Veiled women and the affect of religion in democracy

Journal of Law and Society

Volumn 34, Issue 1, 2007, Pages 139-162

  Motha, Stewart ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

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[No Author keywords available]

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EID: 33847358591     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00386.x     Document Type: Review

References (117)

1. For a similar account in relation to France, see A. Badiou's excellent reflection in 'The Law of the Islamic Headscarf' in his Polemics (2006) at 98-114.
2. A sample of the statements by ministers and the Prime Minister about veiled Muslim women can be found in an excellent review of events and press coverage by Wendy Kristianasen, Britain's Multiculturalism Falters' in Le Monde diplomatique, November 2006. Ishah Azmi, a school teacher in Dewsbury, Yorkshire, who wore a nikub in the classroom ceased to be a worker whose rights should have been determined by an employment tribunal without politicians expressing their judgement before all legal processes were expended. The minister for race and faith, Phil Woolas, told the Sunday Mirror on 15 October that 'she should be sacked. She has put herself in a position where she can't do her job'. Her own MP, Shahid Malik, urged her not to pursue an appeal. Harriet Harman, minister in the Department of Constitutional Affairs, called for an end to the nikab 'because I want women to be fully included, if you want equality, you have to be in society, not hidden away from it'. Creating a timely distraction from the disasters in lraq, Jack Straw initiated the furore when he asked a constituent (not a term to be taken literally any longer) that she should remove her nikab as he 'felt uncomfortable'. Prime Minister Blair intervened later stating that the nikab was a 'mark of separation' that makes others 'from outside of the community feel uncomfortable'. See Kristianasen's detailed contextualization of how the veil became a weighty matter of state.
3. Badiou, id.
4. See S. M. Okin, Is Multiculturalism Bad for Women? (1999).
5. There have, of course, been powerful and persuasive critiques of multiculturalism, see, especially, H. Bannerji, Thinking Through: Essays on Feminism, Marxism and Anti-Racism (1995);
6. and The Dark Side of the Nation: Essays on Multiculturalism, Nationalism and Gender (2000).
7. J.-L. Nancy, 'Church, State, Resistance' in this Special issue, (2007) 34 Journal of Law and Society 3-13, at 7.
8. Leyla Şahin v. Turkey (Grand Chamber, European Court of Human Rights, Strasbourg, 10 November 2005);
9. see, also, Dahlah v. Switzerland (Application no. 42393/98, 15 February 2001).
10. See Şahin, id., para. 39.
11. id., para. 115, the Grand Chamber citing the decision of the European Court of Human Rights in Şahin with approval.
12. id., para. 39, decision of the Constitutional Court of Turkey, published in the Official Gazette, 5 July 1989, endorsed by the Grand Chamber at para. 115.
13. For an overview of the variety of reactions to Islamic dress in Europe, see T. Modood et al. (eds.), Multiculturalism, Muslims, and Citizenship: A European Approach (2006).
14. R (Begum) v. Headteacher and Governors of Denhigh High School [2006] UKHL 15. The dispute was between Shabina Begum, a minor of nearly 14 years when the dispute began, and Denbigh High School in Luton. The School prevented Shabina Begum from wearing the jilbab when she attended school, but denied that it had excluded her from the School. She was, according to the School, asked to conibrm to a 'uniform policy' (wear the shaiwar kameeze and/or other forms of dress including a hijab) which had been drawn up, the School claimed, in a manner sensitive to Muslim girls and their religious beliefs, and after wide consultation. Shabina Begum argued that she had been excluded, and had thus been denied her Art. 9 right and freedom under the European Convention on Human Rights to manifest her religious belief. She also contended that she has been denied her right to education, but this was not pursued later on appeal. Once Art. 9 is engaged, and not all Lord Justices agreed that it was, the question was whether the interference was justified and necessary in a democratic society. The majority of the House of Lords concluded that there had been no interference with the right in Art. 9 to manifest the practices and observances of Shabina Begum's religious beliefs. Lord Bingham sets out the most comprehensive account of this position. Lord Nicholls and Baroness Hale stated that there was an interference with Begum's Art. 9 rights, but argued that the interference was justified.
