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Only ban the burqa if it is not worn freely

By Mirko Bagaric - posted Friday, 27 August 2010


Burqas should be banned only if the women who wear them do so out of a sense of compulsion. The fact that some politicians find them confronting is a catalyst for throwing more money towards education in liberal philosophy, rather than paternalist meddling.

The stock-in-trade reasons that are given for banning the burqa are demonstrably flawed and are often no more thinly veiled anti-Muslim rants. There are no proven cases in Australia of criminals using burqas as disguises. Hence it is nonsense to challenge burqas on security grounds.

Facial expressions are important but not essential for meaningful communication. Books, the rise and rise of talk-back radio and email, conclusively demonstrate that you don’t need to be staring at someone to understand them.

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This equally applies to judging a person’s credibility, even in court room situations. Empirical studies repeatedly show that body language and facial expressions are poor indicators of veracity - normally they just evince stress.

Thus, the intense public debate surrounding whether a Muslim female should be able to wear a burqa while giving evidence in a Perth fraud case is misconceived. The jury will not be able to make an accurate assessment of her credibility from her body language - burqa or no burqa. The fact that the accused in this case has reportedly been stabbed for his opposition to the burqa is an unfortunate distraction to this debate.

It is not in doubt that some people find the burqa jarring or confronting. But what is beyond doubt is that personal liberty and the right to engage in self-regarding conduct trumps the overly sensitive dispositions of individuals who disagree with the fashion choices of others.

Still we might be better off banning the burqa. Not because it is necessary for the community. Rather, the women inside them might need our liberation.

Paternalism is ugly, but uglier still is oppression - under any guise, whether it is religion or culture. Indeed, many Muslim women might say that it is their choice to wear the burqa, but this is only the start of the inquiry.

As the Australian High Court noted in the recent decision of The Queen v Tang (the “slavery case”) consent can be consistent even with slavery. People sometimes choose to sell themselves into slavery, but that doesn’t mean that as a community we should tolerate the practice.

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To get to the bottom of the burqa debate we need to understand what is driving the choices of the women under the burqa. If their choice turns out to be fully free and informed, society has no basis for imposing its whims on their dress code.

The circumstantial evidence, however, points to oppression as being at least one factor that influences women to wear a burqa.

Any extreme form of human conduct needs to be analysed closely. It is counter-intuitive to think that any free person would chose to erect a physical screen between themselves and the outside world. The nature of the human condition is to pursue and engage in social contact and intercourse. It enriches life and recent studies show that it is even conducive to longevity.

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First published in the New Zealand Herald on August 10, 2010.



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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is the author of 20 books and over 100 refereed scholarly articles. He is not connected with any political party or other interest group. He is the author of Australian Human Rights Law (forthcoming). Mirko is the author of Being Happy and Dealing with Moral Dilemmas.

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