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Democracy and Security
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Laïcité: Ousting Some Religious Elements while
Introducing Others
Jasper Doomen
To cite this article: Jasper Doomen (2022): Laïcité: Ousting Some Religious Elements while
Introducing Others, Democracy and Security, DOI: 10.1080/17419166.2022.2111303
To link to this article: https://doi.org/10.1080/17419166.2022.2111303
© 2022 The Author(s). Published with
license by Taylor & Francis Group, LLC.
Published online: 12 Sep 2022.
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Laïcité: Ousting Some Religious Elements while Introducing
Others
Jasper Doomen
Faculty of Law, Open University of the Netherlands, Heerlen, The Netherlands
ABSTRACT
The meaning of “laïcité” has gradually changed from the principle
that the state should abstain from interfering in citizens’ lives with
respect to religious matters to the idea that citizens themselves
have an obligation to desist from publicly manifesting themselves
religiously. French citizens were rst forbidden to display religious
symbols or apparel in public schools; this restriction was subse-
quently extended to the public space. Most citizens are not
aected by the restrictions, but they are a disproportional burden
for Muslim women who consider wearing a full veil a religious
obligation. Ironically, the obligation imposed on every citizen to
accept the “choice of society” is based on values that may be
qualied as religious. Laïcité is, then, an inconsistent idea, appar-
ently banning religions from the public space while imposing
alternative religious ideas. It cannot serve as the basis for disal-
lowing wearing a full veil in public.
KEYWORDS
Laïcité; secularism; Islam; full
veil; constitutional law
Introduction
Secularism is an important principle in several states and arguably part of the
idea of a liberal democratic state.
1
France is a paramount example in this
respect. The term “laïcité” captures the specific idea that has come to serve as
a directive there. This paper attempts to demonstrate that laïcité as it has
evolved is a problematic principle: it imposes the acceptance of certain values
on citizens, which is incompatible with the idea of a liberal democratic state.
The inquiry is theoretical, since it focuses on the issue of the meaning of
“laïcité.” At the same time, its political nature is evident, as will become
apparent as the article progresses. Given the object of inquiry, the second
perspective complements the first. The article does not limit itself to
a conceptual analysis, which may in some cases suffice but would in the
present case be too limited to do justice to the issue that is discussed here.
The first section describes the evolution of laïcité: while the idea is far from
clear, it may be said that it initially expressed the separation of Church and
State, ensuring citizens’ religious freedom, but has recently come to signify
a radical elimination of religious symbols; the ban on face covering represents
a (present) culmination.
CONTACT Jasper Doomen jasperdoomen@yahoo.com Schuttersveld 67, 2316 ZZ Leiden, The Netherlands
DEMOCRACY AND SECURITY
https://doi.org/10.1080/17419166.2022.2111303
© 2022 The Author(s). Published with license by Taylor & Francis Group, LLC.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives
License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in
any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way.
Section 2 attempts to provide clarity with respect to the values behind the
present conception of laïcité, in particular dignity and equality. Such values
(equality insofar as more than the duty of equal treatment is concerned) evince
the existence of a worldview.
2
This is incompatible with the principle of
secularism, at least if “religion” is interpreted broadly, encompassing any
worldview that appeals to metaphysical elements on the basis of which
a certain creed is expressed. Such a worldview is not explicitly presented as
the norm, but that does not make the issue less problematic. Even in the case of
equal treatment, incidentally, non-neutrality cannot be realized, for the deci-
sion which beings must be treated equally (all citizens, all human beings, all
(human and nonhuman) animals or a subdivision of these beings) is not made
neutrally. That is a separate issue, however, which will not be explored here.
Citizens’ duty to accept these values appears more demanding than neces-
sary, if the goal is to ensure living together safely. Yet “living together,” as is
discussed in section 3, has specific consequences in France, given the social
norm, which entails that wearing a full veil in public is unacceptable. The
extent of the duty to “live together” is not clear, but that given does not detract
from its being too great a burden for some citizens.
The chameleonic nature of laïcité
The 1905 law on the Separation of the Churches and State
3
is the basis of the
modern French state, in which laïcité is an important principle.
4
Article 1
reads: “The Republic ensures the freedom of conscience. It guarantees freedom
of worship limited only by the following rules in the interest of public order.”
5
True to that principle, the separation arguably does not place great demands
on religious individuals or organizations. For example, article 28 forbids
raising or attaching a religious sign or emblem to a public monument, with
the exception of buildings used for worship, burial grounds, burial monu-
ments, museums and exhibitions.
Such legislation may be defended by arguing that citizens’ religious freedom
should be guaranteed and that they should not have religious ideas imposed on
them by the state. Accordingly, the individual enjoys more freedom in such
a state than in a state in which a (state) religion has a certain influence or even
manifests itself in a domineering way. Recent legislation appears to reflect
a further-reaching desire to apply this principle. On the basis of the 2004 law
on religious symbols in French public schools,
6
article L.141-5-1 was created in
the Code de l’éducation: “In elementary schools, the first four years of sec-
ondary education (les collèges) and the final years of secondary education (les
lycées), as far as public education is concerned, wearing symbols or apparel by
which students ostensibly manifest a religious association is forbidden.”
7
2J. DOOMEN
It is clear that nonreligious students are optimally protected from religious
influences by such a law. On the other hand, the interests of religious students
must also be taken into consideration. The crucial question is what, if any,
negative effects nonreligious students experience if they are confronted with
other students who display religious symbols or clothing. Incidentally, the
students are not representatives of the state, so that an appeal to the separation
of Church and State is misplaced, and “Church” may be said to be a misnomer,
since Muslims in particular are affected by the law.
