\"Domination and the hijab in Irish schools\" (2009) 31 Dublin University Law Journal 127

$: \"Domination and the hijab in Irish schools\" (2009) 31 Dublin University Law Journal 127$
DOMINATION AND THE HIJAB IN

IRISH SCHOOLS

TOM HICKEy*

I. INTRODUCTION

This article applies the republican conception of freedom as non-domination tothe question of students in Irish schools wearing the Islamic hijab. A contro -versy around the hijab arose in Gorey Community School, the largest school inthe Irish state, in 2008.1 The school’s principal wrote to the Minister forEducation requesting national guidelines on the matter. The Minsters forEducation and Integration, after a period of consultation, issued a report statingthat “the current system, whereby schools decide their uniform policy at a locallevel, is reasonable, works well and should be maintained.”2 Following thecontroversy, it seems that Irish government policy on religious insignia in stateschools – including on the hijab – is that each sc hool decide its own rules on acase-by-case basis.3 This article aims to show that this “policy not to have a

* PhD Candidate, NUIG. This article was written while at Princeton University on a Visiting

Collaborative Research Scheme with Professor Philip Pettit at the University Center for

Human Values. I am very grateful to Dr Iseult Honohan, Dr Cecile Laborde, Dr Jose Marti,

Terry O’Keeffe, Dr Laurent Pech and David Prendergast for helpful comments. Thanks

especially to Philip Pettit. An earlier version of this article was presented at the Irish

Jurisprudence Society Symposium on Constitutionalism and Legal Theory at NUIG on 25

October 2008. Responsibility for any errors is the author’s alone.

1. The RTE documentary A Piece of Cloth aired on 25 January 2009 and gives some insight into

the take of the family at the centre of the Gorey controversy. A podcast is available at

http://www.rte.ie/radio1/doconone/1253273.html (visited 14 May 2009). See also Rudhain

Mac Cormaic, “Principal calls for Guidelines on Wearing of Hijab in Schools” The Irish Times,

19 May 2008. Patsy McGarry, “Groups to Lobby for Right to Wear Hijab” The Irish Times, 2

September 2008.

2. Minister for Integration Conor Lenihan TD and Minister for Education Batt O’Keefe TD,

Report on the need for a Guidance Note to Schools when Reviewing their Policies on School

Uniforms www.education.ie/servlet/blobservlet/uniform_recommendations.doc (visited 14

May 2009), at 8.

3. I use the terms hijab, headscarf and veil interchangeably throughout, hopefully not too

clumsily. I do not engage in any inquiry as to different theological interpretations, nor do I see

such argumentation as relevant to any argument made in the article. Further, I consciously

avoid offering any definitive account of the meaning and function of the hijab in Islam or

Islamic culture. For the purposes of the arguments I make, all that is required is an

uncontroversial understanding that the hijab holds deep importance in Islam. Some analysis of

the meaning of the hijab is offered in Section V in the context of arguments about domination

of vulnerable women within Islam.

policy”4 concentrates arbitrary control in the hands of school principals andlocal schools in a manner at odds with the republican account of freedom asnon-domination.

The republican tradition holds that domination is the antonym of freedom.5

It contrasts with the liberal conception of freedom as non-interference. Oneparty dominates another when she holds arbitrary control of that other party’schoices. She may not in fact interfere with the other party – indeed she may notever intend to – but she has the capacity to interfere should she so choose. Herpower is not checked by law. The difference between the two conceptions offreedom should emerge clearly from this analysis of the Gorey controversy. Thehijab-wearing students were not excluded from Gorey Community School, norindeed, it would seem, has any student been excluded (at least exclusively) onthis basis across Irish schools. But following the response of the government,schools seem to have the capacity to exclude students on this basis if they sowish. There is domination, in other words, but not interference.

The prevalence of schools under Catholic patronage in Ireland exacerbatesthis problem. The legislation governing these matters provides that schoolprincipals and school boards of management are accountable to the schoolpatrons and must carry out policy so as to maintain the particular spiritual orreligious ethos of that school.6 Equality legislation is weakened because ofexemptions from anti-discrimination provisions designed to protect thereligious ethos of schools. The Equal Status Acts 2000–2004 provide that thereis no discrimination where the school “admits persons of a particular religiousdenomination in preference to others or refuses to admit as a student a personwho is not of that denomination” where such a refusal is essential to “maintainthe [religious] ethos of the school.”7 This article argues that because of theinadequacy of the legislative checks on the control of schools coupled with thedominance of Catholic schooling in Ireland, the freedom of non-Catholicfamilies is jeopardised, where that freedom is understood as non-dominationrather than as non-interference.

The broader aim of this article is to demonstrate how the rich ideal ofrepublican freedom associated with the likes of Cicero, Machiavelli, Harrington,Madison and, of course, Wolfe Tone can and should inform contemporarypolicy. The hope is to show how this vision of freedom should be more activelyengaged with amongst Irish legal scholars and legislators, especially in a morediverse polity.8 The article endeavours to avoid getting involved too simplistically

128 Dublin University Law Journal [Vol 31

4. Irish Council for Civil Liberties Press Release, “Ministers Fail to Close Hijab Loophole” 23

September 2008.

5. See Philip Pettit, Republicanism: A Theory of Freedom and Government (Clarendon Press,

1997). See also Quentin Skinner, Liberty before Liberalism (Cambridge University Press,

1998).

6. Education Act 1998, section 15(1). See Section III below for elaboration.

7. Equal Status Acts 2000–2004, section 7(3)(c).

8. While my aim is the modest one pertaining to the headscarf and religious insignia in schools,

I further hope to imply more broadly that in a post Celtic-Tiger era featuring greater ethnic and

in a straightforward exposition of freedom as non-domination or to become tooembroiled in the debate between liberals and republicans as to whether inter -ference or domination is the antonym of freedom. Following the contributionof the Irish philosopher Philip Pettit, the republican conception of freedom asnon-domination seems the more compelling account.9

The article is not intended as offering a sweeping objection to the avail -ability of religious schooling in Ireland, though it does have reservations aboutthe prevalence of religious schooling – especially Catholic religious schooling– by comparison with non-religious choices.10 The principles underlying thisarticle cohere with an approach to schooling which refrains from endorsing anyparticular conception of the good and which aims at fostering interaction,deliberative engagement, and an understanding of common interdependencyamongst citizens in a diverse polity.11 Such an approach, notably, would notrequire exclusion of religious or cultural expression amongst students.

Because the republican account of liberty is concerned with maximisingoverall non-domination, the article is compelled to deal with a further, probablymore complex, matter. This concern with the maximisation of non-dominationpertains to all facets and spheres of the polity. In this way, it is just as concernedwith domination within groups outside of the mainstream as it is withdomination of those groups. It is as concerned with intra-cultural domination asit is with inter-cultural domination. In order to find a satisfactory answer to thequestion of the appropriateness of the hijab in schools with maximising non-domination in mind, the question as to whether the hijab causes domination ofyoung women in Islamic communities must also be addressed. While analysisof the question of oppression of voiceless members of Islamic communities hasbeen decidedly absent in the Irish conversation about the hijab – such as therehas been a conversation at all – the question has been to the fore in the Frenchcase where l’affaire du foulard has been the cause of much political conster -nation as well as academic and social debate over a twenty-year period. Hence,this pivotal question is assessed by reference to the French experience with anemphasis on whether the republican polity can legitimately educate childrentowards autonomy.

2009] Domination and the Hijab in Irish Schools 129

ethical diversity, the Irish citizenry must rethink the meaning of the ostensible commitment

to republican ideals of freedom and government.

9. Following the publication of Pettit’s Republicanism, note 5, there has been a “republican

revival.” See generally, Samantha Besson and Jose Marti eds, Legal Republicanism: National

and International Perspectives (Oxford University Press, 2009); Cecile Laborde and John

Maynor eds, Republicanism and Political Theory (Blackwell, 2007); Jeremy Jennings and

Iseult Honohan eds, Republicanism in Theory and Practice (Routledge, 2005); John Maynor,

Republicanism in the Modern World (Polity Press, 2003); Iseult Honohan, Civic

Republicanism (Routledge, 2002).

10. Further, the growth of inter, multi and non-denominational schools is welcome, if not

sufficiently pronounced.

11. See Iseult Honohan, “Educating Citizens: Nation-Building and its Republican Limits” in

Honohan and Jennings eds, note 9, at 199–213.

