The Islamic Headscarf Debate in Europe
By all accounts, Europe is considered the leader in the human rights movement.  Their laws, courts and procedures are definitely the most advanced when it comes to dealing with the details of human rights law. Numerous commissions and courts exist to ensure that every citizen receives his due human rights.

In the light of these facts, it is interesting to study the “Islamic headscarf debate” in Europe.  One would think that a woman’s wearing of a headscarf would be a matter of individual conscience, freedom, choice and personal right. One would imagine that in Europe in particular there could be no hint of non-acceptance of such a freedom. One definitely would imagine that the human rights courts would never uphold a ban on such a simple, personal choice that humans make for their lives.

The European human rights courts got the opportunity to demonstrate exactly how “flexible” human rights thinking can be—in other words, they had an opportunity to demonstrate what could be prohibited while not violating human rights law. This opportunity came in 2004, when President Chirac and the French National Assembly passed a law prohibiting Muslim women from wearing hijab while at a state school.


Article 1 of the law states,
In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that a dialogue shall precede the institution of disciplinary proceedings with the pupil.

McGoldrick starts off his study of this issue with a statement that sounds very strange given the loud claims of universality from human rights proponents, especially those like Mayer and others who write specifically about Islam. After posing the question of whether the law passed by the French National Assembly should be considered a violation of human rights,


McGoldrick states,
As for the answer to the abstract question, as is often the case, international human rights law does not give a clear response, particularly because conflicting rights may be involved. Rather, there has to be a specific national and legal context for the international human rights law to be applied and interpreted and situations have to be considered on a case-by-case basis.

One must keep in mind that the so-called freedom of religion is not “absolute,” as some writers would make one believe. The ICCPR clearly states, “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”  Even though the General Comment of the Human Rights Committee explicitly mentions the outer dress as being a manifestation of freedom of religion, the seemingly innocent act of one’s dress can be scrutinized and restricted by invoking this about clause from the ICCPR.

Thus, even before the passing of the controversial law in 1999, it was already prohibited in France for all public servants to wear hijab or any religious signals. They had to be seen as being “neutral.” This obviously applies to teachers in state schools as well.  This is a clear situation where the “interests of the state” take precedence over any perceived human rights that individuals may hold. 

It is not simply in France where the headscarf was an important issue. In fact, in the famous case Dahlab v Switzerland, of a teacher of young schoolchildren who was prohibited from wearing the hijab , the European Court of Human rights “found that Switzerland was entitled to place restrictions on the wearing of the Islamic headscarf-hijab, as it was compatible with the pursued aim of protecting primary school pupils by preserving religious harmony.” They feared that the wearing of the hijab by a teacher of children at such an impressionable age would be akin to proselytizing. This goes against their desire for “neutrality.” While ruling on this case, the ECHR even stated, “It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.” 


The ECHR further stated,
In the light of the above considerations and those set out by the Federal Court in its judgment of 12 November 1997, the Court is of the opinion that the impugned measure may be considered justified in principle and proportionate to the stated aim of protecting the rights and freedoms of others, public order and public safety. The Court accordingly considers that the measure prohibiting the applicant from wearing a headscarf while teaching was ‘necessary in a democratic society’.

Germany, which has a very different cultural history than France, is another very vocal leader in support of international human rights. Interestingly, it also starting banning the headscarf for teachers in public schools. Interestingly, they distinguished between displays of Western religions (Christianity and Judaism) as opposed to oriental religions, arguing that the latter formed an essential component of German culture.  In fact, the laws in the state of Saarland clearly stated, “School has to teach and educate pupils on the basis of Christian educational and cultural values showing due respect for the feelings of differently minded pupils.”  A number of other states also passed laws with a similar tenor.

As part of its secularization and modernization programs, Turkey banned both the male fez and the female veil in the early 1900s. In more recent times, they have supported their ban on the headscarf in government positions and universities as a support for their secularism. The Turkish government has argued that wearing the headscarf in Turkey is “becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic.”  Although Turkey is not “officially” part of Europe and certainly does not have the same reputation for supporting human rights as the remainder of Europe, two of its famous cases was taken up by the European Court of Human Rights. These were the case of Leyla Sahin v Turkey and the case of Karaduman v Turkey.