15. See the judgment of Lord Bingham, id., atpara. 34;
16. and Lord Foscote, id., paras. 75-7.
17. id., para. 96: 'If a woman freely chooses to adopt a way of lire for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her'.
18. id., para. 95: 'A dress code which requires women to conceal all but their face and hands, while leaving men much freer to decide what they will wear, does not treat them equally'.
19. id., para. 94: citing Bhikhu Parekh's rebuttal of Susan Moller Okin in 'A Varied Moral World, A Response to Susan Okin's "Is Multiculturalism Bad for Women" Boston Review, October November 1997. Parekh wrote: In France and the Netherlands several Muslim girls freely wore the hijab (headscarf), partly to reassure their conservative parents that they would not be corrupted by the public culture of the school, and partly to reshape the latter by indicating to white boys how they wished to be treated. The hijab in their case was a highly complex autonomous act intended to use the resources of the tradition both to change and to preserve it.
20. id., para. 93: Important physical, cognitive and psychological developments take place during adolescence. Adolescence begins with the onset of puberty; from puberty to adulthood, the 'capacity to acquire and utilise knowledge reaches its peak efficiency'; and the capacity for formal operational thought is the forerunner to developing the capacity to make autonomous moral judgments. Obviously, these developments happen at different times and at diffirent rates for diffirent people. But it is not at all surprising to find adolescents making different moral judgments from those of their parents. It is part of growing up. Ihe fact that they are not yet fully adult may help to justify interference with the choices they have made. It cannot be assumed, as it can with adults, that these choices are the product of a fully developed individual autonomy.
21. id., para. 98: Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation. This is demonstrated by the fact that girls have subsequently expressed their concern that if the jilbab were to be allowed they would face pressure to adopt it even though they do not wish to do so.
22. See Parekh, op. cit., n. 15.
23. I take this opposition of autonomy hcteronomy from Nancy, op. cit., n. 5.
24. E. Balibar, Politics and the Other Scene (2002) 1-39. I draw the three concepts of politics discussed in this section from Balibar's account.
25. id., p. 2
26. id., p. 3.
27. id.
28. id., p. 6.
29. id., p. 7.
30. id.
31. id.
32. Okin, op. cit., n. 3.
33. A. Phillips, 'Multiculturalism without Culture' 4 (original emphasis), paper presented at conference on Beyond Feminism v. Multiculturalism', London School of Economics, 17 November 2006, to be published in A. Phillips, Multiculturalism without Culture (2007).
34. Later I will consider another feminist approach, by Rosi Braidotti, that eschews this inside outside conception of politics and human subjectivity - but one that I argue has its own shortcomings.
35. K. Marx, The Eighteenth Brumaire of Louis Bonaparte, cited in Balibar, op. cit., n. 20, p. 8.
36. Balibar, id., pp. 8 21.
37. id., p. 9.
38. id., p. 10.
39. See discussion, id., pp. 10-12.
40. id., p. 16.
41. id., p. 15.
42. M. Foucault, The Subject and Power' in Michel Foucault: Beyond Structuralism and Flermeneutics, eds. H.L. Dreyfus and P. Rabinow (1982), cited in Balibar, id., pp. 14-15.
43. Balibar, id., p. 14.
44. id., p. 15.
45. id., p. 17.
46. In particular, see my discussion of S. Mahmood's study of women's Mosque movements at pp. 153-5 below.
47. See, also, Kristianasen, op. cit., n. 1;
