I Introduction
Article 22 of the Universal Declaration of Human Rights 1948 (UDHR) states that everyone is entitled to the realisation of the rights needed for one's dignity and the free development of their personality. The UDHR makes clear that this personality does not just happen in a vacuum, without assistance, or support from, or interconnection with, other people. Instead, as declared in Article 29 ‘[e]veryone has duties to the community in which alone the free and full development of his personality is possible’.
The objective and ‘very essence’ of the European Convention on Fundamental Freedoms and Human Rights (ECHR) ‘is respect for human dignity and human freedom’.Footnote 2 Interpreting what this means when we are interconnected to other people and need a community context for the development of our personality and identity has particular significance when using Articles 8, 9 and 10 of the ECHR. These provide rights to respect for one's private life, and freedom of expression, including religious. However, they are qualified by, amongst other things, the rights and freedoms of others. This complicates what constitutes people's permissible choices and lifestyle behaviours even in a liberal democracy. Situations where behaviour is deemed offensive and found unacceptable by the majority provide examples of how law interprets different versions of the concepts of dignity and freedom in ways that can empower or constrain individual freedom. In interpreting Article 8's right to respect for one's private life, the European Court of Human Rights (ECtHR) has ‘gone beyond the established traditional meaning of private life and ha[s] extended this meaning to cover a wide range of elements and manifestations of the individual's personality, supporting the view that private life should be considered as co-extensive with the needs of the personality’ (Loucaides, Reference Loucaides1990, p. 189; Marshall Reference Marshall2009).Footnote 3 In France, Belgium and the Netherlands, laws have been introduced to ban face coverings in public places. Examining every debate involved in this issue is not my purpose here, which is to show how some interpretations of dignity and freedom can be contrary to the development of personality rights emanating from Article 8 and the overall purpose of human rights law.
The case of S.A.S v. France is currently before the ECtHR, arguing that the French bans contravene European human rights law.Footnote 4 It is widely acknowledged that these bans are meant to, and will, impact most on a small minority of Muslim women who wear the full-face veil, including the burqa and niqab (Mock and Lichfield Reference Mock and Lichfield2010; Ryan Reference Ryan2011; Waterfield Reference Waterfield2011; Berger Reference Berger2012).Footnote 5 Islamic scholars do not agree on the wearing of the Islamic headscarf, or the full-face veil, as a precept of Islam.Footnote 6 Women who wear it do so for a variety of reasons. These are usually explained in terms of religious conviction, ‘false consciousness’ or being forced to by others. However, they may also be an expression of freedom, rebellion, a fashion statement or a phase a woman is going through (see Lyon and Spini Reference Lyon and Spini2004; Scott Reference Scott2007). Differing interpretations of what human dignity and human freedom mean in the context of the overall purpose of human rights law are set out in Section II. The interpretations presented include dignity as constraint and freedom as self-realisation, contrasted with dignity as empowerment and freedom as self-determination. These relate to equality notions and adaptive preferences. When the legal bans are stated to safeguard the human dignity of women, a constraint version is used which, it is argued, misrecognises and disrespects any woman who says she has freely chosen to wear a full-face veil, and in doing so violates her human right to personal identity or the development of her personality. This disrespect and misrecognition is threefold: of her identity as a human being, as a member of a religious or cultural group and as an individual person capable of subjectively interpreting her own identity or personality as she sees fit. There is fuller elaboration of equal recognition in Section III, where it is argued that there is misrecognition of an individual woman as a person in her own right if she chooses to wear a full-face veil in a liberal democracy which bans the practice through criminal sanction. Reference is made to the work of theorists including Charles Taylor and Axel Honneth to conclude that the human right to personality or personal identity derived from Article 8 of the ECHR is best interpreted in line with the overall purpose of human rights law to mean that an environment ought to be fostered to provide equal recognition of each person's identity or personality through empowerment and self-determining personal freedom.Footnote 7
II Respecting human dignity and human freedom
Human dignity has been expressed as especially vague and ambiguous (Jackson Reference Jackson2006, p. 26), as an abstract and subjective notion, with potential to cause confusion and difficult to apply (McCrudden Reference McCrudden2008). Interpretations of what it means to be free as a human being are vast and have spanned the history of civilisation, with certain versions of human dignity and human freedom constraining personal choice rather than enhancing it.Footnote 8 The issue of where to draw the line as to what is an individual permissible choice is crucial in deciding which behaviour may be deemed so unacceptable in any society that it will be legally banned. In debates reminiscent of the Hart/Devlin debate in the twentieth century, the full-face veil debates hone in on the purpose of law and regulation (Hart Reference Hart1963; Devlin Reference Devlin1965; Mill Reference Mill1991). The paternalistic, ‘it's for their own good’, ‘for the protection of women's dignity’, communitarian, positive freedom argument favours legal intervention whilst the Millian, liberal, arguably more negative freedom argument favours such intervention only where harm will be caused without it. In banning certain items of clothing, the state can argue that although this restricts people's freedom and limits their choices, this is for their own good. Such language and understandings can be seen in recent bans on wearing face coverings, which have the impact of banning the full-face veil, in parts of Europe.
