By Katrina Howard (2012)
Following the dissolution of the French Catholic monarchy in the French Revolution of 1789, liberty, equality and fraternity were adopted as the ‘maxim’ (Conseil Constitutionnel, 2012a) of the new Republic and have contributed towards the shaping of laïcité, which defines French identity today (Laborde, 2001). To ensure that the state was the first allegiance of French citizens, restrictions between the church and the state were enforced through the introduction of secularization under the ‘Third Republic’ and later, under the ‘Fifth Republic’ in 1958 (Berkley Center, 2012). Secularisation was exacerbated when Law 2004-228, hereby referred to as the 2004 law, was passed on 15 March 2004 by Jacques Chirac, which prohibited the wearing of conspicuous religious symbols in French public schools. Not only did this spark significant controversy within France, but it also reignited longstanding debates concerning the interaction of the state and religion worldwide.
In this essay, the core French republican values and the associated concept of laïcité will firstly be explored so as to establish a conceptual basis for analysis. The context surrounding the 2004 law will then be analysed, before the opposing arguments will be presented in order to discern if the law is compatible with core French Republican values. It will be advanced that whilst it may appear that the 2004 law restricts certain freedoms, when viewed in the specific context of France, the law is compatible with the French concept of laïcité and the core values of the French Republic.
Core French Republican Values and Laïcité
According to Amélie Barras, laïcité is a ‘social construction’ (Barras, 2010: 232) that has evolved out of the necessity to protect the core values of the French Republic: liberty, equality and fraternity, through ‘public neutrality’ (Laborde, 2001: 720) towards religion. The three core values are entrenched in the French Constitution of 1958 (Conseil Constitutionnel, 2012a) and have their foundation in the ‘Declaration of the Rights of Man’ (Conseil Constitutionnel, 2012) of 1789.
Article 4 of the Declaration of the Rights of Man describes liberty as ‘being able to do anything that does not harm others’ (Conseil Constitutionnel, 2012). In this case, liberty is understood to mean freedom from intervention, for example, rather than freedom to do something. Equality is described as being ‘the same for all, whether it protects or punishes’ (Conseil Constitutionnel, 2012). It refers to equality under the law and not equality of property, for example, thus allowing for individual difference to exist in French society. Fraternity is not directly referred to in the Declaration but is understood to refer to community spirit and national unity.
The three core values of the French Republic are primarily protected by laïcité, an ethical and a legal concept that is regulated by the Conseil d’Etat, the ‘highest court in France’ (Barras, 2010: 230). The Conseil d’Etat has regulated the separation of the church and the state since 1905 (Berkley Center, 2012). Laïcité can be separated into two pillars, ‘freedom of conscience and the principal of separation’ (Barras, 2010: 232); freedom of conscience enables freedom of religion, whilst the principle of separation separates the church and the state. As a result, the French government is compelled to employ ‘state neutrality towards matters of belief’ (Baggini, 2006: 205), is not allowed to collect data on people’s religious affiliations’ (Baggini, 2006: 205) and must advance policy based not on ‘origin, race or religion’ (Conseil Constitutionnel, 2012a: 4), but on the shared values and principles of the French Republic.
Recently, laïcité has taken on ‘a more extensive meaning’ (Laborde, 2001: 720) in the understanding that the ‘separation between public and private is indispensable both to the protection of individual rights and to the exercise of public reason’ (Laborde, 2001: 720). It is on this basis that the French Government has felt compelled to intervene in religious matters through the removal of religious symbols from the ‘public sphere’ (Barras, 2010: 232), in this case public schools, so as to protect the separation between politics and religion.
The 2004 law
The results presented by the Stasi Report ‘on 11 December 2003’ (Akan, 2009: 237) concluded that the wearing of religious symbols by pupils in public schools was in contempt of laïcité. The ruling has brought France into line with countries such as Turkey, Germany and Kosovo who all have restrictions of varying degrees against the wearing of religious symbols in public places, in particular head scarves (Toksabay and Villelabeitia, 2010). Henceforth, the law was introduced in France at the start of the new school year on the 2nd September 2004 and prohibits the wearing of religious symbols in public schools such as ‘Muslim headscarves, Sikh turbans, Jewish skullcaps and large Christian crosses’ (Human Rights Watch, 2004). Schools are required by law to enforce the ban, however, this has caused significant difficulties in the maintenance of positive relations between pupils, their parents and teachers. For example, Raymond Scieux, a headmaster of a school near Paris, was required to mediate between teachers who supported the implementation of ‘a total ban of head coverings’ (Jones, 2005) and Muslim students who rejected it. A compromise was reached that allowed the students to wear a ‘discreet bandanna’ (Jones, 2005).
