Two New French Crimes

By Ronald Sokol, a lawyer in Aix-en-Provence, France. He taught at the University of Virginia Law School and is the author of Justice after Darwin (THE NEW YORK TIMES, 01/04/11):

On April 11th the French Republic will give birth to two new crimes: hiding one’s face in public and encouraging another to hide her face. On March 2nd the prime minister sent a circular to the head of each of France’s regional departments to explain the rationale of the new law. “The French Republic,” he proclaimed, “does not live with a hidden face.”

While the French president has made it clear that Muslim women who hide their faces are not welcome in France, the new law is not limited to Muslims. For the French government now believes that “to hide the face breaches minimal needs of social life.”

So on April 11th hiding one’s face in public will become a misdemeanor, with a €150 fine and/or civic training to teach the criminal the need to show her face. The prosecutor must prove that (a) the face was hidden and (b) the person was in a public space. He need not show intent to violate the law. If one encourages another to hide her face, one risks a year in prison and a €30,000 fine, two years and a €60,000 fine if the person encouraged is under 18.

The whole matter could be taken as farcical. Yet if the triviality of the law is evident, the trivial, as Holmes told Watson, often holds the key to a deeper problem. Even though it is drafted as gender neutral, the new law clearly targets the few Muslim women who wear the niqab. Its rationale is that women who hide their faces wear a badge of inferiority that is “incompatible with the principles of liberty, equality and human dignity affirmed by the French Republic,” according to the prime minister’s circular.

Disquieting flaws exist in this rationale. Putting aside the fact that it is by no means clear why forcing a woman to show her face will make her feel more equal, the law violates a premise that underpins all law in a free society.

“A free man,” as Thomas Hobbes wrote in the 17th century, “is he that … is not hindered to do what he has a will to.” Of course no one is free to act however he wishes. Laws regularly impose restrictions, but in a free society the state hinders a man from what he hath the will to do for reasons of public security, safety or health. In a free society the individual should not be crushed by the weight of majority opinion. A free society allows full expression of individuality, even of eccentricity.

Veils may offend some, as tattoos, piercing and a myriad of practices may offend others, but if they pose no danger to public security, safety or health, they should not be forbidden. Neither the French president nor French legislators have suggested that public security is the rationale underlying the new law; nor have the French police come forth with evidence that women who wear the niqab pose a threat to public security.

The greatest exponent for protection of the individual from the weight of majority opinion was John Stuart Mill. His short essay “On Liberty,” published in 1859, lucidly exposed the few axioms that define liberty: Each person is the best judge of his or her own happiness. It is not the business of the state to tell people how to be happy. People need not respect the views of others, but must tolerate conduct to the extent that the conduct does not harm others. “The only purpose,” Mill wrote, “for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

The new French law does not mesh well with those principles, and Mill would no doubt have declared the new crimes as oppression of a minority whose behavior, seen through the eyes of a majority, is deemed eccentric. Mill’s axioms form the foundation of what we mean by a free society. Punishing a few women who want to hide their faces in public when their conduct presents no danger to the public violates a basic tenet of life in a free society.

Fuente: Bitácora Almendrón. Tribuna Libre © Miguel Moliné Escalona