2.1 ‘Ban the burqa – it contravenes the dignity of society, of women and that individual woman wearing it’
Since April 2011, French legislation, enacted in October 2010, prohibits the wearing, in any public space, of clothing ‘designed to conceal the face’.Footnote 9 Public space comprises the public highway and premises open to the public or used to provide a public service. Exceptions can be made as may be provided for on, for example, health or sporting grounds.Footnote 10 It is also illegal to force another to wear such a garment.Footnote 11 The wording of the bans or proposed bans does not explicitly refer to the burqa or the full-face veil. Concealing the face is described in neutral terms with reference in the French legislation to punishing those who force another to wear clothing designed to conceal the face ‘by reason of the sex of said person’.Footnote 12 However, the explanatory notes attached to the legislation, and the nature of the political and media debates, make clear that the Islamic full-face veil is the target.Footnote 13 The French legislation's notes state that ‘to compel a woman, regardless of her age, to conceal her face is an affront to her dignity. It also contravenes the principle of gender equality.’ Prior to the legal ban on the full-face veil in France, civil servants, including teachers, were already legally prohibited from displaying religious symbols in the workplace.Footnote 14 Students are not permitted by law to attend public schools if they display ostentatious religious symbols, including the Islamic headscarf, the Sikh turban, and the Jewish head covering. Authorities have said this also applies to large Christian crosses but it has not been applied to normal-sized crucifixes worn around the neck. Estimates of the number of girls and women in Europe who wear the full-face veil vary and are unlikely to be accurate given the difficulty in quantifying dress practice. The non-governmental organisation Human Rights Watch has reported that they constitute a very small minority. The estimated figures they quote are 700 to 2,000 women in France.Footnote 15
A similar ban was enacted in Belgium in June 2011.Footnote 16 The text introduces a new provision into the criminal code creating a new offence punishable by a maximum of 137.50 euros and or detention of one to seven days for:
‘those who, except for contrary legal provisions, are present in places that are accessible to the public with their faces completely or partially covered or hidden, such as not to be recognizable.’
There are exceptions for the workplace, police regulations and festivities.Footnote 17 A Belgian Liberal Party MP claimed that Belgium would ‘break through the chain that has kept countless women enslaved’ by enacting this legislation (Mock and Lichfield Reference Mock and Lichfield2010). Estimates of the number of women who wear the face veil are again hard to quantify in Belgium. Human Rights Watch mention 300 to 400 women.
In September 2011, the Dutch government announced it would bring in legislation prohibiting the wearing of burqas and other face coverings. This had been a government aim since 2005 but it had been unable to do so for political reasons. The government gave its approval at the end of January 2012 to ban face coverings, including veils and balaclavas or a full helmet, in public. Such actions would be punishable by a 380 euro fine. A subsequent change of government has put the plans on hold. It has been commented that any ban is largely symbolic as only about 300 women wear the full-face veil out of a population of approximately 16 million people in the Netherlands (Berger Reference Berger2012). Exemptions from the ban will apply to mosques and other religious buildings and to foreign women in transit lounges of Dutch international airports (Waterfield Reference Waterfield2011).
