Should we ban the burka?

I have a minimalist view as to what kinds of individual conduct should be prohibited by the exercise of state power. Accordingly, I do not believe that the state should be in the business of telling us what clothing, if any, to wear in public. It should not ban wearing a garment such as the burka while, say, walking on a public street any more than it should ban walking on the same public street wearing no clothing at all.

Hang on, you say the latter actually is banned in most Western nations, so I've used a bad example? Well, I'm going to stick with this example, because I do think it's a good one. We shouldn't ban people wearing very skimpy clothing or no clothing at all on the public streets; nor should we ban wearing a burka. In neither case is there a sufficiently compelling state interest in enacting legislation that controls how people choose to present themselves in public.

In both cases, however, arguments can be put. I suppose the argument in favour of compelling people to wear at least some minimal clothing that covers the pubic area (in the case of both men and women) and the nipples (in the case of women alone) is that many people are offended at the sight of the particular parts of the body that are required, in most Western jurisdictions, to be clothed. (Actually, a thorough analysis of the law in various jurisdictions might show that it is now perfectly legal for women to go topless in many of them; that they almost invariably don't do so, except perhaps at the beach, demonstrates that practicality and social pressure are at work as much as the law itself when people choose to wear at least some items of clothing, even in summer.)

The argument that nudity is offensive is rather weak as basis for legislative bans. The level of offence caused by mere nudity is hardly grave - it is hardly the kind of offence that shades into real harm, as is the case with being exposed to nauseating smells or to sights that might induce nausea in many people (such as the sight of somebody nearby literally eating shit). Doubtless there are a few individuals who would be shocked if the very small amount of clothing worn by some young people in summer were totally discarded, but it seems like the sort of thing most would get used to. Already, we see many topless women on beaches in most Western countries, and we see naked people on the beach if we bother to go around the corner to less frequented stretches of sand or rock. Most people are not offended at this sight. If you are, you'll soon get used to it. In all, the legal requirement that we wear at least some minimal clothing is based on weak reasoning. Arguments based on offence should not control the debate. In reality, such laws are a holdover from the centuries of Christian hegemony, when sexuality and the body were considered shameful and associated with "sin". These laws should be repealed.

If they were repealed, however, I suspect that not much would change. Practicality would still impel most of us to wear some clothing most of the time. Except on hot summer days, clothing is simply practical to provide warmth. Even in summer, light clothes and hats are practical for anyone who is out in the sun for a long time and wishes to avoid skin damage - and, with it, the real possibility of skin cancer. For most terrain, it is practical to wear shoes of some kind - even people who enjoy walking barefoot outdoors are usually fairly choosy about the circumstances - while garments with pockets are also practical. So are sunglasses. And there are various other practical reasons why sweeping away these laws entirely wouldn't make a lot of difference. Even if you're not ashamed of showing various wobbly parts of your body at the beach, you might well prefer to stabilise and protect them when you're wandering around the supermarket or queuing to do your banking.

Indeed, there is an argument that these laws are not very oppressive because they are not currently causing all that much practical restriction on how people choose to present themselves on public. That's true, but the burden should always be on those who support restrictions on individual freedom. Even if the restriction is rather minimal and not terribly onerous in practice, that is not a reason to leave an unjustified law on the books. All laws forbidding public nudity should be repealed - although, given the state of the world, campaigning for this is not a very high priority.

At least, however, we can discusss the issue rationally.

If the burka were currently banned, I'd likewise suggest that the ban should be repealed but that doing so should not be a very high priority among all the others. After all, only a very small number of people want to hide their entire bodies in public, and there are many ways of going very close to doing so.

Still, the case for actually banning the burka is rather weak. Somebody who is wearing a burka does not thereby directly harm others, which would be the classic reason for banning a kind of individual conduct. Any ban would need to rely on some more controversial reason, such as indirect harm to others (perhaps via some kind of damage to the social fabric) or offence to others ... or, most likely, on the basis that wearing the burka harms the person wearing it.

I am suspicious about arguments based on indirect harm to others. If a harm is not imminent or direct, then there are many ways to deal with it other than by restrictions on individual liberty. Overall, pluralistic Western societies tend to survive and flourish quite well despite all the things that supposedly cause some kind of indirect, or intangible, or long-term, or whatever, harm that affects everyone in the society as a whole.

What about offence? Well, consider what the burka stands for. Part of the problem is that this is itself controversial, but it seems reasonable for people who are exposed to the sight of women wearing burkas in public to receive some kind of misogynist or puritanical message that reasonable men and women may well find offensive. I see nothing wrong with discussing what message the burka conveys to reasonable people, and whether that message is offensive. If the message is sufficiently offensive, and sufficiently contrary to progressive views about women, sexuality, the body, and so on, then it may well be that the burka is something we should not welcome. But that is not sufficient reason to ban it. There are many messages put out in pluralistic Western societies that are, arguably, unwelcome, but that is not a reason to ban them. That would be contrary to the principle of freedom of expression.

On the other hand, it is also contrary to freedom of expression if we are prevented from discussing what messages the burka might give, whether those messages are offensive, whether the burka is a welcome phenomenon in Western societies, and so on. Freedom of expression cuts both ways.

