The Banning of the Niqab in France: Legal and Cultural Perspectives

A woman wearing the niqab (photo by Reuters, published on Le Monde.fr)

Yesterday, the French lower-house of the Parliament, l’Assemblée Nationale, voted in favor of a bill banning the full-face Islamic veil, also known as the niqab and to a certain extent the burqa (even though no “burqa” has ever been reported to be seen in Europe – see pictures in this article), after months of debate in France and much criticism from abroad. The bill, which was approved by the National Assembly 335 to 1, will not yet be signed into law, as it is due to be voted in the upper house, the Senate, only in September. However, there is little risk that the Senate will not vote for it in turn.

For many people from outside of France, and in particular in what the French like to call “the Anglo-Saxon” world, the move to ban the niqab is an intolerable infringement on freedom of religion and individual rights, and should put the country that self-proclaimed itself the Nation of Human Rights (“La Patrie des Droits de l’Homme“) to shame. I should add that such concerns are also shared by some people within France, and many critics who consider that the French government should have better things to do than generate debates and promote laws on a practice that only concerns approximatively 1,900 women.

I think this requires a more thoughtful, and informed approach. Before I begin my presentation, I would like to say two things to set the foundations of this post: first of all, I will admit that, as a staunch supporter of laïcité (I’ll explain in a moment), I am favorable to the ban. I am telling you this out of honesty. However, my purpose here is neither to present a pro-ban vision of the recent vote, nor to convince you that I am right and you are wrong (assuming you are against the ban). What I want to do in this entry is present cultural and legal elements that will probably not convince you that the French National Assembly is right to ban the burqa, but that at least help you understand part of the reasons of why a ban was considered in the first place.

By doing so, I do not wish to deny the existence of racism, islamophobia or other forms of bigotry that can certainly be found in certain supporters of the ban. But I want to highlight other cultural issues, far more essential, and far more widespread, about the French and the reasons behind the bill that was just voted by the National Assembly.

Laïcité. You’re going to see this word a lot in this post, and I’m not translating it, because it is untranslatable. If you look it up in a dictionary, you will probably read “secularism”. That is true, but it’s more than that: laïcité in fact refers both to the 1905 law concerning the separation of the State and the Churches, and a secular way of life, which is in French culture a very important societal value.

From a purely legal perspective, laïcité only applies to the State. Article 1 of the 1958 Constitution of the Fifth Republic states that “France is a indivisible, laïque, democratic and social Republic. She ensures equality before the law of all citizens with no distinction of origin, race or religion. She respects every beliefs.” (translation is mine). According to eminent French legal scholar Patrick Weil, three principles results from laïcité: freedom of conscience, separation of State and Churches, and an equal respect of all faiths and beliefs (Patrick Weil, ‘Why the French Laïcité is Liberal’ (2008-2009) 30 Condozo L. Rev. 2699).

Two comments can be made from Patrick Weil’s three principles: first of all, each of them applies to the State, and not to individuals as such. Second of all, they – especially the first and third one – make the ban on the niqab look unconstitutional, as it violates freedom of conscience (assuming that those who wear it consider it a religious obligation) and appear to be discriminatory against a minority, which is contrary to the “equal respect of all faiths and beliefs” prescribed by the Constitution. I’ll get back to that later.

But an essential thing to understand about laïcité is that it is precisely more than just a legal norm: it is a societal value. The French, who have known in their history many religious conflicts, and who adhere to a vision of a “neutral” citizenship, have transformed laïcité from a norm that applies to their government to a way of life, a societal compromise to guarantee a form of equality among citizens. In the words of Jessica Fourneret, “laïcité is a concept regarding the separation of Church and State, yet it is also a state of mind that incorporates a long history of cultural ideas” (Jessica Fourniret, ‘France: Banning Legal Pluralism by Passing a Law’ (2005 – 2006) 29 Hastings Int’l & Comp. L. Rev. 233, p. 235). The ideal of this deeply secular society is that everyone keeps their religion (or lack thereof) to themselves, so that everyone can feel comfortable in the public space.

It is a radically different way of seeing things from the American and British conception of freedom of religion.

Ordre Public. It is important to understand the culture in order to understand the motives behind the law. However, the law is based on a hierarchy of norms, and as we have seen, a ban on the niqab cannot be founded on laïcité, as laïcité as a norm only applies to the State, not to the individual. But French lawmakers have another basis for the ban: Ordre Public, which literally translates as “Public Order”, and is very close to the American legal notion of “Compelling State Interest”: an interest so strong that it justifies limits to liberty.

Liberty is not absolute. The 1789 Declaration of the Rights of Man and the Citizen defines liberty in its articles 4 and 5:

Article 4 – Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the rights of each man has no limits except those that secure the enjoyment of these same rights to the other members of society. These limits can be determined only by law.

Article 5 – The law has only the rights to forbid such actions as are injurious to society. Nothing can be forbidden that is not interdicted by the law, and no one can be constrained to do that which it does not order.

What is injurious to society is limited by public order. How does that work in the niqab ban: security and human dignity. I’ll talk about human dignity some other day, as it is of indirect concern for the law (but it is very interesting). Security’s the issue at hand concerning this bill, but Ordre Public is more than that: not unlike compelling State interests, it is often used as a trojan horse to justify imposing societal values on recalcitrant minorities. This is what is at hand here, as public order is the foundation of the bill banning the niqab.

Going more specific: The Bill Banning the Niqab. On Tuesday, the National Assembly voted the bill, to much media coverage. It’s a very short text composed of 7 articles, article 1 being the one of most interest:

Article 1: Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage.”

Translated, that gives “No one may, on public space, wear a garment destined to hide one’s face” (my translation)

Article 2 goes on to define public space as “public ways, spaces open to the public or affected to a public service”. You will note that the phrasing of the law is deliberately impersonal and vague, so as not to attract the ire of the Conseil Constitutionnel (France’s Constitutional Court), and perhaps more worryingly, the European Court of Human Rights.