Contrary to popular belief, the law does not apply to private schools and a number of single-faith schools, mainly ‘Muslim high schools’ (Akan, 2009: 237), have been built so that students can elect to study religious subjects such as ‘Arabic, Islamic history and culture, and the Qur’an’ (Hanson, 2006: 146). Despite this, the ban has been met with claims of injustice, in particular from the North African Muslim community that number ‘five million, eight percent of the [French] population’ (Hanson, 2006: 145). The 2004 law provoked considerable violence in the international community, for instance, when Iraqi militants kidnapped and killed two French journalists ‘to protest the ban on head scarves’ (Hanson, 2006: 146).
Incompatibility of the 2004 law with core French Republican Values
The 2004 law has been criticised by a number of international organisations such as the United Nations, the European Human Rights Commission as well as Jewish, Muslim, and Sikh organizations’ (Berkely Center, 2012). In this section, the arguments that claim that the 2004 law is incompatible with core French Republic values will be examined.
Firstly, the French Republican value of fraternity, which refers to the shared identity and universal values of French citizens, is challenged. It is argued that simply by wearing a religious symbol, one does not become less committed to the core French Republican values and therefore less cohesive with the French identity. The 2004 law causes resentment between different religious groups who may be pressured to revert further into their private communities, for example a Muslim schoolgirl may choose to attend a Muslim high school where she is allowed to practice their religion openly, rather than engaging in the public sphere; a space in which fraternity can be positively reinforced.
It is still possible for a national identity to exist with a variety of different cultures in its make-up, and by allowing religious symbols, it would demonstrate ‘respect for religious diversity, a position fully consistent with maintaining the strict separation of public institutions’ (Human Rights Watch, 2004). By allowing religious symbols in state schools, a ‘publican similar’ (Laborde, 2001: 719) could still be achieved, if not through a visible uniformity, but through the context of a shared French identity in which multiculturalism can flourish and unite French citizens regardless of their background.
Secondly, it can be argued that the 2004 law is incompatible with the value of equality because it is ‘discriminatory’ (Hanson, 2006: 146). Criticisms were voiced by ‘the (Catholic, Orthodox and Protestant) Council of Christian Churches’ (Hanson, 2006: 146), ‘the Sikh community’ (Hanson, 2006: 146), and also leaders of the Muslim community. The leader of the French Council of the Muslim Faith, Mohammed Moussaoui, claims that the ban disproportionately discriminates against Muslim women who wear a headscarf (Berkely Center, 2012) so much so that the 2004 law has become popularly referred to by foreign media as “the headscarf ban”. A report by Human Rights Watch argues that not only does the ban disproportionately discriminate against Muslim women, but that it also violates ‘international human rights law as well as the right to equal educational opportunity’ (Human Rights Watch, 2004).
Evidence of inequalities created by the 2004 law can be found in the cases of Muslim schoolgirls who have been expelled from school for continuing to wear a headscarf (BBC,2004b). Girls who wish to continue wearing headscarves to school have been forced to stop attending altogether or move to a private Muslim school and in one instance, a young girl shaved her hair off in protest so that she would not defy the teachings of the Muslim faith (BBC, 2004a). Baggini argues that the banning of religious expression, and in particular religious symbols in society, has caused people to ‘feel their beliefs are not being granted the respect that they deserve’ (2006: 209). It has heightened sentiments within the Muslim community that they are not treated equally to citizens of other religions in European countries.
Thirdly, it is claimed that the 2004 law is incompatible with the French value of liberty because it violates ‘rights to freedom of religion and expression’ (Human Rights Watch, 2004). Whilst in religions such as Christianity where wearing a religious symbol is not obligatory, ‘for many Muslims, wearing a headscarf is not only about religious expression, it is about religious obligation’ (Human Rights Watch, 2004). By depriving Muslims from wearing a headscarf, it reduces their ‘active citizenship rights’ (Barras, 2010: 231) because the French state is restricting their freedom of dress, and thus their right to education once they are expelled. Rosello advances that a compromise should have been met between teachers and students that could have developed a way in which the concept of laïcité could be advanced in education whilst maintaining the student’s liberty to religious expression (Rosello, 2007: 164).
Compatibility of the 2004 law with core French Republican Values
Despite the 2004 law being taken before the European Court of Human Rights, it was found to be constitutionally sound. The main reasons that were given for the advancement of the 2004 law related to the longevity of the French concept of laïcité, which is primarily reinforced through education in France’s state schools.
Firstly, it is advanced that the allowance of religious displays in public schools would ‘undermine the civic sense of fraternité’ (Laborde, 2001: 719). This is because the French interpretation of fraternity requires an absence of strong physical differentiation between French citizens in order to create a ‘publican similar’ (Laborde, 2001: 719). It is thought that by willingly adopting a public uniformity, the individual can be ‘an active member in a self-determining political community’ (Laborde, 2001: 719), thus reaffirming the compatibility of the 2004 law with the value of fraternity which encourages this.