The structure of the article is as follows. In section II, I provide a briefhistorical analysis of the republican account of freedom and I set out the salientfeatures of Pettit’s notion of freedom as non-domination. I identify theconceptual differences between the republican and liberal accounts of freedom.In section III, I outline the Gorey controversy where the Irish governmentrejected calls to regulate the wearing of hijab, as well as the relevant legislativeframework. Section IV links the two sections preceding it by considering howthe precise nature of the Gorey controversy illuminates our understanding ofrepublican freedom and how non-domination matters for personhood andhuman dignity. In section V, I turn to the question of intra-cultural domination(rather than inter-cultural domination) and emphasise the importance ofavoiding the “fallacy of composition” when addressing cultural claims from theperspective of freedom as non-domination.12

II. ANALySIS OF PETTIT’S NON-DOMINATION

The republican tradition is so broad that a comprehensive analysis of its centralthemes is simply beyond the scope of this article. A brief synopsis is in order,however. Classical Rome holds the profound draw for republican thinkers.13

The Roman republic most notably inspired the constitutional thought ofMachiavelli, who lamented in The Discourses how his own city-state ofFlorence had departed so dramatically from the ideals and practices under -girding the freedom of the citizenry. The Roman theme was embraced duringthe Renaissance in other Italian city-states such as Venice and Lucca – modernEurope’s first polities – and later in the Dutch Republic. It enjoyed a subsequentsurge in the language of the English revolutionaries both in the middle andtowards the end of the 17th century and was given passionate expression inJames Harrington’s Oceana.14 Its vision inspired the American, French and Irishrevolutionaries of the late 18th century, though in notably different ways, withthe Federalist Papers providing another seminal account.15


12. I borrow the phrase “fallacy of composition” from Frank Lovett and employ it, as he does,

as a way of pointing to a common error of failing to distinguish between different agents

partaking in different ways in a given social practice. He offers the example of home

schooling practices of religious fundamentalists suggesting that while young children in these

situations might be described as participants in these practices, they cannot be described as

necessarily voluntary participants. This is elaborated on in section V.

13. Niccolo Machiavelli, The Complete Works and Others, Gilbert ed (Duke University Press,

1965). For a good account of Machiavelli’s lament see Sara Shumer, “Republican Politics

and its Corruption” (1979) 7 Political Theory 5–34.

14. James Harrington, The Commonwealth of Oceana and A System of Politics in JGA Pocock

ed, The Commonwealth of Oceana and A System of Politics (Cambridge University Press,

1992).

15. James Madison, Alexander Hamilton and John Jay, The Federalist Papers in Isaac Kramnik

ed, The Federalist Papers (Penguin, 1987).

The themes that unify a republican tradition – inasmuch as a single traditioncan be identified – include an attachment to the notion of a mixed constitutionin which different arms of government serve to check and balance one another,a deep concern about preventing tyranny of the majority, a regime of civicvirtue where the citizenry serve the common good and factions seek onlyequality of access to politics rather than domination of politics, an “empire oflaws and not of men” in the phrase made famous by Harrington, as well asbroad misgivings about monarchy.16 A distinction within republican thoughtmight be made, incidentally, between an Italian/Atlantic tradition on the onehand, and a Franco/Germanic tradition on the other. The Italian/Atlantic traditionattaches greater importance to the notion of the interests of the sovereignpeople finding expression in a deeply complex and sophisticated mannerthrough the many checks and balances provided by well-designed institutionsin a free polity. In this sense, a complex notion of “the people” is in some senseubiquitous. The Franco/Germanic tradition – identifiable in the work of the likesof Bodin, Rousseau, Kant and Arendt – is more populist and seems comfortablewith the idea of the people having a single “general will” identifiable via a popularassembly or a referendum. The Franco/Germanic tradition might seem to fitmore with a notion of a small, culturally homoge nous community but seemsless and less appealing in an age of greater diversity and deeper disagreementwithin the polity, where if anything, it seems to invite a tyranny of themajority. Pettit’s contribution unmistakably falls within the Italian/Atlantictradition. His suggestion is that, more than any of the features outlined, themost fundamental theme tying the whole fabric of republican idealism togetheris the distinctive understanding of liberty as non-domination.17

The elementary idea of this conception of liberty is immunity from arbitraryinterference by others. In the Roman tradition libertas consists in immunityfrom dominium, or mastery by others. If a person holds arbitrary sway overanother, he can interfere at will with that other on the basis of nothing more thana whim. The freedom of the other holds only at the grace or mercy of his master– only cum permissu – he is someone who lives in potestate domini, in thepower of a master. Living at the leave of a master induces the experience ofservility and the perpetual requirement to placate the master and “keep himsweet.” Depending on the circumstances, this may require avoiding thatmaster’s darker moods or keeping out of sight at the right times. It may require“self-ingratiation,” “self-censorship” or “fawning and toadying.”18 Or it might


16. Some may find the equivocation about monarchy surprising. Republicans arguably did not

have a difficulty with monarchy per se but rather with what they perceived as the inevitable

tendency of monarchical government to seek and achieve arbitrary control. Thus, we find

broad satisfaction with the constitutional monarchy in 18th century England where,

according to Montesquieu, “the republic hides under the form of monarchy.” See Charles de

Montesquieu, The Spirit of the Laws in Cohler, Miller and Stone eds, The Spirit of the Laws

(Cambridge University Press, 1989 [1748]), at 70.

17. Pettit, note 5, at 20.

18. Philip Pettit, “Law and Liberty” in Besson and Marti eds, note 9, at 45.

simply be that he escapes interference out of the sheer good fortune of havinga master who happens to like the look on his face.19 In the context of minoritiesin the modern polity, it may just so be that those who wield arbitrary powerhappen to have a tolerance for a particular ethnicity and so life for members ofthat ethnic minority goes on without interference. A kindly or benign masterwho bears no ill-will or who has no inclination whatever to interfere in this wayis still in the position of a dominus. Such a kindly master, like the riderwho gives his horse free rein, is still unmistakably in the saddle ready tointervene should the agent under the yoke deviate from the appropriate path.“Appropriate” here of course is understood fully by reference to the interests ofthe dominator.

Intriguingly (bearing in mind that the article ultimately is concerned withfreedom in the Irish republic) this notion of a kindly master played heavily onthe mind of Wolfe Tone. The Volunteers and the Whig Clubs who campaignedfor reform of legislation enabling the decisions of the Dublin parliament to beoverridden by London noticed that the so-called 1782 Constitution – though itbrought about circumstances within which the London parliament was nolonger overruling the Dublin parliament – had not utterly renounced the rightto assume an overruling role. Wolfe Tone’s attitude captures the heart of thedifference between interference and domination, and so the difference betweenliberal and republican freedom. He insisted that while “we are free in theory,we are slaves in fact.”20 Displaying familiarity with this rich tradition, heasserted that republicans “detest ever the name of master,” and wrote in a letterfrom Princeton in 1795 that he would “exist in no country permissusuperiorum.”21

This rich tradition took with it from its origins a concern about two sourcesof “unfreedom:” imperium and dominium. While seeking to reduce dominationthrough private power or influence, the worry is that a robust state would itselfbecome a source of domination. That is, in an effort to reduce dominium, the illof imperium emerges.22 The Italian/Atlantic tradition attaches more importanceto designing institutions to deal with the twin threat than the Franco/Germanictradition, which is more singularly concerned about dominium. Many of thefeatures of republican government alluded to above, not least the mixedconstitution ideal, developed in efforts to curb this threat of imperium orevolved as answers to the question: Quis custodiet ipsos custodes? – who willguard the guardians themselves? This threat of imperium obsesses wiselegislators, judges with fidelity to law, effective public commentators andscholars, as well of course, as virtuous republican citizens. Thus, the old adagerings forth: the price of liberty is eternal vigilance.


19. See Pettit, note 5, at 22.

20. Wolfe Tone, The Writings of Theobald Wolfe Tone in Moody, McDowell and Woods eds, The

Writings of Theobald Wolfe Tone (Oxford University Press, 1998), at 115.

21. Ibid, at 30. For a good analysis see Pettit, The Tree of Liberty, Republicanism: American,

French and Irish (2005) 1 Field Day Review 29.

