Patrick weil why the french laicite is liberal

Greece, 27 Eur. The Court found that the University of Istanbul's regulations imposing restrictions on the wearing of Islamic headscarves and the measures taken to implement them were justified in principle and proportionate to the aims pursued and, therefore, could be regarded as "necessary in a democratic society.

Catholics are in favor of a status quo protecting a special and almost exclusive relation of Catholicism to the French state. The second tradition is that of the secularist antireligious often nicknamed "laicists. The fourth are the multiculturalists. The fifth are the individualist liberals: they want each individual to be free of any pressure or influence from any groups or institutions.

In , the majority of the Conseil d'Etat was composed of individuals belonging to the third, fourth and fifth types of attitudes. In , the majority of the Stasi Commission, of the Conseil d'Etat who approved the bill with an eighty percent majority 41 and of the Parliament was composed of the first, second, and fifth types of attitudes. Between and the shift of the liberals has been determining the change of the majority who also believe "that Muslims should be considered members of the nation.

A minority of Muslims are anti-religious. A small minority is fundamentalist, and some are communalist if they consider religious law to be superior to the law of the land.

A large majority does not want to impose the headscarf on their daughters but also feels uncomfortable with being unfaithful in certain ways to their religious tradition. They are submitted to the pressure of friends, neighbors and family members who want to impose the wearing of the scarf. Henceforth, they will be able to reply to them, "I agree with you, I was ready to follow your advice, but now it is impossible: I cannot go against the law!

Individually, Algerians could never have applied for it. But when French nationality was ascribed automatically, they were discreetly satisfied: The beneficiaries of the [French] nationality, acquired without having applied for it, adapt to their situation well, and no circumstantial protests which may be perfectly sincere, moreover can convince of the contrary.

Those around them, who would not have accepted an act of naturalization according to the ordinary procedure, turn out to be relieved, after the fact, that French nationality "French papers," as one says occurred by itself, like a collectively-imposed constraint: it is the common lot of all and not the result of an individual and voluntary act through which some people would be singled out and separated from the others With a legal ban, the decision comes from the outside thus allowing for the protection of children from fundamentalist pressure without a break in their religious ties.

Can the ban of headscarves be fairly placed into a continuity of the ruling of Islam in French Algeria? It can be in fact the contrary.

Under the French Colonial Law, not only Algerian Muslims could practice the rituals and commandments of their religion, but they were assigned to it, one could say imprisoned in it. Algerian Muslims could only become subject to the French Civil Code by becoming fully French through "naturalization. Islamic authorities governed not only the religious but also the social and civil rights of Algerian Muslims, under the guidance of the Koran and the ruling of Shania's Courts.

The law of separation between Church and the State was formally applicable in Algeria, but essentially became suspended permanently until the independence occurred! They are subjected to the Civil Code and still can refer to the Koran as a moral and religious code. The Stasi report and the subsequent laws and regulations that have followed, and might still follow, can even be interpreted as part of the legacy of Napoleon's action towards the Jews in , and of the law towards the Catholics: 45 as a moment of compromise, of interactive adaptation and recognition, which in the case of French Muslims could mean that for the first time in its history the French State and French society have decided to fully integrate an important Muslim minority into its common frame.

Cf Whitman, supra note The harsh public debate that has split families of all beliefs and political opinions, and which raised the Koran to the top of the bestsellers list of the year, has enabled citizens to debate matters of public importance.

The process has itself included within the community of citizens all Muslims, whatever their position in the debate in favor or against the law may have been. More than the ban on religious signs in public schools, it was the feeling of the imbalance in the decisions announced by the government and endorsed by the Parliament after the Stasi report was delivered that provoked the frustration of many Muslims.

They had welcomed with praise the proposal to recognize the most important religious feast of minority faiths as public holidays. Approved by Catholic, Protestant, Muslim religious authorities during their hearings, it was backed by forty percent of citizens and provoked a very intense, fruitful and creative debate in almost all families in the country.