That does not mean that individuals should be harassed on the street for choosing to wear such a garment. As long as I am going about my business lawfully, I have an expectation, which the law ought to enforce, that I'll be allowed peaceful enjoyment of my environment, rather than have people harass me.

But say I choose to go around wearing the very minimum of clothing that I could possibly get away with under the law. Instead of turning up at the local cake shop wearing, say, black jeans, a T-shirt, casual leather shoes, and a tweed jacket (standard clothing for a middle-aged academic/intellectual sort of guy like me) imagine that I turn up wearing nothing but the sort of g-string-like "posing pouch" beloved of male body builders. Whereas before I might have been greeted in a friendly way, it is now likely that other customers will look at me askance. It is now most unlikely that the young shop attendant behind the counter will talk to me in a slightly flirtatious manner as she serves me my lamington or my custard tart. The whole atmosphere in the shop may become less friendly for me than it would have been, as a result of my choice of clothing. Well, tough. No one is obliged to be friendly to you; all they are obliged to do is treat you with the minimum level of respect that involves not actually harassing you - insulting you personally, acting in a threatening way, generally giving you a hard time.

All right, so the burka should not be banned on the ground that it gives offence. But nor should we be prevented from discussing what message it gives, whether the message is offensive, and so on. We can't be allowed to harass others merely for how they dress, but we are quite within our rights not to be as friendly to people whose dress offends or disturbs us in some way as we are to people who dress in a way that appeals to our values. If I'm vain enough to enjoy having shop assistants flirting with me from behind the counter ... well, I'll have to wear the tweed jacket, not the g-string. We all make these choices.

The final reason why we might want to ban the burka is paternalistic. Here, the case is stronger. Unlike someone who is naked, someone wearing a burka is restricted in her movements, is not able to convey emotions and general good will through facial expressions, and generally has her individual appearance erased. Although some individuals may welcome this, it does create a huge disadvantage. The point about affective communication is especially strong. Much of what is communicated in ordinary life between individual human beings is expressed via movements of the facial muscles. Of course, there may be some circumstances in which the advantages of clothing that hides the face outweigh the loss of capacity for affective communication - e.g., to borrow an example from Martha Nussbaum, it may be so cold on a winter's day in Chicago that there's value in wearing a whole lot of scarves and hoods, or similar garments, perhaps sufficient to hide facial expressions. In most circumstances, though, covering your face destroys much of your capacity to communicate with others and obtain their trust, while having no compensating advantages.

But we get by in many situations communicating without facial expressions. I am doing so right now as I type away at my computer. People also do so on the telephone, although I dislike telephones for exactly the reason that they reduce me to a mere voice. They take away gestures and facial expressions, and it is difficult for many of us to communicate emotionally on the telephone to someone with whom we're not already emotionally bonded. I wonder what it must be like to wear clothing that forces you never to communicate with strangers by means of facial expression. It deprives you of one of the main ways in which friendly relations are maintained between people who are not family or intimate friends, etc. It's a real loss.

All that said, I am still not fond of the idea of the state intervening to tell adults how to act for their own good. Although we do accept some paternalistic laws - e.g. those related to wearing seat belts - paternalistic laws requiring us to wear certain clothing, on the basis that it will free our limbs and enable us to communicate more readily by showing our facial expressions, are a step too far. When we are dealing with the choices of adults, or even of relatively mature minors, the presumption is that the state should not claim to know better than the individual concerned what she should do for her own good. Just as we should not ban the use of marijuana - all such laws should be repealed - we should not ban wearing the burka.

Once again, the case for banning the burka on paternalistic grounds is weak. But once again, we do have some paternalistic laws, including some that already go too far in my opinion. It is perfectly legitimate to debate just what paternalistic laws are justifiable. Moreover, the fact that a self-destructive practice such as using certain drugs - or using them frequently and excessively - should not be banned does not mean that it should be welcomed.

In all, there is only a weak case for banning the burka - just like the case for banning pornography, total nudity, and marijuana smoking. None of these things should be illegal, but that does not mean that everyone must approve of them all or that there should never be a debate about what offence they cause, what harm they do, or whether they are welcome innovations in a modern pluralistic society.

Some of these things may be more welcome than others. It's not at all clear to me that the burka is something we should welcome. Nor is it clear to me that somebody who instigates a debate about it should be condemned as fanning religious hatred - as the Melbourne Age did this morning in its one-sided and unnuanced editorial about France's President Sarkozy. Western societies have become too quick to discover religious hatred under every bed. The arguments for banning the burka, though weak, are no weaker than those against some things that are banned already. If some kinds of Islam demand that women wear such a controversial garment, well too bad. No subject should be off limits merely because religious sensibilities are involved. (Indeed, once religion is brought into the equation it raises the suspicion that at least some women - I'm not suggesting the majority - are currently wearing the burka against their will, under pressure from their co-religionists, rather than from choice. That would strengthen the arguments for banning it.)

Is the burka welcome? No. There is much to be said against it. But should it be banned? No. That would be going too far.