Establishing the Limits of Legal Regulation With Patrick Devlin and the Burqa Ban

In July of the year 2010, France passed the “act prohibiting the concealment of the face in public space,” which illegalized the public wearing of burqas, a Muslim full body covering which includes a veil. Using this law as a starting point, I will evaluate Patrick Devlin's moderate legal moralist account of the appropriate limits of legal regulation. I will argue that Devlin's theory cannot properly explain the passage of this law, and then develop my own opinions on the limits of legal regulation. However, it will become apparent that my theory on the limits of legal regulation also fails to fully explain the ban. I will therefore conclude that there is no objective limit to what can be legally regulated, but that every society has its own requirements for the acceptable regulation of public conduct. I will start with an in-depth description of the ban itself.

The act prohibiting the concealment of the face in public space is actually a ban on the public use of any items that completely obscure the face. However, media attention has focused mostly on the ban of burqas specifically. This act makes it illegal in France to wear a full face veil anywhere but inside private residences, private vehicles, and some places of religious worship. Those who violate the law are given a small fine and required to attend a citizenship education class. This penalty is relatively light when compared to the penalty for coercing someone into concealing their face. Those caught forcing others to wear face covering a punished with a much larger fine and up to a year in jail. This punishment doubles if the coerced person is a minor.

There were four main justifications given for the establishment of this act. The first involves freedom of expression. Many opponents of the burqa ban claim that the act constitutes an unnecessary violation of the right to freedom of expression. Proponents of the law claim that face coverings themselves limit freedom of expression. French philosopher Emmanuel Levinas claimed that facial expressions are the basis for moral participation in society, and that concealing facial expressions is tantamount to the rejection of social interaction entirely. The second reason involves gender equality. Burqas, some have said, are an Islamic symbol of the subjugation of women. Although many people have pointed out that wearing a burqa is not required by the Qur’an and thus burqas are a part of Muslim culture, it remains true that full facial veils are associated with gender inequality in most western nations. The final two justifications both fall out of the fact that people with concealed faces are difficult to identify. People with unascertainable identities, the argument goes, constitute both a security risk and a social hindrance to the rest of egalitarian society.

With the specifics of the burqa ban laid out, I will now move on to a basic outline of Devlin's theory. Devlin is a proponent of what is known as Moderate Legal Moralism. A legal moralist believes that we are justified in turning moral rules directly into legal ones. Extreme Legal Moralism posits the existence of an objective morality and often claims that enforcing morality is inherently good and an end unto itself. Devlin's version of legal moralism is mostly a response to the result of the Wolfenden Report. The Wolfenden Report was a legal study on what to do about the regulation of homosexuality and prostitution, where in which it was postulated that there is a section of “private morality” which the government does not have the right to interfere with. Devlin rejects the existence of this private morality, instead claiming that, “it is not possible to set theoretical limits to the power of the state to legislate against immorality (Philosophical Problems in the Law p.205).” Instead of basing this assertion on the existence of objective morality, Devlin says that the state has unlimited power to legislate based upon the public morality. Every society, according to Devlin, has a moral structure as well as a political one. Maintaining the public morality is extremely important to maintaining the existence of the state. Devlin compares immorality to treason, in that both are capable of destroying a nation. “...the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its government and other essential institutions (PPitL p.205).” Devlin's public morality is defined by the moral beliefs of the average person in society. Thus the public morality of a society might be considered equivalent to that society's moral norms.

Let us now evaluate the burqa ban from Devlin's perspective. If Devlin's theory is correct, this legislation should be justified by its relation to the public morality of France. In other words, the legitimacy of this act should rest upon the fact that French public morality considers facial coverings to be immoral. However, there is no evidence that this is the case. In fact, none of the justifications for passing the burqa ban are moral in nature at all. The considerations involved are instead a mix of legal rights and social utility concerns. In addition, the continued legality of wearing burqas inside private residences and religious establishments constitutes a private sector of morality which is just the type that Devlin rejects. It is thus clear that Moderate Legal Moralism is ill equipped to explain why France is justified in its restriction on the public wearing of facial coverings.

Before moving on to my own theory, I would like to critique Devlin's process for identifying a nation's public morality. In my opinion, asking the average man on the street what he thinks about complicated moral issues would be about as useful as asking elementary school science teachers for their opinions about relativity theory. What constitutes the moral fabric of a society is much more complicated than just the average moral beliefs of its citizens. The history of any society could be viewed as a sort of moral tapestry. The composition of a society's moral tapestry changes over time in response to political events and the changing of generations. What was once considered to be of dire importance might later become completely irrelevant. The beliefs of those who found a society are likely to remain relevant to that society's morality long after their deaths. For example, even if they are not explicitly known, the moral beliefs of our founding fathers likely have a much larger impact on our society's morality than any group of schmucks off the street, even today. My point is that it is often more prudent to analyze the ideals that a country has stood for historically, rather than what they stand for now. Otherwise, the sort of moral continuity that Devlin claims is necessary for the continued existence of society would go out the window every fifty years or so.

I personally am a strong believer in Mill's Harm Principle. The harm principle states that the only good reason to legally regulate an activity is if that activity is likely to cause harm to persons other than the actor without their consent. Harm is defined as the non-consenting violation of another person's legal rights. If this principle is to properly explain the legitimacy of the burqa ban, it should have been shown beyond a reasonable doubt that the wearing of burqas is likely to cause harm to others. Clearly, this is not the case. Although the prohibition of coercing others to conceal their faces is easily justifiable through the harm principle, banning the use of facial coverings in public altogether is another issue. It is a reasonable assumption to make that most cases of people being coerced into covering their faces involves some sort harm to the victim. There are quite a few legal rights that this could violate under various circumstances, take your pick. However, it is difficult to justify the claim that covering your face in public is likely to harm other people. So, we are now left with a question. If Devlin's beliefs about the limits of legal regulation are insufficient to explain the burqa ban, and if my beliefs about the limits of legal regulation are insufficient to explain the burqa ban, then how should the legal legitimacy of the burqa ban be explained?

Although I think that Devlin's portrayal of public morality is far too simplistic, I do believe that something roughly equivalent to public morality exists for every society. Neither I nor Devlin claim that there is any sort of limitation to what the content of public morality can be. In fact, Devlin's main argument for the non-limitation of legal regulation is based upon the assumption that, in theory, there is no limit to the number of things that can be contrary to a public morality. With this being said, I propose that it is the job of public morality itself to comment upon the limits of legal regulation. I received this epiphany after reading this comment, made by Devlin. “Any immorality is capable of affecting society injuriously and in effect to a greater or lesser extent it usually does; this is what gives the law its locus standi (PPinL p.206).” What Devlin means by this is that the threat of harm to society is what gives the law the right to interfere. However, in modern America, locus standi has a slightly different meaning and much different relevant considerations. An individual's right to locus standi is his/her right to deny the constitutionality of an established law. This right is obtained through the fulfillment of three conditions. The plaintiff must prove that they have been or will imminently be harmed, that the law in question shares a causal relationship with said harm, and that a positive court decision will likely redress the injury. From this we can clearly see that the American individual right to locus standi is based not on morality but on the harm principle. In Britain, all that is required for locus standi is that the plaintiff have some relevant interest to the issue brought up in court.

By taking a step back to look at the three sides of this issue, an interesting discovery is made. Devlin, who lived in Britain half a century ago, (when morality was more widely regarded to be a legitimate basis for lawmaking) believed that the limit of public morality was the only constraint on legal regulation. I live in the twenty-first century United States, a nation which has almost always placed more value on personal liberty than on paternalism. Thus I believe that legal regulation should only be used to prevent direct and intentional harm to others. The burqa ban was passed in France, the country that originally defined what it meant to be a modern democratic nation. Thus it is not surprising that the ban was mostly justified with reference to concerns about social utility. In light of these facts, it seems obvious that the limits of legal regulation are not determined by any one principle. Rather, legal limits on the regulation of behavior are determined by the moral and legal history of the society that the law belongs to.

Another essay on Philosophy of Law:

Legal Punishment - Utilitarianism vs Retributivism with Moore and Dolinko