Arguments behind this bill are several. On legal grounds, it is considered to be a matter of security: it is considered dangerous to tolerate individuals walking around in public spaces with absolutely no possibility of identifying them. Reports of criminals stealing from jewelery stores hiding behind a niqab have spawned in the French media, although the phenomenon remains largely marginal.

Issues also arise about human dignity, which I skipped over earlier. In France, since 1995 and a famous and controversial decision by the Conseil d’Etat (France’s highest administrative court – France has a dualist system, like most civil law system, which separates civil litigation and administrative litigation) Morsang-sur-Orge (I’ll have to write a post just on that one someday), it is considered possible that the State or the Judge imposes the notion of human dignity, sometimes against the will of the individual the State or the Judge seeks to protect. That notion, which generates very passionate debates among law students and lawyers in general, is also at the heart of the French ban.

More on cultural aspects. My post is starting to get a bit long, so I’m going to rush a bit the ending and eventually finish in the commentary if people are interested. Other cultural aspects to consider are the French model of integration, which really is not so much “integration” as it is “assimilation” of minorities into the culture. The model worked in the past well, as France, a land of many different groups and who has known several immigration waves has merged into one Nation. France is, in many ways much more a “melting pot” than America. America is more of a “salad bowl”: several communities, with their values and traditions, living side by side under the Flag – which is to take nothing out of the beauty of American society.

The wearing of the niqab is considered by the majority of the French as a refusal to integrate and meld into French society, which is why it gets such vehement reactions from the public and the politicians. It bothers the French that some of their fellow citizens would deliberately refuse to integrate in the society’s Republican values. This opens a whole debate about integration into France, and questions of racism, discrimination, and the overall growing sectorisation of our society. I do not want to get into that debate here and now, but it must be kept in mind that laïcité is an essential French value, and that those who refuse to adhere to it marginalize themselves from French society. Who’s to blame for that, or if the French should or should not tolerate such behavior, is a whole different debate.

A risky game, both legally and socially. The ban is a risk. Legally speaking, there is a chance that the French Constitutional Court or the European Court of Human Rights strike it down. Socially, there is a risk that an already stigmatized Muslim minority in France feels even more sidelined and unwelcome.

The problem at hand with the niqab ban is where do we, as societies, with our liberal values that we all hold dear, strike a balance between individual rights and societal values? Whether you like it or not, in most societies, you may not walk naked in the street (not that I’m comparing wearing a niqab to being naked). Liberty is defined by its limits. And it’s never easy fixing these limits.

Other nations are also considering a ban on the niqab, for their own reasons. For the French, it’s first and foremost about defending their values – the way we want to live together, in particular in a secular society where religion is kept private – when these values are being attacked like never before.

Does it infringe individual rights? Undeniably. Is it condonable? That’s up to you.

But for the majority of the French, is it worth the fight? Absolutely.

For another interesting post on France’s niqab ban and cultural aspects, see here.

Advertisements

, , , , , , ,

  1. #1 by Sherry on 15 July 2010 - 01:15

    Interesting! I was shocked when I read lower-house passed the bill, your post gave some reasons.
    But I still have a question about the balance between the individual rights and social values. what if you can not find the balance? As in this case, wearing Niqap is one of important obligations in their religion,especially in public place (as i know most Muslim girls don’t wear at home), but keeping religion private is French value. So where is the balance? Put it in another way, what if value and individual rights totally conflict?
    I think individual rights (liberty), you can say, is one of values, and there is a hierarchy of values. Now the problem is how you put these values into certain order? liberty comes first or Laïcité or so-called security of states? This is totally up to France. I don’t know and I will not judge. What I know and I am not happy about is that in China, liberty never comes first.

  2. #2 by Xavier Rauscher on 15 July 2010 - 08:30

    Well, you put your finger on one of the major problems every democratic society faces when passing a law that restricts liberty: where does one put the limit? There are some guaranteed individual rights of course, enshrined in documents like the European Convention on Human Rights or the International Covenant on Civil and Political Rights, but even those are not absolute. It is up to the lawmakers, and then the judges under their power of judicial review (which is strictly limited in France to the Constitutional Court), to fix the limits. That’s what the notions of Ordre Public and “Compelling State Interests” are for.
    The Americans have an interesting way of doing this: they have what the Supreme Court called “scrutiny test”. The more fundamental the liberty at stake, the higher is the scrutiny that the judge applies to the law that limits that liberty. In other words, depending on how the liberty in question is important, the judges will set the bar higher for the motives behind the law so that the law is constitutional (I hope I’m being clear).

    In any case, the answer is: there is no easy answer. In this case, France decided that their secular way of life was more important to them than the individual right to wear a niqab or a burqa. The wearing of a niqab clearly shocks French values of laïcité, of human dignity, and of open democracy: in the way the French perceive democracy, showing your face is important, as it is considered a show of respect and shows that you are part of the community.

    Is it criticizable? For those who don’t know the French way of thinking, sure, as I can read in the media day after day these past months.

    I would be very interested to see this go to the European Court of Human Rights in Strasbourg. With so many countries who are considering such a ban, even some members of the European Parliament, will the Court “dare” to strike down such a law?
    The suspense is unnerving…

  3. #3 by alexlobov on 19 July 2010 - 20:07

    I buy the security argument but I think its importance has been overstated, there are other ways to identify criminals and I haven’t heard of any massive crime sprees perpetrated by niqabis. I’d say the French parliament would have bigger security concerns to legislate against.

    The cultural argument I really don’t buy. I don’t believe in culture-based legislation and I don’t believe in the State attempting to dictate what a nation’s culture is or isn’t because it becomes difficult to draw a line. How do we decide that a niqab is culturally unacceptable in France but a hijab is culturally acceptable? What about mosques? What about Islam in general? I can appreciate that the niqab is much more confronting to people than the others but that should be no reason to define a national culture through law.

    The bottom line is that the niqab doesn’t hurt anyone and banning it is fundamentally illiberal. Suggesting that the niqab is somehow injurious to ‘greater French society’ because they have to look at it and they find it oh-so confronting is equivalent to an argument for the banning of Crocs because they’re injurious to my eyes (they really are bloody ugly) and tights being worn as pants for the same reasons.

