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.