Getting Down to Cases: France, India and Turkey
THE HEADSCARVES CONTROVERSY IN FRANCE
HARVEY SIMMONS, Professor, York University
On 17 March 2004 the French government adopted a law forbidding the wearing of signs or clothing by which students in schools and high schools conspicuously manifest membership in a religion. Students will be forbidden from wearing headscarves, yarmulkes and large crosses. Before disciplining a student, rules stipulate that there must first be a discussion with the student
The passage of the law was preceded by months of discussion in the press, hearings before the National Assembly and before the presidentially-appointed Stasi Commission, headed by Bernard Stasi in 2003. The law will go into effect in September 2004
France is the only country in Europe to adopt such a law on a national scale. In Germany, laws on the headscarf have been adopted by individual states (Länder) such as Baden-Wurtemburg and Lower Saxony, but they forbid the wearing of headscarves by teachers, and do not affect students. Elsewhere there is a patchwork quilt of laws. Only Turkey, whose constitution also provides for laïcité, has a law which bans headscarves from all schools and universities and from the public service.
What is the explanation for the passage of a law in France which has raised such serious issues of freedom, citizenship and religion? Before approaching these questions, one must first understand the background to the debate.
France is home to an estimated 4-5 million people of the Muslim faith (about 7.5 percent of the total population) a larger number and a larger percentage than anywhere in Europe. Russia counts around 26 million Muslims, or 18 percent of the total population. Although the United States counts 9.9 Muslims, they comprise only 3.75 percent of the population. Canada counts anywhere from 400-600,000, or between 1.25 and 1.87 percent of a total population of 32 million (as of 2004).
Many Muslims in France live in rundown housing projects rife with crime and with high levels of unemployment. Over the past two decades, because of a combination of deteriorating social conditions, racism, and the arrival of new immigrants from North Africa and elsewhere, fundamentalism has been making inroads in the Muslim community.
One side-effect of fundamentalism is increasing pressure on Muslim women to wear a headscarf in public. This pressure sometimes comes from the family, and sometimes from the community. Young Muslim women, especially in the urban housing projects, often have to brook the criticism or disparaging remarks of young men insisting on the headscarf. In a dramatic and well-publicized incident in October 2002 a young Muslim man attacked and burned alive Sohane Benziane, age 17, because she was too independent.
In the midst of this controversy pressure groups have formed on both sides of the issue. Groups like Ni putes, ni soumises support the law; others like Islam et laïcité recently published a petition signed by number of eminent French academics and journalists opposing the law.
Above all, however, it is the headscarves, rather than other religious symbols such as yarmulkes or crosses, that have raised questions about the meaning of the long French tradition of laïcité. One indication of the centrality of laïcité to French society can be seen in the fact that, from 1996 to 2004, the word laïcité appeared in 56 of President Chiracs speeches. As President Chirac said at a 17 December 2003 speech, laïcité is inscribed in our traditions. It is at the heart of our republican identity. But what does the term mean and what does it refer to?
The dictionary [Hachette] definition of laïcité is the principle of separation between church and state. But the term is heavily freighted with implications that reach far back into French history and culture. Jean-Louis Debré, the president of the National Assembly, defined it during hearings over the law as based on the principle of a distinction between the temporal and the spiritual powers. . . . The concept appeared at the same time as the concept of democracy and poses the question of reconciling two sources of power one deriving from the legitimacy conferred by the vote, and the other which comes from the realm of the sacred
To call laïcité into question, therefore, is to raise the crucial issue of the boundary between two kinds of authority political authority which derives from the sovereignty of the public as expressed through the parliamentary system, and the authority of religion which derives from sacred texts as interpreted by religious leaders.
Thus, for the French, the increasing presence of religious signs in school marks a deliberate effort by religious authorities to change the boundary that, since 1905, has marked the separation between church and state. As one member of the National Assembly commission put it, The problem isnt the voile, its that behind it all is an attempt, a desire to subject a whole level of society to a dogmatic religious model following usages and customs which are not those of the Republic.
One key to understanding this interpretation of what is, in one sense, merely an item of clothing, has to do with language. Despite the use of the word signes in the new law, the fact is that, for the French, the headscarf is a symbol rather than a sign. A sign has only one interpretation which hardly varies from place to place. A stop sign at the intersection of two streets means the same in Canada as it does in the US and as it does in France. In Canada, the headscarf is a sign: most Canadians seeing a Muslim woman wearing a headcarf think, Shes a Muslim. It is unlikely the observer thinks much more about it. A symbol, however, has multiple meanings depending on context and history. In France, the headscarf has become a symbol, a political black hole, drawing into its vortex all the concerns and fears of the French regarding their Muslim population violence, crime, terrorism, communitarianism, integration, citizenship and, the most important issue of all, laïcité.
The issue of the headscarf therefore goes beyond the question of free choice whether the girls have freely chosen to wear the scarf or whether the choice is imposed by family or community and raises the issue of the extent to which the state is willing to make compromises with religion in order to keep social peace, an issue which dates back to revolutionary times.
For, from 1789 to the separation of Church and State in 1905, there was continued friction between the Catholic Church which insisted on maintaining its privileges in the educational system, and the forces of anti-clericalism which fought for decades to free politics and education from the influence of the Church.
By 1905, the balance of power swung away from the Catholic Chuch, and from that point on, although the Church maintained considerable influence in French society, culture and education, French public schools were freed from church influence.
By 1958, the laic nature of the French state was definitively inscribed within the Fifth Republic Constitution: La France est une république indivisible, laïque, démocratique et sociale. Elle assure légalité devant la loi de tous les citoyens sans distinction dorigine, de race ou de religion. Elle respecte toutes les croyances.