Much is made of the need for open communication and participation in arguments for bringing these bans into place: the former Dutch government says that bans will assist these goals. However, there is heavy criticism of such an idea from the country's independent advisory panel, the Council of State. It is unconvinced by the government's arguments as to its enactment, remarking that the government is being led by ‘subjective feelings of insecurity’ which do not give enough grounds for a ban. Any public safety concerns can, it states, be addressed without bans. In its view, it is not the government's place to determine what women can wear. Whilst the then Dutch government rejected earlier such objections from this body and was thought unlikely to have taken them into account, it has been noted that the objections show that any ban is vulnerable to legal challenge.Footnote 18 That government, in its explanatory notes supporting its proposed legislation, uses arguments in favour of communitarian values and a society where each person will be recognisable, with face to face open communication possible: in its view these are ‘the foundation and prerequisite for a society based on equality, trust and personal responsibility’.Footnote 19 It is stated that being in the presence of a person with their face covered makes the other feel insecure, makes it impossible to know the intentions of that person and arouses the impression of criminal activities as it arouses suspicions.Footnote 20
Many German lander or states have passed laws prohibiting teachers in public schools from wearing visible religious clothing and symbols. It is reported that debates surrounding the passing of such laws illustrate that the Islamic headscarf is the principal target.Footnote 21 Debates have also erupted at various times in the last few years in Britain over the wearing of the Islamic headscarf, and the niqab.Footnote 22 Comparable nationwide measures have been proposed in a variety of countries, including Spain, Italy, the UK and Denmark.Footnote 23
Countries imposing bans on the wearing of the full-face veil profess to justify them on a variety of grounds, including secularism and gender equality as well as the human dignity of women. References to the dignity of women in the state's interpretation often involve some sort of idea of freeing women from oppression and trying to ensure gender equality through criminalising their behaviour. For example, it has been stated that full-face veils are ‘discriminatory, harmful, and contrary to the dignity of women and real and effective equality between men and women’.Footnote 24 Integration, national identity and citizenry arguments are made with the aim of showing that bans are a solution to threats to national identity or secular citizenship. France has a long tradition of laicite and secular republicanism with a separation of the state from religion.Footnote 25 In ECtHR cases already decided, concerning bans on wearing of the Islamic headscarf in educational and public sector workplaces, that Court has accepted the right of a state, like France, to justify its laws on this basis.Footnote 26 In these Islamic headscarf judgments, which do not, as yet, include any full-face ban situations, any bans have been held, with respect, wrongly in my view, to be legitimate and necessary in a democratic society, justified on the basis of a margin of appreciation, particularly because of secularism's place in the countries concerned and a certain version of gender equality. Even though, in this author's view, these have been wrongly decided, distinctions can be drawn between the proportionality of the prohibition on the full face veil, as the Islamic headscarf bans are not applicable in all public places, being confined to public education and/or employment (Marshall Reference Marshall2008a, Reference Marshall2008b, Reference Marshall2009). Such a distinction can be seen in the recent case brought against Turkey at the ECtHR which, although not concerning full face veils, did concern criminal convictions for individuals who wore headgear and religious garments in a public place. In Arslan v. Turkey, the ECtHR held that Article 9 had been violated with such a provision not necessary in a democratic society.Footnote 27 Indeed, as is noted by the NGO Liberty's intervention submissions in the S.A.S case, there is no evidence that pre-existing laws, such as those in France requiring the veil to be lifted in the presence of relevant law enforcement agents to prove identity, are not sufficient for government purposes.Footnote 28
By legally regulating what women can wear, the state is arguing, amongst other things, that it is protecting women from doing something contrary to the dignity of society as a whole, of women as a group and of the individual woman who wears it.Footnote 29 Such an interpretation of human dignity fits with Brownsword and Beyleveld's categorisation of it, in their context of bioethics, as a potential method of constraint (Beyleveld and Brownsword Reference Beyleveld and Brownsword2001). Thus human dignity is invoked in order to restrict individual choices by, for example, arguing that some types of action are ‘against human nature’. In this version of human dignity, free action is distinctively limited by reference to the duty not to compromise one's own dignity. In the context of qualified human rights such as those in Article 8, 9 and 10 of the ECHR, the concept of human dignity can form part of the justification for interference on public order or public morals grounds.Footnote 30 A recent analysis of human dignity and its use in judicial interpretation concludes that there is no common substantive conception of dignity in the judicial interpretation of human rights, although there appears to be an acceptance of the concept of dignity (McCrudden Reference McCrudden2008; Dupre Reference Dupre2009; Campbell Reference Campbell2011; Hennette-Vauchez Reference Hennette-Vauchez2011).Footnote 31 McCrudden sees three elements to a minimum core of understanding human dignity. The first is that every human being possesses an intrinsic worth merely by being human: an ontological claim. The second is that this intrinsic worth should be recognised and respected by others: a relational claim. The third concerns the relationship between the individual and the state in that recognising the intrinsic worth of the individual requires that the state exists for the sake of the individual and not vice versa (McCrudden Reference McCrudden2008). These interlink to ideas of, and literature on, recognition which are developed in Section III below.
