Back to Liberal Basics
PhD Scholar, Department of HSS , IIT Bombay
Feb. 22, 2022
This article is part of the series of responses from philosophers on the hijab row.
First a story, or what we like to call pretentiously – a thought experiment.
Imagine that two brothers, Ravi and Vijay have ventured on a camping trip with a group of friends. They are all near the same age, there being no hierarchy between them. While walking through the forest, Vijay indulges his habit of plucking a single leaf from every low-hanging tree that he comes across. Ravi asks Vijay what he is doing. Of course, he can see what he is doing. What Ravi means is that he must explain his actions as being something worthwhile, sensible, and which someone might have a reason to do. In other words, ‘better give a good reason for doing this, or else, Stop.’ Is Vijay under any obligation to explain it to Ravi? I think not, unless he wants to. The others in the group agree with him. Ravi then turns back to Vijay and asks him to justify it, or offer an excuse for what he is doing. Now, “unlike explanations, justifications and excuses presume at least prima facie fault, a charge to be rebutted”. (Benn, 87)
Is Vijay under an obligation to offer a justification for his innocent indulgence? After all, what’s so wrong about plucking a leaf every now and then? And it is not as if he was trespassing in a grove of threatened, near-extinct plants and trees, and neither is Ravi the resident Forest Officer, and last they checked, it was not a crime in any of the books of law. Such being the case, Vijay has “no obligation to meet a challenge to justify his performance until there is a charge to answer”. (ibid)
Suppose, however, that in his capacity as an enterprising vigilante on behalf of Chlorophyll everywhere, Ravi decides to handcuff Vijay, thereby preventing him from his indulgence. Now, Vijay can properly demand a justification from him, and a mere ‘tu quoque’ reply (literally – ‘you also!’) that Vijay, on his part had also not offered Ravi a justification for plucking leaves, would just not fly. This is because Vijay’s actions had done nothing to interfere with Ravi’s. “The burden of justification falls on the interferer, not on the person interfered with” (ibid). So while Vijay might properly resent Ravi’s interference, Ravi has no ground of complaint against Vijay.
Suppose now that the priggish Ravi does come up with a justification. Vijay, he says, is wasting his time – instead of pointless leaf-plucking, he could be doing something useful - helping the group plan the adventure, or listening to an ebook, or entertaining everyone with the song “Keh duun tumhe”. But, of course, Vijay doesn’t have to accept this justification for interference. Even if Ravi were right, and Vijay could have been doing something useful, what has it to do with Ravi? “An unfavorable evaluation of someone else's action does not necessarily warrant one's interfering to prevent it.” (ibid)
The upshot for the Hijab Case – or any analogous case of interference
Now, this story, a fabricated mish-mash from Yash Chopra’s Deewar and Stanley Benn’s A Theory of Freedom (1988), is supposed to convey a simple point. Volatile and non-conformist though Vijay is, he is under no requirement to demonstrate to Ravi that he has good reasons for doing what he was doing. On the other hand, it is required of the conscientious but self-righteous Ravi that he must justify his interference in Vijay’s actions. The two demands for justification are incommensurable so to speak, which is philosopher’s talk to mean that they are not equal or equivalent and thus cannot be spoken of synonymously in any meaningful way. This is the most minimum, yet characteristic claim in liberal political thought – that unless your act is harming someone, nobody has a right to interfere in your actions, or prevent you from carrying them out. What constitutes harm in a given situation will be a job of a 500 page book by someone like Joel Feinberg in which the political philosopher will flesh out all her claims, followed by replies to all anticipated objections and counter-responses by other philosophers. How fun! However, this basic commitment of non-interference, if not an axiom in liberal political philosophy, is still something incredibly intuitive accepted by nearly all liberal political thoughts and its off-shoots, including modern day conservatives, socialists, many feminists, etc. It would just require a very strong argument to refute, and in the Hijab case, no one has offered any persuasive arguments yet. John Stuart Mill’s On Liberty is still the best place to begin thinking about this problem, and a fine example of philosophical writing where the writer anticipates many well worn counter-arguments and writes with characteristic verve.