8
A complicating issue is that the principle of laïcité extends beyond what
secularism embodies. While secularism means that government actions should
not be influenced by religious considerations, not treating religious citizens or
organizations differently than nonreligious ones, laïcité seeks to protect citi-
zens from religion, so that they are not confronted with it in the public
sphere.
9
This does not mean that the precise meaning of “laïcité” is clear:
“[. . .] not until 1946, when it was first included in the French Constitution, did
the term “laïcité” make an official appearance in a State document, and never
has it been officially defined. Over the past Twenty years, its meaning has been
in constant evolution, often in direct correlation to the tenor of the debate
around the Muslim veil and its place in public space.”
10
The judiciary has
played an important role in this evolution: “Laïcité [. . .] is not [. . .] defined by
the text of the Constitution; one thus needs to study judicial interpretation
thereof to grasp its substantive meaning.”
11
In any event, the intention behind laïcité seems to have changed dramati-
cally: the assurance that individuals should be free from state interference
insofar as religion is concerned has been supplanted by the assurance that they
should be free from religion in certain (public) locations altogether. This
means, as has already been observed with respect to the 2004 law, that the
religious freedom of citizens who manifest their belief is curtailed. The 2004
law may be said to constitute a legal regime change.
12
A further step was taken in 2010, with the introduction of the law that bans
covering the face in the public space.
13
This law, true to its name, forbids
wearing garments intended to conceal the face (article 1).
14
As Hennette-
Vauchez rightly remarks, “For at least a decade, the legal principle of laïcité
has increasingly been interpreted as generating obligations of religious neu-
trality for individuals and, whereas it once encompassed religious freedom, it
now increasingly serves as a legal ground for curtailing it. In fact, develop-
ments have been so sweeping that one might describe the current state of the
law as new laïcité, so as to underline the actual subversion of the original
meaning of the principle.”
15
It may, accordingly, be said that “[. . .] in the
understanding that has crystallised over the past decade, laïcité assumes
a direct regulative role for private religious manifestations and it problematises
the mere fact of religions’ public visibility (at least in relation to minority
religions).”
16
DEMOCRACY AND SECURITY 3
It may be argued that Islam does not impose covering (part of) the face, but
that is not the issue. It is not for the state (or any of its representatives) to
interpret, acting as a theological authority, religious doctrine.
17
It could only
appropriate such a role by – ironically – abandoning the very principle under-
lying secularism and the original conception of laïcité. After all, it would itself
have to be involved with religion and, moreover, usurp the domain properly
left to the real theological authorities, regardless of the issue of the room the
state would leave such authorities in the first place. A (dominant) role for the
state in this respect would leave little room to practice one’s religion.
18
Nor is an appeal to the issue that this concerns a minor aspect of the religion
(in contradistinction to the Five Pillars of Islam, which concern the funda-
mental obligations) warranted, since this would result in the same outcome.
One may pragmatically appeal to the fact that only few women have the wish
to fully cover their face when they are in public, but this may – just as
pragmatically – be countered by pointing out that this means that the –
supposed – problem is apparently not a significant one. The issue may also,
alternatively, be approached as a matter of principle. Even if the interests of
only few women are involved, that given does not detract from the fact that
those interests are still to be taken seriously. Given, then, that one or more
persons are convinced that the tenets that are principles of their worldview,
regardless of whether they are religious, demand that the face be covered, these
interests should not be dismissed.
It appears that laïcité has developed from the idea to ensure that citizens’
religious freedom not be restricted to the restriction of the citizen’s right to
express him- or herself through religion. In general terms one may say that
“[. . .] French republican universalism has historically oscillated between an
abstracted view of citizenship, familiar to political liberalism and focused on
legitimation, and a darker universalist project emphasising assimilation and
cohesion, and focused on stability.”
19
The position of Muslims, as newcomers, is an issue that may be raised at this
point. The hostility of some French citizens toward Muslims, in the wake of
the September 11 attacks, was one of the factors that contributed to the form of
laïcité that culminated in the 2004 law.
20
Difficulties with the integration of
some Muslims into French society is an important element in this respect,
too.
21
The idea of “living together,” which will be discussed in section 3, is an
important aspect of laïcité in the shape it has taken.
22
A significant change has occurred with respect to laïcité. The original focus
was on curtailing the dominant position of Catholicism. This has shifted to
a focus on the integration of Muslims.
23
This does not mean, however, that
Catholicism is no longer a relevant factor. It is not easy to gauge its significance
in present-day France, but it seems clear that its presence (still) affects those
who are not themselves Catholics.
24
Whether this poses a problem depends on
how Muslims (and others) are affected.
4J. DOOMEN
It is inconsistent, one may argue, to hold that religious elements should not
be imposed on individuals while clinging to Christian holidays.
25
Still, this
need not be an unsurmountable issue, especially if one takes a pragmatic
stance. Christian holy days (which, for many people, at present probably
have no religious significance) are public holidays; the interests of minorities
who wish to celebrate alternative holy days, such as Eid al-Fitr, should be taken
into account, for example by demanding that employers allow employees who
wish to celebrate it to take an (unpaid) day off, unless this is disproportionately
burdensome for employers. Not all issues may be resolved equally (relatively)
simply, though, as will readily become apparent.
Laïcité as a worldview
It is important to determine the basis of the form laïcité has gradually taken,
resulting in an obligation for citizens. Two notions in particular may be
mentioned here in particular, namely, “dignity” and “equality.” Both may be
part of a worldview, but that does not mean that it is justified to impose such
a worldview on citizens. With respect to “dignity,” an additional problem
presents itself. Even irrespective of the issue of what it may mean, two senses
may be distinguished with respect to the position of women who wear a full
veil. These issues will be addressed in this section; I will first discuss “dignity”
and then “equality.”
Maclure and Taylor maintain: “A liberal and democratic state cannot
remain indifferent to certain core principles, such as human dignity, basic
human rights, and popular sovereignty. These are the constitutive values of
liberal and democratic political systems; they provide these systems with their
foundations and aims.”