    I think any cultural assessment of this legislation has to take into account the underlying patriarchal nature of a male-dominated government telling women what they can and can’t wear (so through the paradigm of gender politics) and also the underlying orientalist nature of a largely white European government/populace telling non-white non-European Muslims what they can and can’t wear (race politics).

    • #4 by Jillian C. York on 19 July 2010 - 20:17

      There’s not much that I could say that wouldn’t directly echo Alex’s comments above.

      I’m particularly interested, however, in why the niqaab is deemed unacceptably religious but hijab is acceptable. If I were the French government and I really wanted to uphold laïcité, I would ban hijab, kippahs, and crosses too.

      • #5 by alexlobov on 19 July 2010 - 20:24

        People I am deadly serious about this tights-as-pants ban. Aren’t the French meant to be fashionistas? How can they abide this anomaly?

  4. #6 by Xavier Rauscher on 19 July 2010 - 20:56

    I’m not too naive about the security argument. It’s not unfounded, but it’s not – as Alexander Lobov points out – a major issue either.

    I am in total disagreement with Mr. Lobov on the cultural argument, and I think many comparative lawyers would as well. I think it’s important to always analyze situations, and laws, within their cultural context in order to understand them, if not agree with them. Personally, as a European, I am in complete disagreement with the right to bear arms as guaranteed by the Second Amendment in the United States (not by the text of the amendment, but by its interpretation) but I have to at least understand the historical and cultural context in which that interpretation is given.

    I am also in complete disagreement about the “race politics” aspect that you mention, because I strongly believe that that is a strong Anglo-Saxon perspective that does not apply as such in French culture. Just try to say “politique liée à la race” (race politics) to a Frenchman (or woman, of course) and see his (or her) eyes bulge. Not that I’m denying the existence of racism in France or French politics, both conscious and unconscious: I’m just saying that the very concept of race politics is alien to French culture per se.

    The question that both Alexander Lobov and Jillian York raise in their comments that amounts to basically where do we set the limit on what is culturally and legally acceptable and what is not. Like I mentioned above, when it comes to setting limits on liberty, there is no easy answer! Every legislator has trouble fixing the bar of what is a tolerable limit on freedom and what is not! Like I said in my post, I don’t like comparing the burqa to walking naked in the street, but it does illustrate the point rather nicely. Why shouldn’t I claim a fundamental right to walk naked in the street? I’ll grant you it’s an ugly sight, but if the weather allows for it without risks to my health, why shouldn’t I? The ban on walking naked in the street is illiberal, because it limits my individual liberties. Does it make it wrong? Not necessarily.

    It’s important to note that for the vast majority of Islam scholars, the burqa is not a religious obligation. That being said, I won’t get too much into that, because it’s never easy to define what constitutes religion and what does not (just ask the US Supreme Court…).

    It is true that freedom of religion – whether in France or elsewhere – is a particularly sensible subject.

    More to the point on France: France has adopted a social model that has for a long time rested on the idea that religion was private, and was supposed to stay there in order to guarantee social peace and – incidently – freedom of religion. People raised in Anglo-Protestant countries often do not understand that, as countries like the UK or the US have opted for a far more liberal option which is to guarantee a quasi-absolute religious freedom. For them, banning the burqa is (as you show) as much an aberration as the Yoder decision – the US Supreme Court decision that allowed for families to homeschool their children out of religious convictions (in that case, an Amish community in Wisconsin) – in the US is for the Frenchman that I am! We’ve become more and more tolerant these past 20-30 years on religious symbols in public, but the burqa crosses for the vast French majority (and not just the “whites” – just writing this hurts my French instincts) a red line.
    It’s also important to know that France’s integration model is one that is more about assimilation, which happens in principle naturally, through education and marriage between immigrants and locals. It’s true that this assimilation model has become more and more clunky, through difficulties in the educational system, economical troubles, and also the rise of a more and more individualistic approach to identity that human rights tend to consecrate. We French have a good deal of thinking to do on the future of that model, but for having lived in the US and the UK, I certainly do not want us to look like them: a bunch of different communities living side by side but rarely interacting, a “salad bowl” of different cultures and values sharing territory, far more than a “melting pot”.

    To answer your question, Jillian, it’s undeniable that France is not the most religious-friendly country: we are the country of Voltaire, after all, and culturally tend to see religion as a potentially obscurantist and dangerous force that stands in the way of enlightenment and progress. However, we couldn’t just ban religion entirely from the public sphere: obviously that would be absolutist and truly intolerant, and contrary to other French principles. Laïcité is not an atheist doctrine either that we impose on everyone.

    Just like every society, we believe in conflicting principles, such as secularism and tolerance. And just like every society, we elect lawmakers to set the limit between such principles. Such limits generate much debate (as the Burqa ban shows), but they must be set. The reason why we ban the burqa but not the hijab or crosses or kippahs is because the former is considered as extremist and the latter as acceptably moderate.

    I’m sure you’ll ask: who sets the limit on what is acceptable or unacceptable? The answer is the same as earlier: the lawmakers who apply the will of the people, within the limits of international human rights law, which itself has to compose with the people’s will, even though in a more remote manner.

    I really want to stress that the issue we’re dealing with with the burqa ban is not that extraordinary. I think we can all agree that for a free and democratic society to function, liberty may not be absolute. Limits have to be set. These limits answer to cultural perspectives.

    In France, the burqa is considered to cross the limit. You don’t agree. Having been raised in the US and having recently studied in the UK, I understand your position perfectly. I’ve even written a whole essay comparing the French laïcité model and the United States Compelling State Interests doctrine. I think it’s important to acknowledge that not all societies, even democratic societies, set the limits the same way.

    And that among democrats, we can agree to disagree.