The upshot of this for the Hijab controversy should be clear enough. The Hijab is seemingly a harmless piece of clothing. To prevent women, or in this case specifically, pupils and teachers from wearing it to school would require a justification. Thus, the Preventers ought to justify why there ought to be no Hijabs in school. The Wearers, Donners, Hijabis, have to offer no justification on the liberal view that I laid out above, unless of course the Wearers, Donners, Hijabis, have themselves been forced to wear it (Some, primarily feminist thinkers, include conditioning and socialization also as reasons sufficient enough to question the Hijab. But very few go to the extent of supporting state coercion to wish to remove it). For the Preventers, matters complicate further when they want to single out Hijab over other religious symbols – the most obvious case being turbans sported by Sikh boys and men.
But States are Special?!
My readers might question me and say that I am misrepresenting the issue, and that the story I have related doesn’t fit the facts of the Hijab controversy. In my story, the characters are equal, there being, recall, ‘no hierarchy between them’. Those are not the facts in the Karnataka Hijab controversy. The state has decided that Hijabs are impermissible. The State is unlike Ravi and Vijay. Is the state, per me, under an obligation to provide any reasons of the sort that Ravi was sought to provide? Now we are in the realm of what Jeremy Waldron calls political Political theory – the nature of state and governmental institutions, political representation, accountability, secularism, the separation of church and state, and the rule of law. Explicating the limits and confines of state power, its relation with religion, with minorities, with religious minorities – that’s another 500 page book. What a fun topic – but certainly what a short article like this would hesitate to go into. It seems obviously true that a State is a different kind of animal, and certainly not like individuals. So while it isn’t OK for me to demand protection-money from you in exchange for protection, the state manages to collect taxes, and on my refusal to pay, may even fine me, or attach my properties, or send me to prison. So the State is special, apparently, and states have rights to make coercive laws and force individuals to do things which other individuals just don’t have. But this is too quick. Maybe the State has the power to do this, in exchange for protecting citizens' rights (and enforcing contracts, and preventing crime, and increasingly in the 20th century, in providing, healthcare, education, even jobs) because citizens agree that the state may be given these powers, along with all the corresponding duties, all neatly enshrined in a constitution, backed by the constituent power of the people. This doesn’t automatically mean that the State has the power to interfere in my personal life – what I eat, what I wear, who I worship, who I sleep with.
Furthermore, it takes no philosopher to see that the State doesn’t speak in its own impersonal voice. It usually speaks in the voice of the Parliament, a legislative body, or occasionally the courts. On what grounds ought the Parliament decide an issue? Well, many, if not most liberals, would insist that any coercive rule argued for by any individual, or group which speaks for a proposition in the Parliament (from Parler. French, literally ‘talk shop’) ought to be based on a reason which is not sectarian, biased, or idiosyncratic in such a way that it is not acceptable to or justifiable, to all those persons over whom the rule is going to have authority. In a modern democracy, where free and equal citizens disagree with each other over profound or profane matters, including morals, religion, economics, and what constitutes the ‘good life’, how shall any moral or political limits be placed on us? The answer that is usually given by a version of liberalism called justificatory liberalism, is that any such imposition should be justified by an appeal to ideas, values, arguments that all those persons who are affected by said coercive rule, might be able to reasonably accept or endorse. Variations, qualifications, additions on this basic idea, will be a subject of, you guessed it, some more massive tomes by Rawls, Wolterstorff, Eberle, Talisse and other brilliant philosophers.
The unsuccessful evasion of Philosophy
So, philosophers might bring their tools to dissect and explore all these questions, and make us all the wiser about how the relationship between state, the individual and religious symbols in the public sphere all hang together, and some philosophers have offered to do in the (web)pages on this very network. But some others might suggest that in the interest of time and considering how disputatious philosophers are, there is no need to enter philosophical discussion in the first place. They might suggest that we ought to look instead at the nature of the Indian Constitution, its own version of secularism, the state of case-law and the practice of the Supreme Court. What do the courts say, and how to they decide these issues? What does the Constitution say? It is that document and no other that ought to tell us what the correct answer to this quandary is. So what does the Constitution say? Pertinent to this issue, a cursory look at the state of Indian Constitutionalism will tell us that it promises to its citizens the rights to equality, freedom of expression, right to life with dignity, and many others, while also giving the centre and state right to make laws such as the Karnataka Education Act. The truth is that whether the anti-philosophers like it or not, in deciding a question like this, the court will also have to dip into philosophical complexities. It will have to either balance the rights of the States and the individual (if that is meaningfully possible), or it will have to uphold the right of one party and not the other. In doing that, it will have implicitly and inevitably made a decision about which rights it deems inviolable. So as with everyone else, even the court will have to argue philosophically. One can do it well, and one can do it badly. And the truth is that, these questions are hard. So we might want to be humble, and err on the side of caution, and not be very confident in our considered opinions, to say nothing about our pre-reflective prejudices. The liberal view, I suggest, does just that. It keeps the peace, while seeking to protect the rights of all. And it often succeeds!
Where do I stand?
After this short explainer (written especially for non-philosophers), it should be obvious that on this Hijab issue, and any such issue where social or state interference prevents individuals from exercising their choice, I come down, unapologetically, on the side of the liberal principle. For me, Mill’s harm principle is not the last word on such matters, but it still ought to be first word. And therefore, I have to come down on the side of those who say that the girls have the right to wear the Hijab to school. I am not particularly invested in what the Muslim women in question choose to do eventually. They owe me or anyone else no explanations. In fact, I go even further. I do not like the mandate of uniforms. Sure, uniforms may have a useful purpose if they help channel the energies of pupils towards education, sport and play, and help them along in the direction of healthy socialization, instead of displaying the stark divides in wealth and incomes. On the flip side, they do seem to privilege regimentation and obedience over spontaneity and creative self expression. Be that as it may, in accordance with my liberal sympathies, I don’t agree that even these goods that I mentioned above are enough reason to force me to conform to uniforms, any uniforms (!), if I don’t want them. The reason you don’t see me (and many others like me) on the streets demonstrating against uniforms is perhaps because it doesn’t seem worth all the trouble, and frankly, a uniform isn’t egregious after all. I don’t like it in principle, but I’m willing to tolerate it. I’d prefer there weren’t any, but they don’t warrant a rebellion. [That’s the problems with us liberals, we did all the protesting we had to hundreds of years ago, when feudal and monarchical power didn’t respect our (liberal) rights to live, liberty and property, err...the pursuit of happiness. Now we wake up only when these rights are threatened...which is happening a little bit too often these days.]
Between pragmatism and principle
But I digress. There is a time to discuss the perils and benefits of uniforms. But this is not that time. Because the issue here is not merely about uniforms. If it were, then teachers wouldn’t have been seen removing Hijabs outside school premises before entering their classes (a scene which many onlookers have described as humiliating). This issue is after-all a conflict between religious self-expression and the right to education. Moreover, the mandate on ‘uniform uniforms’ is sure to come a cropper, as soon as we consider other religious symbols such as the Turban. Considering that the mandate is soon to encompass the religious expression of other communities, in a country as diverse as India, one wonders whether an order like this is even rational. More importantly, to put a portion of a religious community in the unenviable position of having to choose between religious expression and education is prima facie unjust.
In order to navigate around the above problem, we have seen recourse to pragmatic solutions in the past – such as that the courts shall decide whether a particular religious symbol is ‘essential’ to a particular religion. Now, given that different religious sects, trends, and tendencies in the same religion differ among themselves in their practices of reading, hermeneutical traditions, and their own debates of authority, it is difficult to see how even a constitutional court may be able to adjudicate on complex issues such as this. Anyone who knows anything about how scripture is interpreted is familiar with the deep and complex interpretive controversies, together with the demand of knowing the tradition in and out, along with expertise in a classical language, usually a dead one. What is essential to one sect is non-essential to another. I encourage readers to look up the case of Abdul Karim Shorish Kashmiri v The State of West Pakistan, where the Pakistani Court held that the legal process in incapable of determining the answer to the question ‘who is a Muslim?’, until this question was then determined by a Constitutional Amendment, leading to the change in the legal status of the Ahmadis from being Muslims to a non-Islamic religious minority. My own view is that Courts shouldn’t decide on such abstract issues of doctrine as what constitutes an essential practice, unless the rights of some individuals or vulnerable groups cannot be protected through any other means, or when the traditionalists are bent on abusing the rights of their congregants or other members of the community. Therefore, it is a mistake to go into the theological and scriptural niceties right now (or perhaps ever), about whether the Hijab is obligatory or optional in Islamic scriptures. What is important, however, is this Liberal minimum - that no organ of the state must interfere in the religious expression of a community as long as it doesn't harm people from another community or others within that religious community. Since no such prima facie case has been made, this rule appears coercive and oppressive.