But it was rejected by the government and was coolly received by the majority of Socialist representatives. Strangely enough, Bowen was "intrigued" by the 46 suggestion made to give a state holiday to all minority faiths. With that proposal the Stasi commission wanted to accommodate the French tradition and the principle of equality between all faiths included in the law. Because of the anteriority of Catholicism in the French society the distribution of official holidays is strongly inegalitarian: fifty-two Sundays off favors religions that recognize Sunday as their day off.

Among 11 other holidays, six are Catholic and 47 only five are secular. He or she just needs to apply for the particular holiday with their boss. But, in doing so, they declare themselves as Jews or Muslims. Yet the custom in France since has been, and still is, to keep religious faith as a private matter.

This tradition is again most likely linked to the long battle against the power and public exposure of the Catholic faith. The recognition of Yom Kippur, Eid ul-Fitr or Oriental Christmas as optional national holidays and as an alternative to Pentecost would have been an official recognition and respect of religious diversity.

But it would also have been a way to fully respect the privacy of religious beliefs. If these alternative holidays were recognized, one would bet that somebody not working on Yom Kippur would be a Jew, but one wouldn't be sure: it could be an agnostic who has taken summer vacation in June and who had chosen Yom Kippur as a way of having a 46 BOWEN, supra note 9, at The unfortunate consequence of the law passed by the French Parliament was that the right of Muslim girls who want to wear the scarf freely in public schools without pressuring their peers was denied.

In the majority of cases, they have been offered the opportunity to attend classes in private religious schools, though generally not Muslim-there are only three in the whole country-but Catholic, Protestant or Jewish. These schools have the obligation, if they are under State contract In the future, Muslim schools, under contract with the State- which entails control of the curriculum-will develop.

Whether we like it or not, it is the French tradition to have this parallel sector of the education system strongly subsidized by the State, enabling tuition fees to remain very inexpensive. And it is the right of the Muslim community to have schools for observers who want to respect all the customs, all the holidays of their faith and to have religious instruction in addition to the normal curriculum.

Before the passing of the law, a French Council of the Muslim Religion was created that permits an official representation of the majority of Muslim practitioners and the fulfillment of some duties of common interest. In , general Muslim chaplains have been named in the French army, in the jail system and in the Hospitals. There are more than 2, Muslim prayer spaces and new 51 ones open every week.

The third reason why the French do better than expected is not circumstantial, but it is a matter of separation of geographical spaces. In every liberal State, freedom of conscience is guaranteed along with the freedom of free exercise of any faith. Where is the liberty to leave one's religious group or to practice one's faith with less religiosity when doing so is rarely practiced? This freedom seems to me easier in France than in other countries because of an organization of the geographical space that favors encounters, exits, and therefore the practical exercise of the clause of freedom of conscience.

Rather, this is the interpretation that has prevailed of Article 2, which could have been construed to have a solely financial meaning. This of course is in itself a particular understanding of State neutrality—one that strongly contrasts, for instance, with the alternative understanding that prevails in Canada where State neutrality is not deemed to be violated by the wearing of religious symbols by agents of the State, even in the highest positions.

Estimates indicate that approximately 80 per cent of school age children in France attend State schools. Moreau indicated in her report that during the academic year —05 the first year of the application of the law cases of conflict over the wearing of religious symbols had been reported, of which a little less than 30 were litigated.

In the academic year —06, according to her statistics, the figure dropped to three and has remained incidental ever since. Public Religions in a Post Secular World The courts also observed that, by refusing to remove her headscarf, the applicant had overstepped the limits on the right to express and manifest religious beliefs on the school premises. In fact, the organization Singhs United has engaged in strategic litigation against various aspects of French law that they claim constitute undue restrictions on religious freedom including the obligation to provide bareheaded photographs in order to be issued with French passports, another case which the ECtHR has ruled inadmissible whereas the UNHRC found French law to be in violation of the ICCPR.