22. See generally, Pettit, note 5, at 112 and also Pettit, note 18, at 33.

The liberal account of freedom associated with Hobbes, Bentham and Mill,which gained such traction in the 19th and 20th centuries, has a considerablydifferent vision of law and freedom.23 For them, interference is the antonym offreedom. This school of thought insists on two theses: the “interference-alone”thesis and the “interference-always” thesis.24 Law itself amounts to unfreedominasmuch as it constitutes interference. Freedom prevails only in the “silence ofthe laws”25 or at least law is justified only insofar as it brings about lessinterference that it itself represents. On this account, because law is inimical tofreedom, where an agent can avoid interference in ways other than by law –including in the demeaning ways alluded to earlier like bowing and scraping,and so on – those other ways are prima facie preferable. This vision of law isconveyed emphatically in Leviathan where Hobbes insists that “the liberty of asubject, lyeth therefore only in those things, which in regulating their actions,the Sovereign hath pretermitted.”26 Similarly Bentham argues that “all coercivelaws, therefore … are ‘as far as they go’ abrogative of liberty.”27 Even themodern progressive liberal, John Rawls, argued that “liberty can be restrictedonly for the sake of liberty.”28 Most significantly, Hobbes is clear that peoplemay well be freer under a tyrannical regime than in a republic if actualinterference or obstruction is less prevalent. There is no necessary differencebetween an absolutist and a non-absolutist regime so far as liberal freedom isconcerned.29

The republican view is that good law is not inimical to freedom but, bystark contrast, it is constitutive of freedom. Critically, the phrase “good” heredoes not pertain to moral quality. Rather it refers to the absence of arbitrariness,where the inquiry into whether law is arbitrary is a descriptive rather than anevaluative one. Arbitrary laws can be identified in greater or lesser degree indifferent instances at different times across different polities. Thus if a givenlegal provision is introduced at the exclusive behest of a powerful faction – likea powerful corporation or an influential religious group – and serves no purpose


23. While I describe Hobbes and Bentham as “liberal” inasmuch as they both unmistakably hold

interference to be the antithesis of freedom, they would more accurately be described,

respectively, as an “absolutist” and a “utilitarian.”

24. See Pettit, note 18, at 41–47. In this (more recent) work, Pettit employs a more clinical

analysis to eke out the difference between the republican and the liberal (or, more

specifically, the Benthamite) account of law. Pettit considers that this reveals the falsity of

Bentham’s claims, but a full exposition of the argument lies beyond the scope of this article.

25. Hobbes, Leviathan in MacPherson ed, Leviathan (Penguin, 1968 [1651]), at 143.

26. Ibid, at 264.

27. Jeremy Bentham, Anarchical Fallacies in Bowring ed, The Works of Jeremy Bentham (2nd

ed, 1843), at 503.

28. John Rawls, A Theory of Justice (Oxford University Press, 1971), at 302.

29. In a passage in Leviathan, which Harrington went on to attack in Oceana, Hobbes asserts that

“there is written on the Turets of the city of Lucca … the word LIBERTAS; yet no man can

thence inferred, that a particular man has more Libertie, or Immunitie from the service of the

Commonwealth there, than in Constantinople. Whether a Commonwealth be Monarchical,

or Popular, the Freedome is still the same.” Hobbes, note 25, at 264.

other than the interests of that group, it is prima facie arbitrary insofar as it failsto track the interests of the citizenry. A good republican polity will featureinstitutions designed to enable the citizenry to contest coercive law in order toprevent arbitrariness of this kind.30 Rather than the unworkable notion of eachcitizen consenting to each law, non-arbitrariness requires the permanentpossibility for each citizen who falls under the coercion – no matter how weakthey might be politically – to contest the law on the basis that it fails to tracktheir interests.31 If that contestation is sustainable and the coercive law is foundto be arbitrary, a good republican polity will alter its course to reflect thatfinding.32 The Minnesota v Clover Leaf Creamery Co decision of the USSupreme Court is just one example of where a modern republican polityachieved this.33

III. GOING TO SCHOOL IN GOREy; AT THE LEAVE OF A “MASTER”?

In 2008, parents of Islamic students attending Gorey Community Schoolrequested that their children be permitted to wear hijab in school.34 The schoolprincipal accommodated the request with the subsequent approval of the schoolboard of management. The principal wrote to the Minister for Educationrequesting national guidelines on the matter so that difficulties could be avoidedif the students were to transfer to another school. In response to the request, theMinisters for Education and for Integration – after a consultation process –jointly issued a report stating that the Government would refrain from regulatingthe matter and would leave control in the hands of schools.35 The report states,in its conclusion, that “the current system, whereby schools decide their uniformpolicy at a local level, is reasonable, works well and should be maintained.”36


30. For an analysis of republicanism and judicial review, see Patrick Honohan, “Republicans,

Rights and Constitutions: Is Judicial Review Compatible with Republican Self-Government”

in Besson and Marti eds, note 9, at 83–102.

31. See Pettit, note 5, at 61–63.

32. As well as contestation, the growing prominence of deliberative democracy and the idea of

a “republic of reasons” offer new insights into how free and equal citizens might engage in

a deliberative project to find legitimate, non-dominating law. See generally Richard Bellamy,

“The Republic of Reasons: Public Reasoning, Depoliticization, and Non-Domination” in

Besson and Marti eds, note 9, at 102–120. Amy Gutmann and Dennis Thompson, Why

Deliberative Democracy? (Princeton University Press, 2004). See also, Cass Sunstein, The

Partial Constitution (Harvard University Press, 1993), at chapter 1.

33. Minnesota v Clover Leaf Creamery Co 449 US 456 (1981). In this decision the court held

that government could not introduce legislation banning the sale of milk in paper-board milk

cartons without showing that the prohibition serves some public interest and is not simply

the result of powerful lobbying from the plastics industry.

34. See McGarry, note 1. These facts were provided to the Irish Times under information

released under the Freedom of Information Act 1997.

35. Lenihan and O’Keeffe, note 2.

36. Ibid, at 8

Prompted by this controversy, the Irish Hijab Campaign was established tolobby for legislation protecting and supporting hijab-wearing citizens.37

Already, of course, it should be clear how the question of domination arises.That is, in the absence of law or regulation the school principal and board ofmanagement are in a relationship of domination vis-à-vis the Islamic familybecause of the concentration of arbitrary power in their hands. Even if they areutterly favourable to the interests of the vulnerable party – a kindly or benignmaster in the republican tradition – they are in a position of virtual control.Should their mood or outlook change, the “freedom” of the Islamic familyevaporates in respect of a sphere of their lives that is of capital importance.Accordingly, this is a classic illustration of domination without interference.The liberal tradition would not find the situation objectionable because of theabsence of actual interference; no child has been excluded so no difficultyarises. Indeed the Benthamite tradition would find no objection even if somechildren in isolated pockets around the country were excluded because, thoughthat would constitute interference, it presumably would not constitute asufficient amount of interference to outweigh the interference that regulation onthe matter would constitute.38 While it would seem that in the particular case,the school principal is “kindly” inasmuch as he has agreed not to exclude thestudents in question, the important matter is that it is reasonable to conjecturethat over time it is likely that interference will rear its head; eventually a schoolprincipal or school board will exclude a child on the basis of the hijab question.

The response of the Irish Council for Civil Liberties to the Goreycontroversy was decidedly republican inasmuch as it employed a “domination-without-interference” argument. It suggested that the Ministers’ response was:

[T]o abrogate their own responsibilities to ensure that education isprovided in a non-discriminatory way by leaving the decision-makingonus on school principals…. [T]his would appear to be a policy not tohave a policy…. [It is] thanks to the good sense of school principals [that]reason has prevailed and no child has been excluded from school on thebasis of their religious dress.39


37. McGarry, note 1.

38. It is difficult to ascertain whether or how many children have been excluded on this basis.

Significantly, a controversy arose in Balbriggan, County Dublin in 2007 where an Educate

Together school was established but could not cater for the demand for places. Educate

Together is the representative organisation for 56 multi-denominational schools. The demand

arose because of the number of children rejected from local Catholic schools due to limited

capacity and, allegedly, because they did not have Catholic baptismal certificates. There were

claims of the creation of a “mini-apartheid” system such was the prevalence of immigrant

children in this school. The students were overwhelmingly either children of parents of

African origin or Islamic. See Henry McDonald, “Ireland Forced to Open Immigrant School”

The Guardian, 25 September 2007 and David Sharrock, “Racism Fears as City School Opens

for Black Pupils Only” The Times, 4 September 2007.

39. Irish Council for Civil Liberties Press Release, note 4.

The phrase “thanks to the good sense” points to the notion of a “kindly” or“benign” master. Interestingly, something like this position prevailed in Francein the mid-1990s. Though the matter in France is now governed by the 2004ban on “conspicuous religious symbols” (effectively a ban of the headscarf inschools), this law is only the latest interlude in a 20-year controversy stretchingback to a 1989 incident in Creil where two girls were sent home after havingarrived in class wearing Muslim headscarves. That incident prompted the thenMinister for Education, Lionel Jospin, to request legal advice on the matterfrom the Conseil d’Etat that was provided in the form of its November 1989avis (opinion).40 It held that the wearing of hijab was not in itself at odds withthe constitutionally protected ideal of laïcité but that the religious freedom ofstudents could be limited if it were an obstacle to the mission of stateeducation.41 As Cecile Laborde points out in her analysis of the French hijabcontroversy, this effectively meant that if the wearing of hijab involvedproselytism or propaganda or when it disturbed the good order of the school orposed a threat to health or safety, it fell within the realm where the school hadthe authority to ban it.42 For Laborde, this “nuanced ruling proved difficult toimplement in practice, as it left it to heads of schools to settle issues locally, ona case-by-case basis…[I]t is this legal uncertainty that provided the mostimmediate incentive for the convening of the Stasi Commission and the draftingof the 2004 law.”43 The situations in France and in Ireland are very different, forhistorical and demographic reasons, among others, but this comparison istelling so far as it goes.

