II. A DISTORTION OF LAICITE

In many ways, the 2010 ban appears like the next logical step to the 2004 prohibition. And yet, this article will show that the reasoning behind the new Act has strayed away from the concept of laïcité which inspired the earlier ban. The contours of laïcité are restricted to public services or public officials where the presence of the State requires religious neutrality. No such demands of neutrality have ever been required under the French legal system from ordinary citizens in ordinary public places. As will be demonstrated in this section, banning the burqa altogether in all public places is therefore not a manifestation, but rather a distortion, of laïcité.

French secularism or laïcité is usually defined as a system in which there is a separation between religion and the State.Footnote ³⁰ But French secularism has always been thought to be compatible to some degree with state intervention in religious matters. Indeed the principle of separation between religion and State, proclaimed by the law of 1905,Footnote ³¹ coexists with the principle of freedom of conscience, also asserted in the 1905 Law. French secularism therefore does not convey any hostility or even indifference towards religion. On the contrary it was devised as a means to ensure the free exercise of religion by all citizens. To the extent required by the principle of freedom of conscience, the principle of separation between religion and State may be loosened. The French State will for example fund private religious schools under contract.Footnote ³² Whilst such support for religion may seem at odds with the principle of separation between religion and State, it is actually in harmony with the 1905 legislative framework as long as such intervention is deemed necessary to protect freedom of conscience. Arguably, non-involvement of the State in private religious education would put religious parents at a disadvantage since only non-religious parents could benefit from the free state system of secular education while religious parents would need to pay high fees in order for their children to receive an education that reflects their religious convictions.Footnote ³³ To ensure full respect for the religious convictions of parents and put an end to a conflict between secular France and Catholic France, the French State under the Debré 1959 Law now provides substantial financial assistance to private (religious) schools that have entered into a contract with the State.Footnote ³⁴ The mere fact that the French State intervenes in matters of religion does not necessarily go against the core features of French secularism, as long as these interventions can be said to strengthen freedom of conscience. One fails to see however how the intervention of the French State to ban the burqa will reinforce freedom of conscience. There may be an assumption whereby the burqa is the manifestation of a group ideology the Salafist school of thought against which individuals should be protected by the State.Footnote ³⁵ But as will be argued later on, evidence of group pressures on individuals would then need to be put forward for such a rationale to be supported.

Beyond individual freedom of conscience, the search of a ‘common good’, of a ‘civil religion’ runs through French history and also explains why at times laïcité may well be seen as being compatible with state intervention in matters of religion. Michel Troper traces this French tradition of a state morality back to the French Monarchy:

If this tradition of state values has survived the shift to the Republican State, its foundation is now clearly defined by opposition to religion. It manifests itself in the positive side of laïcité, which carries its own teaching and its own places of worship (town halls, official state buildings, state schools).Footnote ³⁷ Today it is asserted in order to maintain a sphere free of the influence of the Church and is consequently restricted to the confines of the State's natural domain of public agents and public services. With its extension to the whole of the public sphere, the 2010 ban therefore does no more than seek to protect a state areligious identity as it strives to strengthen the exercise of individual religious freedom.

Whatever interpretation of the concept may be used, the 2010 ban therefore steps outside of French traditions on laïcité. Unsurprisingly, the special committee set up to consider the issue of the wearing of the full veil had to admit that the concept of laïcité was not relevant to the discussionFootnote ³⁸ and the government's text which led to the 2010 law did not rely on the notion. By contrast, the supporters and opponents of a ban on religious symbols at school each embodied one version of laïcité. Whereas the contours and meaning of laïcité were thus at the heart of the debates surrounding the 2004 Act, laïcité was no more than a political slogan in 2010.

For the detractors of the 2004 ban, the prohibition of religious symbols throughout school premises, whether worn by staff or by pupils was already a step too far. These advocates of an ‘open laïcité‘Footnote ³⁹ considered that religious neutrality could and should be required from public agents and removed from public premises but that it should not extend to users of those services. Consequently, in a school context, laïcité would be a reason to object to religious symbols being displayed in the classroom or worn by teachers but could not be invoked against manifestations of religious freedom by pupils. Indeed whereas the former—directly or indirectly—reflect the State's attitude towards religion, the latter mainly convey allegiance to individually held religious beliefs.

In addition to the diversity of its meanings within the French context, the principle of laïcité may also vary in its application across States. For example, despite the clear connection with the State, the presence of crucifixes in state schools is a regular occurrence in Italy where the principle of laïcité is construed as encompassing the Catholic heritage of the nation rather than as a way of resisting it like in France.Footnote ⁴⁰ Crucifixes in Italian state schools recently survived a challenge before the ECtHR. The Grand Chamber held in the Lautsi case that the mere presence of crucifixes did not amount to a violation of Article 2 Protocol 1 of the Convention protecting parents' right to ensure that their children receive education and teaching that conforms with their own religious and philosophical beliefs nor did it raise any separate issue in respect of Article 9 of the Convention protecting freedom of religion and conscience.Footnote ⁴¹ This conclusion is not to suggest however that the ECtHR prefers an Italian secularism to a laïcité ‘à la française’. The Grand Chamber's decision is not about the correct meaning of laïcité:

Rather the Court's assessment focused on the reconciliation of crucifixes with the principle of pluralism. Having regard to the wide margin of appreciation granted to Member States in this area,Footnote ⁴² the Grand Chamber went on to hold that the crucifix merely constitutes a passive religious symbolFootnote ⁴³ which, put in perspective with the openness of Italian state schools towards other religions,Footnote ⁴⁴ cannot in itself amount to a violation of Convention rights.

