Published on July 31, 2020
What—if any—authority does the government have to intervene in the affairs of private individuals? This question lies at the heart of the following discourse on the appropriate limits on a government’s right to regulate. Using France’s 2011 Burqa Ban as a framework, this paper evaluates several competing theories on these limits and their relative significance. Though none of these theories can fully capture the complexity of this subject, they provide invaluable insight into the various postulates used to justify state control over private behavior.
In his 1859 essay On Liberty, English philosopher John Stuart Mill crafts a theory on the appropriate bounds of legal regulation with the intent of preserving individual freedoms while concurrently preventing injury to others. This theory—known as the “harm principle”—states that each individual is free to do as he or she pleases provided that their actions do not harm non-consenting others. Within the harm principle, Mill finds that our actions fall into two distinct realms—public and private. For instance, if one’s actions do no harm to non-consenting others, such deeds “belong” in the private realm and are insulated from external regulation. Although Mill’s arguments are compelling, an effective state[i] cannot be dispossessed of its authority to maintain peace and order. However, the state’s legitimate interest in regulating certain behaviors does not generate a prima facie right to intervene. As such, concerning France’s controversial 2011 burqa ban, I find no single contemporary theory on legal regulation sufficient in itself. A holistic theory—one which accounts for Mill’s harm principle, Joel Feinberg’s discourse on offensive conduct, and Patrick Devlin’s classical legal moralism—is the best channel for determining the validity of the ban.
HISTORICAL CONTEXT
To understand the motivations for France’s ban on face-veiling garments, one would be well-served to consult France’s unique political and social history. The French Revolution inspired a series of reforms aimed at reversing the plight of France’s feudal caste system, the “Ancien Régime.” These reforms included the establishment of popular institutions (i.e political clubs), the abolition of slavery, and the transition towards a constitutional government. However, one of the most conspicuous ramifications of the Revolution centers on the relationship between France and the Church. Pre-Revolution France was marked by the pervasive dominance of the Catholic Church in nearly all aspects of French life. Before 1789, the Church levied taxes (via tithes)[ii] on all citizens, owned one-tenth of all French land, operated schools, and was itself immune from taxation. Moreover, the Church had strong ties to the French nobility. In fact, during the reign of Louis XVI, every clergyman in France was a noble—a fact which greatly vexed the bourgeoisie and indigent classes.
In 1789, France’s infant legislature issued the Declaration of the Rights of Man and of the Citizen (“the Declaration”), outlining the specific liberties to be enjoyed by all French citizens. Notably, the text of the Declaration closely mirrors the core tenets of Mill’s harm principle. Article IV declares that the fundamental nature of liberty “consists in the freedom to do everything which injures no one else.” Article V of the Declaration states that the law “can only prohibit . . . actions as are hurtful to society.” However, few political developments were more integral to the transformation of France’s post-Revolution social order than the country’s steadfast embrace of secularism. Perturbed by the outsized influence of the Catholic Church, reformers sought to make the Church more accountable to the French citizenry. Article X of the Declaration established the freedom of religion in France, provided one’s manifestation [of religious belief] does not “disturb the public order established by law.”
SECULAR FRANCE & THE PRINCIPLE OF “LAÏCITÉ”
To France, secularism was far more than a relic of revolutionary rhetoric. In December of 1905, France’s now-defunct Chamber of Deputies codified “freedom of conscience” in the Loi de séparation des Églises et de l’État (“Loi de séparation”)—the law of the separation of church and state. This edict guaranteed the free exercise of worship and severed the formal ties between France and the Church. The term“laïcité,” loosely translated as “secular,” refers broadly to the egalitarian principles of religious liberty and the separation of the church and state. No longer could the Church use its power and influence in France to shape state policy. Yet, in spite of the Loi de séparation, France still struggled to cast itself away from the Church’s sphere of power. In the words of French statesman Napoleon Bonaparte, “a state without a religion is like a vessel without a compass” (Grant & Temperley, 2013, p. 86). Nonetheless, the Loi de séparation was a strong assertion of the peoples’ will. Outlawing religious imagery on public buildings, assuming Church property into state ownership, and banning governmental funding of non-secular groups were just a few of the law’s main provisions. As France became more religiously diverse, laïcité—in a legal sense—became “a concept conveying a positive belief” that France was “opposed to Catholic forces” (Hunter-Henin, 2012, p. 621).
