The Tip of the Iceberg

Last June, shortly after the French Communist Deputy André Gérin launched the idea for a parliamentary commission on the burka, a Parisian journalism student went in search of the controversial article of clothing. The quest ended in failure: From the cosmopolitan neighborhood of Barbès to that of Belleville, shopkeepers repeatedly insisted that, while they sold plenty of headscarves and the occasional niqab, no clients had ever sought to purchase a burka.

As the journalist learned, this term, which has for the past decade symbolized women’s oppression by intolerant Islam, is a misnomer for the “integral veils” that are now being legally targeted in France, not to mention Belgium and Italy as well. Although pointed to by politicians as a dangerous new social problem, the practice is extremely rare. Even those who speak in favor of banning what the proposed law calls “public facial dissimulation” admit that the phenomenon is extremely marginal. Initial government intelligence reports named 367 documented cases. And, according to the Ministry of the Interior, no more than 2,000 women in France wear an “integral veil.” But for Gérin and others, these numbers are just the “tip of the iceberg.”

Ever since the parliamentary commission issued its report in January 2010, however, one is hard-pressed to open a French newspaper without seeing a totally veiled visage. Socially marginal as it may be, the integral veil has come to occupy considerable public and political space. What “iceberg” has all this public and political attention revealed?

For advocates of the ban, women who wear integral veils are simultaneously victims and perpetrators. They represent a surreptitious (if at the same time excessively visible) threat, namely the insidious spread of radical, Salafist Islam—and hence a religious and implicitly political menace. The proposed ban targets the practice as fundamentally at odds with French republican principles: both secularism and a (historically recent) commitment to gender equality. The new law thus seems, at first glance, to be a logical— and legal—extension of the commitments outlined in a 2004 law on “laïcité” that outlawed all “ostensible” religious symbols from public schools. In other words, six years ago it was the headscarf, now it is the burka. Then it was public schools, now it is public space.

In fact, this new legislative proposal represents a significant departure from the previous law and a disturbing radicalization of French political tactics. The responses of jurists to the government’s proposed legislation make it very clear: The “burka ban” does not uphold the principles of French republican law—it overtly violates them.

Framed as a matter of church/state separation, or “laïcité,” the 2004 law’s sphere of application was heavily circumscribed: It was limited to public schools and it applied to subjects (presumptively victimized young girls) who were legally minor. While the subject of significant debate, both at the time and since, the 2004 law was nonetheless upheld as conforming to the principles of the French Constitution and to the European Convention on Human Rights, in part because it was framed in universal terms. The same cannot be said for the proposed law on the integral veil. The Conseil d’Etat, which provides legal guidance to the executive and serves as France’s highest administrative court, has twice raised serious doubts about the constitutionality of this new law. After all, the women who wear “integral veils” are, by the Ministry of the Interior’s own admission, consenting adults who do so of their own volition. “Laïcité” is not applicable either, because the law targets a legally nebulous conception of public space, rather than specific state institutions. The Council of Europe’s Commissioner of Human Rights, Thomas Hammarberg, has likewise condemned the proposed law, stating: “The interdiction of the burka or the niqab would not liberate oppressed women, but could, on the contrary, exacerbate their exclusion in European societies.” The French League of Human Rights, while critical of the practice of “veiling,” is also opposed to the passage of the law.

Government officials have overtly flouted these (non-binding) legal opinions, and they have set out to remedy what they view as a lacuna in existing French republican law. There is here a notable paradox: These politicians want to breach existing statutes (on the preservation of “human dignity,” “gender equality,” and even of public order) so as to better uphold them. In doing so, they hope to demonstrate the extent (and integrity) of their “republican” commitments by specifically targeting a very small group of devout women. But this law, far from being universalist, has a particularized and particularizing intent. In the name of gender equality, it wants to save these women—from themselves.

According to Prime Minister François C. A. Fillon, however, “One must assume the juridical risks of one’s convictions.” President Nicolas P.S. Sarkozy thus clarified the “republican” principles that are supposed to undergird this law before the Council of Ministers on May 19: “We are an old nation, which is assembled around a certain idea of the dignity of the person, and in particular, the woman’s dignity, around a certain idea of living together. The integral veil that totally hides the face represents an attack on those values, which are so fundamental, so essential to the republican contract.” Sarkozy’s statement clearly invokes the language of human and, especially, women’s rights. But it is very difficult to discern exactly whose—and especially which women’s—“dignity” this law actually preserves.

In sum, the political instrumentalization of the “integral veil” indeed reveals the growth of a disturbing public presence: a strident French nationalism which upholds woman’s bodily dignity as a core value and ideal, but only at the expense of actual women’s volition, agency, and legal rights. That is the real iceberg that looms beneath this law.

Judith Surkis is an associate professor of history and of history and literature at Harvard University. Next year, she will be a member of the School of Social Science at Princeton’s Institute for Advanced Study.