It will be interesting to examine whether the wide margin of appreciation granted to Member States in respect of the principle of secularism and its consequences would be sufficient to secure the fate of the French 2010 ban on the burqa in Strasbourg.Footnote ⁴⁵ Suffice to note here how different the concept of laïcité may be in France and Italy, to the point, in the Italian specific context, of allowing what would be construed by all in France as the exact denial of laïcité: an endorsement of religion (and indeed of a particular religion) by the State.

In the case of teachers, the link to the State is only indirect. If teachers as public agents are emanations of the State, as individuals, they are also holders of fundamental rights, including that of freedom of religion. Would the wearing of a headscarf by a teacher in a state school therefore necessarily contradict the idea of separation between State and religion that the notion of laïcité implies or should it be construed as an expression of the teacher's individual faith? This individual dimension prompted Quebec to moderate the demands of laïcité against public staff and allow the wearing of headscarves by civil servants as long as the headscarf did not interfere with their tasks and mission. Conceptually, the comparison with Quebec reveals once moreFootnote ⁴⁶ how accommodating towards religion the concept of laïcité may be.Footnote ⁴⁷ But the comparison also highlights the strikingly different historical and sociological approaches towards religion in Canada and France respectively. Concerned from the outset to ensure a harmonious cohabitation between different religious communities—Catholic and Protestant—Quebec has always been willing to accommodate ‘reasonable’ religious claims.Footnote ⁴⁸ The concept of laïcité in this context has always been devoid of any positive content itself.

In France on the other hand, where the fight was historically against Catholic forces perceived as anti-republican and conservative, laïcité was not only constructed as a legal tool to manage the diversity of religious beliefsFootnote ⁴⁹ but also, at least in some of its social and political narratives, as a concept conveying a positive belief in itself to be opposed to Catholic forces. Given this positive side of laïcité,Footnote ⁵⁰ the absence of religious symbols in France is regarded in itself as an emblem of a state philosophy—to be reflected if not celebrated in certain key national events and key national institutions and respected by public agents.Footnote ⁵¹ In France therefore the divide between an ‘open’ and ‘closed’ version of the concept of laïcité Footnote ⁵² coincides with the divide between employees and users of public services. Even supporters of an ‘open’ version of laïcité will in France deny public servants the right to express their religion lest they betray the state philosophy they are bound to be seen to adhere to. Adopting an ‘open’ interpretation of the concept of laïcité, the Conseil d'Etat has consistently held that public servants are tied to a strict duty of neutralityFootnote ⁵³ but simultaneously, until the 2004 ban, it considered on the other hand that as users of a public service, pupils should be allowed to wear religious symbols at school subject only to the requirements of public security and public order. The case law that ensued was criticized by someFootnote ⁵⁴ for its inconsistencies. If the state of the law appeared incoherent to some, it was because divergent appreciation of the principle of laïcité could occur from one school to the other, from one student to the other depending on specific circumstances.Footnote ⁵⁵ These local variations seemed in contradiction with the unified force of the principle of laïcité—which etymologically comes from the Greek term laos, meaning unified people/society—and which historically, under a ‘closed’ conception of the notion, is associated with the centralized characteristics of the French State. Moreover heads of schools and teachers resented the powers forced upon them and the media attention that their decisions provoked. Gradually, legislative action thus appeared more and more indispensable. Based on one of the recommendations of a report drafted by a Committee known as the Stasi Committee,Footnote ⁵⁶ the 2004 ActFootnote ⁵⁷ was passed and the ‘closed’ version of laïcité proclaimed in all state French primary and secondary schools. Despite the generality inherent in the ‘closed’ version of laïcité, the 2004 prohibition is restricted to primary and secondary schools of the state sector—thus leaving universities and higher education institutions as well as private schools outside the scope of the Act.

This restriction of the 2004 ban to state schools lies at the heart of the justification of the 2004 legislation and ties the 2004 ban to the concept of laïcité. The principle of laïcité has indeed a particular force and meaning in the context of education and of children.Footnote ⁵⁸ Since the reforms of Jules Ferry,Footnote ⁵⁹ schools through free, compulsory, public education for all have become the symbol of integration for all into the Republican State. In that sense, schools are at the epicentre of laïcité.