    Update: as for the tights as pants thingy, I can’t explain it. I’ve never really noticed it: is it that bad? Send me a picture!
    Oh and I forgot to mention a very important thing about the burqa and why it is deemed unacceptable. Not sure I mentioned it in my post either, it’s more of a latent thing. In French culture, it is considered important and fundamentally democratic to show your face on the public square. I can’t really explain it, it’s a French thing and is considered to be of the upmost importance in our “vivre ensemble”. It partly explains why the hijab is tolerated and not the niqab.

  5. #7 by alexlobov on 20 July 2010 - 05:27

    Xavier –

    There are a number of issues with your response. To address the quickest first, banning public nakedness is indeed illiberal in my opinion but it’s also a law that’s near global and that has been in place for a long time. That doesn’t make it right but since there is not a large group of people demanding the right to go around naked, nor is there a religion or ethnicity that feels maligned by the ban, it’s probably not a priority to be lifted. I still think it’s fundamentally wrong and arguing that it’s existence is a defense to the burqa ban amounts to arguing that two wrongs make a right.

    I don’t believe in cultural barriers to liberties. I believe in the idea that we should be free to do anything that does not harm others, our attire is the simplest aspect of these liberties.

    As for race politics not applying to France, I think you’re mistaken or perhaps not fully appreciating what I’m getting at. Race politics is a global concept, academic in nature and a popular paradigm for the discussion of international relations and law. Are you familiar with the works of Said (orientalism) and Foucault (the politics of knowledge)? I suggest you check them out (note, the former is Palestinian and the latter is French, neither is Anglo-Saxon).

    Here are some useful links: http://people.clarkson.edu/~straiger/LS195/Orientalism%20reconsidered.pdf – Said
    http://www.ata.boun.edu.tr/asistanlar/hist551/W9/said_politics%20of%20knowledge.pdf – Said
    http://ssi.sagepub.com/cgi/reprint/9/1/175.pdf – Foucault

    The general concept is that orientalism is a pervasive element of the way our world is structured, it stems from the belief that Western European ideas and social structures are superior to those of the Orient and has led to almost all of our global institutions being Western European in nature. From the way that international relations is structured via a system of nation states (basis: Westphalian, Western European rationalism) to the way that our universities are structured (all universities that are ‘respected’ globally are built on western models, be they in Japan, Bombay, Paris or Washington), to the way that one applies for work, to the way that history is recorded, to global print media, etc. Eastern people of course had different ways of doing all these things before European colonialism, eg. nation states were different, education was different, methods of recording the past (history) were different, etc., but in the colonial & post-colonial age Western ideas came to dominate these intitutions and the general idea that the West is superior became prevalent.

    This is a complex topic distilled into a blog comment so forgive me if there are gaps. Also, how does this relate to the burqa ban debate? To put it simply, I argue that global migrations, particularly for post-colonial countries such as France, make it necessary to rethink how we structure our societies, what we consider to be monolithic culture worth preserving and how we intend to live harmoniously. France, being one of the biggest colonial powers, has to manage massive migrations from its former colonies. The best way to do this is not to create unnecessary problems by entrenching orientalist and western-rationalist thought in all levels of society, even the least important. Sure, it’s still France, and these Muslims live in France but France in 2010 is different to France in 1960 and different still to France in 1890 and earlier, and this needs to be taken into account. The Muslim citizens of France have as much right to France and defining a French culture to those that come from ancient French lineage, and I argue that the French have a moral responsibility to integrate new arrivals form post-colonial countries. Some elements of cultural identity might be considered worth preserving, like liberty, egality, etc., but some elements of it seem totally unnecessary like the concept of religion being private.

    For Muslims, religion is not private. It is everywhere and everything. Any time spent living in a Muslim country will tell you that, it’s not like Christianity, it pervades absolutely every element of life to the point where culture and religion become almost inseparable. The French need to understand this and they need to not merely be ‘tolerant’ but to be welcoming, interested and open-minded to change. That’s what defines a real ‘melting pot’.

  6. #8 by alexlobov on 20 July 2010 - 05:41

    PS. I encourage you to google and google image search “tights are not pants” and see the abomination in all its glory.

  7. #9 by Xavier Rauscher on 20 July 2010 - 09:34

    I think you raise a series of interesting points, and even though we’re not going to agree in the end, I do think these are issues that are worth thinking about.

    First of all, I must say I’m considered a liberal both by French and American standards, and you have me beat there. I used the argument of the “walking naked in the streets” to illustrate cases where liberty is limited, assuming that you considered that law as self-evident. Apparently you don’t, so my point goes a bit moot. Not that I particularly like that argument anyway: comparing the niqab to walking naked in the street doesn’t quite feel right.

    I know Foucault, hadn’t heard of Said until now, and will take a look at the links you’ve given me. I’m a little short on time here (I have an internship interview in a few hours I want to prepare for), so forgive me if I skip that for the moment.

    I do want to go back to integrating Muslims in French society a bit more. First of all, it is necessary to say that the people wearing the niqab in France – less than 2,000 women according to estimates – do not represent in any way the Muslim community in France, and I’ve spoken to many friends of mine who belong to that community who resent these people for the image they give of Islam to the majority, as well as other reasons I have cited previously. Niqab-wearers and their male supporters are seen by a vast majority of the French – Muslims and non-Muslims – as belonging to a form of fundamentalist and obscurantist cult that oppresses women. Many Muslims support the ban as much as their non-Muslim fellow citizens. They are a bit worried, and rightfully so, of the continuous stigmatization of Islam in France. A lot of work has been done these past 10 years though, by French politicians and French Muslim scholars, to develop an Islam of France, rather than an “Islam in France”, and to the approval of the Muslim “community” in France. What is important to say is that on many counts, French Muslims think about these issues in not such different way than their non-Muslim fellow countrymen.

    You might be interested in looking at the work the “feminist” (for lack of a better word) association “Ni Putes Ni Soumises” (Neither Whores Nor Submissives, as it appears to be translated in English – http://en.wikipedia.org/wiki/Ni_Putes_Ni_Soumises) to get another perspective on the niqab ban, and other battles that women from a “Muslim background” have to fight against growing oppression in the banlieues . I don’t know if they have a website in English, but it’s true that I have a more bourgeois background, with a certain romantic vision of the French Republic and its ideals, whereas they are on the ground dealing with realities, making their perspectives far more valuable than mine.