MILL’S FRAMEWORK & THE BURQA BAN
In his discourse on the appropriate regions of human liberty, Mill writes that “if any one does an act hurtful to others, there is a prima facie case for punishing ” (420). However, it is not clear that, under Mill’s principle, the burqa ban would qualify as appropriate legal regulation. After all, it does not follow that the mere donning of a burqa or niqab by a Muslim woman does injury to some non-consenting other. How then does Mill’s principle apply? This question brings us to the subject of “indirect” harms. One of France’s justifications for the burqa ban concerns the need for law enforcement to identify individuals as a matter of public safety. Suppose that a woman wearing a niqab, which cloaks the entire head, face, and body, concealed a weapon in her garments. It is not the niqab itself that presents a threat to the public. Rather, the niqab inhibits the ability of law enforcement to identify potential perpetrators of violence. As such, the niqab indirectly harms law enforcement officials—it impacts their capacity to perform their jobs. Indirect harms can lead to direct consequences. If we suppose that this weapon is discharged, resulting in the death or injury of one or more persons, the harm done is more apparent. It is not clear in Mill’s thesis whether or not indirect harms are sufficient warrants for regulation. Thus, we ought to compare the implications of Mill’s thesis when applied to a limited set of harms—those with distinguishable[iii] effects to non-consenting others and a broader, less restrictive set of harms.[iv]
One often ignored element of the harm principle is that Mill’s justification for his thesis is rooted in utilitarianism. Ignorant of this, one might err in overextending Mill’s thesis—raising several complications. For instance, is it Mill’s position that the state has no authority whatsoever to interfere with detrimental behaviors so long as they do not harm others? If so, several desirable regulations—prohibitions on possessing child pornography, limitations on free speech (i.e. “fighting words” [v]), etc.—may exist outside the scope of harm to non-consenting others. Yet, this is a classic example of over-extension. Mill’s utilitarianism generates a broad sphere of harm. For example, laws against suicide would be a permissible area of regulation. Our actions have external effects on actors that, in haste, are oft-ignored or poorly considered. If one were to commit suicide, the individuals who depend on this person—i.e. relatives, lovers, children, friends, etc.—would certainly experience harm due to their loss. Though this harm may manifest itself in physical, emotional, or financial ways, the harm done is very real to these presumably non-consenting others. Furthermore, this individual’s death would preclude their capacity to do further good for society, even in minor ways such as caring for one’s family. Due to these effects, suicide ought to be regulated because it violates the fundamental principle of utilitarianism—maximizing social utility.
Arguments against France’s burqa ban lie at the opposite end of over-extension—weak sufficiency. Weak sufficiency asserts that harm to others is a pro tanto justification for regulation. This means that harm to others is a necessary condition for regulation but may be outweighed by other sufficient conditions such as offense to others, classical legal moralism, and paternalism. To regulate a benign activity such as clothing choice, the state must meet a high burden of proof. This burden is inextricably linked with three important factors: the magnitude of the harm in question, the probability of harm occurring, and the permissibility of coercion in regulation.
The population of women who choose to wear the burqa and the niqab in France is quite small. Current estimates place the figure between 0.01% and 0.04% of France’s Muslim population, a mere fraction of France’s total population (Human Rights Watch, 2009). Given this fact, it may be inefficient for a state to expend resources regulating the burqa as the magnitude of potential harm is quite low. This state may be better off shifting resources towards security and public safety efforts. This approach would be a better means to the state’s ends if implemented with caution. Further, incidents of terror involving women wearing burqas are quite rare in France. It seems that the ban was in-part justified by Islamic stereotypes made prevalent by France’s persistent struggle with terrorism. Though the harm caused by these isolated events may be fresh to some victims, the probability that these events occur is still relatively low. As such, banning burqas in public spaces may not warrant intervention via coercion given the overblown social consequences of this activity. France’s commitment to laïcité seems to preclude state interference with religious liberty given that “Salus populi suprema lex esto.”[vi] This is not to say that France ought to ignore the potential indirect harms presented by the burqa. Rather, utilitarianism requires that we implement measured[vii] approaches to mitigate these risks.
OFFENSE PRINCIPLE & CLASSICAL LEGAL MORALISM
For some, the burqa is “an unattractive and off-putting” accessory with ties to “the Taliban reign in Afghanistan” (Michaels, 2018, p. 218). As such, when some French citizens see a burqa being worn in public, they may be overcome with “disliked conditions” such as fear and anxiety. Furthermore, some see the burqa as a sign of female oppression and sexism. With France’s commitment to laïcité, it seems that the burqa has no place in the French public sphere. Indeed, some scholars assert that the burqa has no association with Islam, but is a representation of cultural preference, not religious expression (Michaels, 2018, p. 225). If true, France’s burqa ban would not constitute an infringement upon religious liberty and one need not consult laïcité to determine whether or not the ban is justified.