In France, the ideal of a ‘common school’ is thus diametrically opposite to the British model—be it at times merely an aspiration—of a microcosm of society where pupils are encouraged to be involved in their local community and exposed to the diversity and problems of the world.Footnote ⁶¹ In France, the ideal school—be it again merely an aspiration—is a haven, safe from the turmoil of the world, a place of culture where a common intellectual quest and discussion of concepts transcends everyday life and everyone's differences.Footnote ⁶² The prohibition of religious symbols which are perceived as signs of diversity (if not division) at school is consistent with this idea/ideal that knowledge and culture by contrast can achieve universality:

Confined to state schools, the 2004 prohibition of ostentatious religious can therefore be construed as an application of the principle of laïcité. Taking the prohibitive stance outside of schools and targeting not just civil servants but any passer-by, the new restrictions on individual religious freedoms under the 2010 Act by contrast fall outside of the bounds of laïcité. If the 2010 ban is a manifestation of laïcité, its wide ambit is unjustifiable:

It confuses laïcité (which implies the separation of State and religion) with secularisation (which describes the decreasing influence of religion in society).Footnote ⁶⁵ It blurs the distinction between the normative and the descriptive and extends unduly the realm of the law. This unduly wide scope of the prohibition explains why part of the opposition abstained from voting in favour of the ban. The Socialist Party wished the ban to be limited to public services. Instead, the 2010 law extends the prohibition to all public places. As a result, laïcité can no more be invoked to justify the ban than the ban can be used to criticize the French model of laïcité. The two phenomena are totally unrelated. If laïcité is not at stake, what therefore could be the basis for a prohibition? The Committee reporting on the wearing of the full veil suggested that the full veil amounted to a violation of broader Republican values:Footnote ⁶⁶ equality, liberty and fraternity. Of the Republican values referred to by the Committee, the government relied explicitly on the concepts of dignity and equality in the proposal which led to the law. But as we will show below, these do not offer a more secure basis for the 2010 law.

III. A PATERNALISTIC VIEW OF DIGNITY AND EQUALITY

Fighting the burqa was described in France as a combat for equality and dignity for women. However in this section, I will argue that the ban is actually not about promoting women's dignity and equality. The enforcement of a prohibition against autonomous decisions made by adult women is a paternalistic and outdated view of women that reverses feminist achievements and that will worsen the marginalization that it is said to be combating.

During the Parliamentary debates leading to the ban, all saw the full veil as an unacceptable oppression towards women:

However, if the burqa does violate women's dignity, isn't it logical and indeed desirable to extend the prohibition to the whole of France? The scope of the 2010 Act would therefore suggest that dignity rather than laïcité is the concept underlying the prohibition against the burqa. The question raised is then whether the burqa does indeed amount to a violation of women's dignity. The lack of empirical evidence to support Parliament's assumption that women's dignity is curtailed by the wearing of the full veil is striking.

The case for a ban for the sake of dignity was also made in 2004 to justify the prohibition of ostentatious religious symbols in French state schools. It was thus reported in the Stasi CommissionFootnote ⁶⁸ prior to the 2004 legislation that young girls from impoverished areas known as the ‘cités’ were pressurized into wearing the headscarf by their family or by young male adults from their neighbourhood. Providing for a neutral zone at school was seen as the only way to ensure that these young girls had a space where their freedom not to wear the veil could be exercised. Even then, a general ban may have appeared disproportionate given that in the majority of cases,Footnote ⁶⁹ the wearing of the hijab was the result of a voluntary choice. Assuming that dignity was a legitimate justification for the 2004 ban, why not—if young adult women were subjected to similar family or social pressures—protect women's dignity more fully and take the prohibition further to the streets and all public spaces?Footnote ⁷⁰ However, the legislator in 2004 took the view that the presumption of vulnerability could not easily be applied to people over 18.Footnote ⁷¹ Clearly departing from this position, the 2010 ban therefore stands in opposition with the previous 2004 Act.

In 2010, the concept of dignity is clearly used to protect adult women despite and against themselves and to ban practices chosen freely. Before the 2004 ban was passed, the Commission Stasi set up to draft the preliminary report had produced examples of coerced wearing of the headscarf. By contrast, the superficial research carried out by the ‘full veil Committee’ on the reasons behind the wearing of the burqa could at most reveal an influenced choice:

In other words, the little evidence gathered revealed at most an ‘influence’—mostly through reading the internet—rather than a ‘coerced’ decision to wear the burqa. If we were to discard influenced decisions as not being the exercise of genuinely free choices, how many—if any—of our decisions would still qualify as expressions of free will? More crucially, even if there were to be no room for true freedom, this moral/philosophical determinism should be no obstacle to maintaining an illusion of freedom and autonomy at the heart of our legal systems.Footnote ⁷³ The social pressures that may limit our individual freedoms should not be an excuse for adding state interferences and pressures. The lack of substantial clear empirical evidenceFootnote ⁷⁴ to support the claim that decisions to wear the burqa are coerced choices is matched by a similarly lack of evidence to the contrary. However, the lack of evidence either way does not put the terms of the alternative between banning and allowing the burqa on the same standing. Unless coercion is proven to have taken place, a presumption of autonomy must be posed. By reversing this presumption, the 2010 Act fundamentally disturbs civil liberties and human rights protection which first and foremost safeguards individual liberties—however illusory—against illegitimate interferences from the State and its agents. It also crudely suggests that autonomy, feminism and religious beliefs can never be reconciled.Footnote ⁷⁵