    As you may know, this is not the first time we’ve had a debate about Islam in the public square: in 2003, French lawmakers banned “ostentatious religious symbols”, such as the hijab , but also the kippah, crosses, and – to the lawmakers’ surprise, who hadn’t thought of them as they are a small and discrete community in France – Sikhs’ turban in public schools. For some who wore the hijab out of true religious conviction, this posed a serious issue and infringement on their right. But for many others, it freed them from peer pressure into wearing the hijab, and actually protects them and guarantees their freedom not to wear the hijab if they don’t want to.
    The solution isn’t perfect, but it does have some positive results. For the story, I supported at the time (and still do, although the debate is past and gone for now) not only the banning of religious symbols in schools but actually a mandatory uniform, similar to what exists in the UK, as it seemed to me to be the most general and less discriminatory way of banning symbols of differences (whether religious, or social, or anything else) among classmates and therefore being truer to the ideals of the Republic. But that appears to be reactionary to most of the French (I promise I’m a liberal at heart on many many issues!).

    Last point I want to make on Muslim integration in France, you are perfectly right in saying that we have a moral duty to rethink our contrat social and adapt to new realities, in a post-colonial and globalized world, and integrate better the latest immigration waves from our former colonies.
    We’ve had difficulties, including racism and culture shock. But in my opinion, the real problem is socio-economic: ever since 1973, France’s economy has been wobbly at best and regularly catastrophic. We’ve gotten used to mass unemployment that stayed above 10% for far too long. Those hit hardest by this 40 years-long economical slow-down have been the latest arrivals, many of them from a Muslim background, but not only. Economical marginalization leads to social marginalization which leads in turn to cultural marginalization as immigrants and their children, not finding their rightful place in society instinctively return to their origins as a manner to give themselves an identity.
    The day we solve our problems with unemployment and a stagnant economy is the day we will make great leaps of progress towards integrating our Muslim minorities.

    To end with good news, our integration model isn’t that broken either. Mixed marriages are frequent, and that’s the most common manner for the French to assimilate immigration waves and people of different cultures (just check any Frenchman’s genealogical tree for confirmation – mine has Norman, Alsatian, Slovakian, and Algerian roots, and that’s just my grandparents!).
    Also, I remember a European-wide poll just a few years ago (I’ll try to track it down a bit later) that showed that Muslims in France were among the best-integrated, culturally speaking, of Europe: that is, the vast majority of them, and more than in any other country, identified themselves as “French first, Muslim second”. I’ll try to send you the link to that poll if I can find it again.

    So we have been making progress, even though we’ll agree that there’s still a lot more that needs to come.

  8. #10 by Xavier Rauscher on 20 July 2010 - 09:37

    PS: on tights as pants, they don’t shock me, and they are indeed in fashion in France. They are usually worn with a dress that fall to the knees (or slightly above), and can be quite elegantly worn. I’m surprised they shock you! Must be cultural (yes, that too).

    Talk about a lesson in cultural relativism.

  9. #11 by alexlobov on 20 July 2010 - 12:28

    To address tights as pants first, they don’t shock me I just find them extremely aesthetically displeasing. Also, there’s nothing wrong with wearing tights, under a dress or under a very long tunic or something like that is fine. What *is* wrong is earing tights *as pants*, ie. pretending that you’re wearing a pair of jeans and not covering your behind with your top. That’s just wrong. There is no good reason why everyone should have to see your junk. Of course I’m not serious about this, as my earlier liberal position has been cast, but I’d far rather see women in burqas than women wearing tights thinking that their goddamn pants.

    Just a few quick points: while it’s true that there are only around 2,000 niqabis in France, my concern is that many Muslims that may not wear niqab still feel that this is an assault on their religion. I’ve so far only spoken to two Muslims that support the ban, one of them a woman. Neither of them are French however so I’m not sure how your particular section of the diaspora feels, I wouldn’t mind seeing some polls so shoot em over if you see them on the internet.

    Regarding the socio-economic problems, for sure they do seem to be the main issue but these things are almost always linked. Socio-economic problems contribute to a general alienation from society and a siege mentality which just exacerbate the socio-economic problems and the vicious cycle continues. Banning burqas seems only to add fuel to that particular fire so, once again, the cons outweigh the pros for me.

    I’d be interested to also read further testimonials from methajbas after the hijab ban took force. It’s a good point that the outrage was certainly muted afterwards but I haven’t seen much positive press for the aftermath either.

    As you said, we aren’t going to agree, but thanks for the discussion. You’re a very proud ambassador for your country, and although I disagree with nationalism/patriotism altogether, there’s nothing wrong with a bit of Francophilia. 🙂

    • #12 by Xavier Rauscher on 20 July 2010 - 15:09

      I’ve lived most of life as an expatriate, so I have gotten into the habit of dialoguing with people about France in order to improve understandings and such. Sometimes there is real disagreement on values and principles, such as right now, but most of the time it’s more due to misunderstandings than real disagreements.
      Even real disagreements can be more aggravated by misunderstandings.

      It also explains my “patriotism” as you say, but if it’s any reassurance to you, I don’t defend every single one of France’s actions. Start a discussing about France’s role in the Rwandan Genocide for example, and you’ll see that my patriotism comes at an abrupt stop.
      Or perhaps it is my patriotism that makes me so angry and ashamed that the French Republic would get involved into collaborating in a genocide, and walk away from it unscathed. Depends on your definition of patriotism.

