Sunday, July 13, 2008

The Legal Metaphysics of the Burqa

Philippe Bilger is an intelligent man, an elegant if often euphuistic writer, and, as an avocat général près de la Cour d'appel de Paris, a man well-versed in French law. His analysis of the Conseil d'État's decision to deny citizenship to a French salafiste is therefore all the more astonishing for its frank embrace of metaphysics and what I can only call male phantasms. I quote the concluding passage in full:

Ce n'est pas seulement par rapport à une conception occidentale de la femme qu'une épouse ainsi murée crée un infini dommage. C'est par rapport à l'humain tout court. Il convient d'affronter clairement que l'humanité véritable, quelle que soit l'infinie diversité de ce qui la compose, se définit d'abord par ce qu'on pourrait nommer l'offrande d'un visage à son prochain. Haineux ou amical, il vient, dans sa nudité et sa pureté, porter l'emblème de ce qu'il y a là un homme ou une femme, un homme et une femme et que le lien le plus éclatant entre les sexes est précisément cette existence à visage découvert, au sens propre.


Il y a donc plus qu'une intolérable soumission dont au demeurant Faiza M. serait victime. Il y a cette donnée qu'un tel couple imposant à la vue de tous une femme ainsi dissimulée transgresse ce qui constitue le fondement d'une société civilisée : que la liberté n'a pas de sens si elle enterre physiquement l'un, de son vivant, quand l'autre bénéficie de la lumière. J'ajoute que la preuve la plus significative de ce que j'avance résulte du malaise qu'autrui éprouve devant une telle dénaturation de l'humain. Qui n'a ressenti, non seulement de l'étrangeté mais de la répulsion devant une négation aussi construite et consentie de la transparence du visage, devant la prison que le corps s'était constitué lui-même au milieu de la liberté, belle ou laide, de tous les autres ? Puis-je dire que plus d'une fois, rêvant de remplacer la nuit par le jour, j'ai eu envie d'arracher et de montrer ?


C'est un cas d'école que cette burqa. Rien ne mérite plus d'être expliqué et justifié que ce qui nous semble aller de soi. Il faut s'acharner à montrer que le particulier des croyances ne nous importe que dans la mesure où l'universel est trahi, où il dénature l'universel. Le Conseil d'Etat a rendu l'arrêt qui convenait.


Au fond, contre toutes les burqas du monde, d'abord la beauté et l'humanité de visages nus.


Denaturation, strangeness, repulsion, betrayal of the universal. I find this flabbergasting in its excess.

15 comments:

kirkmc said...

But isn't that the French tout cru? "If you're not like us, then you can't be one of us. And anyway, we simply don't understand you if you're different."

Kirk

Anonymous said...

Art and Kirk,
I read Bilger's analysis very differently. I don't see male phantasms as much as I see a basic and serious point: that democracy is not anonymous.

Unknown said...

Sashimi,
Nothing is more anonymous than the casting of a secret ballot. Of course voting is not the whole of democracy, but an anonymous act is at its heart. For the rest, citizens are free to participate or not participate, deliberate or not deliberate, voice their views or hide them. Many are passive citizens, few are active.

Unknown said...

By the way, Sashimi, are you Sushi105's cousin?

Anonymous said...

Art, your point is well taken. But I disagree. Voting might be secret but it's never anonymous. One is registered by name, there is a registered identity, and that identity is checked visually when we show up to participate, whether voting or another way. In the polling booths here, your name is called off in front of everyone and checked off the list as you drop your "secret" ballot into the box, an act followed by an official's declaration: "M. Sashimi a voté." If our identities were concealed, if we were really anonymous and no one could verify who we were, we would have no need for the secret ballot. No secrecy without identity, not in democracy. There was a time when political theorists worried about apathy and civic disengagement, as you well know, and perhaps a version of this concern now resonates in this debate.
PS - I might be Sushi's cousin but I have no way of knowing.

Anonymous said...

Probably out of excessive frenchness or maleness, if I see the levinasian metaphysical arguments used by Bilger, I fail to see the male phantasm. By reading your article, I understand that you disagree with which « universal » principle should have priority: should it be freedom of faith, or equality between man and woman ? It seems the conseil d'état decided the latter must be promoted, to avoid violence to women, and faith toned down and kept very private, to avoid civil violence ; all in line with french history. Yes, the USA have a very different one, and therefore a different view on the issue: this leads a «liberal» view that deciding on nationality should have nothing to do with religion, whether illiberal or not. On the other hand, the French « republican » sees it as the only point worth discussing, as « laicité » is one of the dogmas of the french republic.

Unknown said...

Anonymous,
Freedom of religion is NOT the universal principle that I believe needs protection. It is rather the larger question of freedom to choose one's definition of the ultimate good. For some, that will involve religion. For others, it may involve a political choice or a sexual choice or a hairstyle or a lifestyle or a variety of music. I do not want citizenship rights to be contingent on the ARBITRARY evaluation of a state official, who is granted the power to decide whether my notion of the ultimate good sufficiently coincides with the "values of the community." In short, I want to be free to be different. To me, this is basic. It is the very essence of freedom, prior to any "freedom of," be it freedom of religion, freedom of assembly, freedom of the press, etc. This is the point where communication between liberals (in the American sense) and republicans (in the French sense) seems to break down.

And Sashimi,
I do not see residence as a full substitute for citizenship. Citizens have many rights and privileges that residents do not.

Anonymous said...

I don't really see a male fantasy here, but I'm wondering if the person who wrote it was high. He seems to say people aren't allowed to have their face hidden in everyday life... I fail to see why he should decide.