Joel Feinberg’s “offense principle” does not apply to any conduct that gives rise to disliked mental states. Feinberg’s theory is an extension of the harm principle—it asserts that “the prevention of offensive conduct is properly the state’s business” (1998, p. 1). The offense principle concerns itself only with “ . . . those [disliked mental states] . . . caused by the wrongful (right-violating) conduct of others” (Feinberg, 1998, p. 2). Given this condition, our analysis of the validity of France’s burqa ban necessarily requires the weighing of competing rights—a task prone to generate tenuous arguments. If one is offended by the burqa, it follows that the burqa has violated the offended party’s autonomy right—the right to have control over what one experiences. The challenge is in identifying the appropriate bounds of this autonomy.
In France, religion is statutorily severed from the state’s general operations.[viii] Thus, it follows that France would promote secularism in a way that affirms the separation between the affairs of man and the ambit of the state. However, at what point do values such as freedom of expression take precedence over maintaining this separation? First, we should determine the social value of the behavior in question. Free expression provides beneficial rights to society—a privilege to believe and to not believe and immunity for choosing one and not the other. However, since “offense is surely a less serious thing than harm,” some offenses may generate narrow rights that lack the vigor of privileges and immunities.
Using “Story 18” in Volume II of Feinberg’s Offense to Others (1985), suppose that a seat near an older patron on a public bus “is occupied by a youth (of either sex) wearing a T-shirt” with a suggestive image “across his or her chest” (p. 12). Though the patron may be offended by this youth’s actions, this case of vicarious embarrassment does not generate a clear right or privilege for either party. It is plausible that the youth lacks the emotional and cognitive capacity to understand the offense generated by his conduct. It may also be the case that this youth’s actions are subject to a lapse in parental judgment. Likewise, a parent may believe that their child’s actions are harmless. In either case, there are multiple good reasons for regulating such behavior. Yet, an offense of this nature is negligible because there are alternatives to regulation that maximize individual liberty. Restricting liberty would be an effective solution, but there are alternative means that generate similar results at a lower cost. In Story 18, the offense is easily avoidable—the patron can avert their gaze. However, avoidable harm alone is not a sufficient condition to not regulate offensive behavior. For a utilitarian, forcing the offended party to “avoid” offense would not maximize the social good—we have now placed a burden on the offended party. Here, we risk shifting too much power into the hands of offenders.[ix] We can avoid this problem by creating a regulation that over time becomes a part of society’s widely recognized “standards of behavior or moral principles” (Devlin, 1959, p. 134)
We can expect that if penalties and illegality are attached to a certain behavior, offenders will exercise their right to engage, disengage, or never engage in that behavior. When faced with this choice, we force each individual to weigh the appropriate values. This alone increases the probability that individuals weigh their decisions in a manner conducive to society’s expectations.[x] Suppose a legal order consists of a list of rules which act as the prima facie laws of the society. Over time, well-defined norms of behavior lead to fewer instances of friction between competing rights. Of course, this is not to say that disagreements about norms do not exist. Still, to promote social utility, we must focus on narrow regulations as these are more likely to be recognized by those living with a specific social order.
“Narrow” regulations can exist in two ways: (1) the matter being regulated has been established as a norm by the legal order in question or (2) the matter at hand has significant external effects which itself provides only a necessary condition for regulation. These cases reduce the friction between competing rights, but only if the legal order clearly defines the rights entitled to the relevant parties. In cases where such rights are poorly defined by the law, we still need not place a burden on the patron from Story 18 solely because the harm is avoidable. We can create a regulation that enforces the societal norm or is otherwise justified by some specific mechanism within the social order (i.e. products of the legislative process).[xi] Individuals retain their right to commit these offenses. However, if opposed to a well-established societal norm or precluded by a justified and widely recognized system of implementation, the behavior is subject to regulation because there is at least one compelling and accepted reason to do so.[xii]
APPLYING THEORY TO FACTS
Calls for outlawing the burqa in France began in 2008 with the “Madame M. Affair.” Madame M. was a citizen of Morocco who resided in France. When Madame M. applied for French citizenship, her request was denied “at least in part because she wore a face veil” (Michaels, 2018, p. 219). Government officials reasoned that Madame M’s decision to wear a face veil “demonstrated . . . insufficient assimilation to warrant citizenship” (Michaels, 2018, p. 219). France’s Conseil d’État—the supreme court for administrative justice—ruled in the government’s favor, citing Madame M’s “devotion” to a radical religious practice that is incompatible with laïcité. In contrast to offense and harm, France’s chief argument against Madame M. focused on the impact that public displays of face veils have on the “essential values of French society” (Michaels, 2018, p. 219). Thus, the issue is not with the burqa itself but resides in what the burqa represents. Hence, to determine whether or not the burqa ban is valid, we must concern ourselves with the soundness of France’s averred intent.