      A few last words before closing down this debate:
      – first of all, what is a “methajbas”? I’ve been unable to find any traces of it on Google, and I’m curious.
      – on the hijab ban in public schools (as well as other ostentatious religious signs), something interesting had happened. The Muslim community was ready to fight this out against the ban, when two French journalists – Christian Chesnot and Georges Malbrunot – got kidnapped by Islamists in Iraq. The Islamists made it one of their conditions for the surrender of the hostages that France would not vote the ban of the hijab in public schools. It had quite the reverse effect than expected: the French Muslim community, out of patriotic reflex, changed its position. Delegates from the French community were even dispatched to the Muslim world to explain laïcité and the ban to other Islamic clerics (under how much political pressure, I can’t say). It was an interesting moment of national unity where religion was put aside.

      Just the way we French like it.

  10. #13 by Melanie on 20 July 2010 - 13:04

    You have to take into account historical factors as well. I believe “laïcité” is not the major argument.

    A bit less of 10% of the French population is Muslim. With our model of “assimilation”, French find it hard to accept the Muslim veil, as it does not correspond to the French Republican (“républicain”, from the “République)culture.
    It’s mostly what the niqab represents that bothers the French. It does not correspond to the fundamental value of equality between women and men. It’s a symbol of male domination over female, and most French do not want to accept this.

    Here’s a bit of history about the Muslims in France. In 1945, for the reconstruction after WWII, many northern Africans were brought to France to work because France was short handed and needed handiwork. Second big arrival of Northern African Muslims was in the 60’s. There were few veils and absolutely no niqabs. The sons and daughters of the immigrants were more or less integrated, even though problems existed, and most were atheist. In the end of the 80’s, with the national debt, the french government put a stop to social policies helping the integration of the Northern Africans. That’s when the big mess started.

    These populations became poorer and poorer, suffered from rejection and unemployment. They lived in poor districts (a form of ghetto). They truly felt let down and rejected by the French. Muslim extremists took advantage of this disorientation to convert many to Islam. One example : Toumi Djaidja, president of the association SOS Avenir Minguettes (now SOS Racisme), famous association that fought for the integration of the Northern Africans in France, converted to Islam in 1986, when he was about 30, 4 years after the creation of the association.

    Today, most “Northern Africans” (they are French of course, their grandfathers or great-grandfathers were Northern Africans) are Muslim, whereas their fathers are not.

    I think it’s important to know all this, in order to understand this ban. The veil and the niqab are perceived as the manipulation of Muslim extremists who want to take advantage of a disoriented population. Therefore, France accepted the new arrival of the veil (the first veil worn in school was september 1989. Never France had seen such a thing in a school, even though the Muslim population had been in France since 1945 !). But, the French do not want to accept the new phenomenon of the niqab.

    The argument of Laïcité is the juridical argument. But the real reason is that the niqab is a new phenomenon that does not seem to be the result of a personal choice. France isn’t the only one to have to deal with this new phenomenon : even Egypt recently noticed the multiplication of the niqabs recently.

    French do not reject a religious custom, they reject a new phenomenon.

    Hope this helps to understand why the French are in favor of this ban.

    • #14 by Xavier Rauscher on 20 July 2010 - 15:12

      Interesting input Melanie, and thank you. Just a note aside: laïcité in this case is not a legal argument: laïcité, in its legal component, only applies to the State and public servants, and to public schools and public hospitals by extension.

      This of course takes nothing out of the interesting historical perspective that you have given us.

  11. #15 by alexlobov on 22 July 2010 - 07:50

    Xavier,
    “Methajba” is the Arabic word for a girl that wears hijab. The reason why googling was a problem is because transliterating Arabic to English can be problematic. The word in Arabic is: متحجبات

    Melanie,
    The problem with your argument is that the niqab is far more complicated that. it’s too difficult to establish beyond doubt that it’s a tool of oppression or that it’s unislamic. There are, of course, millions of people around the world who wear niqab and burqa, and would disagree with you. It would be quite paternalistic of you, or of France, to say to them “No, actually, you’re oppressed.”

    For the record, I agree that it’s a tool of male oppression… but legislating against it in order to ‘liberate’ is akin to liberation by force, sort of like the invasion of Iraq (forgive the crude analogy). Liberation comes from within a community – in this case Muslim women – not from without it.

    Moreover, if there is just one woman who wants to wear niqab honestly of her own free will then the law essentially impinges on her rights to do so. Of course the actual number is impossible to establish but one should be enough. We can’t always legislate on the basis of what we think people truly want.

    Finally, I agree with the many dominant feminist theories that there are many “symbols of male domination over women”. The mini skirt, the bikini and makeup are just three that are very popular in France. Then there’s the general objectification of women including pornography, advertising, films, FHM magazine, etc. It’s rife. So it seems a little rich for the French to be banning niqab because it’s “oppressive” when French (and Western generally) culture itself has so many other symbols of male domination embedded in it that we take for granted because we consider them to be “normal”. This is yet another example of Orientalism – the way we exploit women is “normal”, the way that Muslims exploit women is “Other” or strange, so we should ban it.

  12. #16 by alexlobov on 22 July 2010 - 07:52

    By the way if you guys *do* want to talk to a woman who wears niqab of her own free will, look up @chocofundie on Twitter: http://twitter.com/chocofundie and ask her some questions.

  13. #17 by AA on 19 August 2010 - 18:07

    I also want to react to your talks and give my opinion on this topic.

    From a personal point of view, I do think that the niqab must not be tolerate, and I do even more think that since I knew that the niqab was not part of the religious obligation (though however it depends on interpretation). However, and even if it seems in contradiction with my rejection of the niqab, I strongly think that the French government is doing a great mistake.

    First of all, as many already said it, some of the reasons raised are totally acceptable. I will only talk about those ones, and say why I still believe it is wrong to ban the niqab.

    Laicité is not relevant. If laicité should be applied to every situation, then we should ban all religious signs everywhere: niqab, hijab, kippah, cross, nun’s veil etc. People feeling not comfortable in front of a niqab should feel the same with any other religious sign. If not, laicité is probably not the reason why they don’t accept it. If we reach that level (of forbidding all signs everywhere), it would be more telling people what they should and should not do/wear than fighting for laicité. That would be a serious attempt to freedom.

