In 2011 the French government decided to ban the wearing of face veils in public. Several other countries implemented a similar ban. In February 2013 the Spanish Supreme Court cancelled a city law banning the wearing of burqas. In July 2011 Belgium followed the French example. Last week, the European Court of Human Rights has upheld France’s law banning face-covering veils in public, in a case brought by a woman who said that her freedom of religion was violated by the ban. The court’s Grand Chamber rejected the arguments of the woman who does not wear the face veil at all times but when she does so, she wants to be at peace her faith, her culture and convictions.
The legal point brought forward by the woman’s solicitors was that the state was not to question her beliefs and practices which the Court accepted. The court also recognized that the ban was a strong interference of the rights of the applicant and in particular also the disproportionate impact of the law on Muslim women.
The reason to uphold the ban however mainly pertains to the ‘the ground rules of social communication and more broadly the requirements of “living together”’ rule:
As to the “protection of the rights and freedoms of others”, the Government referred to the need to ensure “respect for the minimum set of values of an open democratic society”, listing three values in that connection: respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society (or of “living together”). While dismissing the arguments relating to the first two of those values, the Court accepted that the barrier raised against others by a veil concealing the face in public could undermine the notion of “living together”. In that connection, it indicated that it took into account the State’s submission that the face played a significant role in social interaction. The Court was also able to understand the view that individuals might not wish to see, in places open to all, practices or attitudes which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, formed an indispensable element of community life within the society in question. The Court was therefore able to accept that the barrier raised against others by a veil concealing the face was perceived by the respondent State as breaching the right of others to live in a space of socialisation which made living together easier. It added, however, that in view of the flexibility of the notion of “living together” and the resulting risk of abuse, it had to engage in a careful examination of the necessity of the measure at issue.
Furthermore … by prohibiting everyone from wearing clothing designed to conceal the face in public places, the respondent State has to a certain extent restricted the reach of pluralism. … However, for their part, the Government indicated that it was a question of responding to a practice that the State deemed incompatible … with the ground rules of social communication and more broadly the requirements of “living together.” From that perspective, the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society. It can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society.
Two judges dissented, stating that “the criminalisation of the wearing of a full-face veil is a measure which is disproportionate to the aim of protecting the idea of ‘living together.” The rule of ‘living together’ was already used by the Belgian Constitutional Court in a different case to justify the ban in Belgium but also previously in the Netherlands. This of course is very remarkable. Because what does this living together rule mean? Who has to live together with whom? Who is the norm and who should adjust? It appears that in this case the minority has to adjust to the majority (or more precise, an idealized vision of that majority). Why and when is ‘living together’ more important than individual liberal rights and freedoms?
Furthermore, as my colleagues AM and JMB pointed out this week there is this idea that seeing one’s face is necessary for communication. This of course is not necessarily so since communicating through phone and chat works quite well without seeing each other as everyone will have experienced. It is the idea that by looking at ones face we can see what a person ‘really’ thinks and that a face shows a person’s inner convictions. Furthermore the ban on the face veil should also be seen in the wider context of securitization; a process that not only pertains to Muslims but to everyone in society and in which everyone’s presence is a potential danger. In order to be able to surveil people it is necessary that people’s faces are visible for identification in public. In a political sense the ‘living together’ argument I think is a compelling one for many people because it has the aura of being self evident: of course we have to live together. But the way it is used here blinds us from the politics that is involved.
By the 1990s a development has taken place which entailed migrants being primarily categorized by their culture and/or religion. Assuming idealized an idealized vision of what constitutes European values with regard to secular and sexual freedoms became the standard for integration: the so-called culturalization of citizenship. In the Netherlands, my alma mater the Free University developed regulations about shaking hands and dress in 2004. Like in the case of the European ruling discussed here it is argued that in order to ensure communication ‘as is common in our society and culture’ wearing a face veil and refusing to shake hands had to be banned as well as segregation of the sexes; ‘social forms of interaction will be practised as is common in our western culture’ according to the Free University at that time.
Therefore while the idea of living together appears to be self evident and neutral it is actually based on a homogenization of what Dutch or European culture is or should be according to the powers that be. Furthermore what also goes unquestioned is the idea that we should indeed live together. What does that actually mean? If people want to remain anonymous how does it threaten living together? And why should people not be allowed to isolate themselves from the rest of society?
This is not just the agenda of the far right, this is the agenda of mainstream political parties in Europe and perhaps one could even argue that the successful far right parties are partly the product of the culturalization and partly taking that line into its (completely logical) extreme. It is a particular idea of the ideal virtuous citizen, secular, emancipated, liberal, that is imposed on the whole of society as being the normal, acceptable and expected mode of citizenship. The living together rule therefore is not so much a desire for social cohesion and integration but a political project of homogenization and securitization through the criminalization of Muslim women’s attire.
The Press Release: