Böckenförde Theorem and Burqa Ban

Abstract

When France and Belgium banned face veils in 2010 and 2011, they were the first European countries to do so in a comprehensive matter. Now Austria has its own ban, Denmark is on track to have one too, and several other countries are toying with the idea. Such bans are often considered incompatible with the rights of veil wearers (especially Muslim women). Less prominent is the question whether such bans are incompatible with the modern state.Such a critique can be grounded on the work of the leading German constitutional law scholar Ernst-Wolfgang Böckenförde and his famous dictum, according to which “[t]he liberal, secularized state draws its life from preconditions it cannot itself guarantee.” For Böckenförde, this means that headscarves, a different type of veil, cannot be banned—not because this would violate a woman's rights, but because it would undermine the very character of the state itself.The article transposes this argument from the German discourse over headscarves to the European discourse over face veils. It demonstrates the potential of Böckenförde's dictum for the face veil debate, but also its limitations.