    The security argument is one reason that I understand, and that I do defend. But, besides all the counter-arguments you already listed (“not really a major security issue”, few people concerned etc…), I would add that I do not accept it completely as I truly think we can by-pass the problem through more consensual laws: for instance, being forced to unveil for Police control if asked by an officer. Those laws would be more generally accepted as they can potentially concern everyone: from women wearing niqab to young people wearing hoods and masking part of their face.

    Human dignity is also a reason I do understand, and I completely share too. However, I know that some people are willfully wearing niqab, because that’s the way they want to live their religion and that’s what they think is right. So, does the government have the right to say that they are wrong in the way they want to live? Also, as Alex Lobov said, if women dignity is a real issue here, what about fighting pornography? More generally, is dignity a concept that we can all have in common? I truly think that dignity is something partly personal, and so, government doesn’t have the right to tell me what I should not do because of dignity reasons.

    Melanie tried to explain that the niqab is a tool used by extremist, not a religious value, that it is the result of a problem in our integration process (Northern African rejection, poverty etc…). And so, we do have to ban the niqab. Well, you’re certainly right in saying that niqab has been introduced by extremists, and it’s also the reason why I don’t accept the niqab. But don’t you think that by banning the niqab you’re fighting the consequence of a problem, and not the source itself? Don’t you think that, if we try to improve our integration process, fight poverty among those people and prevent them from going extreme we’ll achieve a more sustainable result? For instance, in 1901, we gave people the right to form union and association (in France) to do whatever they want to, and “Ni putes ni soumises” is one of them. Don’t you think that fighting extremism, and helping those women to fight for their rights through unions is way better than completely ban the niqab, that moreover give extremists more arguments? If the government indorse such initiative, it would be better than just voting a law that is moreover extremely difficult to apply.

    My opinion is that we are afraid by Islam, as in many countries, and because of that, I think we are over-reacting to some phenomenon. Look at the Cordoba House initiative reactions, or Quick (French fast food restaurant) that choose to make some of their restaurant “Halal” (Halal or Cacher restaurants have existed in France for years without no one ever saying anything…). French are not racist neither Islam-hater. The reason of this fear is that we don’t know what Islam is, and no one can blame people for this. My opinion on how to solve this problem is way out of the point here 

    Just so you have a better knowledge of my background: I’m French, born and raised, but son of Moroccan immigrants that came to France when they were young.

  14. #18 by Xavier Rauscher on 19 August 2010 - 19:32

    AA,

    Je suis tenté de te répondre en français, mais vu que le débat a commencé en anglais, je vais reprendre en anglais. Je me suis permis d’éditer ton commentaire afin de sauter des lignes entre tes paragraphes/arguments pour plus de clarté.

    I respectfully disagree when you say laïcité does not apply, because if it did, we would ban any form of religious wear in the public square. Yes, if we applied it to the fullest and most integral extent, France would have a communist-like atheist regime. And that could also be said of many other societal values we share in France: pushed to their extreme, France would be a mostly communist state. The problem with principles is that they cohabit and sometimes clash or overlap. It’s up to society, through its representatives, the Legislator, to establish what the limit and compromise is between principles.

    That being said, laïcité as a principle only applies to the State, as I mentioned in my post. The only way to impose laïcité (the societal value, not the legal principle) on society is ordre public. And that has different aspects, security being the first one, but I don’t want to return on that argument.

    Human Dignity, in my opinion, is the unadmitted key. Based on the dwarf-throwing case, CE, 1995, Morsang-sur-Orge: a case in which the judge decided that dwarf-throwing could be banned on the grounds that it was an infringement on human dignity, despite the fact that the dwarf was fully willing, and represented for him a way of providing for himself in – ironically – a dignified manner (the fruit of his own work). That decision is highly controversial and still generates passionate debates in law schools. I’m personally rather favorable to it, and I’m in the minority I have to admit, but I’m not very comfortable with it either.

    Same reasoning applies to the niqab. It doesn’t matter some niqabis are willing (within that reasoning): what matters is that it goes against a sort of “collective” assumption of what constitutes human dignity, and society will not, and simply cannot tolerate it. Is that potentially dangerous for individual freedoms? Without a doubt, yes.

    We must be cautious, and this is why this debate is so sensible. Whenever you infringe on a liberty, you have to wonder where it’ll stop. It makes a lot of people understandably uncomfortable.

    Where I fully agree with AA is when he argues that the niqab is not the cause of the problem, but the consequence. I am intimately convinced that France’s “integration” difficulties is not cultural, is not historical, but is social. The day we no longer have employment issues in France, “intregration” will no longer be the issue that it is today.

    With that, France must also reflect on its “vivre-ensemble” and perhaps renegociate parts of our social contract. We must rework the Education Nationale so that it becomes once again what it was: a formidable tool of assimilation and excellence. Other issues to discuss relate to the legal principle of laïcité: I’m thinking about financing construction of decent places of worship for our Muslim community. And making it less difficult for Muslim private schools to be built. Lots to talk about, and our leaders have so far not been up to the task.

    I’ll conclude by saying that I’m very impressed by the number of comments, and the quality of the said comments, I’ve been getting on this post. First of all, it shows the sensibility of the issue, and yet also shows we’re capable of discussing such a sensible issue in a rational and calm way.
    Second of all, I wish this happened with all my posts.

    Thank you all!

  15. #19 by AA on 19 August 2010 - 21:10

    Pas de problème pour l’édition. Cela est dû au fait que je tape mes commentaires sur un logiciel externe (je trouve ça désagréable directement dans le navigateur avec une petit vue) puis que j’en fais un copier/coller.

    You’re right when you say it’s up to the legislator to put the limits. But, as you say, when values overlaps, on what basis should we decide? I would have say based on the core values of France, the most important ones. For me, they are “Liberté, Egalité, Fraternité”, at least, they are the one we officially spreading everywhere as ours. Here, we’re infringing two of them. “Liberté” (freedom) because we stop some people from doing what they want (and as you said Liberty consists in the power to do anything that does not injure others; and niqab doesn’t injure anyone). “Egalité” (equality) because we treat Islam differently than other religion, based on collective assumptions (I’ll say a word on collective assumption later).