To undermine the importance of the legal shift, supporters of the 2010 Act have sought to establish a connection between the 2010 prohibition and previous case law based on dignity. But I will argue that the connection is unconvincing. Whether relating to laïcité or dignity, the 2010 Act cannot relate to an established French legal tradition. On the contrary, on both counts, it signals a radical and worrying shift in approaches. The supporters of the 2010 ban argue that the burqa relegates its wearers to an inferior status incompatible with French notions of equality and women's dignity. By veiling her face completely, the veiled woman would deny her own identity and deprive herself from social contacts. Relying expressly on the work of Emmanuel Lévinas,Footnote ⁷⁶ the reasoning underscores the social and philosophical value attached to communication which an uncovered face, open to dialogue, would symbolize. But the fundamental question remains: how can departing from this philosophy violate the veiled woman's dignity if the different philosophy she embraces is freely chosen? Of course, dignity has been invoked in the past to strike down consensual arrangements. In the famous case of Commune de Morsang,Footnote ⁷⁷ the Conseil d'Etat held void contracts whereby dwarves had consented to being part of a ‘show’ involving them being thrown up in the air. These agreements despite being consensual were held to be contrary to human dignity. Save for bioethics legislation, the concept of dignity is however rarely used to oppose consensual practices. The case of Commune de Morsang has remained isolated and involved an ex-post balancing process of the indirect pressures exercised by the remuneration provided to the participating dwarves against the low public interest involved in having ‘throwing of dwarves’ shows available.

By contrast, the ban on the burqa applies in all circumstances save for the limited exceptions of private places—where it is not needed—and places of worship. Moreover, unlike in the dwarves' case, the decision to wear a burqa is not prompted by any promise of remuneration and covers a myriad of motivations. Reducing them all to one—the subordination of women—is necessarily too crude. It also carries a (negative) value judgment on the decision to wear the burqa which would arguably be better left to social conventions than the law. It is fair to say that absolute prohibitions imposed in the name of human dignity in spite of the complexities of participants' feelings and motivations have at times been pronounced in French Law. Article 16–7 of the French Civil Code for example prohibits on that ground voluntary surrogacy arrangements, whether commercial or not, whatever the circumstances. But the general prohibition of surrogacy, itself often controversial,Footnote ⁷⁸ would be no justification by analogy for a general ban on the burqa. Indeed, whereas there is no recognized fundamental right to a child, there is an uncontested individual right to freedom of religion.Footnote ⁷⁹ The Conseil d'Etat itself thought that the concept of dignity could not legally justify a general ban on the burqa. Footnote ⁸⁰ Denying adults' choices in the name of dignity is problematic when autonomy is more and more regarded as an essential component of dignity.Footnote ⁸¹

Besides, in the case of the full veil, one may suspect the French legislator of hypocrisy:

The wearing of the burqa may for many signal archaic practices which diminish the feminist achievements of the twentieth century. But fighting it with paternalistic measures may all the same go against the feminist tradition of claiming equal rights with men and rebutting the presumption that women cannot make free choices for themselves. Long-term effects of the ban may therefore worsen rather than improve women's dignity. Moreover, the situation of veiled women can only deteriorate after a ban. Penalizing women who wear the burqa does not liberate them. There is a concern at European level that a general ban on the burqa would backfire: Commissioner Thomas Hammarberg, Council of Europe Commissioner for Human Rights, thus took the view that banning women who wear the burqa from public institutions/places like hospitals or government buildings may result in them avoiding such places entirely.Footnote ⁸³ Integration will not be improved by the ban. A report from the Open Society FoundationFootnote ⁸⁴ already reveals that since the debate on the face veil began in France, 30 of 32 burqa-wearing women interviewed had experienced verbal abuse, and some had also been physically assaulted. As a direct result they preferred to limit the amount of time they spent outside the home, the NGO found. Consequently, the European Parliament adopted both a recommendation and a resolution whereby Member States are advised not to legislate against the wearing of the full veil.Footnote ⁸⁵

A general ban on the burqa does not therefore liberate veiled women but increases their stigmatization and isolation. Nor does it genuinely seek to do so. The dignity which is to be protected is in reality less that of the veiled woman than of other non-veiled citizens. Indeed the argument has been made that by shunning social contacts, veiled women are refusing to treat non-veiled citizens as equals and thereby encroaching onto their dignity. In our societies of intense communication, the woman who rejects the gaze, handshakes or services of male fellow passers-by, colleagues, doctors or teachers distances herself from modernity and offends social conventions. But is a legal prohibition the answer to such social dysfunction?Footnote ⁸⁶ Are we to legislate to prohibit all practices that appear socially shocking asks David Koussens?Footnote ⁸⁷ Can the right not to be offended rival a right to express one's religion? In its brief decision of October 2010, the Conseil constitutionnel suggested that legislation banning socially disturbing practices could be promulgated on the new ground of ‘social ordre public’. The ban on the burqa would be legitimate and constitutionally sound not because it seeks to protect laïcité, dignity or equality—which indeed are not referred to by the Conseil constitutionnel—but because the full veil would put the French social backbone, the French ‘vivre ensemble’ into jeopardy. However, this article will argue that this new legal basis represents an inflated and unconvincing conception of public policy.