In the same way that distinctions are made between different interpretations of human dignity, so with personal or human freedom. Freedom as self-realisation directs a person to realise and to be that which she is or has within her already waiting to be discovered or brought to fruition. This is the ideal of the authentic self, involving a project of discovering one's true, authentic, already there, identity. This finds support in the views of Aristotle and communitarians, and the web of identity-type ‘post-liberal self’ (Griffiths Reference Griffiths1995; for Reece's analysis, see Reece Reference Reece2003; Guignon Reference Guignon2004). According to this interpretation, we are all ‘self-realising agents seeking to discover our true selves’ (Griffiths Reference Griffiths1995). As Guignon explains, the basic assumption built into this ideal of authenticity is that, lying within each individual, there is a deep ‘true self’, the ‘real self’. The ideal of authenticity asks that each person gets in touch with his or her real identity, aiming to achieve genuine self-knowledge and to express his or her inner traits in interactions with the external world (Guignon Reference Guignon2004). It is only by expressing one's true self that one can achieve self-realisation and self-fulfilment as an authentic human being. But, asks Guignon, what exactly is this inner self, what does it include and exclude? What if this true self includes some fairly nasty or banal characteristics or is actually the result of advertising and the media or some other powerful forces? (Guignon Reference Guignon2004 at 9). This idea of a true or essential self lying within each person has been subjected to rigorous and diverse critique by a variety of scholars.Footnote 32 Yet it is in danger of making a resurgence if state coercion − even that guided by paternalistic notions of improving the good life of its citizens − is followed through banning items of clothing.
Constraints on women's free choice to wear the full-face veil have been justified by certain feminist and other arguments which correspond with human dignity as constraint and human freedom as self-realisation. These arguments presuppose that the full-face veil has a particular meaning, which is that it is a sign of the oppression and inequality of women, and is therefore the opposite of an often-presented vision of gender equality. If any woman says she has ‘chosen’ to wear this veil, she is either not being truthful or she is acting under some type of ‘false consciousness’, for what woman who is ‘truly’ free would choose to wear it? The practice and arguments supporting bans which follow this line of thought are an example of the idea that choices made in conditions of patriarchy or gender oppression or inequality are inauthentic, ‘adaptive preferences’, not properly ‘choices’ at all, or, at least, not permissible choices.Footnote 33 Certain French feminist activists are vocal in their support of a legal ban on the full-face veil in all public places.Footnote 34 Their reasons for such a stance include the ‘barbaric’ ‘undignified’ and ‘inhumane nature’ of the full-face veil and all they see it to stand for.Footnote 35 As they see it, the law needs to step in to protect such a woman from wearing the full-face veil which is not a ‘choice’, even if the woman says it is; she should be ‘forced to be free’ and taught that it is not something that is permitted in a democratic society. If the decision to wear a full-face veil is made for cultural or religious reasons, this cultural or religious freedom is presented in opposition to gender equality or at least as liable to conflict with it (Okin Reference Okin and Cohen1999; Volpp Reference Volpp2001).Footnote 36 In any such conflict, gender equality wins.Footnote 37 Equality and non-discrimination is explicitly stated in the ECHR to be a guaranteed right. Although Protocol 12 aims to strengthen the prohibition on discrimination provided for in Article 14 of the ECHR, it remains to be ratified by most Member States. As such, the effectiveness of such provisions in achieving gender equality has been questioned (Radacic Reference Radacic2008). That being said, gender equality has been declared to be a legal principle underlying the guarantees of human rights. Gender equality or the equality of rights between men and women has been expressed by the Council of Europe as a fundamental principle of democracy, one that is self-evidently necessary in a democracy, an imperative of social justice and a factor in the recognition of the legitimacy of women's status in public life.Footnote 38 Member States of the Council of Europe have been called upon to eradicate all discrimination on the grounds of sex.Footnote 39 As the literature from the Council of Europe makes clear, this gender equality is not a uniform sameness across all persons. It involves equality of respect for diversity and the uniqueness of each and every person, through participation and dialogue, respect and toleration of others' views.Footnote 40