In any event, I have only provided a very incomplete picture of the Goreysituation so far. The Irish Government would likely protest that the schoolprincipal is “hemmed in” in important ways such that the claim that arbitrarycontrol is concentrated in the hands of schools is exaggerated. There issomething to such an argument, but it collapses in the end, or at least that iswhat I hope to show. The Ministers’ report recommended that “schools shouldtake note of the obligations placed on them by the Equal Status Acts beforesetting down a school uniform policy. They should also be mindful of theEducation Act 1998.”44 Accordingly, an argument could be made that this


40. Conseil d’Etat, Assemble Generale, Section de l’interieur, 27 November 1989, no 346.893.

41. The phrase “laïcité” is widely regarded as not having a satisfactory translation. It is often

somewhat lazily translated as “secularism”. Suffice it to say that it pertains to the absence of

religion in the public sphere as well as the absence of government influence over religion.

42. Cecile Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy

(Oxford University Press, 2008), at 52.

43. Ibid, at 52. The recommendations of the Stasi Commission led to the adoption of the 2004

legislation prohibiting ostentatious religious symbols in schools. See Commission de

Réflexion sur l’Application du Principe de Laïcité dans la République (Palais de l’Elysée,

2003), online at :

www.presidencedelarepublique.fr/elysee/elysee.fr/francais_archives/actualites/a_l_elysee/

2003/juillet/commission_de_reflexion_sur_l_application_du_principe_de_laicite_dans_

la_republique (visited 15 July 2009).

44. Lenihan and O’Keeffe, note 2, at 8.

legislative framework provides an effective check on the control of schools andundermines the claim that the Islamic family is suffering from a form ofdominium. I turn now to these legislative provisions to assess whether thisargument is sound.

The legislative framework: a check on school principals?

The Education Act 1998 sets out the structure of education and provides for thelegal framework for the relationships between the school patronage, the boardof management, the school principal, teachers, students, parents, communityand the state. It deals with matters of curriculum, funding and school inspection.The immediately relevant provision is section 15 of the Act, which deals withthe functions of the school board (as distinct from the patronage of the school).Section 15(1) provides that the board “manages the school on behalf of thepatron.”45 It is important to note, of course, that more than eight in ten Irishschools fall under the patronage of Catholic institutions.46 Section 16 of the Actprovides how, with the consent of the Minister, the school patron can remove amember of the board of management47 or the entire board “if satisfied that thefunctions of a board are not being effectively discharged.”48 The legislationfurther provides, critically in the light of my argument, that in carrying out itsfunctions the board of management must

uphold, and be accountable to the patron for so upholding, the characteristicspirit of the school, as determined by the cultural, educational, moral,religious, social, linguistic and spiritual values and traditions whichinform and are characteristic of the objectives and conduct of the school.49

Two significant matters arise here. First, because of the sheer dominance ofCatholic institutions in terms of school patronage, the school boards of the vastmajority of Irish schools are beholden to Catholic institutions in terms ofupholding that religious ethos. That is not to say that any non-Catholic student isautomatically doomed. Happily, there is little if any exclusion of non-Catholics.These schools in Ireland tend to accommodate non-Catholics and adopt agenerally inclusive outlook. Nonetheless, because of the relative lack of choiceof non-Catholic education along with the general trend towards greater culturaland religious diversity in Irish life, a vast number of Irish families are beholden


45. Education Act 1998, section 15(1).

46. The Ministers’ report asserts that “92% of Irish schools are under the patronage of one

religion,” see Lenihan and O’Keeffe, note 2. Based on 2007 statistics obtained from the

Department of Education and Science (on file with author) that figure refers to primary

schools within the Irish education system. The figure is around 84% of all schools. In any

event, the precise figure is not pivotal to my general argument.

47. Education Act 1998, section 16(1)(a).

48. Education Act 1998, section 16(1)(b).

49. Education Act 1998, section 15(2)(b).

to Catholic institutions. The Gorey hijab controversy is just one example of howdomination of non-Catholic families can arise given these conditions.

Second, the Ministers’ report fails to reference section 15 of the EducationAct most likely because the provision tends to facilitate the board or themanagement of the school – or the patron if necessary – in sustaining theschool’s particular ethos, potentially to the cost of Islamic (or non-Catholic)families across Ireland. Instead, the report draws attention to section 15(2)(e),which declares that in carrying out its duties the board shall

have regard to the principles and requirements of a democratic societyand have respect and promote respect for the diversity of values, beliefs,traditions, languages and ways of life in society.50

It is difficult to assess what impact this provision might have on the question athand other than to acknowledge that it helps rather than hinders the plight offamilies whose religious beliefs (or lack of religious beliefs) clash with theparticular religious ethos of the school. This provision undeniably has someimportance insofar as it checks the power of schools to some extent. Myargument, of course, is not that there is no legislative framework whatsoever.Rather, given the power Catholic institutions continue to wield in Irish schools,as re-institutionalised by the Education Act 1998, this legislative check isscarcely adequate.

I move now to the Equal Status Acts 2000–2004. The Ministers’ report saysvery little about this legislation other that to assert that “schools should takenote of the obligations placed on them by the Equal Status Acts before settingdown a school uniform policy.”51 The report also states that “no cases have beentaken under the Equal Status Acts about this issue, although the general thrustof the legislation (particularly that of a ban on religious discrimination) cannotbe ignored.”52 The legislation provides general protection from discriminationon nine grounds including gender, ethnicity, sexual orientation and, of course,religious belief.53 Insofar as this applies, the power of the school is “hemmedin” in a manner that tends towards the “empire of laws rather than of men”requirement. Needless to say, the Ministers’ report leaves things at that andneglects to mention exemptions to the legislation that hold great significance inthe context of religious ethos in schools. As will become clear, theseexemptions “free up” schools to discriminate against students if doing so isrequired in order to maintain the school ethos. In other words, any progressmade toward maximising non-domination is undone by these exemptionsinasmuch as the exemptions place arbitrary control back into the hands ofschools.


50. Education Act 1998, section 15(2)(e).

51. Lenihan and O’Keeffe, note 2, at 8.

52. Ibid, at 4.

53. Equal Status Acts 2000–2004, section 3(2)(a-i).

The interesting exemption for present purposes is provided in section7(3)(c) of the Equal Status Acts.54 It poses quite dramatic problems for arepublican state committed to the maximisation of freedom understood as non-domination, especially where there is inadequate provision of a range ofeducative establishments across the state for students of different religiousdenominations and none. The provision ensures that an educational establish -ment is non-discriminating where:

[T]he establishment is a school providing primary or post-primaryeducation to students and the objective of the school is to provideeducation in an environment which promotes certain religious values, itadmits persons of a particular religious denomination in preference toothers or it refuses to admit as a student a person who is not of thatdenomination and, in the case of a refusal, it is proved that the refusal isessential to maintain the ethos of the school.55

This clearly tends to place power with schools regarding who to admit and whoto exclude in view of protecting and maintaining a given school ethos. Muchwill hinge, of course, on whether a refusal to admit a headscarf-wearing studentis essential to maintain the ethos of the school. I assess that claim momentarily.Suffice to say for now, that it is plausible that arguments could be successfullyput forth that the wearing of hijab is sufficiently at odds with the ethos of aCatholic school for the purposes of the legislation.

Before elaborating, I wish to emphasise that I am not employing thefreedom as non-domination argument to attack the notion of religious schoolsin toto. My argument is more restricted. The republican ideal developed byPettit is consequentialist rather than deontological in nature.56 On thisunderstanding, the institutions of the state must be designed in such a way as tomaximise non-domination and the laws and policies it pursues must tendtowards this ideal.57 Given the factual background in Ireland, maximisation ofnon-domination could be achieved in all kinds of ways. Indeed, it might evenbe preferable for the state to fund Islamic schools and other educativeestablishments for other religious denominations in order to bring about anenvironment within which this exemption would not have the effect ofdominating non-Catholic families.58 Similarly, an argument could be made for


54. It would be wholly unreasonable, of course, to argue against having any exemptions

whatever from equality legislation. For instance, on a religious theme, it would be quite

absurd to think that a particular religious seminary could be found in breach of equality

legislation for rejecting students of a different religious denomination. A provision allows for

exemption of this kind.


