In most legal rulings, even a casual observer can see reasonable arguments on both sides. This is not surprising. If both sides didn’t have reasonable arguments, there wouldn’t be a dispute to begin with, or any need for a ruling. But a decision handed down by Britain’s Law Lords last week backing a British school’s refusal to let a female student wear full Islamic dress in class served as a reminder that sometimes one side really has no case at all, no matter how many lawyers it hires to manufacture one.
Shabina Begum, now 17, had won an appeal in a lower court last year establishing that her high school in Luton, north of London, had infringed on her “human rights” in 2002 by not allowing her to wear the jilbab, a full-length costume that covers everything but the face and hands. Up until then, Ms. Begum had worn the less capacious tunic and trousers known as the shalwar kameez, but she said, as she matured physically, that wasn’t sufficiently modest.
The Times last month published a commentary by a British lawyer in which he said the jilbab case raised “fundamental questions about the religious rights of the individual and the interests of the community.” That phrasing overstated the matter, casting it more or less as a momentous clash of equal principles. In reality, the dispute was not particularly momentous: It was simply about a school’s right to enforce a dress code versus an individual’s right to object to it. And those rights are not equal. What is much clearer is the individual’s right to find another school if he or she doesn’t like the dress code, as Ms. Begum eventually did.
Think of it this way: Suppose the school in question had said its uniform required girls to wear full Islamic dress. Would any court in the country have supported a student who said her feminist beliefs prevented her from doing that? No, it would simply have pointed her to the school door and advised her not to slam it on the way out.
What about school dress codes inflicted on half the female students in the world that call for old-fashioned navy or plaid pleated skirts, knee-high socks, stiff blouses and ties? Could girls sue for exemptions on the grounds of their belief in human progress, rational design and elementary fashion principles? Well, they could, but no court would give them the time of day, it not being a court’s business to offer schools advice on their uniform policies. And that is as true for earnest objections like Ms. Begum’s as it would be for frivolous ones. Only the fact that religion was involved obscures that reality.
The Law Lords, of course, were helped in reaching their decision to affirm the ban by a few interesting bits of information: Eighty percent of the students at the school in question are Muslim, as was the head teacher at the time of the dispute, and the school’s uniform policy allows for the wearing of Islamic dress short of the jilbab, including the traditional trousers and tunic. It was impossible, in short, to portray the ban that affected Ms. Begum as anti-Muslim. One of the justices noted that “the rules laid down were as far from being mindless as uniform rules could ever be.”
But here’s the point: It wouldn’t — or shouldn’t — have made any difference if the rules had been mindless. A uniform is, by definition, the same for everybody, or it is not a uniform. It will never please everyone, or meet their various standards, or even look nice on them. The trouble is, what do you do after you give one person a pass and then the next one comes along? You might as well throw away the uniform and let people wear whatever they want, as some schools more or less do.
But that opens the door to all the problems uniforms were intended to mitigate in the first place: peer pressure, cultural and religious divisiveness, social competitiveness, even the health and safety issues cited by Ms. Begum’s school as major reasons for its ban on the jilbab. In any case, the decision is one for schools, not for courts.
What has all this got to do with Japan? Not much except perhaps for this: Japan, as a culture, is often accused of favoring the interests of the community over those of the individual. The tendency of late has been to assume that the individual is the party more at risk of injury. But as this case shows, that is not always true. Ms. Begum’s lawyers — who incidentally include Cherie Booth, the wife of British Prime Minister Tony Blair — based their appeal of her case on a clause in the European Convention on Human Rights that guarantees “freedom to manifest one’s religion or beliefs.”
Unfortunately, “human rights” are foremost among those things damaged by trivial appeals in their name.
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