We went to the matinee.

I can’t quite remember why, but at one point in the film there was a flashback to Africa and lots of nubile bare-breasted black women dancing to the beat. I hope you can imagine the commotion among us boys at this sight. At the time, bare breasts were glimpsed, if at all, only on the back of illicit racy playing cards. The teacher, distinctly embarrassed, did his best to bring order. I doubt he ever took a class again to see a film he hadn’t previewed. 

Bare breasts among African tribal women in the first half of the twentieth century would have been commonplace. Penis gourds and nothing else were de rigueur for some New Guinean men. I would think if I strolled for coffee in Balmain wearing nothing but a penis gourd I would cause a stir. I don’t know. I am not going to try it. 

In 1934 Cole Porter wrote: 

In olden days a glimpse of stocking, 
Was looked on as something shocking, 
Now heaven knows, 
Anything goes. 

What this shows is that time and place matter when it comes to what is acceptable in clothing and what isn’t. Generally problems arise at particular times and in particular places because of a perceived paucity of covering. Women tend to be singled out. Is this because of their natural adornments or because they are the pace setters? Probably it is both. Let’s remove sexual preferences out of the equation. Women simply have finer features than men and a polished diamond is more aesthetically pleasing than an uncut stone. In other words, they tend to look better than men when displaying bare flesh. The fashion industry is also centred on women and as there are only so many ways you can drape material around a body, pure randomness dictates that at times skirts will get shorter and bodices lower to test prevailing standards. British model Jean Shrimpton scandalised the Melbourne establishment in 1965 by wearing a skirt four inches above her knee at Flemington racecourse. By the late 1960s miniskirts four inches below the bottom were common among the young and the not young enough.

Too much visible flesh can get you into trouble; again depending on the time and place. I am not sure whether there are any historical precedents for getting into trouble for covering up too much. I doubt it somehow, though I suppose something might be dug up. This brings me to the burka and the view that it should be banned from public places.

The burka does not seem to be defined in exactly the same constituent terms across different Islamic countries. This doesn’t matter too much for my purpose. I take it that the burka causing controversy has three components: the full body covering from the neck down (the jilhab), the headscarf (hijab), and the face veil (niqab) revealing only the eyes (and sometimes with a net over the eyes). So far as I can find, it is only the headscarf and veil, and the latter much more so, that have generated controversy. Under the terms of the French law, for example, hiding the face is the offence. Scarfs have generally not caused issues except when worn in schools in contravention of dress codes. When you think about it, the Queen and Princess Margaret regularly wore headscarfs and they had that in common with my mother when I was growing up. Christian Joppke (in his book Veil, 2009) cites a case in England in 1989 in which two sisters, students at Altrincham Girls’ Grammar School, had refused to take off their headscarfs. “It was resolved in a quintessentially British way: the headscarf was allowed, provided that it came in dark blue—the colour of the school uniform.”

Really, the problem is the veil, or so it seems on a surface level. How could it be otherwise? Nuns’ habits, which admittedly we seldom see these days, cover the wearers as much as does the burka, sans veil. If nuns reverted to wearing their habits in public who would object in Western society? Very few, if anyone, I imagine. Amish women are well covered, for example, as are Hasidic Jewish women. I doubt anybody but yobbos would cause a fuss if we saw more of them on the street.

At the same time, it is an open question as to whether the scarf and veil would create controversy, if they were not accompanied by the body covering. Certainly a miniskirt combined with headscarf and veil would generate, I think, a quite different kind of reaction. This is not as fatuous as it sounds. It points, however convolutedly, to the real problem for which the burka is a distracting diversion. 

In a free society people as individuals, or in groups, have the right to voice their opinions on the conduct of others and in ways which might be judged offensive. Essentially it has to be offensive to put free speech to the test. A.C. Grayling (Liberty in the Age of Terror, 2009) makes an important distinction in this area between being offensive about what “people cannot change … their sex, race or age” and things that they can such as religious affiliation. The latter he believes is fair game, whereas placing restraints on the former might be justified in certain cases. This seems to provide a guide of sorts to get through part of the maze of deciding what limitations should be placed on free speech outside of crying fire in a crowded theatre. Though, it is only a very rough guide. I assume we wouldn’t want to stop Bob Hawke from calling someone a silly old bugger? Old age, which we all aspire to attain and most of us reach (even Bob has now joined the ranks of the SOBs), doesn’t quite have the same sensitivity to it as sex (gender) which for most of us will always be one or the other; and not nearly the same sensitivity as does race, which we cannot change. In any event, any limits on free speech have in Grayling’s words “to be specific, narrowly defined, and extremely well justified”.