In Karaduman v Turkey, a woman who had completed her studies was refused a graduation certificate because her student ID had a picture of her wearing a headscarf. In her complaint, she noted that identity card, passport and driving license carried photographs of her wearing a headscarf.


One of the comments made by the European Court of Human Rights was the following:
by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedom of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs. Especially in countries where the great majority of the population owe allegiance to one particular religion, manifestation of the observances and symbols of that religion, without restriction as to place and manner, may constitute improper pressure on students who do not practice that religion or those who adhere to another religion. Where secular universities have laid down dress regulations for students, they may ensure that certain fundamental religious movements do not disturb public order in higher education or impinge on the beliefs of others.

This ruling is even more interesting when one keeps in mind the point that McGoldrick makes, “It is important to note that while foreign female students at Turkish universities had freedom to dress as they wished, if they were Muslim, they could not wear the Islamic headscarf-hijab.” 


He also noted,
In Bulut V Turkey, the European Commission on Human Rights again upheld the ban on students wearing the headscarf-hijab in secular universities. It considered that Turkey was entitled to impose the restriction because, in view of the great preponderance of Muslims in the country, wearing the headscarf-hijab could in the circumstances amount to a form of pressure both upon non-Muslims and upon those Muslims who did not practice their faith.

Once again, the pressure, even from authorities, to be areligious or secular is completely supported by human rights law. In fact, there seems to be no consideration of this type of coercion at all. Indeed, that one not take one’s religion too far into the public sphere seems to be a requirement of the human rights movement.

The Grand Chamber of the European Court of Human Rights heard the case of Leyla Sahin v Turkey. In this case, Sahin, a student, was prohibited from wearing the headscarf as a university student in a public university. She was not allowed to attend lectures or examinations simply because she wore a headscarf.

The Court invoked its doctrine of ‘margin of appreciation’ as being particularly appropriate when it comes to the regulation by the Contracting States of the wearing of religious symbols in teaching institutions in view of the diversity of approaches taken by national authorities on the issue and the impossibility of discerning throughout Europe any uniform conception of the significance of religion in society. The Court stressed what was at stake in determining the margin of appreciation, viz, the need to protect the rights and freedoms of others, to preserve public order and to secure civil peace and true religious pluralism, which was vital to the survival of a democratic society.


Further, McGoldrick wrote,
The European Court thus accepted Turkey’s two central contentions, namely that secularism (i) was consistent with the values of the ECHR and (ii) was necessary to protect the democratic system in Turkey that was necessary to support the ECHR. The Grand Chamber saw no reason to depart from the approach taken by the Chamber.

If one looks closely at the decisions of the European Court of Human Rights—perhaps the most progressive and established body of its kind in the world today—one of two things must be occurring. One possibility is that the Court is recognizing that a society may have some overall goals and beliefs about itself that override human rights law. For example, the French have some rather unique beliefs about their society and these beliefs seem to be supported in the decisions of this respected Court. If that were the case, then an Islamic State certainly would have specific overall goals that should trump human rights theory. Besides the ultimate goal of living in accord with what God has revealed, it has specific goals about the nature of society. An Islamic society is supposed to be a moral society in which it is understood that it is not a society in which “everything goes.” Furthermore, it also has a very clear picture of how the basic foundation of society, the family, should be constituted. If these goals of society can trump human rights, then there is no true conflict between an Islamic State and human rights because none of the laws of Islam are intended to harm or discriminate against anyone but are simply meant to promote the overall, positive goals of Islam.

However, that interpretation of the decisions of the Court is probably far-fetched. The second possibility is much more likely and it reveals an amazing fact about the entire human rights paradigm. The so-called human rights law, in the eyes of the European Court, is not about human rights. It is about secularism. Human rights law is used as a foundation for the implementation and support of secularism. If there is a conflict between the two (individual rights and secularism) secularism takes precedence.This is something that human rights activists do not necessarily explicitly mention, although it would be hard to imagine that they are oblivious to this fact. Human rights supporters will counter by saying that these seeming exceptions to freedoms and human rights are done in the name of democracy and secularism—which, the argument wishes one to believe, allows all religions and peoples to be free. This is nothing but circular reasoning. It is saying that religions must be restricted so that people shall be free to practice their religion.