IV. AN INFLATED CONCEPTION OF PUBLIC POLICY

Public policy has always been a valid reason for limiting individual freedom. If wearing the full veil violates public policy, a legislative reaction to ban its display will be legitimate. But how could a prescription of what constitutes socially acceptable head-wear amount to legislative protection of public policy? In this section, I will argue that the 2010 ban on the burqa relies on an illegitimate and inflated conception of public policy. The ban is not a reaction to any threats to public order or public safety. Nor does it fit within the broader trends throughout immigration laws in EU Member States to restrict individual religious freedom for the sake of national cohesion.

Has the protection of public policy turned into the protection of the conformity of appearances? Has France, ‘la Patrie des droits de l'homme’—the ‘land of human rights’—as it likes to call itself turned into the ‘land of blinkered thinking’—le ‘pays de la pensée unique’? As explained above, the 2010 Act represents an unprecedented and worrying expression of state morality. Such a move should be strongly condemned. But the risk of a slippery slope where the ban on the burqa could evolve for example into a ban on the ‘mini-skirt’ and then turn into a general positive list of acceptable clothing cannot be seriously entertained. Social norms may be more prescriptive in Paris than in London as to what amounts to ‘correct’ colour matching of garments but the law is no more likely to move into the territory of individual fashion in France than it is in Britain. The ban on the burqa only found its way through the legislative process because the wearing of the full veil was seen as a radical and extreme practice and the covering of the face was described as radically different from the covering of the body.Footnote ⁸⁸ Because the intrusion of state morality appears at the margin, to condemn what is described as ‘extreme’—the complete dissimulation of the face, the full veil as opposed to a more moderate veil—and to oppose what appears as a sign of religious extremism—the salafist school of thoughtFootnote ⁸⁹ as opposed to a moderate acceptable Islam—the ban on the burqa still superficially adopts the usual mould of public policy. It does not seek to prescribe what is acceptable but erects a barrier against practices which step outside the limits of the tolerable.

As a reaction against the extreme, as a limit to objectionable practices, the 2010 Act superficially seems to fit in with traditional legal reasoning. Philosophically and politically, it seems to support a modern and moderate form of liberalism in line with John Rawls' thinking.Footnote ⁹⁰ Politically and philosophically, the 2010 Act would not embody an aggressive form of laïcité but, by seeking to eradicate the most archaic forms of religious manifestations and retain liberal religious traditions, it would promote a peaceful compromise between modern ideals and (religious) traditions.Footnote ⁹¹Laïcité indeed is not inherently contrary to Rawls' notion of consensus and justice. Khaled Beydoun has claimed that:

While this may be true of the most rigid accounts of laïcité, dominant in the narrativeFootnote ⁹³ of the concept, the presentation of laïcité as an exclusivist concept does not reflect the nuanced ways in which it has been implemented in law.

Nevertheless, scratching underneath the surface, one has to acknowledge that the reasoning adopted under the 2010 law brings laïcité as a narrative into the realm of the law. Relying purely on political strategies and slogans, the new law is in my opinion flawed both in terms of its sociological premise and of its legal basis. The new ban cannot be justified because first and foremost the premise on which the legislative prohibition relies is wrong: empirical research has suggested that in most cases, the decision to wear the burqa is inspired by a personal quest for meaningFootnote ⁹⁴ and identity rather than by an extremist religious position.

The decision to wear a full veil rarely conveys the imprisonment into religion associated with religious radicalization. Fully veiled women do not necessarily see the world through the unique prism of religion. And when elements of a religious radicalization can be detected, they do not generally carry any political agenda susceptible to threaten public policy but merely seek religious transformation and authenticity.Footnote ⁹⁶

In order to capture these legally harmless but socially disturbing practices, the concept of public policy has been enlarged so as to include ‘a set of fundamental common social features, of common requirements and guarantees’. To some extent, this redefinition of core common values ‘around an ethic of surveillance which overcomes the ethic of autonomy’ feeds into a broader modern worrying trend which is not specific to France.Footnote ⁹⁷ But this idea of a ‘social ordre public’ represents a distortion of ordre public which radically puts civil liberties in second position and public policy in first. It therefore amounts to what I see as the most fundamental flaw of the new law. Under the new legislative framework, the priority is no longer to protect individual freedoms save where a threat to security or other conflicting rights are present but rather to ensure that socially common fundamental standards are complied with.Footnote ⁹⁸ Public policy thus becomes a standard in its own right and insidiously empowers the majority to sweep away human rights whenever their manifestation is offensive to the majority of citizens. The restriction of this ‘social ordre public’ to fundamental social values is of little consolation given that the majority alone—through its parliamentary representatives—can decide what behaviours and practices fall within or without this fundamental core of social values. Surprisingly, the Conseil constitutionnel Footnote ⁹⁹ nevertheless implicitly gave credit to this notion of ‘social ordre public’ by referring to Article 5 of the 1789 Declaration of the Rights of Man and the Citizen which states that ‘the legislator is only entitled to edict prohibitions against acts which are harmful to Society.’ This article in its negative phraseology was designed to restrict state interferences. Ironically, it has now thus become a source of justification for one of the most intrusive pieces of legislation passed in France.