At the time the bill banning the face veil was being debated by the French parliament, around mid-2010, a French MP, Andre Gerin, was reported as describing the burka as “a walking coffin”. Justice Minister Michele Alliot-Marie said that it “amounts to being cut off from society and rejecting the very spirit of the French republic that is founded on a desire to live together”. Most of the people I know find the burka confronting and even offensive, or at least that is the way some of them have described it. All of this criticism is well within any bounds of free speech. If people want to go around dressing outside of societal norms they can expect criticism and even ridicule. US conservative commentator Dennis Miller described the burka as a beekeeper suit. Jean Shrimpton had to put up with criticism and ridicule and so do Muslims who choose to dress in “beekeeper suits”. However, criticism is one thing, outlawing quite another. If free speech is a stalwart of a free society; tolerance is its essential companion. And just as free speech is the right to say things that offend the sensibilities of others, so tolerance is the requirement to be tolerant of the offensive. A tolerant society should not take tolerance so far as to tolerate intolerance. That clearly would be self-defeating. Short of that, intolerance, like limits on free speech, has to be well justified. Otherwise we do not have a free society.

In this case of the burka, lawmakers and others who want it banned from being worn in public (specifically its component veil) need to establish that to do otherwise would be intolerable within a (tolerant) free society. It may be aptly described as a beekeeper suit or a walking coffin. It may be confronting and offensive to many people. It may inhibit and exclude everyday social contact. It may estrange the wearer from society at large. None of this provides a safe basis for outlawing the burka. Quite simply it would not be hard to find any number of things that some people find confronting and offensive. Personally I don’t think older men should walk or jog in public wearing shortish shorts. I see this too often and find it off-putting. It’s outrageously offensive to good dress sense and decorum and should be outlawed. Perhaps not; I have to learn to be more tolerant. As to estrangement, some people choose to be reclusive and cut themselves off from society. Are we to tolerate one person’s way of doing this and yet outlaw another’s? If people don’t want to talk to us or interact with us in the public domain, surely that is their choice.

Why would we think John Stuart Mill (in On Liberty) got it wrong?

when a person’s conduct affects the interests of no persons besides himself, or needs to affect them unless they like … there should be perfect freedom, legal and social, to do the action and stand the consequences.

Banning the burka because it is offensive to broader society cannot be justified. Nor is it relevant to say, as does Geraldine Brooks (in Nine Parts of Desire, 1995) among others, that the Koran does not prescribe a headscarf and veil for women. Or, that the resurgence of the burka is part of an anti-Western stand. Or, however galling, that it is a rejection of Western values among those enjoying Western prosperity and freedom. Why people choose to do what they do has to be a matter for them. The question has to be restricted to whether what they do should be made unlawful; not why they do what they do.

In my view there are only two possible legitimate reasons why a lot of clothes covering (in this case the burka including veil) would be objectionable to the point of being made unlawful.

  • One, if the wearer of the clothes had no choice in the matter. 
  • Two, if it harmed or injured others in some tangible way. 

On the question of choice, it seems evident that some Muslim women are forced by their husbands or families to wear a veil in public. The French law has much stiffer penalties for those forcing women to wear a veil than for the wearers. Some women, on the other hand, clearly wear it willingly. “I want to wear the hijab [meaning the scarf and face veil in this case], I want to obey my husband,” Ayaan Hirsi Ali reported hearing among some Turkish women. Kenan Malik (in From Fatwa to Jihad, 2009) cites the case of a Turkish Muslim leader, Bunyamin Simsek, living in Denmark: “My wife wore a veil and that was a problem for me … when you come to somewhere like Denmark, you have to adapt … she would not.”

It is difficult to see how it is safe for the law to presume that what people are doing in public, seemingly of their own volition, they are doing unwillingly. It is particularly problematic if, when asked, they say they are doing it willingly. And if some are doing it willingly and some not, why should the law intrude on the activities of willing participants? Shouldn’t the coercion be targeted by the law rather than the burka as a specific symptom of the supposed coercion? However, as Martha Nussbaum (New York Times, July 11, 2010) pointed out: “violence and physical coercion in the home are illegal already”. 