26
Whether human dignity is a decisive principle in
a liberal democratic state is debatable,
27
but even if this premise is accepted,
the notion of “dignity” stands in need of clarification.
28
It is not evident that
this is possible and thus that “dignity” has a meaning at all.
This is not a merely academic issue, as becomes apparent from the following
observation: “At the level of principles, a democratic political system recog-
nizes the equal moral value or dignity of all citizens and therefore seeks to
grant them all the same respect. Realizing that aim requires the separation of
church and state and the state’s neutrality toward religious and secular move-
ments of thought. On one hand, since the state must be the state for all citizens,
and since citizens adopt a plurality of conceptions of the good, the state must
not identify itself with one particular religion or worldview. [. . .] On the other
hand, the principle of equal respect requires that the state be ‘neutral’ with
respect to religions and other deep convictions; it must not be biased for or
against any of them. [. . .] The reasons justifying its actions must be ‘secular’ or
‘public,’ that is, they must be derived from what could be called a ‘minimal
political morality’ potentially acceptable to all citizens.”
29
DEMOCRACY AND SECURITY 5
The authors thus maintain that recognizing “the equal moral value or
dignity of all citizens” necessitates the separation of Church and State and
that this recognition does not mean that the state identifies itself with
a religion or worldview. Yet, apart from the fact that such a principle may
not be recognized by some religions, it attests to a worldview, however
abstract. After all, the idea that citizens (or, perhaps, more consistently,
people) have equal moral value or dignity means, first, that such moral value
or dignity exists and, second, that this is true for each individual (and to the
same degree), which are both beliefs, the second, incidentally, being predicated
on the first. Even a “minimal political morality” cannot, then, be said to be
consistent with the principle of secularism (or the original conception of
laïcité).
In the first statement of Resolution “sur l’attachement au respect des valeurs
républicaines face au développement de pratiques radicales qui y portent
atteinte” (“on the attachment to the respect for the Republic values at a time
when they are undermined by the development of radical practices”), which
was adopted by the French National Assembly on May 11, 2010, “radical
practices” are said to be detrimental to dignity and the equality between
men and women. It is also stated that such practices, including wearing
a full veil, are contrary to the values of the Republic. Apart from what is said
in the fifth statement, namely, that women must be protected from violence
and pressure, in particular if they are forced to wear a full veil, it is unclear
what dignity would be involved. A situation where a woman wears a full veil
because she wants to, without being pressured to do so by anyone, does not
compromise her dignity, or that of anyone else.
With respect to “dignity,” it is important to observe, in addition, that even if
this notion were (arguendo) supposed to be a constitutive element for France
(or, generally, a liberal democratic state), this would not provide an answer to
the question of whether the 2010 law respects (human) dignity or not, since it
would still have to be made clear what this might mean in particular, i.e.,
insofar as the application to specific situations is concerned. “Dignity” may be
used to point out that women’s dignity is not respected if they wear a full veil,
but also in another sense, with the opposite outcome.
That other sense is the following: the dignity of people who want to wear
a full veil is compromised, with the possible effect, moreover, of isolating them
from society.
30
Importantly, those who seek to protect women from the duty
to wear a veil imposed on them by family members or others may not only see
their goal thwarted but even be confronted with an outcome that (further)
frustrates the emancipation of these women. After all, it is possible that they
will no longer be allowed to enter the public space; if they are unwilling or
incapable to defy those who force them to wear a veil, it is not unlikely that
they are unwilling or incapable to oppose the same people in other respects.
31
6J. DOOMEN
The dignity would then consist in being able to express oneself by means of
apparel. Demanding of people that they do not dress, once they are in public,
in accordance with their personal convictions on the basis of an alternative
conception of “dignity,” from the consideration that they fail to act in accor-
dance with it by wearing a full veil, attests to a paternalistic stance.
32
In any
event, “dignity” may be invoked from both perspectives, precisely because of
the elusiveness of the notion.
“Equality,” by contrast, seems to be an unproblematic idea: people should
be treated equally or, rather, as equals.
33
No appeal to comprehensive values
seems necessary to realize this goal: “Broadly speaking, a state is neutral when
it refrains from appealing to comprehensive values and draws instead on
principles which all citizens can endorse, thereby – on a contractualist account
of political justification – treating them with equal respect.”
34
A similar stance
is taken by Maclure and Taylor: “In our view, secularism rests on two major
principles, namely, equality of respect and freedom of conscience, and on two
operative modes that make the realization of these principles possible: to wit,
the separation of church and state and the neutrality of the state toward
religions.”
35
Such a perspective on equality reaches further than the idea that individuals,
recognizing that they are simply not powerful enough, at least for an extended
period, to oppress one another or kill those whose continued existence con-
flicts with their own interests, acknowledge their (approximate) equality,
deeming this state of affairs to be the basis for the norm that all citizens should
be treated equally. Such an idea is easy to grasp, which cannot be said of the
idea of “equal respect” or “equality of respect,” at least insofar as the sense of
“respect” that is meant here is concerned.
I will illustrate what I mean by means of the Déclaration des droits de
l’homme et du citoyen, the foundational document that is still mentioned in
the preamble of the French Constitution. Article 1 reads: “Les hommes
naissent et demeurent libres et égaux en droits.” (“Men are born and remain
free and equal in rights.”)
36
This is in fact a conflation of a description (men
are born equal in rights) and a prescription (men should remain equal in
rights). It is not clear why one statement would follow from the other,
a problem that does not appear in the minimalistic account sketched above.
If this proclamation is meant to be fully descriptive, no imperative (to anyone)
to treat people equally is expressed. If it is meant, conversely, to be fully
prescriptive, it is unclear on what basis (if any) the imperative rests.