48. T. Asad, 'Trying to Understand French Secularism' in Political Theologies, ed. H. de Vries (2006);
49. D. Lyon and D. Spini, 'Unveiling the Headscarf Debate' (2004) 12 Feminist Legal Studies 333-45, at 339-44;
50. and Baroness Hale in Begum, op. cit., n. 15.
51. B. Spinoza, Ethics (2000);
52. G. Deleuze and F. Guattari, A Thousand Plateaus: Capitalism and Schizophrenia (1987);
53. and see M. Gatens, Imaginary Bodies: Ethics, Power and Corporeality (1996);
54. M. Gatens and G. Lloyd, Collective Imaginings: Spinoza, Past and Present (1999);
55. G. Lloyd, Spinoza and the Ethics (1996);
56. A. Negri, The Savage Anomaly: The Power of Spinoza's Metaphysics and Politics (1991);
57. and R. Braidotti, Transpositions: On Nomadic Ethics (2006).
58. Delcuze and Guattari, id., p. 253.
59. id., p. 254.
60. id.
61. id., p. 256.
62. id., p. 257.
63. P. Goulimari, 'A Minoritarian Feminism? Things to do with Deleuze and Guattari' (1999) 14(2) Hypatia 97-120, at 102.
64. id.
65. id.
66. id.
67. id.
68. id.
69. Feminist theory has attempted to take seriously the conundrum of imposing a feminist normativity on so called minority women' who are thus by definition outside' what is set out as a feminist emancipatory trajectory. A good summary of how feminism grapples with the rather problematic category of the minority woman' can be found in M. Malik, "The Branch on which we sit": Multiculturalism, Minority Women and Family Law' in Feminist Perspectives on Family Law, eds. A. Diduck and K. O'Donovan (2007, forthcoming).
70. See discussion of irigaray and Braidotti in Goulimari, op. cit., n. 49, p. 106.
71. R. Braidotti, Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (1994) 187, cited in Goulimari,
72. id., p. 106.
73. Goulimari, id.
74. id., p. 110.
75. id.
76. Braidotti, op. cit.,
77. Gatens, op. cit.,
78. Lloyd, op. cit.,
79. Negri, op. cit., all in n. 43.
80. Braidotti, id., p. 148.
81. R. Braidotti, 'Affirming the Affirmative: on Nomadic Affectivity' (2006) 11 Rhizomes para. 28, at 〈http: www.rhizomes.net issue11/braidotti.html〉 - access verified 22 November 2006.
82. S. Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (2005) 6-7.
83. id.
84. id., pp. 7, 14. Mahmood discusses the celebrated work of Lila Abu-Lughod, and the latter's own reflections on the need to depart from the binary of repression/resistance.
85. id., pp. 9, 22.
86. id., p. 9.
87. See n. 1.
88. Mahmood, op. cit., n. 64, p. 53.
89. id., pp. 52-3.
90. The opposition between sacred and profane is interrogated below.
91. I will elaborate this point below with reference to J.-L. Nancy.
92. Nancy, op. cit., n. 5, p. 9 (original emphasis).
93. J. Derrida, Rogues: Two Essays on Reason (2005) 35;
94. but for a fuller account of the politics of friendship and fraternity that harbours this destruction, see J. Derrida, Politics of Friendship (1997);
95. and for an excellent commentary see A.J.P. Thomson, Deconstruction and Democracy (2005).
96. Derrida, id. (2005), p. 30.
97. id., p. 33.
98. See 'U.S. to Cancel $240m in aid over Hamas government' Times, 8 April 2006.
99. See discussion at pp. 154-5 above.
100. This is a problematic developed by Nancy in 'Church, State, Resistance' (op. cit, n. 5), and I will provide an account of his insights below.
101. See the excellent discussion in T. Asad, Formations of the Secular: Christianity, Islam, Modernity (2003) 30-7.
102. id., pp. 31-2.
103. id., p. 31.
104. id., p. 32.
105. This move towards immanence is also a move towards transcendence, see, generally, F. Dallmayr, 'Postmetaphysics and Democracy' (1993) 21 Political Theory 101.
106. Asad, op. cit, n. 81, p. 35.
107. id.
108. Derrida, op. cit. (2005), n. 75, pp. 153-4.
109. For a compendious setting out of these, see P. Fitzpatrick, '"What Are the Gods to Us Now?": Secular Theology and the Modernity of Law' (2006) 8 Theoretical Inquiries in Law 285.
110. For instance, consider J. van der Walt, Law and Sacrifice: Towards a Post-Apartheid Theory of Law (2005). See his account of the inevitability of sacrifice in political community, in ch. 5.
111. Nancy, op. cit, n. 5.
112. id., p. 8.
113. id., p. 9.
114. id., p. 10.
115. id., p. 11.
116. id. (original emphasis).
117. id., p. 13.