Until recently, therefore, the question of laïcité hardly entered into French politics in any serious way. Occasionally, when the state tried to cut back on funding to religious, that is Catholic schools, protestors forced the state to back down But it was not until 1989, when two schoolgirls with headscarves were banned from a school in Creil, that the question of laïcité emerged as a major issue.
Initially, the French constitutional court, the Conseil dEtat, ruled that wearing religious signs in school was not in itself incompatible with the principle of laïcité as long as these signs were not used as a means of pressure, provocation, proselytism or propaganda, and did not compromise the health or security of the other students, perturb the process of teaching, trouble order or the normal functioning of a public service. Under this ruling problems were to be resolved on a case-by-case basis, by local education authorities and school administrators. The difficulty was that schools then found themselves the object of increasing pressure from both sides in the community, so that what at first was a purely local issue often became the focus of national media attention. In theses circumstances, many schoolteachers and administrators supported the idea of a clearcut law on religious signs in schools.
In the end, the government came down clearly on the side of banning religious signs in elementary and secondary schools. Reaffirming laïcité would, according to President Chirac, guarantee freedom of conscience, protect the freedom to believe and to not believe, assure to each the possibility of practicing his faith, peacefully, freely, without threat . . . .
But, rather than concluding the national debate, the recent law will likely prolong the debate which is not just over headscarves but which involves larger questions of freedom of choice, the nature of citizenship and the role of religion.
Freedom: By banning headscarves the government claims it is freeing Muslim girls from family and/or community pressure and allowing them to interact in the classroom on a basis of equality with other students. But others claim that forbidding the headscarves means denying girls the right to choice, that is the freedom to follow their religion
Citizenship: By banning headscarves, the government has chosen to follow the individualistic model of French citizenship where rights and obligations are extended to individuals, not to groups or communities. Time and again, from President Chirac on down, authorities have rejected the notion of communitarianism, the idea that rights can be extended not just to individuals, but to grups. But groups respond that by refusing to recognize and therefore make concessions to their religious or cultural traditions, the government is imposing a narrow and, for them, exclusionary model of citizenship. The contrast between these two models of citizenship is at least 200 years old. In 1791, in the National Assembly debate over the emancipation of the Jews, Clermont-Tonnerre said in a famous remark: Tout pour les Juifs comme individus; rien pour les Juifs comme nation.
Religion: By banning headscarves, the government claims it is preserving the line between religion and politics demarcated in 1905 and which has stood almost without challenge for almost a century. But Muslims claim that the current law is specifically aimed at Islam and as such is discriminatory.
In the end, the question will be decided not by the courts nor in the media but in the public forum when, this September, schoolchildren return to class. At that point we will see whether the strict definition of laïcité imposed by the French government will be respected or be undermined by public protest.
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.Le règlement intérieur rappelle que la mise en oeuvre dune procédure disciplinaire est précédée dun dialogue avec lélève. Lois, n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics.
The law will not apply three departments of the Alsace-Moselle region which were exempted from the 1905 law and where religion is taught in public schools and where teachers are paid by the state.
French left-wing intellectual Bernard-Henri Lévy said, «Ce nest pas un corollaire de la démocratie telle quelle sest bâtie en France (...), cest son principe.» Le Monde, 1 February 2004.
«Si la laïcité, comme mode dorganisation de la société, peut être considérée comme un phénomène relativement récent corrélatif à lémergence de lEtat-nation, le principe même de la distinction entre le pouvoir temporel et le pouvoir spirituel, véritable fondement du principe de laïcité, plonge ses racines dans un passé plus lointain. La problématique apparaît en même temps que le concept de démocratie qui pose la question de la conciliation des deux sources du pouvoir, lune qui puise sa légitimité du suffrage, lautre qui la tire directement de la chose sacrée.» Rapport fait au nom de la mission dinformation sur la question du port des signes religieux à lécole (Documents dinformation de lAssemblée nationale).
Jacques Myard in Rapport 9, July 2003. The French use a number of terms to refer to the hijab: voile, foulard, and one witness before the National Assembly even suggested the word fichu.
Statistics show that there were about 10,000 private schools of all kinds in France in 2003, the vast majority Catholic, a few Jewish and one or two Muslim. There were 2 million students, comprising 17% of the student population, and 130,000 teachers.
Conseil dEtat, Assemblée générale (Section de lintérieur) n° 346.893 27 novembre 1989.
Patrick Weil, an eminent student of French immigration policies and a member of the Stasi Cmmission wrote in March 2004: But let me emphasise one point at the start, before setting out the background and reasoning of my decision. After we heard the evidence, we concluded that we faced a difficult choice with respect to young Muslim girls wearing the headscarf in state schools. Either we left the situation as it was, and thus supported a situation that denied freedom of choice to those the very large majority who do not want to wear the headscarf; or we endorsed a law that removed freedom of choice from those who do want to wear it. We decided to give freedom of choice to the former during the time they were in school, while the latter retain all their freedom for their life outside school. But in any case and this is the fact I want to emphasise at the start complete freedom of choice for all was, unfortunately, not on offer. This was less a choice between freedom and restriction than a choice between freedoms; our commission was responsible for advising on how such freedoms should both be guaranteed and limited in the best interests of all. [www.opendemocracy.net/home/index.jsp, March 25, 2004.]
«Le communautarisme ne saurait être le choix de la France. Il serait contraire à notre histoire, à nos traditions, à notre culture. Il serait contraire à nos principes humanistes, à notre foi dans la promotion sociale par la seule force du talent et du mérite, à notre attachement aux valeurs dégalité et de fraternité entre tous les Français.» Jacques Chirac, speech, 17 December 2003.