Most feminists acknowledge that any capacity and ability to make choices of one's own ought to be formed in an environment which respects some form of gender equality. If choices are made in an oppressive patriarchal, and therefore unequal, context, how can they be one's own? (MacKinnon Reference MacKinnon2005). At the same time, feminists generally agree that women should be able to live lives of their own choosing, not to be dictated to, or told what to do.Footnote 41 This demonstrates one of the fundamental tensions within feminist legal thought. Additionally, many feminists are divided over the use of law generally in regards to advancing a feminist agenda (Smart Reference Smart1989; MacKinnon Reference MacKinnon2005). It could be that a different interpretation of human dignity and human freedom is more effective at aiming to achieve gender equality by enabling each woman equally to have the freedom to develop her personality or identity as she sees fit. In this way, the overall aim of human rights law and the harmonisation of personal freedom and gender equality could be more coherently sought.Footnote 42
2.2 ‘You can't ban the burqa: that woman needs to be empowered, recognised and respected as a person with an identity or personality of her own’
Human rights discourse has traditionally been advocated as assisting the oppressed, based on ideas of the equal entitlement of all persons universally to be free to live their own life. It has been used to include previously excluded groups of people such as women and black people into the concept of the human being or person accorded protection by human rights law. As Patricia Williams expresses it: ‘[r]ights is … still so deliciously empowering to say. It is a sign for a gift of selfhood’ (Williams Reference Williams1991). As Ronald Dworkin explains, because each individual person is entitled to equal concern and respect by law, rights trump utilitarian, consequentialist policies (Dworkin Reference Dworkin1977). Human rights law exists to ensure that individual lifestyle choices are protected from majoritarian or populist infringement. In a liberal democracy, the harm principle, espoused in the nineteenth century by John Stuart Mill, and its variants, is most used as the justification for allowing law to interfere with such lifestyle choices: if harm is caused to others without their consent, then the law will step in to prevent it. The human freedom to develop one's own personality, as the person concerned sees fit, will thrive, so says Mill, in a market-place of ideas where people are not in fear of the consequences of experimenting with different ways of life and behaviour to find out how they want to live for themselves. Thus that particular person is in control and empowered, as much as he or she can be in a social environment, of any decisions they take. They are also responsible for the consequences.
In 2010, the issue of Islam, Islamism and Islamophobia in Europe was the focus of a widespread investigation by the Parliamentary Assembly of the Council of Europe (the PACE). The Council of Europe was founded in 1949 and seeks to develop, throughout Europe, common and democratic principles based on the ECHR, one of its founding documents. The PACE is the deliberative body of the Council of Europe, consisting of 318 representatives appointed by the forty-seven Member States' national parliaments. As the President of the PACE expresses it ‘[t]he members of our Assembly directly represent 800 million citizens. 800 million people with different cultures, different nationalities, a wide range of political views and religious beliefs, but who are united by common values … values that can strengthen social cohesion in our societies and further peace and stability in our continent.’Footnote 43 It functions through a committee system which reports on particular issues to the full PACE. In May and June 2010, it clearly stated that full-face veil bans would not be supported. A Report by its Committee on Culture, Science and Education states that veiling may potentially be a ‘threat to women's dignity and freedom’.Footnote 44 However, it notes that actually banning the burqa distracts from the real difficulties Europe faces in integrating Muslims into their societies. It concludes that states should respect the voluntary decision of Muslim women to wear a headscarf or other religious attire, in a way comparable to respecting Christian nuns and orthodox Jewish men and women. In the Equal Opportunities Committee's examination of these issues as they impact on Muslim women, the Chair's Opinion concludes that bans would not help women's rights or living conditions even if the women had been forced to wear a full-face veil by someone else.Footnote 45 The Resolution of the PACE adopted on 23 June 2010 reiterates these points and clearly states that a general ban could affect women's free movement and social exclusion. It calls on Member States to ‘develop targeted policies intended to raise Muslim women's awareness of their rights, help them to take part in public life and offer them equal opportunities to pursue a professional life and gain social and economic independence’.Footnote 46 Whilst acknowledging versions of gender equality arguments concerning the oppression of women through the wearing of the veil, the PACE concludes that legal bans are not the way forward in democracies; bans could contravene human rights law, particularly Article 9 of the ECHR providing a right to freedom of religious expression. Bans are stated to potentially adversely pressurise women to stay at home and confine themselves to being in contact with other women, making them stay away from public places and to abandon work. All of this is in line with the views of the Commissioner for Human Rights at the Council of Europe, Thomas Hammarberg. He has made clear that any general ban on the wearing of the full-face veil is an invasion of individual privacy and is alien to European values (Hammarberg Reference Hammarberg2010a, Reference Hammarberg2010b).