Of course, because women “willingly” don the burka doesn’t make it a socially desirable practice, particularly if their willingness is part of a learnt practice of subjugating their best interests to the demands of a patriarchal culture. John Stuart Mill was again alive to this possibility in his essay The Subjection of Women:

How many more women there are who silently cherish similar aspirations [to equality], no-one can possibly know; but there are abundant tokens how many would cherish them, were they not so strenuously taught to repress them as contrary to the proprieties of their sex.

Whenever this is true, it points to a need for change in societal attitudes. It cannot easily be contorted to support prohibiting particular practices that women may engage in. It seems clear that the basis for legal intervention to ban the burka because some women are coerced into wearing it is extremely flimsy.

The question of whether wearing the burka harms others is more nuanced than whether it is worn willingly. Clearly, someone simply passing by in a burka does no one tangible harm. To give it content, the question has to be asked in terms of whether in particular circumstances it can abrogate a right of others. This is not an inalienable right to life, liberty or the pursuit of happiness; or a right at the level of free speech. This right, better described perhaps as an entitlement, is the conditional and qualified one to see the face of another. 

I was at Wynyard station a little while ago. An Asian man was boarding a train. He wore a surgical mask. It may have been because he was public-spirited and had some ailment that he didn’t want to pass on. On the other hand, maybe he was wary of catching something on a crowded train. I don’t know. It caused no offence. He was not wearing a hat. Suppose he had been and had entered a bank. I don’t know what instructions bank staff have if this occurs; he would be wearing the traditional garb of a bank robber and may be asked to remove his mask. He would have a choice of taking off the mask or removing himself from the bank. No one, I think, would object to the bank staff asking him to remove his mask. Their entitlement in this case is to see the face of their customer for security reasons. I was asked to remove my peaked cap when entering a public bar in Newtown even though I look inoffensive and was with my wife. Presumably, the barman was exercising an entitlement to have my face visible to cameras. I did not object.

A Muslim women dressed in a burka is unlikely to frequent a public bar in Newtown; a bank, I am not sure of. But she certainly might enter a store. The owner of the store has an equal entitlement to security as the hotel and bank and therefore might legitimately refuse entry to anyone hiding their face, including a scarfed and veiled woman.

A Muslim woman might travel overseas. In this case, it is hard to see how the legitimate entitlement, and duty in this case, of the passport control officer to check the identity of travellers against their passport photograph can be exercised if a face veil is worn and not at least temporarily removed.

It is clear that entitlements of security and border control across a wide area make the wearing of a face veil unacceptable in certain situations. But, on the whole, those wearing a veil can choose to avoid those situations or make an exception for them. More contentious territory exists at educational institutions and at the workplace.

Do students have an entitlement to see the face of their teacher? Do teachers have an entitlement to see the faces of their students? Do colleagues at work have an entitlement to see each other’s faces? Does an applicant for social security have an entitlement to see the face of the officer they are dealing with and vice versa? In other words, once out of the purely public domain of non-interacting strangers, into a space within which non-trivial (professional as distinct from social) personal interaction is required, is facial visibility an entitlement? Or, less generally, is it legitimate and consistent with a free society for a particular society to treat it as an entitlement? There is no easy answer here but extensive psychological research points to non-verbal signals, including facial expressions, being an integral part of interpersonal communication. 

Burgoon and Hoobler (“Nonverbal Signals”, Handbook of Interpersonal Communication, 2002) refer to bodies of research “showing that approximately 60–65% of all meaning in human encounters derives from nonverbal cues”, including facial expressions. They write that “the skilful creation, transmission and comprehension of nonverbal signals underpins communication generally … they carry a significant, and often dominant, portion of the social meaning in face-to-face interchanges”. In an earlier edition of the Handbook, Burgoon (1994) put it more poetically: 

If messages are the heart of the interpersonal communication enterprise, then nonverbal cues are the arteries through which the linguistic lifeblood courses. They connect, channel, and constrain the verbal constituents. In short, nonverbal cues are an inherent and essential part of message creation (production) and interpretation (processing). 

In an educational context, Richmond, McCroskey and Payne (Nonverbal Behaviour in Interpersonal Relations, 1991) note that 

the nonverbal component of the communication process is as important to the teacher/student relationship as the verbal component and often much more so … The use of facial expressions communicates a lot in the classroom … both teachers and students need to use pleasing facial expressions … It improves the perceptions the other has and the communication between teacher and student.