According to the Stasi report (Akan, 2009: 238), the 2004 law was necessary to encourage fraternity in France and protect laïcité from a ‘change in historical circumstances, namely, the increased cultural diversity of France’ (Akan, 2009: 239). In essence, it is suggested that there existed a fear that French culture was becoming ‘diluted’ (Barras, 2010: 231) due to the high influx of North African immigrants. Similarly, the French Prime Minister at the time, Jean-Pierre Raffarin, argued that the 2004 law was necessary because religious symbols, and the headscarf in particular, were ‘taking on a political meaning’ (Hanson, 2006: 146) which was unacceptable in France’s secular society.
Secondly, the 2004 law is arguably compatible with the French Republican value of equality because the banning of religious symbols encourages equal treatment of all French citizens (Laborde, 2001: 719). In support of this view, Laborde identifies a passage in the Declaration of the Rights of Man of 1789 that states that French citizens should be respected ‘sans distinction d’origine, de race ou religion’ (Laborde, 2001: 719). As an instrument of the French constitution, the state is required to introduce policy that encourages equal rights for all; ‘state policies should aim at the reduction of structural inequalities’ (Laborde, 2001: 719) and so the 2004 law aids in the achievement of this.
Several prominent Muslim leaders have voiced their support for the 2004 law, including Dalil Boubakeur, the rector of the Great Mosque of Paris (Berkely Center, 2012). Following the passage of the bill Boubakeur stated, ‘Islam, in the West, must adapt its faithful’ (Berkely Center, 2012). This is understood to mean that in order for the French Republican value of equality to be upheld, individuals from all faiths should comply with the customs of the culture in which they have entered into, so as to be considered and treated as equal citizens.
Thirdly, the 2004 law is compatible with the French Republican value of liberty because the banning of religious expression in schools is not seen as an absence of liberty, but as the giving of liberty so that children can function freely from the restraints of religious teaching. According to Laborde, state schools are not required to respect ‘the ethnic, social, or cultural differences’ (Laborde, 2001: 719) of school children but conversely to encourage them to be ‘autonomous human beings’ (Laborde, 2001: 719) that are able to function independently of their cultural background. This aims to ensure that French children from all religions develop ‘critical skills essential to exercise the rights associated with liberty as autonomy’ (Laborde, 2001: 718). In order to be truly liberated, then one must free themselves in the public sphere of their private attachments.
Whilst this protects schoolchildren from religious influence, it also enables laïcité to be protected. Rosello argues that ‘what happens in schools not only reflects, but also affects the way in which laïcité is defined, applied or transmitted as knowledge’ (Rosello, 2007: 153). In this sense, it is important to the French culture and its values that the public sphere, and particularly the young French generation, is aware of the importance of laïcité so that it can be upheld in the future.
Former President of France, Nicolas Sarkozy, viewed the 2004 law in terms of rights and duties, a concept of citizenship that is advanced by Jean-Jacques Rousseau in ‘The Social Contract’ (Rousseau, 1968). He argues that ‘there are no rights without duties, and if the Muslims of France have the same rights as other believers, they have the same duties’ (Sarkozy, 2003). France’s tradition as a secular state therefore gives it the right to advance secular policies; the 2004 law applies equally across all religions and is not advertently discriminatory against any one religion in particular.
In conclusion, this essay has explored the 2004 law that prohibits the wearing of religious symbols in schools. It has attempted to discern the laws compatibility with the French Republican values of liberty, equality and fraternity and its fourth value, laïcité. An initial investigation into these values revealed that the French state practices ‘assertive secularism’ (Kuru, 2007: 568) in which religion is actively restricted from the public sphere through the implementation of policy.
The main arguments for advancing the incompatibility of the 2004 law with the core Republican values are that the banning of religious symbols in schools does not create an accepting attitude towards different religions, which can undermine fraternity. Furthermore, the 2004 law is arguably discriminatory, in particular against the Muslim faith that constitutes France’s largest religious minority, which is incompatible with the value of equality. The value of liberty is arguably not complied with because the 2004 law restricts freedom of religion and expression, freedom of dress and rights to education.
On the other hand, the main arguments for advancing the compatibility of the 2004 law with the core Republican values are that the banning of religious symbols in schools achieves a public uniformity as required by fraternity. Importantly, it also reinforces the concept of laïcité, which is introduced to French children through education. It encourages the equal treatment of children at school regardless of their religion and it does not take away liberty, but rather empowers children with the freedom to learn in schools without any religious constraints or influence from their cultural backgrounds.
The arguments that promote the compatibility of the 2004 law with the core French Republican values are found to be the most convincing on the basis that the 2004 law is viewed in the specific French context. This view is based on the understanding that laïcité exists to protect the core values and preserve France’s secular culture and is underpinned by the French Constitution of 1958 and the Declaration of the Rights of Man. By understanding their origins, it has been possible to discern that the 2004 law was not an act of discrimination spurred on by contemporary events, but a ruling that derived from a history of philosophical thinking concerning the separation of religion and politics in the creation of a new Republic.
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