Article 2 of the Déclaration may at this point be invoked, which reads: “Le
but de toute association politique est la conservation des droits naturels et
imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sûreté,
et la résistance à l’oppression.” (“The goal of any political association is the
conservation of the natural and imprescriptible rights of man. These rights are
liberty, property, safety and resistance against oppression.”) People are
DEMOCRACY AND SECURITY 7
supposed to be equally entitled to these rights. This is no more than
a specification of what is said in article 1, and the main issue, on what basis
people are supposedly equal and should be treated as equals, is not resolved.
The characteristic that qualifies them as the proper holders of the rights
specified (inter alia) in art. 2 of the Déclaration is not explicated.
Such “natural and imprescriptible” rights can have a religious basis. This is
evidenced, for instance, in the preamble of the U.S. Declaration of
Independence, where it is said to be evident “[. . .] that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights
[. . .].” In the absence of an (explicit) religious appeal, one may, alternatively,
appeal either to reason as a decisive factor or to the notion of “(human)
dignity,” which was discussed above. The latter option is no more than
a temporary resort, a “stopgap” used by those who have not yet found an
actual criterion, since it remains in that case to be clarified on what ground
someone is considered to have “dignity.”
Of the two options just mentioned, then, only the first one, an appeal to
reason, remains. The benefit of reason is that it is not, at least not in the sense
intended here, an elusive notion but rather a faculty one may experience to
exist in oneself and others: one may observe human beings using their ability
to reason. However, the step from that given to the conclusion that it must
somehow be acknowledged that they should have certain rights is not evident.
To be sure, the fact that they have reason does mean that they can – indivi-
dually or collectively – claim certain rights, and resist rulers that fail to treat
them in a way they deem acceptable. It is not possible, however, to conclude on
the basis of that given that natural rights exist without committing the fallacy
of false equivalence. Reason is, after all, clearly an instrument to claim rights,
but this is to be distinguished from its being the basis for such a claim. Reason
is that basis in the sense that only beings endowed with reason can make such
a claim in the first place, of course, but that given is insufficient to conclude
that natural rights should exist. Such rights would have to be acknowledged
even irrespective of whether the beings in question actually claim them. It is
not evident or proved that this is the case.
It may be countered that the failure of a ruler to acknowledge these rights
(until the time has come that it is no longer possible to do so, the people having
become powerful enough to oppose him) is irrelevant. This is only correct if
one fully abstracts from the aspect of reason as the ability to claim rights,
which means that another aspect or characteristic is needed. Reason may be
interpreted as practical reason in the sense espoused by Kant,
37
but reason in
that sense is, in contradistinction to the sense in which it was used above,
elusive, so that the benefit with respect to reason in the first sense is absent
here. In addition, it is not clear why this characteristic should be decisive. This
issue warrants a more detailed discussion than is possible here.
38
I merely
8J. DOOMEN
remark here that practical reason needs to postulate – since a reasonable being
is unable to prove – (inter alia) freedom of the will.
39
It is not amiss to note the
resemblance with a religious stance.
There is no need to find a loftier basis for the rights mentioned in the
Déclaration – or other rights – than the self-interest of those who benefit from
their existence. Those who do proclaim that such a basis exists by referring to
(shared) “values” do not provide a convincing account, but face the same
burden of proof as those who claim the rights to have a religious basis. The
idea of natural rights itself may, depending on the definition of “religion,” even
be said to have a religious character. Religious ideas need not entail the
ontological commitment of accepting the existence of one or more deities,
and a notion like “dignity” may be considered religious insofar as the (epis-
temic) justification for accepting it is not stronger than is the case with another
religious idea.
The foregoing criticism of the difficulty in finding a foundation for “natural
and imprescriptible” rights is not to be identified with the position that such
rights should not be granted to every individual (or every citizen). This issue
would merit a separate discussion. That discussion would amount to an
inquiry of how to deal with a situation in which the majority wants to withhold
certain rights from one or more groups of people, on the basis of whatever
characteristic(s). That issue is, of course, crucial insofar as the matter of
curtailing the right to wear a full veil is concerned, but as long as no one is
discriminated against,
40
the specifics of the ban on face covering are irrelevant,
at least from the perspective at stake here. The problems with those specifics
will be discussed in the next section. What is relevant here is the fact that
basing one’s legislation on certain values is no less difficult to justify (episte-
mologically) than using a specific religious outlook as the basis, even if such
values are accepted by every individual.
A state, moreover, in which laïcité is a guiding principle faces the additional
difficulty that it is inconsistent or, put more discourteously, hypocritical to
appeal to certain values. As Leane puts it: “[. . .] one might arguably character-
ize laïcité as constituting a species of civil religion, or at least a legitimizing
myth, in that it represents a set of beliefs and values that give French society
a transcendent sense of its collective consciousness and destiny. The belief in
a set of shared basic values as an organizing principle, with the state as a kind
of enforcing deity, might be seen as the equivalent of a religious belief.”
41
This
is a clear sign of the transition, pointed out in section 1, of the original
conception of laïcité to the present one. One may, accordingly, say: “If one
wants to impose values on others in the name of laïcité one is, in a sense, anti-
laïque, insofar as laïcité is what is supposed to guarantee the liberty of every
individual.”
42
DEMOCRACY AND SECURITY 9
The state is a construct and thus does not have a view of its own,
43
which
means that the “state view” is, in a democratic state, the majority view. Laws
are constantly passed that conflict with the views of minorities. Those mino-
rities of course have an obligation to act in accordance with which those laws,
but that does not mean that they have to accept the values on which the
legislation is based. In the case of the ban on face covering, such an imposition
is at issue. In addition, the very fact that a full veil may not be worn in public,
so the outward restriction itself, albeit democratically legitimate, is problema-
tical as well, given the reasons for its introduction, which are not unrelated to
the first point. These points will be addressed in the next section.