56. Pettit, note 5, at 97–106.

57. A deontological approach would mean that the value should serve not as a goal for the state

to maximise but rather as a constraint on how the state should pursue other goals.

58. I am not arguing this line at all; I am merely suggesting tentatively that it is at least plausible

from the perspective of maximising freedom as non-domination.

removing all religious insignia from state-funded schools and all religiousinfluence from the state school management. Another, perhaps more appealing,option would be the development of common schools. These are importantarguments but go beyond the scope of this article.59 This article is intendedsimply to deal with the discrete argument that the exemption from the EqualStatus Acts in tandem with the paltriness of the choice of non-Catholic schoolsplaces non-Catholic families under domination, thus undermining their freedomwhere that freedom is understood in republican terms.60

IV. WALKING IN THE SHOES OF RELIGIOUS OUTSIDERS AND THE THREE

ExISTENTIAL FEATURES OF REPUBLICAN FREEDOM

It is worthwhile to very briefly adopt an internal point of view in order to graspwhy and how this unfreedom matters. The ultimate republican objection toarbitrary control is that one party can interfere with another on a mere whim. Inany real-world scenario, there will always be greater or lesser degrees ofarbitrary control. In the example of Islamic families with children attendingCatholic schools in Ireland, I am not arguing that a school principal or amember of the school board of management has absolute control over thefreedom of Islamic families in the manner of an all-powerful totalitarian despot.The legislation insists, for example, that the exemption be on grounds thatexclusion of a student is “essential to maintain the ethos of the school.”61 But,as the Irish Council for Civil Liberties points out, “there is a responsibility onthe State to ensure that decisions on such a sensitive issue [as the hijab inschools] are taken on a firm lawful basis, and in a consistent way.”62 Ultimately,the ICCL is troubled by the arbitrariness of it all. It is concerned that becausede facto control lies unchecked in the hands of schools, one school might decideto allow hijab-wearing students, another may decide not to allow them, and yetanother may decide to allow them for them time being. Should circumstances


59. The Educate Together organisation operates on a multi-denominational basis with the stated

goal of “all children having equal rights of access to the school, and children of all social,

cultural and religious backgrounds being equally respected.” Section 2.1 of its Charter

declares that “children of all social, cultural and religious backgrounds have a right to an

education that respects their individual identity whilst exploring the different values and

traditions of the world in which they live.” Educate Together Charter http://www.educate

together.ie/1_educate_together/charter.html (visited 9 July 2009). This model is appealing

from a republican perspective.

60. I also do not mean to imply that all discretion is at odds with Pettit’s notion of non-

domination. Far from it, often discretion is required for maximising the ideal, given that it is

a consequentialist rather than a deontological idea. In some instances, like the one at issue,

or indeed the extent of the powers of immigration officials, there seems unwarranted and

dominating discretion. In other instances this will not be the case. Beyond that, I leave this

argument for another time.


62. See Irish Council for Civil Liberties, note 4.

emerge in which it is convenient to exclude Islamic students, a school principalcould quite easily recite a formal reason that satisfies the legislation along thelines of “the prevalence of hijab-wearing students in our school is such that ourCatholic ethos is in jeopardy.” Any such formal reason could quite easily berecited, yet the real reasons for exclusion could be more sinister.63 Such is thenature of control that is not sufficiently non-arbitrary.

It might be helpful to provide a few examples of what I have in mind whenI suggest that a school principal or board of management member mightexclude a student on little more than a whim. Perhaps an especially vocal andinfluential member of the school board of management will hold strong viewson non-Catholics in a Catholic school and persist at meetings until she gets herway. Maybe hijab-wearing students cause great stress for a young teacher butmight not have committed an “offence” sufficient to ground an expulsion. Aschool principal, under pressure from the teaching staff, might insist onexclusion of hijab wearing students just to make this problem “go away.”Perhaps the students behave impeccably in class, but their parents causeconsternation at parents’ council meetings and in the community generally andso expulsion might seem a convenient means of ridding the locality of thenuisance. It is even conceivable that a local community activist on the schoolboard might be able to engineer the removal of hijab-wearing students becausehe has read a convincing book on a recent sun holiday about the hijab as asymbol of female oppression.64 Or even more straightforwardly, school boardmembers or school principals might be simply racist or anti-Islamic. Becauseof the wielding of arbitrary control, exclusion of these students can occur for nomore sophisticated a ground. This is why the republican tradition rails againstarbitrary power. In view of the weakness of the legislative checks, any of thesereasons might be the true motive and – and cloaked by the exemptions in theEqual Status Acts – might end up causing exclusion.

I turn now to what might be thought of as three “existential features” ofdomination; that is, three features of the experience of being under the yoke ofdomination that undermine the dignity and personhood of the victim.65 The


63. It is true that this charge can be made against more or less any legislative provision that

grants power to a given party or body within the community. Inevitably, some power-

wielders will recite legitimate reasons for a given decision, where they have been motivated

by more sinister reasons. But it is a question of maximising non-arbitrariness. The more

stringent the requirement to give valid reasons for a decision, for example, the less arbitrary

the power is. Similarly, where the decision is subject to other checks in a polity with well-

designed political institutions. I don’t argue that total non-arbitrariness is achievable in a

world like ours. I argue that in the particular example as I have outlined it, a few factors

operate collectively to produce what amounts to arbitrary control in the hands of schools, and

so the freedom of non-Catholic families evaporates where the freedom is judged according

to a republican standard.

64. Our bookworm friend on the school board has introduced a matter that is of the upmost

importance. This returns to the point I introduced earlier that just because a young Islamic

woman feels free when wearing hijab does not imply that she is free. I deal with this in

section V.

65. For an outline of these three features, see Pettit, note 5, at 86–89.

three features are that there is an uncertainty regarding the potential whims ofthe dominator, a perpetual need to “keep a weather eye” on him, and a certainsense in which citizens cannot “look one another in the eye” as political equals.The presence of these features emphasise the urgency of law reform. In simpleterms, because the liberal account regards law as antithetical to freedom, anyother means of protecting non-interference – including means which bringabout this perpetual angst – is prima facie preferable. As should be quitefamiliar by now, this means that if interference is avoidable by strategic meanslike self-ingratiation, self-censorship or skilful learning of a master’s moods andhabits – or even simply out of the good fortune of being likeable – such meansare preferable to the introduction of coercive law. The three existential featuresmight be thought of as compounding the domination that already prevails frombeing under the yoke of domination, rather than constituting that domination assuch. I turn to elaborate on these features now, with the useful analogy of theGorey family in mind.

The notion of uncertainty matters a great deal in every sphere of philosophybecause of its pivotal importance in human living. It brings with it a certainwretchedness and anxiety in the daily lives of those who experience it. Legalphilosophers have recognised the importance of the capacity to make plans, andthe relative certainty that it requires. This underpins the rule-of-law ideal and iscentral to what Raz66 and Fuller67 say about how laws should be prospectiverather than retrospective, promulgated, consistently applied, reasonably stable,not impossible to obey and so on. Of course, the uncertainty engendered bydomination is not a general uncertainty. Rather it is an uncertainty that pertainsonly specifically to the whims or likely actions of those in whose thrall thevictims of domination find themselves. Critically though, it is a kind ofuncertainty conspicuously absent in the particular sphere for those fellowcitizens who do not fall under the particular domination.

A revealing image of the second feature – the constant need to “keep aweather eye” – is the battered wife who has learned over time to know herabusive husband’s habits and moods and when to avoid and placate him. Justlike the battered wife, it may be that a vulnerable member of an ethnic minoritymust always be on alert in respect of an employer from whose arbitrium she isnot legally and institutionally protected or against a school principal who holdsunchecked control over deeply important facets of her life. While there may besomething in the way of rhetorical flourish at play when set against a practicalbackdrop of the Gorey example, nonetheless it is fairly clear that studentswhose cultural and religious backgrounds are compatible with the school ethosare not bound to “keep a weather eye” in this way.

I turn finally to the third feature that the republican model incorporates butthat the liberal model leaves out as an element of freedom. Suppose, just for the


66. Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979), at

214–218.

67. Lon Fuller, The Morality of Law (yale University Press, 1977), at 33–94.

68. Pettit, note 5, at 58–59.

sake of argument, that Irish people have become so progressive, kindly andcharitable in their attitudes to cultural “outsiders” that they seek all sorts ofways of avoiding interfering in their lives and almost universally welcome theminto all of the social, political, economic and cultural facets of Irish life. Theremay not be any state-funded or legally required provision for language-training-for-employment, for example, but neighbours get together loosely to providethose classes in an effort to integrate all strangers and welcome them into thecommunity. There may not be any special exemptions from neutral laws ofgeneral application in order to accommodate important cultural traditions of the“new Irish,” but law enforcement officials happily turn a blind eye in order to(as they see it) “equalise upwards” and make life easier for non-Catholics livingin a state deeply historically influenced by Catholic norms and ideas. And soon. Everything going on in this hypothetical community communicates a sensethat the Irish citizenry see value in diversity and take the view that theproliferation of different worldviews and ethnicities in Irish life enriches thecommunity.