Amazingly, this circular, illogical argument was almost explicitly stated by the Grand Chamber of the European Court, which once argued,
In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.

They have actually stated the same as above but in a manner that it is obvious contradictory nature is hidden from view.

Actually, as can be noted in some of the statements above, the goal is either secularism or “democracy.”  The UDHR is even more explicit in tying human rights directly into “democracy.” In fact, it virtually subjugates human rights to “democracy.” Article 29 of the Universal Declaration provides for the limitation of human rights to meet ‘the just requirements of morality, public order and the general welfare in a democratic society.’ The point to note here is that they are not only implying that one must be “democratic” and “secular” but they are also implying that only secular and democratic rules have the right to restrict the freedoms and implement laws that seemingly contradict what should be a person’s human rights. Thus, the human rights paradigm is once again dictating to nations what kind of government and nation they are permitted to have.

Democracy and secularism are replete with their own problems and issues—especially, once again, when it comes to its relationship with religion, which, obviously, is core to the question of the relationship of Islam with human rights. On the relationship between human rights and democracy,


Freeman wrote,
It is commonly believed that human rights and democracy are mutually supportive or related to each other by definition. The Vienna declaration of 1993, for example, asserted that democracy and human rights were ‘interdependent and mutually reinforcing’.

The relations between the two are, however, quite complex. Similar values, such as respect for the dignity of the individual, may form the basis of both human rights and democracy. Democracy may also be, empirically, the best form of government for protecting human rights, although some electoral democracies fail to protect economic and social rights, while some authoritarian regimes do so quite well (Chun 2001). Nevertheless, human rights and democracy have different, and potentially competing, theoretical foundations. Democratic theory asks who ought to rule, and answers ‘the people’. Human-rights theory asks how rulers ought to behave, and answers that they ought to respect the human rights of every individual. Democracy is a collective concept, and democratic governments can violate the human rights of individuals.

The concept of human rights is designed to limit the power of governments, and, insofar as it subjects governments to popular control, it has a democratic character. But human rights limit the legitimate power of all governments, including democratic governments. Human rights are consequently often protected by entrenching them in constitutions. This transfers power from democratically elected political decision-makers to judges, who are usually not democratically elected.

Then again, one has to wonder whether the European Commissions were truly deciding in favor of democracy.


McGoldrick writes,
In a case like Leyla Sahin v Turkey the Court effectively decided that particular individuals, or even the majority of them, had to pay the price for maintaining the general principle of secularism because that principle was in their long-term interests. In one sense, it is analogous to a national constitutional rule that allows restrictions on rights so as to defend a democratic national constitutional system from abuse.

This highlights both the confusion of the human rights paradigm and one of the internal inconsistencies of the democratic ideal. The statement says: The majority may have to suffer in order to enforce secularism and ensure that democracy is not abused. That is a famous debate in democracy theory: How can the will of the majority be kept from being abused by the majority?

It seems that the European Commissions are just as confused about human rights as anyone else—sometimes sacrificing it for the sake of national goals, other times realizing that it is not the ultimate goal and that secularism or democracy are the true ultimate goals. In any case, it is important that these confusions and goals of human rights law be made clear for everyone to understand and see.

Certainly any Muslim or Islamic state could argue on the basis of their “culture,” their unity, etc., that women should not be allowed to wear “provocative” clothing and that non-Muslim religious symbols should not be allowed in public. True this would be more far-reaching than any of the laws that were discussed above but at least they would make “rational.” That is, the newly passed laws in Europe concerning hijab, for example, forbid women from wearing the hijab in the workplace or at school while they are free to wear it at home (where most of them time that would not be wearing it) or in the mosques.

