Goldmeier, Gabriel; Schuck, Elena de Oliveira (2014). 'The burqa ban in France: a feminist reflection based on Capability Approach' Paper presented at the annual conference of the HDCA, 2-5 September 2014, Athens, Greece.

The ban on the veil is not new in France. In 2004, it was approved a law prohibiting the use of ostensible religious symbols in public schools. Furthermore, 2011 was the time when a sanction of a law banned women from wearing full cover veils (burqa and niqab) in all public places. Although the first law has been contested, it clearly aims to reaffirm the secularism of the French State. However, the goals of the second law are much less evident. Considering this difficulty, the present work focuses only on the analysis of the 2011 law.

Since the prohibition of burqa and niqab has started to be discussed, many disagreements have arisen concerning the ideas on how the State should act to combine public demands of human rights and rights of self-determination of different cultures. In this sense, this work aims to develop a philosophical and sociological reflection about the controversial political process which has provoked deep discussions about how a State should consider the well-being, freedom and cultural belonging of all individuals, particularly women. More specifically, the reflection focuses on the concept of freedom, and helps us to answer the following questions: How should we understand 'freedom' in the context of choosing to wear burqa or niqab? Should women be free to decide whether to wear the veils? Are those women free for choosing to wear it? If they are not, does the State have the right to intervene or does their culture have the right to impose such practice? Considering that the State has the right to do it, how should it do it?

In order to answer all these questions, we divide this paper in three parts.

At the beginning, we present a contextual analysis and bibliography review about feminism and its dialogue with liberalism, communitarianism and multiculturalism concerning this subject. In fact, since this article talks about a law that intervenes directly in the routine of some women, it pays special attention to feminist debate. For this reason, we start observing how thinkers from the third feminist wave are interpreting questions such as difference, subjectivity and singularity of women's experiences. Particularly, we reflect on the valuable idea of Islamic feminism. This idea opposes different groups of feminists. Activists like Wassila Tamzali and Caroline de Haas argue that the oppression of women is the result of male domination that crosses religions, ages and regions of the world, while scholars like Zahra Ali and Louisa Acciari believe on the pro-feminist discourses with a colonial and imperialist purpose. In a more philosophical stage of analysis, we defend the idea of egalitarian liberalism, as proposed by John Rawls, but we also suggest some kind of 'improvement' by communitarianism, multiculturalism and feminism. In our interpretation – based on ideas of thinkers such as Susan Okin, Seila Benhabib and Will Kymlicka – this 'improvement' is necessary because: (i) the liberal egalitarian idea of promoting equal autonomy depends on some sense of solidarity cultivated based on national ties; (ii) however, this encouragement of national values has to preserve minority cultures; (iii) but, at the same time, the protection of these cultures cannot oppress the individuals into them.

The focus of our analysis is on the demands of women for liberty, autonomy and agency. Capability Approach, making use of these concepts, is assuming a relevant role in discussions on social justice. Thus, the second moment of our analysis takes this approach as theoretical framework. However, the well-known disagreement between Amartya Sen and Martha Nussbaum about the appeal to a list of basic capabilities – central for this discussion – obligates us also to consider how John Rawls has founded his thought about justice on the idea of overlapping consensus. This appeal permits us to approximate these two different interpretations of capability approach, and to solve the problem of disrespect of minority cultures.

With these two steps of theoretical reflection, in the final stage, we present some conclusions on the burqa and niqab law. Firstly, it is quite difficult and probably wrong to assume that all women who wear burqa did not have access to the variables necessary to acquire full autonomy or agency. Besides, by focusing on the law only as a practice identified with a specific group (Islamic believers) probably stimulates xenophobia instead of integration. Therefore, the prohibition law does not seem to be the best solution. However, this does not mean that nothing should be done. It seems obvious that we should guarantee autonomy and agency of women and these characteristics can be ensured through education and social assistance. Hence, based on Sen and Nussbaum's works, we finish our reflection suggesting educational and social ways to improve women's lives.

It should be reminded that, because of the lack of enough statistics data about the employment of this banning law, our review is based mostly on theoretical analysis, academic discussions and some French government communiqués concerning this issue. For this reason, our conclusions are certainly incomplete.