There are a great many important messages reverberating across the newpolity in this hypothetical, which include, indeed, the important message ofwelcome. But a more troubling message also rings forth. Where a relationshipof domination exists – or where one party’s “freedom” is contingent on the willof another – it will be more or less a matter of common knowledge in thecommunity. Because of the nature of “a species like ours [in] a world like ours,”a relationship of domination will “tend to register … on the common conscious -ness.”68 It will be generally understood that that other in some sense “owes” hisfreedom to the powerful party. Even the most kindly or meek boss, for example,holds arbitrary sway over his employees in the absence of a decent frameworkof employment legislation. Even if he is has no intention ever to interfere withthe interests of his employee, the mere fact that he has the capacity to interferehas very significant “subjective and intersubjective” implications.69

This feature should probably not be thought of as a necessary element ofdomination. It is conceivable that no party will be aware, but it is almost alwaysthe case that at least on some level – perhaps deep in the collective subcon -scious – there is a common knowledge of the domination. Both the weak andthe powerful will be aware that one’s freedom is entirely contingent on theother’s will. Moreover, disinterested observers will be aware. The weak willknow that the powerful knows, and the powerful knows that the communityknows and so on.70 Consequently, where domination prevails, neither thedominator nor the dominated – no matter how kindly – can “look one anotherin the eye” as equal citizens enjoying equally robust and resilient politicalfreedom. On a broader note, where there is domination of minorities thisincapacity to “look one another in the eye” undermines and even cripples theprospects for the urgent intercultural dialogue that must take place in modern


69. Ibid, at 87–88.

70. Ibid, at 59.

states. Dialogue undertaken on this manifestly unfair basis cannot bemeaningful or fruitful with the aim of developing mutual respect and commonunderstanding.71

Finally I should note that though these “existential features” are deeplypsychological in nature, the republican ideal of freedom is by no means merelya psychological phenomenon. It is true that the liberal account detaches thegood of being free from the good of feeling free where republicans in somesense fuse those elements. This is clear because the agent who protects herfreedom by strategic means will almost certainly feel unfree while being free(being free, that is, on the liberal understanding). She will feel unfree becauseshe is bowing and scraping to sustain her “freedom” – hardly a status that helpsone to feel free. And yet on the liberal account – in the absence of interference– she is free, no matter how she feels. But just because this applies to the liberalaccount does not mean that republicans argue that an agent who feels freealways is free. It would be absurd to argue, for example, that because an Islamicwoman feels free when wearing hijab, and correspondingly feels unfree whenlegally prevented from doing so, that she necessarily is free when her wearinghijab is soundly legally protected. Far from it, she may very well feel free whilebeing unfree if the social and cultural framework within which she chooses towear hijab is oppressive such that her choice is (speaking descriptively) adominated one.

Some other reflections on the plight of the unfree

Before advancing, I want to canvass some other ways in which a position ofdomination is also dehumanising and at odds with human dignity andpersonhood.72 Pettit suggests that “to be a person is to be a voice that cannotproperly ignored … [who] speaks with [at least] enough authority for discordwith that voice to give others reason to pause and think.”73 That is, disagreeingwith someone or dismissing her opinion as ridiculous after considering it is abasic way in which to acknowledge that person’s moral worth or personhood.But a victim of domination has a reason to “keep in with” or placate those towhom she “owes” her freedom. Much the same as we can dismiss the voice ofa heroin addict on the basis that anything she might say might be said with theaim of satisfying her addiction, we can dismiss the voice of a dominated citizenwho needs to say the right thing to “keep her dominator sweet.” The communitywill tend to dismiss what she has to say because of the common awareness that


71. The Ministers for Foreign Affairs of the Council of Europe, White Paper on Intercultural

Dialogue: Living Together as Equals in Dignity www.coe.int/t/dg4/intercultural/ Source/

Pub_White_Paper/White%20Paper_final_revised_EN.pdf (visited 14 May 2009).

72. For analysis of the status of the concept of dignity in Irish constitutional law, see William

Binchy, “Dignity as a Constitutional Concept” in Eoin Carolan and Oran Doyle eds, The Irish

Constitution: Governance and Values (Round Hall Press, 2008), at 310.


she is institutionally bound to avoid saying anything that might displease herdominators. It may be absurd to argue that everything that young Islamicwomen in Ireland say can be dismissed because of an exemption in the EqualStatus Acts. But it is far from absurd to argue that it tends to undermine thevoice and personhood of victims of domination at least in the area where thedomination is relevant.

All of this gives some insight into the existential plight of young Islamicwomen in Catholic schools across Ireland. John Milton’s reflection on the freecommonwealth comes to mind. He suggests that in a free polity “those who aregreatest … walk the streets as other men, may be spoken to freely, familiarlyand without adoration.”74 The idea that Catholic students in Catholic schoolsare “the greatest” might not be an agreeable one, but the point is clear. I am notsuggesting that danger lurks around every corner. Neither am I suggesting thatthis daily angst penetrates profoundly and irrevocably into the hearts and mindsof young Islamic women in a manner comparable with Justice Earl Warren’stake on segregation in Brown v Board of Education.75 Happily, contemporaryIreland is a broadly progressive, inclusive and democratic state in the mostimportant ways. This should not, however, be taken as granting leave to rest onour laurels feeling satisfied that equality and liberty are sufficiently protected.

V. INTRA-CULTURAL DOMINATION, THE FRENCH CASE AND EDUCATION

FOR AUTONOMy

In the interests of clarity, I have more or less fully excluded a very salientconsideration in my analysis. I turn to it now. The goal of maximising freedomas non-domination involves questions regarding domination of minority culturaland religious groups within the polity, as we have seen. But, just as importantly,it involves the often more complex question of domination within those groups.The right answer to the question ultimately posed by the Gorey quandary –should the state allow the wearing of hijab in schools? – ultimately cannot beanswered without also finding a satisfactory answer to a different question. Thatother question is whether the wearing of hijab is oppressive of Islamic womensuch that the state can assume for practical purposes that the choice to wear itis an unfree or dominated choice? If the wearing of hijab is oppressive, theGorey situation and the vesting of arbitrary control in the hands of schools canbe solved in one fell swoop. Indeed, it would never have arisen in the firstplace. The state interested in maximising non-domination would issue a blanket


74. Burns and Goldie eds, The Cambridge History of Political Thought: 1450–1700 (Cambridge

University Press, 1991), at 457.

75. In Brown v Board of Education of Topeka 347 US 483 (1954), Justice Earl Warren centred

the decision to declare segregation unconstitutional on this idea arguing that segregation

“generates a feeling of inferiority … that may affect the hearts and minds [of African-

American schoolchildren] in a way unlikely ever to be undone.”

ban on the hijab in schools nationwide. Indeed, if the matter were as simple asthat, the radical argument of a total prohibition comes into play. But themeaning of hijab is far too contested and complex to allow for any suchconclusion. No serious analyst proposes a total prohibition – a fact that mightowe much to Mill and his insistence that while children might be educatedtowards autonomy, no adult citizen should be forced to be free.76 The argumentfor a ban in schools is much stronger, however, and requires analysis of thequestion of whether the headscarf is meant to signify the inferiority of womenand is chosen to be worn only in the context of community, familial and culturaloppression.

On this argument, the state cannot take the interests of cultural groupssimply as presented by leaders of those groups – or influential figures – withoutdelving more deeply to ascertain if the interests really pertain to all of themembers. Even if the state employs means of listening to the hidden membersof non-mainstream communities, the choices they declare for themselves maybe understood along the lines of what Cass Sunstein calls an “adaptivepreference”;77 a preference made against the background of unjust socialconditions so that the oppressed can conceal the oppression from herself in themanner of the fox in Aesop’s fable who decides that the grapes which he cannotreach are sour anyway.78 Much of the literature dealing with the challenge ofdiversity for the modern state tends to overlook this idea. Similarly, much of theso-called “politics of difference” or “multicultural” literature tends to focusexcessively on group-differentiated rights and to overlook the question ofdomination of vulnerable parties within groups.