The right to wear a full veil versus the obligation to discard it
In the previous section, the issue of imposing values on individuals was
addressed. This section will explore this issue further by discussing some
problems associated with the law that bans covering the face in the public
space.
Given the goal of women’s emancipation, the ban may seem justifiable:
women should not be forced to wear a full veil, so measures to ensure that they
do not wear one against their will would be fitting. This does not mean,
though, that one may, as Chesler argues, infer from the fact that a woman
wears a full veil that she is subordinated.
44
It is, after all, impossible to
determine just by looking at a fully veiled woman what the reason for her
wearing it is. The fact that measures may be necessary to ensure that women
do not wear a full veil against their will is not a justification for a ban unless it is
clear that every individual who wears a veil does so against (his or) her will.
That this is the case is not evident.
Another issue is public safety. One may demand that the veil be removed
temporarily in order to be able to establish the identity of the person in
question. Under certain circumstances, in particular in a state of emergency
(depending on the type of emergency), a (temporary) ban may even be
justifiable. In other situations, however, the main question is whether citizens
who are confronted with fellow citizens wearing a full veil are harmed, which
does not seem to be the case: “Religion, understood as metaphysics and
ceremony, is neither harmful nor dangerous and so should get the same
treatment as other inconsequential, harmless practices.”
45
No special treat-
ment of religion is warranted, then,
46
and wearing religious attire should be no
more problematic than wearing a baseball cap.
To be sure, the ban does not exclusively affect wearing burqas, for wearing
a balaclava, for example, is not allowed, either, and formally, nonreligious
manifestations are treated equally with religious ones. Yet in practice, burqa
wearers are affected in particular (cf. note 40, supra). This becomes all the
more clear if the notion of “living together” (“vivre ensemble”) is considered.
10 J. DOOMEN
This notion appears in the “Exposé des motifs” (explanatory memorandum)
accompanying the law that bans covering the face in the public space) (see
note 13, supra): “If the voluntary and systematic concealment is problematic,
this is because it is quite simply incompatible with the fundamental require-
ments of ‘living together’ in French society.” (“Si la dissimulation volontaire et
systématique du visage pose problème, c’est parce qu’elle est tout simplement
contraire aux exigences fondamentales du “vivre ensemble” dans la société
française.”)
It is not clear what “living together” means and why an obligation to act
accordingly would exist.
47
The “Exposé” also indicates that systematically
concealing the face in public places is not in accordance with the “minimum
requirement of civility that is necessary for social interaction” (“[. . .] l’exigence
minimale de civilité nécessaire à la relation sociale.”), but this only raises an
additional question, namely, to what extent such an obligation would exist.
(For completeness, I remark that the “Exposé” also mentions the “dignity” of
women (even those who wear a full veil willingly) and the danger for public
safety as motifs; these issues have already been discussed in section 2.)
S.A.S. v. France
48
provides an illustration of what is at issue. In this case,
a French national who wore a full veil appeared before the European Court of
Human Rights (ECtHR) to argue that the ban on wearing clothing designed to
conceal the face in public places constituted a violation of inter alia articles 8
and 9 of the European Convention on Human Rights.
49
The applicant has
stated that she was not pressured into wearing the full veil
50
and stressed her
willingness to show her face when this was necessary to determine her
identity.
51
The relevance of this case becomes apparent from the applicant’s claim that
her freedom is unwarrantedly restricted. Wearing the full veil is fundamental
for her, as part of her faith, which she considers an essential element of her
existence.
52
She also argues that indirect indiscrimination between Muslim
women who think their beliefs require them to wear a full veil and other
women (and men).
53
(Cf. note 40, supra.)
The European Court of Human Rights observes: “It [. . .] falls within the
powers of the State to secure the conditions whereby individuals can live
together in their diversity.”
54
The idea of the “(wide) margin of appreciation,”
which the Court often invokes, is important here.
55
Importantly, the Court
observes that France could maintain that the practice of wearing a full veil in
public is incompatible with the requirements of “living together” and that the
question whether this practice should be allowed depends on the choice of
society.
56
A “choice of society” appears to be a “general will” (“volonté générale”)
presumption, since the choice is – implicitly or, rather, fictively – made by the
state, such a choice not being part of a legislative process (on the basis of which
the majority would have agreed that such a society is desirable).
57
DEMOCRACY AND SECURITY 11
The obligation to “live together” has at least two aspects. The first aspect
concerns the outward actions. There is a duty to leave the full veil off while
in public, but the question is pertinent whether the obligation extends
further. Do people have an obligation to go out once a day, thus being
forbidden to stay at home all day long (in order to counter what a ban on
wearing the veil in public may, ironically, result in for some women)? In
addition, if a woman acts in accordance with the law and presents herself in
public without the veil but subsequently does not act differently (and,
specifically, does not interact more intensively with others) than before, no
real difference appears to result from a ban, making it clear that its intro-
duction is symbolic. The alternative is that “living together” is interpreted in
such a way that it has a specific content, so that one should, for example, be
obligated to communicate (unveiled) with at least one stranger every time
one enters the public space. Such a demand is as absurd as it is unenforce-
able, at least as long as a police state is forgone.
The second aspect is the obligation to accept certain values, such as those
discussed in the previous section, which is more demanding than the obliga-
tion to refrain from actions that would harm others. The latter obligation,
unlike the first, is justifiable and compatible with various worldviews and
values. As Joppke observes, “[. . .] all that the liberal state can expect from its
members is external conformity with the law; it would violate the principle of
liberal neutrality to prescribe peoples’ [sic] inner convictions.”