Admittedly, there are other instances where the State has interfered with individual freedoms for the sake of public morality: the regulation of nudism and pornography for example fall under that category. However in these cases, the chosen path was to regulate and restrict these socially disturbing practices rather than prohibit them altogether. Until the 2010 ban, a similar approach was adopted in relation to the burqa. Prior to the 2010 law, a set of texts was already in place to prohibit the wearing of the burqa in many contexts: at school, in respect of school pupils or staff under the 2004 previous ban;Footnote ¹⁰⁰ in public services in respect of public officials;Footnote ¹⁰¹ in the vicinity of demonstrations,Footnote ¹⁰² to quote but a few examples.Footnote ¹⁰³ Moreover, there were many other instances provided for in specific legislative texts, regulations or case law where fully veiled women were to temporarily uncover their face either for security reasons or in exchange for a public service requiring identification. It is the extension under the new legislation of all these specific restrictions and prohibitions to the whole of the public space which marks a radically new turn in the French approach. Far from embodying a French legal tradition, the 2010 ban on the burqa therefore runs counter to a long-standing commitment to individual liberty as expressed by Article 4 of the Declaration.Footnote ¹⁰⁴ Methodologically and legally, the shift is colossal.

However, the promoters of the new law here again argue that this social version of public policy belongs to the French legal tradition. According to the defenders of this social public policy, other instances of a ‘social ordre public’ would be noticeable in immigration law:Footnote ¹⁰⁵ family members are thus only allowed to join a foreign migrant in France if they belong to a ‘normal’ family unit under French terms. In effect, polygamous marriages, however valid they may be according to private international rules, will be disregarded: only one of the wives of a polygamous husband settled in France will thus be able to invoke the right to be re-united with her husband.Footnote ¹⁰⁶ In the 1993 Act relating to ImmigrationFootnote ¹⁰⁷ French values are thus imposed against minority held beliefs and the protection afforded to the foreign immigrant's family life is restricted to forms of family life which qualify as ‘normal’ in the host country. The 1993 Act simultaneously seeks to improve integration of immigrants into French society and to eradicate the practice of polygamy which for many in France appears to be degrading for women. The reasoning here echoes the goals of the 2010 ban on the burqa which indeed seeks both to eradicate a practice that the majority would find degrading for women and to impose the host country's views of normality in the hope of fostering better integration of minority groups into French society. Didn't the Conseil d'Etat itself prepare the way for the prohibition when it denied French nationality to a veiled woman for want of assimilation into French society?Footnote ¹⁰⁸

However, I contest the perceived similarities between previous legislation or case law and the new 2010 ban. Whereas the 1993 legislation and the Conseil d'Etat case law addresses the situation of prospective migrants or candidates to French nationality, the 2010 ban targets anyone present on the French territory, whether already a French citizen or a mere tourist. With respect to the former, a set of common values may constitute a legitimate threshold to set for those applying to a special status in the host country such as permanent residency or citizenship.Footnote ¹⁰⁹ In the UK, pre-entry English language tests were introduced in November 2010 as a prerequisite for entry of migrants from outside the European Union. Debates about the need to promote ‘integration‘Footnote ¹¹⁰ and avoid disjointed societies were thus at the forefront in a vein reminiscent of discussions on the other side of the Channel.Footnote ¹¹¹ As T Asad argues, ‘the idea that a successful modern nation-state rests on a dominant culture that encodes shared values is now commonplace’.Footnote ¹¹²

This shared conception is a tie between multiculturalism and secularism, two concepts which are often presented as conflicting with each other and which are usually associated with the British and French models of integration respectively. One should not exaggerate the differences between multiculturalism and secularism:Footnote ¹¹³ both strive to achieve a balance between majority (culturally Christian views) and minority beliefs. Like multiculturalism and secularism, the respective approaches to religious diversity in Britain and France are not as far apart as sometimes stated either. Indeed, neither country espouses one model fully: both countries borrow to varying degrees from both multiculturalism and secularismFootnote ¹¹⁴ and both countries strike the balance between national cohesion and conflicting human right requirements more or less favourably for the latter. If the 2010 French ban thus calls into question the commitment to the right to religious freedom, the extension in Britain of pre-entry language tests to spouses of UK citizens raises the question as to whether integration requirements infringe fundamental rights to family life.

Notwithstanding the resonances in immigration policies and debates on either side of the Channel and the interactions on each side of the Channel between the models of multiculturalism and secularism, the 2010 ban on the burqa I would argue stands out. To tighten requirements on entry into the French territory or French citizenship is one thing—which the UK is also familiar with. But to then claim to monitor the behaviour of everyone on the French territory and make sure they do not stray away from common values and do not adhere to the burqa is a completely different ambition, which cannot relate to British or indeed to French traditions. The set of common values is no longer one of the requirements on which the award of a particular privilege is dependent; it then becomes a permanent imperative that restrains everyone's moves and gestures in all (public) places.Footnote ¹¹⁵

Curiously, however, the absolute scope of the prohibition has been defended as a sign of its legitimacy. By contrast to the balancing approach recommended by the Conseil d'Etat and criticized for its complexity, the clear-cut solution contained in the law was praised for its ‘clarity’, ‘purity’ and ‘courage’.Footnote ¹¹⁶ The 2010 ban does convey a clear message: the burqa is not only unwelcome in France; it is now also illegal. However, there is no ‘purity’ but on the contrary sheer confusion and distortion of legal concepts—be it laïcité, dignity, equality or public policy. There is no ‘courage’ but astute political strategies in turning the social discomfort felt towards the burqa into a legislative position which is likely to drain the support of the extreme right and secure votes for the elections held in April 2012. The real courage would be to take up a politically and socially unpopular position against the ban and in favour of civil liberties. The unqualified nature of the ban may have increased its popularity in France. It will however in my view be the cause of its downfall before the European Court of Human Rights in Strasbourg.