It is interesting to note that some human rights organizations, such as Human Rights Watch, Minority Rights Group and the International Helsinki Federation for Human Rights considered that the French law banning the hijab was a violation of human rights.  However, they were definitely a minority view.

Before concluding this discussion of the headscarf debate in Europe, it is interesting to mention a number of other cases that existed in Europe. These cases highlight the inconsistencies of human rights law and make one wonder exactly what is the goal and purpose behind such laws.


McGoldrick has mentioned a number of other cases in the following passage:
Unsurprisingly, the outcome of individual cases has varied even when the facts and issues appear similar. In one case, a Muslim woman in an underwear shop was considered by her employer to be dressing too modestly and thereby not encouraging shoppers to buy underwear. It was held that the employee could be dismissed. In 2003, the French Appeal Court authorized a young Muslim woman to wear her Islamic scarf at her place of work. The woman, Dallila Tahri, had been dismissed in July 2002 by a telemarketing firm, for insisting on wearing her scarf against the wishes of her employers who wanted her to wear a briefer veil that would not have covered her neck and ears. The Appeal Court’s decision confirmed a French employment tribunal’s ruling on 17 December 2002 that her dismissal by the telemarketing firm was ‘manifestly illegal’. There have been examples of veiled women being banned from crèches, banks and human rights organizations  for refusing to remove their veils. In such cases the ideology of public sector principles, which already apply in a widely defined sector, are being carried over into the private sector. In addition, there are obvious difficulties if particular state functions are privatized or partly privatized but still subject to extensive governmental regulation.

This European experience with laws pertaining to hijab brings up a rather interesting question that perhaps very few today have thought to: Are religions freer to practice under Islamic law than under secular/democratic rule? Given all of the propaganda concerning Islam and freedom of religion, this question probably sounds strange. In general, Islam respects the practice of each individual religion within a certain public framework. In the private framework, though, each religion is virtually completely free to practice its religion on its own, including choosing its own leaders, having its own legal system and abiding by its own set of personal laws. This is something that is not available, in general, to adherents of religions in secular societies. In secular societies, all must abide by the one general law with no exceptions for specific religious practices. Hence, for example, in the United States, Muslims cannot apply Islamic laws in matters of custody, divorce, maintenance, marriage and the like—unless such laws are completely consistent with the secular law, which makes it a moot point. On all of these points, the Muslim must sacrifice his religious law in order to confirm with the secular law. Even in business matters, the laws of banking, real estate and investment are such that, in the United States for example, it is difficult for Muslims to run a completely Shareaah-compliant without running afoul of some specific secular law. From this author’s experience, this reality of freedom under secularism has created much difficulties for Muslims attempting to practice their faith in secular lands. Thus, even though human rights supporters and secularists claim that it is their view that provides for religious freedom for all, it is precisely their practices that greatly restrict religious freedoms. In a sense, then, it is clear that in some ways religions are definitely much freer to practice their tenets under Islamic rule than under secular law.

Given this reality of secularism as well as the European headscarf debate, it is not surprising to find religiously-minded people, in particular Muslims among them, objecting to some of the trends that are existing. As has been implied throughout this work, “freedom” and “rights” seems to imply for everything except religion. Ohalluded to this reality when she wrote,“For people to have the freedom to believe, but not have the freedom to express that belief, nullifies the importance of such freedoms.” 


On this point, one also recalls the words of Larry Alexander,
Freedom of religion must mean freedom to practice religions that are “wrong” about religious truths. And freedom of association must mean freedom to associate with the “wrong” people for the “wrong” purposes.    

Yet, here is the problem. Any philosophical account of political morality will, perforce, take a stand on what is true, right, and valuable and what is not.

In the headscarf debate, the systems of Europe, its human rights apparatus include, have taken the state concerning what is right and wrong about expressing one’s religion.


Finally, Pope Benedict XVI has also chimed in on this issue, saying,
A tolerance that allows God as a matter of private opinion but which excludes him from public life, from the reality of our lives, is not tolerance but hypocrisy . . . When Man makes himself the only master of the world, and master of himself, justice cannot exist.