Using Brownsword and Beyleveld's categorisation again, in contrast to the version of human dignity as constraint, is human dignity as ‘empowerment’. This equates human dignity to personal autonomy and is more in line with the reports and resolutions agreed to by the PACE. According to this interpretation, the capacity to make unforced choices for oneself means that human rights must protect whatever choice the individual makes. Life is not free from tragic choices but it is for the person to make the choice, tragic or otherwise: the value lies in that fact.Footnote 47 This correlates with Joseph Raz's formulation of the concept. As he expresses it ‘respecting human dignity entails treating humans as persons capable of planning and plotting their future. Thus respecting people's dignity includes respecting their autonomy, their right to control their future …’ (Raz Reference Raz1979, p. 221). James Griffin's account is one of the fullest in this vein (Griffin Reference Griffin2001). Human dignity is identified as the valuable status protected by human rights. Human dignity centres on one's status as a person or an agent. Values are implicit in that status, including choosing one's own course through life; having, at least, certain minimum education, information, chance of knowledge; and being able to follow this through by having enough material provisions of resources and capabilities that it takes. Lastly, pursuing one's version of the good life must not be stopped by others (Raz Reference Raz1979, p. 311). Tasioulas aims to expand this theory from what he sees as its culturally specific and substantive nature to a more pluralistic account. This centres on the fact that all human beings have certain fundamental interests, and through their capacity for practical reason they are able to relate to those interests in a distinctive way. On this view, autonomy and freedom are among the interests that ground human rights but they are not exhaustive. Tasioulas explains that asserting rights as a human has an essential conceptual background in some notion of the moral worth of certain properties or capacities, without which it would make no sense to assert them (Taylor Reference Taylor and Ryan1979, Reference Taylor1989, Reference Taylor1991, Reference Taylor, Avineri and De-Shalit1992, Reference Taylor and Gutmann1994, p. 25; Tasioulas Reference Tasioulas2002).
Steiner expresses the view that foundational human rights are derived from one unifying or underlying right entitling its holders to be secured a certain broadly designated personal condition (Steiner Reference Steiner and Copp2006). As he puts it, the most favoured of these are personal well-being, autonomy, self-respect and agency (Steiner Reference Steiner and Copp2006). As well as often entailing non-interference, certain social provisions may be needed to enable these rights to be exercised. These help enable a person's potential or capacity for freedom to be brought into being, to be awakened, stimulated and encouraged. However, it is ultimately for the individual person concerned to choose whether or not to exercise those rights. Douzinas describes rights as nothing more than the symbolic expression that one is equal in his or her freedom with everyone else, or that one is a legal subject. Rights' consciousness requires that the legal system engage with each individual person as a person in their own right, confirming the subjectivity of persons as rights' holders with entitlements, and they have worth and recognition in law through the existence of such rights (Douzinas Reference Douzinas2000; Gearty Reference Gearty2006). This worth and recognition in law will be followed up in Section III.
The interpretation of human rights grounded in human dignity as empowerment fits with an alternative version of human freedom to that offered by self-realisation. This is called here ‘self-determination’, and is a version of human freedom in which persons are free if they can become something they are not yet, different to, more than, possibly better than, what they are now. It is for each person to decide his or her future, to develop their own potential, and decide their purpose in life. This, in many ways, finds sympathy with liberal and existential work, and also some strands of post-modernism. In its most extreme forms, self-determining freedom does not recognise any boundaries and, as Charles Taylor's analysis shows, it can end up as extreme anthropocentrism. However, it need not be so extreme. It is formed in the context of existing sets of rules, as Taylor fashions it, a ‘gridwork of moral measurement, persuading people that self-fulfilment does not or at least should not exclude unconditional relationships and moral demands beyond the self. In fact it actually requires them.’ (Taylor Reference Taylor1989, pp. 68 and 75; see also Raz Reference Raz2001, p. 33). Thus identity, personality and choices are made in a social context but remain one's own through choice and those choices have moral worth to the person concerned.
Self-determining freedom can fit with a cultural and community based identity that the individual person affected accepts. Discussing the French ‘headscarf affair’ relating to the wearing of the Islamic headscarf in public institutions such as employment and education, before the full-face veil ban in all public places came into affect, Benhabib interpreted the French legislation as the state purporting to ‘champion’ women's emancipation from their own communities (Benhabib Reference Benhabib2002, Reference Benhabib2004). Yet, in her view, the wearing of the headscarf is a sign of women resisting the state, not to affirm their religious and sexual subordination, but to assert an identity independent of the dominant French culture (Benhabib Reference Benhabib2002, Reference Benhabib2004; see also Laborde Reference Laborde2005). Whilst explanations as to the meaning of the veil are interesting, they do not ever fully explain what wearing it means because each individual woman may have her own particular view and each person observing, looking on at it, will have their own particular subjective view too. So we can question whether any of the explanations matter for legal purposes. If an adult woman legally capable of consenting in a liberal democracy says she decides to wear a piece of clothing and wants to wear it, how can the law step in and tell her not to?
III Whose personality?
