Friday 10 May 2013

How to justify a ban on the burqa (or anything else)

Bans on wearing the burqa and other face-covering religious garb (such as are under consideration or recently passed in several European countries) fall under a class of restrictions by government on the free choice of individuals over private matters. They thus have the appearance of being illiberal, of disrespecting people's natural rights to manage their own affairs in general, and to follow their own plan of life in particular. In fact, it is possible to justify such a ban in liberal terms. But not just any kind of ban will do.

Political debate about the burqa in the west is dominated by an unfortunate bigotry, a species of moral foolishness antithetical to liberalism. I have heard and read serious arguments for banning the burqa because it causes vitamin D deficiency (lack of sunshine), because people will try to rob banks dressed in burqas, because this is alien to our face-to-face culture, and so on. Such arguments are, respectively, trivial, stupid, and xenophobic (if not racist). 

Yet it seems to me that there are in fact plausible liberal arguments for banning the burqa (and various other things, such as addictive drugs), which focus on the harms that the burqa may do to the personal autonomy of particularly vulnerable women and girls. This line of reasoning is of course inconsistent with the libertarian interpretation of liberalism, in terms of the sanctity of individual liberty from the depredations of government restrictions, unless there is evidence that you are using your liberty to harm others in some significant way. The libertarian thus takes Mill's  'harm principle' seriously, if rather narrowly,

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (Mill, On Liberty)

The narrowness of the libertarian view has two dimensions. First, libertarians presume that people are already and always rational, and thus that their desires and opinions reflect their autonomous will. Yet while this is a good 'respectful' normative stance to take to other people in general, it is false in its particulars. We all know that everyone is less than fully rational at least some of the time (eg), and that some people are dysfunctionally irrational much of the time (such as the severely mentally ill, or drug addicts). What someone sincerely believes and feels that they want may not be consistent with what they would conclude if they had had the opportunity and capacity to consider their desires in the light of their other more important interests and values (i.e. what philosophers call practical reason). 

Second, libertarians presume that the only source of oppression that needs to be defended against is the government (vertical power). Yet we all know that the 'horizontal' subjugation of individuals by non-state actors, such as religious communities and families, can also be a significant source of oppression in people's lives. This is particularly significant because of the vulnerability of the development of personal autonomy. While the capability to reason autonomously about one's values and plan of life is essential to the idea of the human person in a teleological sense, this does not mean that it is 'natural' in a biological sense. Autonomy is something that develops from childhood on (hence the need for liberal parenting and education) and that may be constrained or deformed (for example, by mental illness or certain forms of parenting and education).

Like Mill himself, I therefore take individual autonomy rather than mere liberty as the foundational moral concern of liberalism. At the practical level, this means that liberals may question whether people's choices are necessarily free simply because the government isn't coercing them. Liberalism as a political doctrine utterly rejects the use of the apparatus of the state to subjugate citizens (the particular concern of libertarians). But it also requires protecting people from other forms of subjugation, such as unchosen entanglement in oppressive social relationships. In such cases well-designed government interference can be autonomy enhancing.

Turning back to the case of the burqa, feminists have argued that wearing it makes women socially dysfunctional and undermines their rational autonomy, and that it is even designed to do so. Women who wear the burqa have difficulty functioning adequately in society, since it imposes severe constraints on employment and general social interactions, and even things like eating in public. They are artificially separated - segregated - from other people (even other burqa wearers), and this seems to be exactly how the garment is supposed to work. 

Quite aside from making life generally more difficult, that separation reduces women's capability to benefit from the free interaction in a free society which, as Mill noted, is important for exercising and developing personal moral autonomy and a conception of the good life that is genuinely one's own. In the Western context, losing this opportunity for public interaction seems particularly significant because the very kind of communities and families that would require 'their' women to wear such clothing are likely to be exactly the kind of cloistered environments in which opportunities for free thought about values and personal exploration of different ways of living are especially (and deliberately) constrained.

In addition, it can be argued that the burqa is not only the outcome of misogynist thinking but appears deliberately designed to impose that perspective on its wearers. The justification for wearing the burqa is the characterisation of women as sexual objects by nature whose status in public life is of non-persons. Wearing a burqa from an early age reinforces and perpetuates that false thesis in the minds of those wearing it, and also, conveniently, in the minds of those who make them wear itThe wearing of the burqa itself thus plays a performative function in helping to make this illiberal ideology into reality, and it is arguably intended to do exactly this. 