I'm also interested in that whole "debate". It's definitely a culture thing. My example might seem completely irrelevant, but I don't think it really is... And my example is shaving.As in, female shaving of their legs, armpits and more.

Couldn't you make the same type of argument about that? Why should we allow females to take away their sexuality by removing their hairs, while men don't have to? It's unnatural, bad for the body (damages the skin, causes infections, prevents heat regulation) and its purpose seems to make women look underage and asexual (pheromones are produced by the base of the hairs).

So, why don't we force all women to be unshaved? It doesn't matter if they WANT to, if we decide it's submissive and violate their rights, we should make sure they can't do it. Or, say, refuse them French citizenship if they do shave their hairs.

This example was of course based off the weird stereotype that says French women don't shave. Anyway, women who do shave, as far as I know, often do it because society wants them to, or because their boyfriend asks. They wouldn't get the idea by themselves, obviously (I mean, who in their right mind would think "I should remove all of my hairs to be more feminine" by themselves?).

The thing is, we are free to shave or not. And considering that woman lives in France, she's free to wear a burqa or not, as far as I can say. She might have pressure from her husband, but that's also the case with shaving. And I can think of more inconvenients linked to shaving (or waxing) your body hair than linked to wearing a burqa.
It certainly doesn't harm her physically.

So I have to say I don't really understand why wearing clothes that hide your face is more "une dénaturation de l'humain" than removing a natural part that show you're sexually mature

Tom Holzman said...

Interestingly, a real problem for this woman might come down the road when, if given citizenship, she went to get her new carte d'identité or passeport. In the US in the past year or so, a woman sued the state of Florida because it would not give her driver's license. The reason the state refused was because she would not take of her burqa for the picture. The court said that unless you have a picture from which you can be identified individually, i.e., one in which your face can actually be seen, you can't get a driver's license.

Tom Holzman said...

Here is a link to an article about the incident in my comment: http://news.bbc.co.uk/1/hi/world/americas/2970514.stm

Anonymous said...

An interesting counterpoint -- by a Daniele Lochak, a law professor -- here:

http://www.lemonde.fr/archives/article/2008/07/11/les-juges-s-appuient-sur-la-soumission-de-cette-femme_1072402_0.html

"Ce qui est frappant dans cette affaire, c'est que cette femme, conjointe d'un Français, est manifestement opprimée. Or c'est ce qui lui est reproché : parce qu'elle est soumise, on en déduit qu'elle n'a pas adhéré aux valeurs de la communauté française. L'idée même de constater cette soumission pour lui refuser la nationalité française est pour le moins surprenante. Si on poussait cette logique jusqu'au bout, les femmes battues, par exemple, ne seraient pas dignes d'être françaises."

Anonymous said...

@Arthur : thank you for the clarification. I understand the main difference between the USA and France are indeed the principles the institutions are based upon. You mention exclusively freedom, which allows for an «absolute» use of its definition. France always balance «liberté» with «égalité» and (less so) «fraternité»; so none are ever «absolute», with often the right associated with more «liberté» and less «égalité», and the left more «égalité» at the cost of less «liberté» (unlike the British liberals, for example, no party in France argues against the ID card). In this particular case, I believe it is the forth hidden pillar which springs its nose again: «laïcité>>. This is not just the french for secularism, but a militant (some say fanatical) view that religion is dangerous, must be kept to the home, and its more extremist form, kept out altogether. This is seen as a protection against the most barbaric and oppressive periods of the french history, and has, to my knowledge, no other equivalent, apart maybe in Turkey.

@avistew: he is quoting without mentioning him the work of Emmanuel Levinas, a philosopher very influential in France, who tries to understand why we do not kill all that is other around us (I obviously simplify extremely). The «face» in his work is the expression of humanity, the reflection of the self in others. Your point is good in the sense that the «face» is what makes other like me and at the same time different: it does not have to be my head to work as a reflection, a symbol of humanity, to stop me from killing. So it could be a bear hand or leg.
I understand the objection to the burka being that by taking out the opportunity to see this woman's face, the expression of her humanity is removed, leaving her subject to all violence.
As Testsociety mentions, it is puzzling that the conseil d'etat chose to refuse to her the french nationality, instead of protecting her.

Anonymous said...

Whatever the side you happen to be on, this issue is definetly a hot button. 30 answers to the first post about this "incident", 11 and counting on the second one.

This debate is getting almost philosophical. The debate appears centered on the definition(s) of the issue(s) at hand. And none agrees what this definition is, because it involves personal interpretation of concept such as "freedom" or "citizenship".

Newspapers are not done selling copies if they keep publishing such stories. (Sorry, this was my cynical moment).

Unknown said...

Anonymous,
I disagree, as I disagreed in the other thread, with the notion that France in some unique and ineffable way has succeeded in balancing "liberty" with "equality" whereas other democracies have opted for an "absolute" interpretation of "freedom." In my view, this is merely a device for shifting the argument from the domain of political philosophy to that of culture. "We balance, they are absolutist. We do not dispute their absolutism, but we reserve our droit à la différence." To argue in this way is to avoid having to defend the way in which "equality" is used to deny and suppress difference, and it is also to avoid a close examination of the many ways in which the definition of equality can be shifted from situation to situation in such a way as to enforce certain judgments of the majority as though they were universal rather than merely majoritarian.

As for Levinas, I would note that his use of "the face" was metaphorical and that Bilger's appropriation of this terminology amounts to a reification of the metaphor. The face is that which individuates the individual, and my "face" might connote my love of John Coltrane or my insistence on the inerrancy of Scripture. Respect for the "face" of the Other might therefore include a willingness to tolerate the Other's reluctance to show her (literal) face. At least, that is the way I read Levinas, and I regard Bilger's reading as impermissibly narrow.

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