The assumption in a liberal democracy is that individual persons should have the right to determine their own life – including decisions on what type of lifestyle to adopt − through their own informed choices, not to be dictated to by the state or by others. One of the arguments in favour of bans is that men or a particular community are coercing a woman to wear the full-face veil. The state will step in to protect her. Yet by doing so, the state not only makes assumptions about the men and the community, but it is coercive itself by criminalising an aspect of one's personality. This can be interpreted as failing to recognise these women's own sense of their identity or personality. Identity has been described by Charles Taylor as
‘[P]artly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being.’ (Taylor Reference Taylor and Gutmann1994, p. 25)
Honneth's theory of the struggle for recognition has been explained as follows:
‘The possibility of sensing, interpreting, and realizing one's needs and desires as a fully autonomous and individuated person – in short, the very possibility of identity-formation – depends crucially on the development of self-confidence, self-respect, and self-esteem. These three modes of relating practically to oneself can only be acquired and maintained intersubjectively, through being granted recognition by others whom one also recognizes.’ (Anderson Reference Anderson and Honneth1992, p. xi)
Identity and personality is formed in large part by the social conditions in which people find themselves, and can contribute to varying degrees to create and to change. These social conditions include legally formed policies to develop self-confidence, self-respect and self-esteem. When it comes to full-face veils, taking seriously the individual woman wearing the item of clothing as a person in her own right, with views to be tolerated and respected, seems a more convincing way to do this than telling her not to wear an item of clothing.Footnote 48 Taking her seriously means her subjective viewpoint and her own version of how she wants to live, what she does or does not want to do with her life, what she does or does not want to wear, is what counts most. By acknowledging the woman as a person in her own right, with views worth listening to and taking into account, she is given recognition. When she sees this recognition in others, through, amongst other things, how the law and the political system treats her, she is enabled to become conscious of her own sense of ownership of her decisions, responsibility and therefore empowerment in taking some sort of control over her own experiences. She may not take up this option but she is enabled and legally entitled to do so. She should not be forced to. Legally banning her from exercising a choice she says she freely makes as an adult does not respect her as an equal and give her any recognition as a person capable of making her own choices as an adult. Such bans exclude, judge, disrespect, and thus do not safeguard her identity or personality rights. Respect arises from the fact that each person speaks from his or her own particular point of view and perceives his or her own interests that another cannot presume (see Benn Reference Benn1988). Stanley Benn explains that a person's interests shape his or her identity over time, and each person can see continuity of meaning and patterns in what he or she is or does: ‘[s]he is conscious of [her]self as fabricating a life and a self as a kind of overarching enterprise in which [s]he has the most profound interest.’ (see Benn Reference Benn1988, pp. 107 and 120) Developing a personality involves conscious choice and awareness in a social setting. The person herself has to be encouraged by the state to have a sense of ownership that her own projects are hers because she is helped to, at least, be part of the process of creating them.
Having in place a political and legal structure that enables meaningful choice and toleration of different viewpoints, having appropriate conditions available to re-examine ways of life and projects, helps recognise persons politically, in the words of Drucilla Cornell, as if they are ‘fully authenticating sources of [their] own values’ (Cornell Reference Cornell1998, p. 38; see also Reference Cornell1991, Reference Cornell1992, Reference Cornell1995). Normatively, even if not descriptively true, persons are recognised as abstract legal persons who are agents of choice and sources of value, having, using Dworkin's grounds of liberalism, equal worth as persons uniquely responsible for his or her own life (Cornell Reference Cornell1995, p. 114). In this political and legal recognition, ‘the right to equivalent evaluation’, each person is recognised as unique and ought to be able to live his or her life. Self-respect in this context – viewing oneself as worthy of the same status and entitlements as every other person regardless of what you choose to wear − should surely be foundational in any liberal democracy.