In the case of Islam and the hijab in an Irish context, the mistake would beto take the choice to wear hijab as an undominated one for all Muslim womensimply because the Irish Hijab Campaign (say) or other prominent Islamicgroups argue that it is. Frank Lovett regards this kind of confusion as a “clearexample of the fallacy of composition.”79 Lovett’s contribution to the debateseeks to clarify the important conceptual distinctions that often get lost in anydebate about an idea as fuzzy as “culture” and suggests that any good analysisof these kinds of challenges will “keep the set of voluntary participants in asocial practice conceptually distinct from the set of persons affected by it.”80 Heoffers the example of home schooling practices of religious fundamentalistssuggesting that while young children in these situations “certainly are affectedby these practices, and might even be described as participants, they are not


76. John Stuart Mill, On Liberty, in Collected Works of John Stuart Mill, Robson ed (University

of Toronto Press, 1977 [1859]), at 260–275.

77. Cass Sunstein, The Partial Constitution (Harvard University Press 1993), at chapter 3.

78. John Elster, Sour Grapes: Studies in the Subversion of Rationality (Cambridge University

Press, 1983); Martha Nussbaum, “Adaptive Preferences and Women’s Options” (2001) 17

Economics and Philosophy 67.

79. Frank Lovett, “Cultural Accommodation and Domination” (2010) Political Theory

(forthcoming), at 6 of original paper.

80. Ibid, at 5–6 of original paper.

voluntary participants merely because they happen to share in the culture oftheir parents.”81 It is significant, incidentally, that the Irish debate – so far as ithas taken place at all – has not been concerned with this question. Though thisconcern may lurk somewhere in the background, in practice the debate hasscarcely ventured beyond arguments about contraventions of school uniformpolicy. By contrast, the controversy in France has very much incorporated thisquestion and so I turn to it in this section.82

There are many complicated but salient features of the history of Frenchchurch/state relations and republican thought that bear very heavily on thecontemporary French view of the hijab and the 2004 ban that go beyond thescope of this article.83 Laborde suggests, for instance, that at the height oftensions between the French state and the Church in the early twentieth century,the veiled Catholic nun was perceived as the “antithesis of the republic…theanti-Marianne” whose “irrational religiosity and forced confinement ostensiblysymbolised rejection of the republican ideal of secular progress, femaleautonomy, and rationality.”84 One strand of thought – which I focus on more orless to the exclusion of other important elements – is that the appropriate rolefor education within the French republican state is to emancipate children fromthe influence of their particular cultural and religious backgrounds in order todevelop the capacity for autonomous preference-formation and decision-making. In the tradition, according to Jeremy Jennings:

[I]t is [in the school] that, leaving behind the dogmas and traditionalismsof family, regional and religious life, the individual, divested of irrationalprejudice, enters the world of progress, justice, tolerance and liberty.Here, in the form of an extraordinary pedagogical optimism, we again seethe impact of Enlightenment patterns of thought upon republicanuniversalism. Indifference to the past, its customs, its languages as wellas (most obviously) the dark forces of religious ignorance was combinedwith a faith in the almost limitless potential of education to create newenlightened and reasonable human beings.85

This idea that a citizen in thrall to God trades reason for faith – at least to someextent – is a familiar one. It is captured, for example, by Patrick Kavanagh inhis exquisite Advent where he hopes that penance will


81. Ibid, at 6 of original paper. Emphasis original.

82. In doing so, I acknowledge a debt to Cecile Laborde and her 2008 book Critical

Republicanism: The Hijab Controversy and Political Philosophy. See Laborde, note 42.

83. Supra, at 4, where I refer to a distinction between what might be thought of as an

Italian/Atlantic republican tradition and a Franco/Germanic republican tradition.

84. Laborde, note 42, at 112.

85. Jeremy Jennings, “Two Philosophers of the French Republic: Charles Renouvier and Jules

Barni” in Honohan and Jennings eds, note 9, at 55. Brackets in original.

… charm back the luxury of a child’s soul …Won’t we be rich, my love and I, andGod, we shall not ask for reason’s payment …86

A citizen who prioritises religious faith over reason is rejecting her capacity toscrutinise ideas and to exercise rational control, or so the argument goes. Thereis a quite fascinating passage in Pettit’s preface in Republicanism, incidentally,that hints at a view that deep religious commitment is at odds with virtuousrepublican citizenship, though it is safe to argue that this view is by no meansa necessary element of neo-republicanism.87

In any event, proponents of the French ban argue that in Islamiccommunities the hijab is “deliberately used as a powerful marker of vitalseparations: between the sacred and the profane, intimacy and visibility, menand women, husbands and other men, and faithful and ‘fallen’ women.”88 In theend, on this understanding, its purpose is to solidly carve out certain spheres asout-of-bounds for women and to protect politics, the workplace – evenanywhere outside of the family home – as the preserve of men. This analysis ofthe headscarf and its meaning shifts the dynamic of the argument markedly. Ifthe thrust of the analysis is accurate, the concentration of arbitrary power in thehands of schools seems quite trivial by comparison and the case for a ban inschools – at the very least – seems strong. But, of course, the rhetoric is emotiveand it is by no means settled that this is the meaning of the hijab. In any event,even if the ban might seem appealing against this backdrop, it runs afoul of twodifferent but related problems for proponents of freedom as non-domination.First, a prohibition in schools on the grounds of autonomy unashamedlyendorses a particular vision of an excellent or flourishing life – a life ofautonomy where autonomy is understood as consisting in emancipation from


86. Patrick Kavanagh, Collected Poems from Antoinette Quinn ed, Collected Poems (Penguin,

2005). For an interesting perspective on the faith-reason nexus in Catholicism, see Patrick

Hannon, Church, State, Morality and Law (Gill and MacMillan, 1992).

87. I refer to the following reflection by Pettit: “The idea of freedom immediately caught my

imagination. Perhaps that was because it made sense of my experience when, intending to be

a priest, I had spent years in establishments that I learned later to describe … as total

institutions. While such schools and seminaries offered wonderful opportunities for study

and comradeship, they certainly did not teach us to look authorities in the eye, confident of

knowing where we stood and of not being subject to capricious judgement. On the contrary,

they communicated a sense of systematic vulnerability and exposure to the governing will,

sometimes even making a virtue of the practice. I had come to rail against the subordination

inherent in such training, and the notion of freedom as non-domination offered a satisfactory

way of explaining what was wrong with it. Our formation had tried to cultivate unfreedom;

it was designed to make students passive, unassertive, unsure of where they stood.” This

reflection by Pettit pertains more specifically to a particular experience in a religious

institution rather than to deep religious commitment as such; nonetheless there is an

implication, arguably, that deep religious commitment engenders passivity and unassertive -

ness and that it undermines the capacity for contestation, which is so fundamental for non-

arbitrariness in a republican polity.

88. Laborde, note 42 at 114.

faith (or unreason) and so breaches Rawlsian anti-perfectionist liberalism.89 Theproblem, as Jennings suggests, is that “such a rationalist universalism could beeasily transposed into a virulent and intransigent form of anti-clericalismcharacterised by a desire to impose a single pattern of belief upon society as awhole.”90 Second, while it may take dominium very seriously, it invests all inthe hands of the state such that imperium becomes the problem, in keeping,arguably, with the distinctive French republican tradition.91 Both difficultiespoint to shortcomings in assimilation as a policy, especially in a world wherecultural homogeneity within states is in marked decline.

These difficulties pre-empt others offered by Laborde, some of which areespecially telling. For example, this position assumes a great deal in terms ofwhat is and is not conformity in French life. To wear hijab is conformity in spiteof the widely held view in French life that it is anti-republican, subordinatingand conformist. On many counts, such a stance is remarkably independent-minded. Also, there is an eerie colonial analogy. Laborde refers to the so-called“battle of the veil” in Algiers in 1958 where French soldiers on a “civilisingmission” openly and violently took off veils, an act which was interpreted byAlgerians as figurative rape.

Are you somebody?

Perhaps most interestingly of all, Laborde points to the profound rethinking ofsome of the foundationalist enlightenment ideals in the twentieth century whichtend to reveal the philosophical undergirding of the laïciste case of emancipatingeducation as simplistic or even – harking back to Jennings’s “extraordinarypedagogical optimism” – naïve.92 Following the likes of Foucault (or even


89. Rawls, Political Liberalism (Columbia University Press, 1993). The question of whether

Pettit’s non-domination is fully at one with Rawlsian liberalism is far from settled and will

undoubtedly continue to be the subject of considerable scholarly debate. See, for example,

John Maynor, note 9, at chapters 3 and 4.