    Regarding the “don’t throw a dwarf” law, I think it’s irrelevant here (even if I always found that law really funny). In this case, we’re preventing someone from hurting himself. It’s like euthanasia (even if this one is frequently debated), suicide or beating people. With the niqab, is the woman hurting herself? Yes, if she has to wear it, no, if she wants to. I was talking about the second case. That’s why I find your argument irrelevant to the point (with all due respect, of course 🙂 ). Still, the first case exists. And so, we have to use softer ways to fight this.

    You also used collective assumption as an argument to why the niqab and not the others religious signs. Besides the fact that collective assumption is really difficult to measure (poll is not an efficient way) and highly depends on where and when you are, I think that collective thoughts, or collective assumptions can be really dangerous. People, as individuals, can be wrong. People as groups can too. And it’s even truer in a country where politic or media have a great power and where people can be manipulated. Look at Milgram experiments that show many people almost killing someone because they were told to by a scientist that it is right.

    That’s why I think, we should never tolerate any restraint of freedom (or any other core values, that were built through history) whatever the reasons is, and particularly when based on “assumptions”, which are by definition, not proved. And again, I don’t think that collective assumption that niqab is hurting women’s dignity is a good example. Ask most of the people around you: how many thinks that prostitution is a decent job?

    Regarding the integration problem, I don’t think it’s only social in the way you refer to that word (which is more economic). Giving a job to everyone wouldn’t help people to know better about Islam and Immigrants (I’m not saying that immigrants are Muslims or that Muslims are all immigrants, which is in both case completely false). That is for me the main problem here, and niqab would never have been a central issue if we did know more about Islam.

    As I said, I think it’s mainly through media and association that we can improve this. However, politics has a lot to do too. And not much has been done yet.

    Concerning the last point, I found your blog few times ago. I promise I’ll do my best to follow the posts as often as I can and comment on them 🙂 I also greatly appreciate having the possibility to discuss such an important topic with someone having really good arguments.

  16. #20 by Xavier Rauscher on 19 August 2010 - 22:40

    Merci pour le compliment. Je te dis pas ce qu’il est difficile de discuter de ces questions en anglais avec un français. Mais bon, pour que ce soit accessible aux plus de gens possibles…

    Liberté, Egalité, Fraternité. I would agree with you that the French Republic and its citizens too often give the impression to have lost touch with these values, except when its the freedom to strike to defend your own specialized interest… But let’s not get me started on French strikes.
    However, Liberty is not absolute. There are limits to Liberty, limits fixed by the Legislator.

    Article IV de la Déclaration des Droits de l’Homme et du Citoyen: “La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui : ainsi l’exercice des droits naturels de chaque homme n’a de bornes que celles qui assurent aux autres Membres de la Société, la jouissance de ces mêmes droits. Ces bornes ne peuvent être déterminées que par la Loi.”

    The question as far as the niqab issue is, est-ce que cela nuit à autrui? (sorry for my jumping from one language to the other, but it’s easier that way). It’s a very difficult question. The first answer is to say no, or else we’d be opening the door to pretty much anything. I am not “hurt” because I come across on a sidewalk a woman wearing a niqab, however weird I may feel about it to see a woman completely dressed in black.

    Hence ordre public, and, I keep coming back to it, within ordre public, human dignity.
    Now, to go back to the dwarf-throwing case – je voudrais préciser que ce n’est pas une loi, mais relève de la jurisprudence du Conseil d’Etat. Je ne dis pas ça pour être pédant, mais juste pour que les choses soient claires. – the dwarf actually had a protective suit and was thrown on an adapted mattress, so he didn’t actually hurt himself. I guess the Judge’s reasoning was – at least, that was my reaction when I first learned about the case – that even though that dwarf was willing to be thrown around – letting him do that would reflect negatively on the human dignity of all dwarves.

    You may or may not agree with this argument. It’s not soundproof, but I personally feel very strongly about it. Many eminent jurists, such as Law Professor Guy Carcassonne, have argued strongly about this misuse of Human Dignity: in its origin, Human Dignity is a limit that is set on the Legislator, to protect the individual, and not to be set on the individual himself.

    The reasoning for the niqab is the same.

    The way I feel about the niqab and it’s ban, and this is more philosophical than it is legal, is that it is a fringe movement but which promotes ideas that are contrary to the bedrock, the fundamental values, that ciment French society – secularism, equality, human dignity, equality of the sexes, etc. That is why we react so negatively to it. One of the most compelling arguments for me was put forward by a sociologist during a debate on France 2: in French democracy, living in society is showing your face to the others. By hiding your face, you’re sending a message to the rest of society that we are not worthy to see your face. Whereas in the Anglo-Saxon they are perfectly fine with that behavior in the name of individual liberty, in Egalitarian France, that sort of message hurts a lot.

    That is not to throw the stone at the Muslim community, nor even to those women who do wear the niqab. French society is much better at imposing its values on others – minorities, individuals, etc – rather than onto itself. It takes a lot more effort to live by one’s standards and principles than just to preach them. It’s not a particularly French thing, it’s very much a human thing. But we the French, all of us, need to put more effort into this. That is why I was talking about the necessity of renegotiating our Social Contract: we must reemphasize our will to live together as a society, our “vivre ensemble”, to move on forward. The current division only benefits a handful of individuals – politicians, extremists of all sides – and considerably hurts the community (by community, I mean the only community that truly matters in the Republic: the community of French citizens).

    I’m slightly nostalgic of the early days of the IIIrd Republic, where things were far from perfect, divisions deep, and yet ideals and principles were put forward strongly, and actually implemented.

    We need to reflect on our values, and then live by them, on every level, from the citizen to the government.

    Yes, I know, I’m a bit idealistic, but where would the world be if it weren’t for the idealists?

  1. The Banning of the Niqab in France: Legal and Cultural … | France
  2. A Quick Update on the Niqab Debate | The International Jurist

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: