Leiden Law Blog

Are Symbolic Laws Good Laws?

Are Symbolic Laws Good Laws?

A few months ago, the Austrian government announced that it would commence negotiations on a new law. While the specifics of the proposal, including the sanction, are not clear yet, the law is envisaged to be broad in its scope, banning symbols and items of clothing with problematic political, religious, or ideological backgrounds. However, it is clear that this proposal has a very specific target, as is evident from the political discourse in which it is exclusively referred to as the ‘headscarf ban’.

It’s for the children

Vice-Chancellor Strache justified the proposal by arguing that it is unacceptable that Muslim girls are forced to wear the hijab and thus stigmatised and sexualised in kindergarten; the ban would provide them with equal developmental opportunities. These are bold claims — if true — but is there evidence to back them up?
Arguments on the grounds of child protection easily fall flat in the face of the utter absence of any empirical evidence that

  1. wearing the hijab entails said negative consequences; or
  2. there is even a substantial number of kindergarten girls wearing the hijab in Austria (Chancellor Kurz conceded that there exist no statistics on the prevalence).

Unsurprisingly, this proposal is only halfheartedly being framed as a child protection measure. Beneath the guise of equality and concern for children’s wellbeing, it represents a very different intent.
Strache argued that the hijab is a manifestation of political Islam. Kurz framed the proposal in terms of concerns about the development of  'parallel societies' and the impending ‘islamification’ of Austria. That child protection is just instrumental rhetoric couldn’t be any more glaringly obvious when Minister of Education Faßman bluntly stated that the proposal merely constitutes 'symbolic action'.

Actually, it is identity politics

This debate takes place in a social context in which hostility towards Islam has been on the rise. 73% of citizens state that Islam does not belong to Austria and 74% of citizens believe that parallel societies exist in Austria.
Austria, like many European countries, has experienced an influx of Muslim immigrants in recent years and their population is projected to grow drastically in the future — this is perceived by many to threaten ‘European’ identities and values (Savage, 2004).
When groups in power feel threatened, they may seek to exert social control over marginalised groups  — historically, foreigners and immigrants (Melossi, 2015) — using the tool of law making (Auerhahn, 1999).
Realistic danger is not actually necessary, symbolic threat to morals suffices. Therefore, in the absence of demonstrable evidence, psychological factors and human emotions play an integral role in constructing the reality of a ‘problem’ (Beale, 1997). In this realm of symbolism, the hijab is seen by many “as an expression of fundamentalism or an act of religious propaganda” (Shadid & Koningsveld, 2005, p. 43).
Even though attitudes of Muslim immigrants appear to assimilate to those of their host culture (Norris & Inglehart, 2012), far-right parties in Europe perpetuate the narrative that they hold cultural values that are too different to our values. This constitutes a symbolic threat to national identity which contemporary politicians seem eager to defend via identity politics (Adamson, 2011).

Questionable legitimacy

Whether a certain law or policy is legitimate depends on which of the many definitions one subscribes to. Hough, Jackson and Bradford (2013) propose that in order to be empirically legitimate, rules need to

  • be obeyed by consent;
  • adhere to legality; and
  • be morally aligned with society’s values.

Taking this approach, we can see a similarity with some of Bedner's (2010) elements of rule of law. The notion that appropriate procedures must be adhered to in law making resembles ‘legality’, and individual rights and liberties overlap with the idea of moral values. Regarding the latter aspect, we know from cultural psychology that whether certain actions are judged to be moral or immoral depends largely on cultural norms (Haidt et al., 1993).
So, would a headscarf ban be morally aligned with the values of Austrian culture? Research such as the surveys mentioned above strongly indicates that, for a large portion of society, the answer is yes! While this would be (barely) tenable support for the legitimacy of the proposal, legitimacy also requires, to some extent, that fundamental rights are respected (Donnelly, 2006).
Although the procedural elements of rule of law would certainly be met, it is debatable whether this proposal is compliant with the protection of individual rights and freedoms. The Muslim Community has claimed it infringes on the freedom of religion under the Austrian Constitution and one could even foresee a violation of Article 9 ECHR.

Questionable effectiveness

Notwithstanding these valid concerns — how effective can a law really be if its main function is merely symbolic?
It is difficult to state the extent of empirical support that is required for laws to be passed. However, in light of the lack of research and data on hijab-wearing kindergarten girls in Austria, it is highly doubtful whether such a ban would improve the wellbeing of any child. Some studies actually indicate that wearing the hijab is associated with positive effects on body image and psychological wellbeing.
An argument, which would be aligned with the symbolic purpose of this proposal, is that laws can justifiably be passed to prohibit (perceived) immoral conduct, without consideration of the conduct’s actual harm — in essence, legal moralism. Still, there is something deeply troubling about laws merely having a symbolic purpose — especially, given the far-reaching power of the law and its potential invasiveness in people’s lives.
Also, the perfunctory argument of the proposal is fundamentally hypocritical: girls who are wearing the hijab are de facto oppressed and hence must emancipated  — however, a law that outright bans the hijab can be seen as patronising in itself (Laborde, 2006)!
Using clever rhetoric to frame this proposal as a child protection measure makes it politically precarious to oppose it — who could argue against the protection of vulnerable children? Populist politics must not be pursued by using young children as an (emotional) tool to tap into underlying fears of society.

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