V. LIKELY INCOMPATIBILITY WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Whereas the Conseil d'Etat had given an optimistic prognosis for the fate of the 2004 ban before the ECtHR,Footnote ¹¹⁷ it was extremely sceptical as to the compatibility of the 2010 law with the requirements of the ECHR.Footnote ¹¹⁸ On the first anniversary of the coming into force of the Act, around 300 women were reported to have been fined.¹¹⁹

There is no doubt that if their fines are upheld by higher Courts, the case will be taken to the ECtHR. A French Muslim property dealer, Rachid Nekkaz, said he had created a fund to pay women's fines and legal challenges, and encouraged ‘all free women who so wish to wear the veil in the street and engage in civil disobedience’.Footnote ¹¹⁹ Since then, a French couple who claimed to have been forced to emigrate to Britain to avoid sanctions under the French ban are reported to have filed a petition to the ECtHR.Footnote ¹²⁰

The compatibility with the ECHR could also be raised before national courts as French courts have construed Article 55 of the French Constitution as allowing international treaties direct effect before French domestic courts.Footnote ¹²¹ Despite the blessing conferred by the Conseil constitutionnel's decision, the Cour de cassation could still therefore set aside the legislation on the basis that it violates Article 9 of the ECHR which protects the right to religious freedom.Footnote ¹²² But even if the Cour de cassation—as seems more likely—applies the 2010 Act, it is very doubtful that the legislation will survive a challenge before the ECtHR. Before Strasbourg, it is likely that the 2010 ban would be held to infringe Article 9 rights to religious freedom and that the infringement, assuming it is regarded as necessary to serve a legitimate aim, would then be held to amount to a disproportionate interference.

To escape censorship by the ECtHR, the 2010 French Law would first need to be proven to pursue a legitimate aim. Dignity and equality between genders have been implicitly recognized by European case-law but this may not (or no longer) be seen by the ECtHR as justification for paternalistic measures in the absence of immediate threats to public order.Footnote ¹²³ Would the notion of a social ordre public save the French position in Strasbourg as it did before the Conseil constitutionnel? The risk of conflict has been upheld as a reason to restrict religious freedom in TurkeyFootnote ¹²⁴ but it is doubtful that the risk posed by the full veil will be judged sufficiently tangible in the French context.Footnote ¹²⁵ A broader notion of public policy does not exist under the case law of the ECtHR but arguably, under the wide margin of appreciation granted to Member States in areas where religious/secular national identities are at stake, this idea could be encompassed under the concept of laïcité. In that sense, laïcité would probably qualify more easily than other rationales as a legitimate aim pursued by the ban. One may question, however, whether laïcité is at stake where regulation of religious manifestation occurs outside of public services; I have argued above that it is not. But previous ECtHR case law suggests that the European Court will not enter into a discussion of what the notion of laïcité itself entails but on the contrary take for granted state claims in that respect.Footnote ¹²⁶ However, the Court will be far less deferential when it comes to ascertaining how bans pronounced for the sake of laïcité have been enforced. It will thus assess whether the infringements of individual religious freedoms are proportionate to the alleged requirements of laïcité. A State may exceed its margin of appreciation by taking disproportionate measures in the name of national identity.Footnote ¹²⁷ France therefore will not be able to escape the test of proportionality in Strasbourg and when it does, the 2010 ban in all its absolute clarity is highly unlikely to pass the test.

It is surprising that this lack of proportionality did not incur censorship by the Conseil constitutionnel. Disappointingly, the Conseil constitutionnel carried out a very superficial examination of the law and was content that it had passed the requirements of proportionality in view of the gradual system of sanctions put in place by the law.Footnote ¹²⁸ But a measured system of penalties is no guarantee that the prohibition itself is in the first place a proportionate response. One may hope that the ECtHR will apply the proportionality test more convincingly by putting into the balance the aim(s) sought by the ban on the one hand and the restriction to religious freedom it causes on the other. The most recent case against Turkey, Ahmet Arslan Footnote ¹²⁹ supports this view. In that case, the prohibition of a peaceful religious event in the streets was held to amount to a disproportionate interference with religious freedoms. The principle of laïcité, even in the Turkish tense context, could not justify an absolute prohibition of religious public display, in the absence of a present proven threat to public security. Several factors, according to the ECtHR, pointed to a lack of necessity for the prohibition in Ahmet Arslan: the targeting of mere ‘citizens’ (para 48), rather than public agentsFootnote ¹³⁰ or teachersFootnote ¹³¹ who could be reasonably submitted to more stringent restrictions; and the extension of the prohibition to ‘ordinary public places’ such as public streets (para 49), rather than public buildings where the connection to the State could warrant a greater obligation of religious discretion. The Court also remarked that the plaintiffs were members of a group devoid of influence or political ambitions (para 51).