A great deal of the Article 8 case-law, in contrast to using human dignity as constraint and human freedom as self-realisation of one's ‘real true nature’, shows the ECtHR developing the provision to enable persons to choose for themselves the life they wish to lead in line with human dignity as empowerment and self-determining personal freedom. From as far back as the 1970s, respect for one's private life included the right to establish and to develop relationships with other human beings, especially in the emotional field, for the development and fulfilment of one's own personality.Footnote 49 The ECtHR has continued throughout more recent decades to expand this with personal autonomy being expressed as an important principle underlying the interpretation of its guarantees,Footnote 50 and protection of a person's physical and psychological integrity to ensure the development of one's personality in his or her relations with other human beings.Footnote 51 Case-law places emphasis on recognising the claimants as persons with rights to enable them to live a life of their own choosing and for that life to be recognised as worthy in and of itself. As stated in Goodwin and I v. the UK:
‘… the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including their right to establish details of their identity as individual human beings …’Footnote 52
The importance of being able to develop our own personality as set out in this developing jurisprudence fits with a view that it is important to retain an ability and capacity that is each person's domain to enable them to think reflectively without interference; to be in control of their own faculties (Mill Reference Mill1991; Macklem Reference Macklem2006). This links to a view of human dignity as empowerment: importance rests on the individual person himself or herself who is doing the thinking and choosing, and controlling what others know about that. Also developed in the jurisprudence is the positive obligation on states to provide certain social conditions to enable this private life and personality to be respected, recognised and made effective.Footnote 53 The ECtHR therefore acknowledges that legal recognition is necessary to allow individuals to choose how to live their own lives, including making sure that the enabling preconditions are accessible and available.Footnote 54 This interpretation corresponds to a form of human freedom as self-creation or self-determination: the freedom to be and become the person one chooses which happens in and through a social context. This social context allows for and can assist in fostering policies of inclusion, encouraging self-respect and confidence, and is consistent with a version of human dignity as empowerment.
IV Conclusion
Advocating policies of awareness and social inclusion highlights that women in socially deprived areas living in exclusively immigrant Muslim communities need education, employment and the provision of information.Footnote 55 A capacity to critically question existing social norms and structures could be fostered by this attitude and approach whilst emphasising self-respect and individual responsibility for one's choices. Conditions will therefore exist where they may wish to change their minds and experiment with new ways of living. But it also means that they may decide to stay where they are, live the way they are living, and continue to wear a full-face veil or any other type of clothing. This treats the woman's viewpoint with respect and recognition by according her legal rights that are not removed by criminalising an aspect of her way of life which she may consider as constitutive of her identity as a person. This accords her the human right to identity in line with her human dignity and human freedom as she, with agency, wants, in tune with her being capable of creating a life for herself and being who she wants to be with her own identity and personality. Legal bans do the opposite. Imposing criminality onto the wearing of a piece of clothing fails to recognise the person who wears it in a democratic society as worthy of respect for who they are: this is contrary to helping the development of self-confidence, self-respect and self-esteem. In this context, criminal bans are backward, authoritarian and paternalistic. This is counter-productive and in opposition to rights enshrined in human rights law which indicate the fundamental quality of the value of any choices being made by, belonging to, and constitutive of, that particular person, and having those recognised by others in the form of law. If the very possibility of identity formation presupposes the development of self-confidence, self-respect and self-esteem, the human right to personality or personal identity as empowerment and self-determination derived from Article 8 of the ECHR means that an environment ought to be fostered, legally and politically, where these are encouraged to thrive for everyone.Footnote 56 Equal recognition is consistent with the human right to personal identity or personality in the sense of allowing women the freedom to develop our own personality as we see fit, including our physical, social and cultural identity which states are under a positive obligation to secure.
Human rights law can be an enabling tool, by helping to change social conditions to enable people to make their own choices and by listening to the particular individual concerned. Pressurising women in ways which may result in them staying at home and away from public places, telling them what they can and cannot wear, is, however, the opposite. It shows human rights law potentially being used as a restricting tool, preventing certain choices and ways of life through legal prohibitions or bans. This is inconsistent with the overall objective of human rights law: namely to safeguard, and potentially develop, the human dignity and human freedom of everyone in an empowering, self-determining fashion which recognises every person as an equal by virtue of who they are in and of themselves. This could be seen as indicative of a reconciliation of equality and freedom: it seems that the best versions of both provide for their reconciliation. This is the position taken by Judge Tulkens in her dissenting opinion at the ECtHR in Sahin. The consequence of such reconciliation or harmonisation is that any proposed legal ban on the wearing of the Islamic headscarf and the full-face veil by adult women would constitute an infringement of gender equality and women's personal freedom as represented in their human rights to personal identity, autonomy and integrity, religious, or any other, freedom of expression. Despite the faults of liberal democratic rights, there is value in the view that:
‘[w]e live in a world where people have a right to choose for themselves their own pattern of life, to decide in conscience what convictions to espouse, to determine the shape of their lives in a whole host of ways that their ancestors couldn't control. And these rights are generally defended by our legal systems …’ (Taylor Reference Taylor1989, p. 2)
Taking into account the purpose of human rights law and the developments of a socially interconnected, yet self-determining, view of personality rights, full-face veil bans in all public places have therefore no place in European liberal democracies (Dworkin Reference Dworkin1977; Benn Reference Benn1988; Cornell, Reference Cornell1998, p. 38).