90. Jennings, note 85, at 55.

91. In an article published in this volume, Eoin Daly argues that the normative goal of secularism

is fundamentally misconceived in the 2004 law banning conspicuous religious insignia in

schools (and in much of the European Court of Human Rights jurisprudence dealing with

restrictions on religious insignia in the public sphere). The idea of secularism is understood

in these instances as a substantive value or end in itself rather than as a means of protecting

individual liberty (ie liberty of conscience or religious liberty). Daly argues for a return to a

“rights-based rationale” for secularism, where it is pursued with the aim of protecting liberty

of conscience. He suggests that “justifications for restrictions on religious manifestations

have … spilled over from a procedural commitment to the autonomy of individual

conscience, or the freedom of individuals to choose their own ends – to a substantive

commitment to certain progressivist or emancipatory goals assumed as common to all

members of the community – that is, to a comprehensive conception of the ‘good’ rather than

of the ‘right’.” See Eoin Daly, “Restrictions on Religious Dress in French Republican

Thought: Returning the Secularist Justification to a Rights-Based Rationale” (2009) 31

Dublin University Law Journal 154, at 166.


Rawls, again, and his retreat from “comprehensive” or “perfectionist” visionsof the good) and building on the critical philosophy of Nietzsche, Heideggerand others, late twentieth century thought began to question the enlightenmentclaim that the emancipated individual is capable of thinking in a vacuum suchthat her choices could truly be considered fresh from unjust power dynamicsand background conditions. In short, the idea that there is a zone within whichcitizens can form free-standing or fully-detached autonomous preferences is amyth and even in itself a “discourse of power.”93 So if the enlightenment visionsubscribed to by proponents of the hijab ban is discredited, where can we turnfor inspiration? If pure autonomy is unobtainable, what is the alternative?Laborde suggests that the choice to wear hijab might be thought of as“represent[ing] not a traditional backlash, but a complex postmodern identityclaim; not communal oppression, but individual authenticity; not patriarchalpower, but female agency.”94

This notion of agency envisages selfhood as emerging from a process of“reflective reappropriation of the tension between institutionally defined socialroles and self-generated, authentic cultural and personal identities.”95 On thisunderstanding, contemporary young-European Muslim identity could bethought of as an assertion of active post-modern agency where the agentconstructs her selfhood against the backdrop of the “plurality of incommensurable,fragmented and disconnected cultural and social orders into which she isimmersed.”96 Like anyone else, young European Muslim women formpreferences within the dynamics of existing distributions and existing powerstructures where such existing structures are understood as creative just as theyare (inevitably) oppressive. That is, these young women reflect on andreconsider distributions as they find them, reject some, rethink others and in theend, express a sense of selfhood. They walk unafraid and assert the claim: “Iam somebody.”97 In any such process, an agent might consider her choices inthe light of her deepest commitments like loyalty to her community as well asof pride in the dynamism and importance of her own generation. She mightconsider the legacy she wishes to leave for her own children. It is plausible, forexample, that a factor like the appalling treatment handed out to Algerianwomen by French soldiers alluded to earlier might be relevant to some young21st century French Islamic women. Equally it is plausible that others mightreject the hijab out of empathy for women suffering oppressive forced veilingin Saudi Arabia and elsewhere. In this way, young European Muslims – just likeyoung European non-Muslims – are dynamic forces within their communities,


93. Ibid.

94. Ibid, at 140.

95. Ibid, at 137.

96. Ibid, at 137–138.

97. Recalling the poem “I am – Somebody,” read by Jesse Jackson during his address at an

Operation Breadbasket Rally, Chicago, 1972. See William Serrin, “Race and Rights: July 9,

1972, Chicago; Jesse Jackson: I Am … Somebody” The New York Times, 14 April 1996.

taking ownership of their religion and culture and identity – modernising it anddriving it in new directions.

So if we consider Lovett’s point about the fallacy of composition, isdomination of hijab-wearing school-going young citizens in Islamic communitiessuch that the state should prohibit the wearing of hijab in Irish schools? Evenleaving aside the many other considerations as I have in this article, thecomplexity of the question should be obvious. Many factors at play in theFrench case are absent in the Irish case. The Irish state is not dealing witherstwhile colonial subjects. Neither is the Irish state dealing with a compara -tively large ethnic group utterly cast off – economically, politically, socially –from the broader community; a fact that if anything deepens the risks (inFrance) of in-group domination. There can be no doubt that within someIslamic families across Ireland, the intimidation alluded to earlier goes on andfor many people both within and outside of Islam the hijab is intended assubordinating women into inferior roles as well as boosting the egos ofalienated and frustrated men. But while that may be one meaning, it is by nomeans the meaning. My picture of Laborde’s take on the headscarf as anexpression of post-modern agency may give the impression of a somewhatidealised account.98 But it points to respect for difference and to appreciation ofthe personhood of women within an ethnic group widely misunderstood inWestern societies. It also points to the need for the dominant cultural and socialgroups within Western societies to become aware of a tendency wherebyMuslim groups are “externally defined and ethnicized by the gaze of others.”99

It suggests a status for the young European Islamic woman where she can speakas a person who asserts: I am somebody with “a voice that cannot be ignoredwithout independent reason [who] speaks with [at least] enough authority fordiscord with [my] voice to give others reason to pause and think.”100

VI. CONCLUSION

In considering the question about the appropriateness of a ban in the context ofthe balance between inter and intra cultural domination, I want to brieflycanvass three other points. First, if we are interested in maximising non-domination, as any Pettitean republican is, that implies the goal of increasingnon-domination over time. As Lovett suggests, it is plausible that a ban on aparticular social practice in the interests of protecting vulnerable citizens within


98. In Chapter 7 of her book, Laborde deals with qualms she has about the idea of postmodern

agency. Ultimately her opposition to the headscarf ban is grounded more on a kind of

epistemological uncertainty. The headscarf may be empowering for Muslim women and it

may be oppressive, or it may be something in between. In this context, banning it is difficult

to justify. See Laborde, note 42, at 149–172.

99. Ibid, at 138.


non-mainstream groups might have the effect over time of intensifying thatdomination for those citizens. The danger is that “in response to perceivedhostility from the imposing authority … the members of the relevant groupmight strengthen their commitment to their internal practices, so as to defendtheir sense of shared identity.”101 The implication is that turning a blind eye tosome cultural practices that cause domination of vulnerable members of non-mainstream groups in the short term might pay off in terms of increasing non-domination within those groups over the longer term. Hence, while I (tentatively)reject the claim that the hijab causes domination of young Islamic women, anargument could be made even if it did, that a ban in schools would be counter-productive to the goal of maximising non-domination in the longer term.

Second, if freedom as non-domination really is the goal and the autonomy-infringing effects of submission to religion is really the concern then it is quitea remarkable thing to argue for exclusion of the very students who, by thatmeasure, are most in need of (autonomy-promoting) education. Quiteobviously, some students who would otherwise wear hijab to school will simplyreturn to school without the hijab after a ban. But equally, others will retreat andseek other ways to meet compulsory-education requirements, including Islamicprivate schools, where, if the laïciste intuitions are right, they will have evenless chance of becoming free citizens.102 Others will simply drop out and driftaway from education.

Third, as Iseult Honohan suggests (pointing to social-psychologicalresearch to support her claims103), fostering mutual trust, solidarity andrecognition of interdependence amongst different cultural groups is onlypossible where contact between members of those different groups happens onthe basis of equal status.104 This is hardly facilitated through an educationsystem where entry or membership for one group of students is contingent oncompromises that no other group of students must make – or at least where thatwould seem the case from the real-world perspective of that group of students.In other words, a hijab ban communicates a powerful message to young Islamicstudents at a pivotal age that they must pay a certain (heavy) price for entry ormembership of society where no other group seems to be paying any price.Bearing in mind our stated interest in meaningful intercultural dialogue basedon mutual trust and understanding, any move that promotes this communicativeeffect seems counter-productive such that the state must show at least a strongcompelling interest. Any such compelling interest seems absent in Ireland giventhe lack of any hijab ban in schools presently.

The more discrete consideration in the article however, has been thequestion of the dominating effect of the exemption from the Equal Status Acts


101. Lovett, note 79, at 23 of original paper.


103. Thomas Pettigrew, “Intergroup Contact Theory” (1998) 49 Annual Review of Psychology

65.

104. Honohan, note 11, at 209.

2000–2004 allowing schools to discriminate against students from groups otherthan the particular religious ethos of the school. In light of the extent of Catholicpatronage of schools in Ireland, this exemption engenders domination of non-Catholic families in communities all across the state. The problem is all themore acute in the context of greater religious diversity in Irish life as well as thegreater number of non-religious citizens. The local school ultimately holds whatamounts to unchecked power over the fate of non-Catholic families in a mannerstrikingly at odds with the republican account of freedom. Even in the absenceof actual interference; the absence, that is, of exclusion of non-Catholics fromCatholic schools, the freedom of citizens in our Republic is violated, where thatfreedom is conceived of in republican terms.


\"Domination and the hijab in Irish schools\" (2009) 31 Dublin University Law Journal 127

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