58
Even if the “choice of society” is to be taken to reflect the majority
opinion,
59
so that the obligations following from it may be said to be
legitimized democratically, it may be questioned whether they are not too
demanding for a minority: “Living together [. . .] has become a code through
which religious minorities are expected to comply with ‘our values.’
Narrowly conceptualized, there is little room for negotiation or flexibility,
but rather, a rigid portrayal of who ‘we’ are and what ‘our’ values include.”
60
The fact that the ECtHR grants France ample room to impose duties on
individuals with respect to “living together” may be said to be problematic in
this regard.
61
In addition, the idea of imposing values from the consideration of the
importance of “living together” may be said to attest to a paternalistic
stance.
62
This would, again ironically, mean that the state seeks to realize
a goal by acting in the same way as the oppressors from whom it seeks to
liberate the women in question.
The obligations imposed on citizens under the banner of laïcité are intrusive
and unwarranted, given the vague and difficult to enforce goal of “living
together,” on the basis of the values that are supposed to be instilled in citizens.
A liberal democratic state whose citizens take pride in securing secularism as
a guiding precept may benefit from critical reflection on what secularism, and
liberal democracy, in fact means.
12 J. DOOMEN
Conclusion
Secularism does not mean, in a liberal democratic state, that citizens do not
have the right to express themselves by means that manifest their religious
beliefs. Yet this right has come under pressure in France with the ban on
covering one’s face in public. It may be justifiable to restrict this right in
certain places, such as public schools, but only if this is necessary in the interest
of one or more specific goals. In addition, special circumstances, particularly
a state of emergency, could – temporarily – warrant such a measure. As long as
a state of emergency has not been declared, it may be questioned whether the
necessity can be shown in the case of public schools; disallowing a full veil in
public raises even more concerns. The notion of “living together,” with
a supposedly accompanying duty to act accordingly, cannot be characterized
as a relevant goal, and the necessity of the law that bans covering the face in the
public space has not been demonstrated to exist.
First, such a measure may result in behavior that runs counter to the
intention to emancipate women (or ensure their “dignity”), namely, if
women opt, on the basis of the restriction, not to venture into public anymore.
Second, principally, the imposition to accept certain values (which underlie
the notion of “living together”), regardless of the matter of whether such an
undertaking is viable, conflicts with citizens’ freedom (religious or otherwise).
Citizens must refrain from harming each other, but it is irrelevant (from
a legal point of view) on the basis of which considerations they keep to this
duty (so whether they do so because they wish to avoid a penalty or because
they consider it wrong to disobey the law). In addition, it is not clear who is
harmed, not only because the actual number of people who want to wear a full
veil may be slight, but also, principally, because such apparel does not pose
a threat. One may argue that this misses the point and that the threat consists
in not being able to see another person’s face, but the number of people who
are able to gather someone’s (malicious) intentions by looking at his or her
face is, presumably, not large enough to let this consideration be decisive.
The present conception of laïcité is more extensive than the original one
and, for the same reason, conicts with rather than supports the principle of
secularism, since it imposes elements that may be considered religious.
“Religion” may be given a more limited scope than I have done, but that
does not detract from the fact that those elements are problematic from the
consideration that a state, at least a liberal democratic one, should not impose
a worldview on citizens, while the present conception of laïcité entails that
certain values must be accepted by every citizen.
Laïcité initially meant the separation of Church and State. It has eventually
come to mean the separation of Church and Society; the expression “choice
of society” captures this change. Religious elements, in particular full veils,
are not just expelled in domains where the state is represented (which might
DEMOCRACY AND SECURITY 13
be justifiable with an appeal to the separation of Church and State), but in
other domains as well, culminating in the ban on covering the face in the
public space. This curtails some women’s freedom to express their religious
beliefs, and, on the basis of what has been argued in this paper, exces-
sively so.
Notes
1. I say “arguably” because it depends on the definition of “liberal democratic state”
whether secularism must be considered to be a necessary constituent. The idea that
secularism is indeed such a constituent may be defended on the basis of some of the
considerations that were decisive in the case of Refah Partisi and others v. Turkey
(ECtHR, S.A.S. v. France, February 13, 2003 (Applications nos. 41340/98, 41342/98,
41343/98 and 41344/98)).
2. By a “worldview” I mean an encompassing view with regard to religious, metaphysical
and/or “moral” matters. It corresponds with what Rawls calls a “fully comprehensive”
conception or doctrine, the latter meaning a doctrine that “[. . .] covers all recognized
values and virtues within one rather precisely articulated scheme of thought [. . .]”. John
Rawls, Political Liberalism (New York, NY: Columbia University Press, 2005 [1993]),
Lecture V, 175. (In Lecture I, 13, virtually the same formulation (where “system” is
substituted for “articulated scheme of thought”) is used for a “fully comprehensive
conception”.)
3. La loi concernant la séparation des Eglises et de l’Etat.
4. “[. . .] laïcité [. . .] predates the Constitution of the Fifth Republic; and, although it
makes no explicit reference to the word, the law of 9 December 1905 on the separation
of church and state is generally associated with the elevation of a legal regime of laïcité
in France.” Stéphanie Hennette-Vauchez, “Is French laïcité Still Liberal? The
Republican Project under Pressure (2004–15),” Human Rights Law 17, no. 2 (2017):
297.
5. “La République assure la liberté de conscience. Elle garantit le libre exercice des cultes
sous les seules restrictions édictées ci-après dans l’intérêt de l’ordre public.”
6. La loi sur les signes religieux dans les écoles publiques françaises.
7. “Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels
les élèves manifestent ostensiblement une appartenance religieuse est interdit.”
8. Historically, the term does make sense, though (See, e.g., Jean Baubérot, “L’évolution de
la laïcité en France: entre deux religions civiles,” Diversité urbaine 9, no. 1 (2009): 11, 12).
