The Positions Inside the Tradition, and the Law Outside It

Two different arguments run about the hijab simultaneously, and they are not the same argument. One is theological and internal to Islam. The other is legal and mostly conducted by states. Conflating them produces most of the bad writing on the subject.

Inside the tradition

The textual basis is Quran 24:31, instructing believing women to draw their coverings over their bosoms, and 33:59, on outer garments. Neither passage is self-interpreting, and the tradition's reading of them draws on hadith and on the practice of the early community.

• The great majority of classical jurists, across all four Sunni schools and in Shia jurisprudence, hold that covering the hair is obligatory for adult women. This is the mainstream position by a very wide margin and it has been for most of Islamic history.
• A minority of modern scholars, among them Muhammad Sa'id al-Ashmawi and Khaled Abou El Fadl, argue that the injunction responded to specific seventh-century conditions and does not carry the force of a perpetual requirement.
• Among Muslim women writing about it, positions run the full range and do not sort neatly. Some describe covering as a refusal of a market that appraises women by appearance, and wear it as an assertion rather than a submission. Some describe it as a patriarchal imposition dressed in scripture. Many wear it because their mother did, or because their community does, and find both framings foreign to their experience.

Outside it

The legal picture is a patchwork, and the two directions of compulsion should be distinguished because they have different victims and the same logic.

• France prohibited conspicuous religious symbols in state schools in 2004, and banned face coverings in public in 2010. Belgium followed on face covering in 2011, and Austria, Denmark, the Netherlands and Bulgaria have variants. The face-covering laws reach the niqab and burqa; the school law reaches the headscarf.
• The European Court of Human Rights upheld the French face-covering ban in S.A.S. v. France in 2014, accepting the government's argument about the minimum requirements of living together.
• The UN Human Rights Committee reached the opposite conclusion on the same kind of law in 2018, finding that it violated freedom of religion and disproportionately harmed the women it claimed to protect.
• Turkey enforced a headscarf ban in universities and public employment for decades and repealed it in stages from 2008.
• Iran compels covering by law. Enforcement has been violent, opposition has been sustained, and the death in custody of Mahsa Amini in 2022 produced the largest protests in the country in years.
• India's Karnataka classroom dispute produced a split Supreme Court decision in 2022 and is unresolved.

The pattern is that states on both sides claim to be liberating women, and both are legislating what a woman may wear. Whether either is entitled to is the question the litigation keeps returning to, and it has not been answered the same way twice.