France’s secular government is textually prohibited from recognizing any particular religion. Yet, the burqa ban is a regulation that restricts the free expression of Islam—a particular religion. Indeed, France’s government has made several exceptions to strict laïcité. For instance, Christian religious celebrations are recognized as official holidays in France. The French government pays the salaries of teachers, including teachers in private schools—some of which are religiously oriented. From this, arguments that France’s burqa ban is necessary to “encourage” assimilation and prevent offense to others seem dubious at best. For instance, if France were wholly committed to laïcité, it would be obligated to either recognize no religious holidays or recognize all religious holidays equally. Yet, France’s selective recognition of some religious practices and not others is a clear violation of secularism.
The Conseil d’État’s finding that Madame M. was engaged in a “radical” religious practice is a peculiar assertion. Though the state has a legitimate interest in preventing the harm incited by extreme religious belief, hindering access to these beliefs is an unequivocal abuse of state power. Wearing a burqa is not an “invitation to exchange fisticuffs.” There is no direct harm inseparably linked to the burqa. The state’s compelling interests subvert the status of Islamic practices while other “less indicative” forms of religious expression are respected. If the burqa had a wider presence, French citizens would find the burqa less novel because “ . . . the face veil, unlike the headscarf, is largely absent from more recent European history” (Michaels, 2018, p. 218).
It would be rash to ignore the deleterious effects of giving the state power to determine the validity of a certain religious practice. Rather, religious practices ought to require recognition solely by the adherents themselves. Certainly, the state should have the authority to disavow religious practices that damage the social order. However, in the case of the burqa ban, such damage is not present. Thus, an outright ban is an inappropriate overextension of the principle of laïcité—a state-sponsored “tyranny of the majority” which subjugates free and rational beings.
Footnotes
[i] A body of recognized authority (i.e. state, national, and local government)
[ii] Equivalent to 10 percent of every French citizen’s income.
[iii] “Distinguishable” is not synonymous with the opinion of the majority. Here, I consider claims of harm that a “reasonable” person would determine caused harm to non-consenting others under Patrick Devlin’s theory on the enforcement of morals.
[iv] “Less restrictive” refers to a set of harms with limited external effects. Devlin’s jury would have reservations about these harms because the nominal external effects may be disproportionate to the burden created via regulation.
[v] Though “fighting words” may appear to cause harm to non-consenting others, the U.S. Supreme Court has refined its definition of “fighting words” to mean “a direct personal insult or an invitation to exchange fisticuffs”—which arguably are a precedent to harm, but not harms per se. (Texas v. Johnson 1989). Formerly, the court required that fighting words present a clear and present danger, not solely “invite dispute and cause unrest.” (Terminiello v. Chicago 1949).
[vi] “The welfare of the people shall be the highest law.” Missouri’s state motto.
[vii] “Measured” solutions are those with a sufficiently narrow scope. Assuming a veil of ignorance, which actions would an individual be most likely to support assuming they are fully rational—i.e. wholly committed to fulfilling their role within a certain social order? This role might require an individual to perform actions which contribute to the social good while minimizing harm and offense to others. However, this role needs to be expressly elucidated by the social order’s recognized authority.
[viii] When juxtaposed, the words contained within the documents on the French Revolution (i.e. the Declaration) often bear a stark contrast to the operation of France’s modern legal system—an unfortunate side effect of human nature, Rousseauian or Hobbesian.
[ix] The magnitude of the burden created by regulation may be negligible, but we ought to still explore less-restrictive means to certain regulatory ends.
[x] Once a regulation is made public and becomes accepted via regular adherence, we may expect a greater sum of individuals to weigh competing values in a manner that aligns with said regulation.
[xi] Assuming societal norms are established according to Devlin’s “unanimous” jury.
[xii] There must exist means through which these mechanisms can be evaluated and changed—a task which necessarily compels the public’s input and counsel.
My name is Paul Odu and I am a third-year student in the Honors College at Mizzou studying Constitutional Democracy and Economics. I am originally from Kansas City, Missouri. At Mizzou, I serve as the Vice President of the Men’s Ultimate Frisbee team and was a teaching assistant in the Economics department last year. After graduating from Mizzou, I will pursue a JD/MBA before pursuing a career in sports law and appellate advocacy. Outside of my coursework, I enjoy playing sports, reading non-fiction, and spending time with my friends and family.