Thus, the liberal case for a ban is that the burqa seems liable to systematically subvert women's rational autonomy - their freedom to think for themselves - in ways that go far beyond the practical restrictions it imposes as a particularly uncomfortable item of clothing.  

Now many readers will immediately object that these claims are empirically false. The burqa doesn't necessarily have these effects and it is perfectly possible for women to choose to wear it out of a free  and fully autonomous choice. Of course you're quite right. Nevertheless, it is also true that these problems do exist at least sometimes, and are ethically significant (at least to liberals). Welcome to public policy!

Fortunately, public policy analysis does not stop at identifying the harms of some practice and demanding that it be stopped, even if that is how newspapers often present it. Done properly it is concerned with adjudicating the costs and benefits of public intervention in liberal terms. Do the benefits of a ban, in preventing the harms that the burqa may do to some women, outweigh the harms that the ban might itself do to the general freedom (and freedom of religion) of others? 

There is nothing new about this requirement, which follows from the bluntness of law as a policy instrumentA law should be consistently applied - that is, treat all the cases that come before it in the same way - and this means that it is a limited instrument for dealing with issues that fall on a spectrum. A law is designed with a particular ideal target in mind, a specific sort of case considered of particular importance. If the law is well thought out, written and enforced then it should be able to adequately address that ideal target case. Yet it may well be a bad fit for many other cases that fall under its jurisdiction and must be treated in the same way. 

In considering whether to pass or revise a law one should therefore consider not only how well it deals with the ideal target case, but also the degree of 'collateral damage' it may itself introduce by mistreating other cases that fall under its jurisdiction. Sensible drug laws, for example, require making the right trade-off between preventing or minimising the harms that drugs can do to the functioning and rational autonomy of some people, and the harms that such restrictions or punishments impose on those who are quite competent to use them recreationally. Likewise for age-of-consent laws; anti-gambling laws; and so on. In many cases such scrutiny will reveal that the collateral damage is so great that, whatever its good intentions, this law or policy makes things worse rather than better (as for example with the US 'war on drugs'). 

The question of whether liberals can ban burqas therefore requires both an ethical evaluation and an empirical (social scientific) one. The first - ethical evaluation - concerns how we weight the harms burqas may impose on vulnerable women, and especially girls completely subject to their family's wishes, against the benefits autonomous women may gain from being allowed to wear them. How, for example, should we value an outcome where one hundred women are liberated from the burqa while one thousand women are prevented from following what they see as their freely affirmed religious duty? 

From the liberal perspective I think liberation should be weighted much higher, since being prevented from developing moral autonomy in the first place seems an orders of magnitude greater 'crime against the person' than relatively minor restrictions on how people may exercise their moral autonomy in public. Thus it seems to me that liberals have principled grounds for at least considering a ban, even if it means government interference in at least some women's exercise of individual autonomy about their freely chosen plan of life. Nevertheless, the sacrifice of the liberty of the many in order to protect the autonomy of the few is not something to be done lightly. It is a last resort that marks the limiting case of the ethical analysis.

The empirical analysis concerns the factual and logistical side of the case for public policy. Having decided what matters, we still have to perform a reality check to decide whether a law is appropriate and how it should be designed. Just how significant and prevalent are the ethical harms, or benefits, of the burqa? What are the mechanisms by which they are brought about? How could a ban be formulated to disrupt the harmful 'subjugation' effects of the burqa on vulnerable women with the least interference on the liberties of others? (For example, only for under-18s?) What positive social policies might helpfully complement a ban (or even be better by themselves than having a ban)? How might a ban itself impact the mechanisms under consideration - e.g. might dogmatic families and communities simply ban their women from leaving the house at all? 

The liberal justification for a ban on the burqa must demonstrate three things with this empirical analysis. That it would protect a non-trivial number of vulnerable women and girls from a significant harm to their autonomy; that the 'collateral damage' to voluntary burqa wearers is much less than the benefits to vulnerable women; and that only a ban can achieve this. But if these rather demanding conditions are met, then not only do we have good liberal grounds for a ban on the burqa, we would seem to have a duty to impose such a ban.