9. E.g. Raed Abilmouna, “Reconciling the ħijāb within laïcité France,” Journal of Islamic
Law and Culture 13, no. 2–3 (2011): 124; and Eoin Daly, “Political Liberalism and French
National Identity in the Wake of the Face-Veiling Law,” International Journal of Law in
Context 9, no. 3 (2013): 368, 379.
10. Nancy Honicker, “The ‘Headscarf Affairs’: French Universalism Put to the Test,” Journal
of Research in Gender Studies 4, no. 1 (2014): 274.
11. Hennette-Vauchez, “Is French laïcité Still Liberal?”. Cf. Didier Leschi, “Problèmes
contemporains de la laïcité publique,” Les Nouveaux Cahiers du Conseil constitutionnel
53, no. 4 (2016): 21: “[. . .] même si depuis 1946, la laïcité est constitutionnelle, puisque
notre ‘République est laïque’, son contenu ne relève d’aucune évidence. Et en pratique il
est laissé à l’appréciation des tribunaux, en particulier du Conseil d’État, avec tous les
aléas que cela suppose.”
14 J. DOOMEN
12. Christian Joppke, Veil: Mirror of Identity (Cambridge/Malden, MA: Polity Press, 2009),
51; cf. Hennette-Vauchez, “Is French laïcité Still Liberal?”: “[. . .] whereas laïcité has
always generated obligations of religious neutrality, those were long understood to weigh
on public authorities only. The 2004 law prohibiting religious symbols in public schools
represents a rupture in that perspective, as it is the first legal formalization of obligations
of neutrality weighing on private individuals.”
13. La loi interdisant la dissimulation du visage dans l’espace public (loi no. 2010-1192).
14. The law also introduces, amending the penal code, a prison sentence (of a year) and
a fine for forcing a woman or women to cover the face (art. 4). This is positive, but it is
unrelated to the issue under discussion, which is that the decision whether or not to wear
a veil is to be left to individual women themselves.
15. Hennette-Vauchez, “Is French laïcité Still Liberal? The Republican Project under
Pressure (2004-15),” 287.
16. Daly, “Political Liberalism and French National Identity in the Wake of the Face-Veiling
Law,” 380.
17. Cf. Joppke, Veil: Mirror of Identity, 14, 15: “[. . .] to determine the meaning of religion
and its behavioral implications falls entirely outside the competence of the liberal state
(at least as long as no rights of third parties are impaired). In this sense, the state has to be
agnostic as to whether Islam really prescribes the veil for women. Accordingly, the veil,
through the very fact of being considered a religious symbol by the woman donning it,
falls within the ambit of religious liberty rights.”
18. Amélie Barras, “Sacred Laïcité and the Politics of Religious Resurgence in France:
Whither Religious Pluralism?” Mediterranean Politics 18, no. 2 (2013): 285, 287.
19. Daly, “Political Liberalism and French National Identity in the Wake of the Face-Veiling
Law,” 373.
20. Baubérot, “L’évolution de la laïcité en France: entre deux religions civiles,” 14, 15.
21. Jean Baubérot, “La Laïcité en crise? Une conquête toujours en devenir,” Informations
sociales 8, no. 136 (2006): 51; Michel Troper, “Republicanism and Freedom of Religion in
France,” in Religion, Secularism, and Constitutional Democracy, ed. Jean Cohen and
Cécile Laborde (New York, NY: Columbia University Press, 2016), : 316–37, 321, 322;
Renee Buhr, “Mapping the Political Opportunity Space of Secularism: French
Republican Appeals to laïcité,” French Politics 15, no. 4 (2017): 461; and Kay
Chadwick, “Education in Secular France: (Re)defining laïcité,” Modern &
Contemporary France 5, no. 1 (1997): 57.
22. Baubérot, “La Laïcité en crise? Une conquête toujours en devenir,” 54.
23. Baubérot, “L’évolution de la laïcité en France: entre deux religions civiles,” 17.
24. Jean Baubérot, “Existe-t-il une religion Civile?” French Politics, Culture & Society 25,
no. 2 (2007): 12.
25. Leti Vopp, “The Culture of Citizenship,” Theoretical Inquiries in Law 8, no. 2 (2007):
590–92; and Jacques Robert, “Religious Liberty and French Secularism,” BYU Law
Review 2003, no. 2 (2003): 651, 659.
26. Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience, trans.
J. M. Todd (Cambridge, MA/London, 2011), 11. The original text reads: “Un État
libéral et démocratique ne saurait demeurer indifférent à l’égard de certains principes
fondamentaux comme la dignité humaine, les droits de la personne ou la souveraineté
populaire.” Jocelyn Maclure and Charles Taylor, Laïcité et Liberté de Conscience
((Montréal: Boréal, 2010), 19.
27. E.g. Jasper Doomen, Freedom and Equality in a Liberal Democratic State (Brussels:
Bruylant (Larcier), 2014), Ch. 4 (43–55).
DEMOCRACY AND SECURITY 15
28. Cf., e.g., Henri Féron, “Human Rights and Faith: A ‘World-Wide Secular Religion’?”
Ethics & Global Politics 7, no. 4 (2014): 191.
29. Maclure and Taylor, Secularism and Freedom of Conscience, 20, 21. The original text
reads: “Un régime démocratique reconnaît, sur le plan des principes, une valeur morale
ou une dignité égale à tous les citoyens et cherche par conséquent à leur accorder
le même respect. La réalisation de cette visée exige la séparation de l’Église et de l’État
et la neutralité de l’État par rapport aux religions et aux mouvements de pensée séculiers.
D’une part, comme l’État doit être l’État de tous les citoyens et que ceux-ci adoptent une
pluralité de conceptions du monde et du bien, il ne doit pas s’identifier à une religion ou
à une vision du monde particulière. [. . .] D’autre part, le principe du respect égal exige
aussi que l’État soit ‘neutre’ à l’égard des religions et des autres convictions profondes; il
ne doit en favoriser ni en défavoriser aucune. [. . .] Les raisons justifiant son action
doivent être ‘laïques’ ou ‘publiques’, c’est-à-dire dérivées de ce que nous pourrions
appeler une ‘morale politique minimale’, et potentiellement acceptables par tous les
citoyens.” Maclure and Taylor, Laïcité et Liberté de Conscience, 30, 31.
30. Cf. Vopp, “The Culture of Citizenship,” 595 and Sally Pei, “Unveiling Inequality: Burqa
Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights,”
The Yale Law Journal 122, no. 4 (2013): 1101.
31. Cf. Geoffrey Leane, “Rights of Ethnic Minorities in Liberal Democracies: Has France
Gone Too Far in Banning Muslim Women from Wearing the Burka?” Human Rights
Quarterly 33, no. 4 (2011): 1053.
32. Ioanna Tourkochoriti, “The Burka Ban: Divergent Approaches to Freedom of Religion
in France and in the U.S.A.,” William & Mary Bill of Rights Journal 20, no. 3 (2012): 830.
33. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA/London: Harvard University
Press, 1978), 227; A Matter of Principle (Cambridge, MA/London: Harvard University
Press, 1985), 191.
34. Cécile Laborde, “Secular Philosophy and Muslim Headscarves in Schools,” Journal of
Political Philosophy 13, no. 3 (2005): 305, 306.
35. Maclure and Taylor, Secularism and Freedom of Conscience, 20. The original text reads:
“La laïcité repose selon nous sur deux grands principes, soit l’égalité de respect et la
liberté de conscience, ainsi que sur deux modes opératoires qui permettent la
réalisation de ces principes, à savoir la séparation de l’Église et de l’État et la
neutralité de l’État à l’égard des religions.” Maclure and Taylor, Laïcité et Liberté de
Conscience, 30.
36. For the sake of simplicity, I will, admittedly anachronistically, equate “Men” with
“People”.
37. Immanuel Kant, Kritik der praktischen Vernunft (Kant’s gesammelte Schriften. Erste
Abtheilung: Werke, Band 5) (Berlin: Georg Reimer, 1908 [1788]), 15, 16.
38. See Doomen, Freedom and Equality in a Liberal Democratic State, Ch. 5 (57–64).
39. E.g. Kant, Kritik der praktischen Vernunft, 132.
40. Incidentally, the ban on face covering arguably evidences indirect discrimination: it
affects those who want to wear a burqa in public in particular (cf. Baubérot, “La
Laïcité en crise? Une conquête toujours en devenir,” 57).
41. Leane, “Rights of Ethnic Minorities in Liberal Democracies: Has France Gone Too Far in
Banning Muslim Women from Wearing the Burka?” 1045.
42. Cécile Bonneau, “Laïcité: de quoi parle-t-on?” Regards croisés sur l’économie 20, no. 1
(2017): 105. The original text reads: “[. . .] vouloir imposer des valeurs aux autres au nom
de la laïcité, c’est dans un sens être anti-laïque, en ce que la laïcité est ce qui est censé
garantir la liberté de chacun.”
16 J. DOOMEN
43. Unless a conception such as Hegel’s is accepted (Georg Hegel, Grundlinien der
Philosophie des Rechts (Berlin: Duncker und Humblot, 1833 [1821]), sections 257, 258
(312–20)), but, apart from the question whether such a conception is even comprehen-
sible, it cannot be reconciled with a secular stance, especially if the stringent standard
I use for secularism is accepted.
44. Phyllis Chesler, “Ban the Burqa? The Argument in Favor,” Middle East Quarterly 17,
no. 4 (2010): 44.
45. Harriet Baber, “Religion in the Public Square,” San Diego Law Review 53, no. 1 (2016):
41.
46. Baber, “Religion in the Public Square,” 43.
47. Cf. Leane, “Rights of Ethnic Minorities in Liberal Democracies: Has France Gone Too
Far in Banning Muslim Women from Wearing the Burka?,” 1051 and Sune Lægaard,
“Burqa Ban, Freedom of Religion and ‘Living Together’,” Human Rights Review 16, no. 3
(2015): 207–10.
48. ECtHR, S.A.S. v. France, July 1, 2014 (Application no. 43835/11).
49. ECtHR, S.A.S. v. France, § 3.
50. ECtHR, S.A.S. v. France, § 11.
51. ECtHR, S.A.S. v. France, § 13.
52. ECtHR, S.A.S. v. France, § 54.
53. ECtHR, S.A.S. v. France, § 80.
54. ECtHR, S.A.S. v. France, § 141.
55. ECtHR, S.A.S. v. France, § 155.
56. ECtHR, S.A.S. v. France, § 153.
57. Cf. Jasper Doomen, “A Veiled Threat: Belcacemi and Oussar v. Belgium,” Ecclesiastical
Law Journal 20, no. 2 (2018): 197.
58. Joppke, Veil: Mirror of Identity, 114.
59. As I indicated above, the “state view” is in fact the majority view.
60. Lori Beaman, “Living Together v. Living Well Together: A Normative Examination of
the SAS Case,” Social Inclusion 4, no. 2 (2016): 4.
61. Cf. Hilal Elver, The Headscarf Controversy. Secularism and Freedom of Religion (Oxford:
Oxford University Press, 2012), 73.
62. Beaman, “Living Together v. Living Well Together: A Normative Examination of the
SAS Case,” 9; Tourkochoriti, “The Burka Ban: Divergent Approaches to Freedom of
Religion in France and in the U.S.A.,” 851.
Disclosure statement
No potential conflict of interest was reported by the author(s).
DEMOCRACY AND SECURITY 17