As for the challenge to the law, the case in which the UNHRC found France to be in violation of the ICCPR concerned a pupil, Bikramjit Singh, who had been expelled from the exact same high school for the exact same reason wearing a sikh keski and during the very same academic school year as another pupil, Ranjit Singh, whose application to the ECtHR was declared inadmissible: see Bikramjit Singh v France , ibid. On the parallel readings of the Singh saga, see Bribosia, Caceres and Rorive, supra n Egalitarian universalism, from which sprang the ideas of freedom and social solidarity, of an autonomous conduct of life and emancipation, of the individual morality and conscience, human rights, and democracy, is the direct heir to the Judaic ethic of justice and the Christian ethic of love.

This legacy, substantially unchallenged, had been the object of continual critical appropriation and reinterpretation. To this day, there is not alternative to it.

And in the light of the current challenges of a post-national constellation, we continue to draw on the substance of this heritage. Everything else is just idle postmodern talk.

Sadly, the claimant was distraught enough by the ruling that she did not appeal it. The general doctrine is that such threats may justify restrictions to individual liberties; however, the administrative courts usually require that these threats be substantially documented.

The dissemination of such an assumption is not particular to France. Law No of 11 October The very fact that public and parliamentary debates that led to the passing of the law consistently referred to the burqa is in itself very interesting. For indeed it is the niqab in which the face is covered by a veil, but the eyes are seen and not the burqa which covers the whole body and face, with the eyes being seen only through a mesh that has allegedly grown in numbers in contemporary France.

Referring to the burqa , however, allows for connotations associated with Taliban extremism in Afghanistan to be imported into the debate. Article 34 1 of the Constitution allows Parliamentary resolutions to express their views in non-binding declarations on topics of their choice.

Another interesting action from that perspective was the Prime Minister's threat to activate the expedited legislative procedure for reasons of emergency, in order to reduce the discussion and debates around the proposed legislation.

Although he eventually did not do so, the bill was adopted by both assemblies after only one reading in each. On the elevation of this new legal category, see Bui Xuan ed. Law relative to the prohibition of the concealment of the face in the public space. In fact, this is but one of the many concrete difficulties in the enforcement of the law. Sections 1 and 2 of the statute referred for review are intended to respond to practices, which until recently were of an exceptional nature, consisting in concealing the face in the public space.

Parliament has felt that such practices are dangerous for public safety and security and fail to comply with the minimum requirements of life in society. It also felt that those women who conceal their face, voluntarily or otherwise, are placed in a situation of exclusion and inferiority patently incompatible with constitutional principles of liberty and equality. When enacting the provisions referred for review, Parliament has completed and generalized rules which previously were reserved for ad hoc situations for the purpose of protecting public order.

As a supranational court, the ECtHR has consistently put forward the doctrine of subsidiarity, according to which national authorities are, in principle, better positioned to assess the adequate means for the implementation of the Convention and adjust the ensuing requirements to the particulars of any given context.

The ECtHR has been under increasing pressure recently, as several States among which, notably, the UK have openly questioned the legitimacy of several of its judgments. The penalties for not complying with the prohibition of the concealment of the face are very interesting indeed. It is striking that the CJEU has not been called upon to interpret the prohibition of religious discrimination pursuant to the Directive in its 15 years of existence. Almost as surprising is the fact that there have been only two cases where race discrimination was at stake.

In fact, the prohibition on age discrimination seems to be the one ground of the new set of directives that has triggered most judicial intervention. See Speekenbrink, European Non-discrimination Law. A comparison of EU law and the ECHR in the field of non-discrimination and freedom of religion in public employment with an emphasis on the Islamic headscarf issue at Draft legislative proposal, April Salen, Draft legislative proposal No aiming at prohibiting the using or wearing of ostentatious religious signs during sports events, 12 September Oxford University Press is a department of the University of Oxford.

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