Perhaps Darwin was right in supposing that facial expressions were a product of natural selection and honed for the purpose of facilitating successful interaction. In any event, it seems clear from the literature on the subject, but also as a matter of our own experience, that facial expressions are a vital component of communication between people. In turn, no one would question that communication is essential to the way we do business with each other at the workplace and in educational institutions. Putting these two things together makes a strong case for treating facial visibility as an entitlement in professional situations.

Recognising an entitlement to see people’s faces in particular circumstances would not entail making something illegal. It would simply entail protecting the legal right (for example against charges of discrimination) of an employer to sack, or refuse to employ, someone who wore face covering. That same right would be given to educational institutions to refuse employment to teachers or places to students. In the case of public schools, the only way to effectively protect entitlements would be to disallow face covering throughout the system. And this would also apply to public service employment. What private businesses and private educational institutions did would be up to them. If they allowed face covering, those discomforted by it would have the option of conducting their affairs elsewhere.

The objective would be to protect the right to see others’ faces where communication is an essential part of a professional relationship. Beyond that, it is difficult to justify trying to control what people wear in a free and open society. It is also an affront to common sense to ban one article of clothing which covers the face while allowing people to walk around with hats and scarfs to ward off cold weather and face masks to ward off germs. Sunglasses too can disguise the face, which is why we often take them off when talking to each other. Surely people have a right in a public place to distance themselves from others, however unfortunate this is from a sense of community. Undoubtedly too they ought not to be cowed into revealing their faces to intrusive government cameras in public places and streets, if ever these became prevalent.

Unfortunately, of course, the real problem is not the face covering at all. Hence my earlier tongue-in-cheek comment about headscarfs, veils and miniskirts. I have seen various estimates which suggest that only about 2000 Muslim women living in France out of some millions will be affected by the French law. Normally a free society would not bother too much with eccentric conduct on the part of so few people, even if it were confronting. Hare Krishna devotees ply their exuberant trade freely though they look and act outside of the norm. I know the Chinese government oppresses the Falun Gong, but then we would not want to emulate the Chinese government.

Who would really care how a couple of thousand Muslim women dressed in France, or in other European countries or regions that have banned or are considering banning the burka, if that is all there were to it? In reality, debate around banning the burka is a side issue elevated way beyond its importance because the real problem is deemed too hard to tackle. That problem stems from the growing proportion of Western populations who are Muslims. See, for example, Mark Steyn (America Alone, 2006) for a singularly confronting account of this development.

In itself, a growing number of people adhering to a particular religion is not a problem. The reason it is a problem (and I suggest the only reason) is that Islam conflates religion and state. In separating religion from state, Christianity has the advantage that Christ gave it: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” There is no comparable edict in Islam. Ernest Gellner (Muslim Society, 1981) makes the point that “there is no separation in Islam between state and religion”. 

The hard-fought separation of church and state in the Western Christian world is now a given. If by some remote chance Christian churches started filling up again, life would go on pretty much as before. Maybe the inevitable march towards gay marriage would be slowed. Nothing much else would change. In the Islamic world, on the other hand, secularism is often under siege, to one extent or another, and has to be protected by force. Islamic political parties tend to emerge wherever there are significant Muslim populations.

The recent case of the assassination of Salman Taseer, the governor of the Punjab province in Pakistan, is instructive. He was apparently killed for opposing blasphemy laws which had resulted in a Christian woman facing execution. Pope Benedict was able to weigh in and oppose these laws not simply because democracy in Western societies has evolved to separate the affairs of church from state, but because Christ wisely, as you would expect from the Son of God, set out the ground rules for the Pope to follow. 

Having no separation between church and state is extremely threatening to free societies. Effectively church rule (of whatever faith) is akin to despotism. The question arises as to whether Islam can reform itself as did the Christian churches into having a voice no more important than any other in the affairs of state. You have to say that this seems unlikely when the creed apparently binds religion and state tightly together. 

The reported reaction of political leaders in Pakistan to the Pope’s intervention certainly gave no confidence that reform was likely. A number of political leaders, including the Prime Minister Yousuf Raza Gilani, made it clear that the Pope had no business interfering in Pakistan’s internal affairs and that the blasphemy laws would remain in place. The sight of thousands showering the alleged assassin with rose petals, as it was reported, suggests that little has changed since justices Munir and Kayani reported on the religious riots in the Punjab in the early 1950s:

If there is one thing that has been demonstrated in this inquiry it is that provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion, you can set them to any course of action regardless of all considerations of discipline, loyalty, decency, morality or civic sense. 

Sharia law seems to be put on the agenda wherever Muslim populations become sizeable. We’ve even had the Archbishop of Canterbury, Rowan Williams, contemplating its introduction into the United Kingdom. In a long, puffed-up (and obscurantist) essay he said in part:

It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the law’s function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern society. Certainly, no one is likely to suppose that a scheme allowing for supplementary jurisdiction will be simple, and the history of experiments in this direction amply illustrates the problems. But … it might be possible to think in terms of … “transformative accommodation”: a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that “power-holders are forced to compete for the loyalty of their shared constituents”.

We are told on the Archbishop’s website that in a subsequent BBC interview he “indicated his assent” to the question: “The application of sharia in certain circumstances—if we want to achieve this cohesion and take seriously people’s religion—seems unavoidable?” At the same time, we are told that “he had made no proposals for sharia” in either the lecture or in the BBC interview “and certainly did not call for its introduction as some kind of parallel jurisdiction to the civil law”. Obviously the Archbishop means just what he chooses to mean—neither more nor less. “The question is,” said Alice, “whether you can make words mean so many different things.”

Kenan Malik suggests that multiculturalism in Britain has rewarded and encouraged separation and brought about fundamentalism among Muslims. He makes a good case so far as it goes. He cites Blair abdicating his responsibility to British Muslim citizens: “I am not the person to go into the Muslim community and explain to them that this extreme view is not the true face of Islam.” At the same time, whatever the cause or rationalisation, you get the inevitable sense that fundamentalism is always around the corner, waiting to come out. A nation doesn’t want to be constantly on its toes lest powerful religious-based internal movements arise to subvert democracy.

Ayaan Hirsi Ali argues that Islam must reform itself, particularly on the position of women. But it is telling that she had become an atheist. Irshad Manji (in The Trouble with Islam, 2003) wants to reform Islam by questioning the Koran, “by openly asking where its verses come from, why they are contradictory”. It seems doubtful, to say the very least, that either of their calls will be heeded. We are dealing with “the very words of God” in the Koran, and with the sayings, practices and traditions attributed to Muhammad (Hadith) to whom God entrusted his words. There is not much wriggle room here.

In Christianity there appears to be enormous wriggle room, for Anglicans in particular. The wriggle room seems to stem from Christ living the life of a man and dealing with everyday events; and from the fact that the words in the Bible were crafted by men, not directly by God. So, leading Presbyterian minister Jack Rogers (Jesus, the Bible, and Homosexuality, 2006) can argue convincingly, despite analysing numerous biblical passages to the contrary, that “acceptance of people who are homosexual is grounded in the central message of scripture as interpreted through the lens of Jesus’ life and ministry”. Dominican priest Wilfrid Harrington (Jesus and Paul, 1991) can argue that Paul’s letter to the Ephesians, which in part says that wives are subject to their husbands, was almost certainly not written by Paul and was one of a number of pseudo-Pauline letters representing a “backlash to the disturbing prominence of women in the Christian movement”. In a millennium message in 1999, the then Archbishop of Canterbury, George Carey, can top it all, and say, without fear of excommunication, never mind beheading: “I can tell you frankly that while we can be absolutely sure that Jesus lived and that he was certainly crucified on the Cross, we cannot with the same certainty say that we know He was raised by God from the dead.” I cannot imagine an imam engaging in any equivalent kind of Islamic “heresy”. 

What this means is that a milksop set of spiritual leaders and principles is set against a set of unbending spiritual leaders and principles. No guessing which one is likely to win out. That would be fine if the process started and stopped with religion. But when the more powerful side has political ambitions in its very nature, the threat will not be countered by concentrating on the burka.

Banning the burka in the public domain is illiberal and should not be supported by those believing in a free society. More to the point, it is tokenism and diverts attention from the real problem. As confronting and offensive as it may seem to some, the only effective option available to Western societies to tackle that problem (while, and assuming, there is still time) is to limit the size of Muslim populations through selective immigration policies. The option of Islam “reforming” itself—in the way we think of reform—is unlikely to occur because it would probably be regarded as heretical. In any event, we should not rely on permanent reform occurring when religious zealotry appears to hold such resilient sway among Muslims. It would be unsafe. The safe assumption is that an Anglican bishop (and his congregation) is much more likely to diverge from the scriptural path than is an ayatollah (and his).  

Peter Smith is a frequent contributor to Quadrant and Quadrant Online.

Peter Smith, a frequent Quadrant Online contributor, is the author of Bad Economics