The facts of Ahmet Arslan would not fall under the scope of the French 2010 legislation. Under Article 2 of the French Act,Footnote ¹³² full covering of the face in the context of cultural or religious specific events escapes the prohibition. It is merely day-to-day wearing of the burqa which is forbidden under the Act. Nonetheless, the reasoning adopted by the European Court in Ahmet Arslan against the Turkish prohibition could easily be transposed to the French ban. Just like the Turkish prohibition, the French Act problematically affects ‘ordinary citizens’ in ‘ordinary public places’. By analogy, the French ban on the burqa is therefore likelyFootnote ¹³³ to be regarded as a disproportionate reaction to a minority practice which no evidence connects to any security threats or social unrest, except for a feeling of social discomfort. If the Strasbourg Court has been more lenient towards state interferences where these were opposed to groups—such as Islamist political parties in Turkey—that threatened the political liberal order,Footnote ¹³⁴ the lack of evidence linking the wearing of the full veil to a political agenda of its wearers/promoters makes it very unlikely that the Strasbourg Court will show the same leniency towards the French 2010 ban.

Moreover, the stigmatization of the Islamic faith—which the less overt title finallyFootnote ¹³⁵ chosen for the 2010 law cannot hide—may give rise to a violation of Article 9 combined with Article 14 of the Convention. The 2004 ban was also clearly inspired by headscarf affairs and thus clearly targeted at Islam. But the prohibition against ostentatious religious signs at school could objectively apply to symbols of other religions. Other religions on the other hand will escape the 2010 ban. As for other non-religious instances where someone may be arrested for covering his/her face in public places, it is likely that the list of exceptions provided for in Article 2Footnote ¹³⁶ would then apply. In effect, the ban is not likely therefore to be applicable in any other instances but the wearing of the burqa. Despite its neutral language, the 2010 ban inescapably qualifies as a piece of legislation restricting a particular type of religious practice. This religious dimension was implicitly acknowledged in the Conseil constitutionnel's decision which ruled that the ban was compatible with the French Constitution provided that the prohibition was not enforced in places of worships or their vicinity.Footnote ¹³⁷ As such, the legislation may be regarded as discriminatory towards Islam and consequently may constitute a violation of Article 14 which provides for anti-discrimination protection in respect of convention articles (in the present case: Article 9). The argument that only extreme unacceptable forms of IslamFootnote ¹³⁸ would fall under the prohibition could not prevail since the ECtHR has asserted many times that it is not up to Member States to assess the legitimacy of particular religious beliefs.Footnote ¹³⁹ Indeed, religious freedom would be seriously hampered if only moderate forms of beliefs and practices acceptable to the State were covered. Similarly, the argument that the wearing of the burqa would not be a ‘religious’ manifestation since there is no clear religious requirement to cover one's face under Islam is bound to fail. Regardless of the controversies in their interpretation, the wearing of the burqa originates in scriptural authorities in the Qur'an Footnote ¹⁴⁰ and is subjectively strongly felt by the women who wear it as carrying a religious meaning. It is therefore likely that legal challenge to the 2010 ban as violating Article 9 (and also possibly Article 14) ECHR would succeed before the ECtHR.

Nevertheless, proponents of the ban do not consider criticisms of it—and even the possibility of an adverse ruling by the ECtHR—as a reason for abandoning it.Footnote ¹⁴¹ Departing from a European consensus (itself possibly emerging with Belgium and possibly The Netherlands now following suit) or from national tradition is not—the argument goes—a flaw in itself. Otherwise, no legal changes could ever be implemented. But lack of grounding in traditional legal concepts may be less an indication of innovation than of imperfection when in the absence of this legal tradition, the very necessity of the ban cannot be justified. Indeed that is why the promoters of the ban have shown endless energy in seeking to root the new law into previous texts and concepts. Anne Levade, whilst defending the innovative approach of the new legislation and undermining the importance of respect for tradition, thus seeks to anchor the new law into the 1789 Declaration on the Rights of Man and the Citizen:

The social dimension in place in 1789 seems to me a tenuous argument for linking the new concept of ‘social ordre public’ to an established French tradition of civil liberties. But these efforts to demonstrate legal continuity are interesting; they reveal a legitimate desire to look beyond political majority for justifying the ban. Coherence within the legal system is a quality required for the ‘morality of law’.Footnote ¹⁴³ Political majority alone cannot legitimate infringements of minority rights.

In any case, censorship by the ECtHR, as explained above, would actually not be incurred because of the arguably illegitimate aims sought by the law but because of the way these aims are being implemented. More likely than not, it is the lack of proportionality between the infringements caused and the aims sought by the prohibition that would lead to a condemnation of France in Strasbourg. And this requirement of proportionality, despite its complexity, should in my view be embraced. It is an opportunity to balance conflicting interests and take into account a diversity of viewpoints. It is the best protection against logics of antagonism and the best vehicle for ensuring that multiculturalism/secularism models foster reconciliation rather than generate confrontation.