On the question of reform
‘Reform’ is a weasel word. What is reform to one section of a community is oppression and persecution for another. The liberal must take the principled stance against interference, without necessarily seeing every instance of it as morally pernicious per se. If an arm of the State is to be mobilized to protect the rights of those who do not wish to wear Hijab, and if this to be called ‘reform’, that is fair too, and that doesn’t by itself go against the principle of non-interference. However, if the reformist goal is the much ambitious one of ‘liberating’ Muslim, whatever that might mean, it is best that it must come from within the Muslim community itself, through dialogue, discussion, education. The truth is that only those who feel stifled by traditional authority and its imposition of Hijab will choose to call it reform. For many others, the word ‘reform’ is an affront against their avowal of religious identity. The state ought to protect those individuals who are harmed by those elements which seek to impose their view of the good life on them. But experience has shown that a purely statist ‘reformist’ interventions will only bury the problem and not solve it. The example of Ataturk’s and successive governments’ restraints on religious expression in the Turkish public sphere is right in front of us. As soon as political conditions in Turkey changed and the Erbakan- Erdogan Islamist governments came to power, Hijabs in a thousand flowery prints bloomed in Taksim Square. Therefore, one, the argument for coercive state intervention in this case needs to be very strong, and I haven't seen any one which I find persuasive. Two, even if those who wish to impose a Hijab-ban are right, their victory won’t be a permanent one. If they believe that educated, rational and reflective human beings would not wear a patriarchal relic like Hijab, they must allow girls to receive a good education, and one which inculcates critical thinking and see where the chips fall.
The long march toward secular-reason
Now, some might question me and say that the burden of my song has been to exonerate the Hijab, and its advocates. Quite the contrary. My position is that, as a non-Hijab donning man, it is not really my place to comment on the meaning of Hijab for many Muslim women. Although the more vocal among them have come for, against and even, believe it or not, for-and-against it. However, being a naive believer in the (liberal) dogma that correct opinions win out in the long term, if given enough breathing space and a conducive environment, I wish only to urge more discussion on the issue, which is not backed by the coercive arm of the state and the blunt instrument of the law. It seems to me that the correct (justificatory) liberal position is to let Muslim women decide.
But what about the appeals to scripture, you may say. How can a liberal be pleased with a situation where religious people decide the issue invoking religious scripture, and speaking in a characteristically religious vocabulary? Well, one response is that ‘religious people, like all people, should get to decide what they want, as long as it doesn’t hurt anyone else.’ That is the quintessential liberal claim. But this aside, there is an academic/historical question about the upshot of religious-style argumentation. I shall quote Jeffrey Stout on this point
...consider the early-modern debates among Christians of various types over moral and political questions. Here we have numerous groups, all of which were committed to treating the Christian Bible as an authoritative source of normative insight into how such questions should be answered. Yet they did not differ only on what this text says and implies. They also differed on who is entitled to interpret it, on whether it is the sole authoritative source of normative insight into such matters, and on who is entitled to resolve apparent conflicts between it and other putative sources of normative insight. Because they differed on all of these points, they eventually found themselves avoiding appeals to biblical authority when trying to resolve their ethical and political differences. The reason was simple; the appeals did not work. So the differing parties increasingly tried to resolve their differences on other grounds. In this respect, their ethical discourse with one another became secularized. (Stout, 93-4)
Muslims, including both scholars and the laity, are increasingly coming towards discussions on all issues, about the proper role of religious, pietistic and rational or secular reasons in deciding all kinds of moral and ethical questions, and increasingly in the 20th Century the Muslim world is going through a similar process, that Stout has described above. The increasingly diverse conclusions that interpreters have come to after reading the verses that relate to, or at least seem to relate to something analogous to Hijab, tells us that in order to come to any sort of consensus on the topic, the discourse among Muslims themselves will have to eventually become secular, in that it will have to employ a vocabulary that doesn’t always invoke religious argument. Now, whether between all these competing tendencies it manages to reach a harmonious conclusion or merely a modus Vivendi, will be there for us to see. Regardless, statist interventions will only stifle this process of churning. If anything, the debate needs to be nudged along, not stopped. Unfortunately, in this case, it appears that some secular voices, and not religion, are becoming the conversation-stopper. And that is just not the ‘liberal’ thing to do.
Benn, Stanley. A Theory of Freedom, 1998. Cambridge University Press.
Stout, Jeffrey. Democracy and Tradition, 2004. Princeton University Press
Read other articles in this series:
Ariba Zaidi -- A Word of Caution to 'the Uniformist' and 'the Reformist’
Danish Hamid -- Back to Liberal Basics
Hina Mushtaq -- Can women decide for themselves?
Sania Ismailee -- The Karnataka Hijab row is about Right to Education...