The burqa is back in the news. Is it because Obama, while in Cairo and again in France, ruffled some republican sensibilities by suggesting that a free society oughtn't to tell individuals what they ought to wear? Be that as it may, the current line of argument turns not on the defense of laïcité but rather on the defense of womanhood. In one petition, the burqa is described as une prison ambulante--a description ratified by 4 Communists, 7 Socialists, and 43 elected officials of the UMP. On France2 last night, the objection to the burqa was expressed as an opposition between compulsion and free choice: this garb is subi, it was asserted. But the reportage then shifted to England, where any number of burqa-wearing women were interviewed, and all described their dress as a conscious choice, personal preference, and form of self-expression.
I'm not sure that any of us is entirely "free" in the way we dress. In Washington yesterday to talk with people in government, I wore a tie; at Harvard I occasionally do, but mostly not; in ordinary life, never. Why do I make these choices? Are they subis or libres? Am I the prisoner of (perhaps imagined) traditions or a free individual responding to perceived situations? Such questions are badly framed, I think, and simply avoid the real issue, which is, Why do societies choose to regulate some types of behavior and not others? Which such regulations are legitimate and which are not?
A number of officials have commented on the burqa in "personal" as opposed to "legal" terms. They find it particularly "troubling," moreso than other types of "traditional" garb. Xavier Darcos is one, and he has said that it would be "a horror" if a woman were to arrive at school wearing a burqa. Well, I'm personally horrified by men who cover their bodies with tattoos, but I would be equally horrified if they were to be banned from school for that reason. Darcos finds the burqa a symbol of oppression even if worn in the streets. Perhaps, but then one might ask if the woman who, rather than cover her body, bares much of it is a victim of the culture's repressive tolerance or a beacon of the liberated Occident. Since we would likely find a range of answers to that question, we tend not to legislate the issue. If we listened carefully, I suspect we would also find a range of answers on the burqa question and choose not to legislate, or at least legislate only very cautiously. No doubt the current mini-furor will dissipate, but the recurrence of this theme is symptomatic of an underlying disquiet that needs to be discussed with an open mind. A member of the Stasi commission recommends a similar caution.
Or am I guilty of proffering "propos de salon alambiqués face à des intégristes prêts à tout" (Jacques Myard, UMP).?
A jurist's view.