![Sample our Area Studies journals, sign in here to start your access, latest two full volumes FREE to you for 14 days]({"type":"image" , "src" : "/sda/5922/TOC-Subject-Sample-2021-Area-Studies.jpg"})
Abstract
In 2004, legislation was passed in France that effectively banned the ostentatious display of religious symbols in the public sphere. The 2004 law, which came to be known as the “headscarf ban”, also formally proscribed the display of other religious symbols such as Christian crucifixes and Jewish yarmulkes, but was centrally motivated by the Muslim headscarf. Scholars from varying disciplines polemically claimed that Islamophobia, a phenomenon sweeping through Europe, was the main catalyst leading to the ban. Amid today’s polarized geopolitical landscape, this interpretation was trendy but simplistic. A survey of the modern French historical narrative reveals that laïcité, the uniquely French brand of secularism, furnishes a more robust and comprehensive rationale and, coupled with the spreading culture of “Islamophobia” provides an ample and accurate assessment of the genesis of the headscarf ban.
The second half of the article comparatively assesses the French secularist model with the American religiously neutral model, examining both through the theoretical prism of John Rawls’ “political liberalism”. Whereas the United States’ First Amendment mandates religious neutrality and the ample right to practice religion freely, France’s enshrinement and implementation of strict secularism, or laïcité, most radically evidenced by the 2004 law, is a violation of Rawls’ political liberalism paradigm.
Notes
1Elaine Sciolino, ‘French Assembly votes to ban religious symbols in schools’ New York Times, 11 February 2004. The French National Assembly voted the bill in on 10 February 2004 with an alarming 494–36 margin. The French Senate passed the bill by a 276–20 vote.
2Wing and Smith, op. cit. 743. See also John R Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton University Press, Princeton, NJ 2007): “Although worded in a religion‐neutral way, everyone understood the law to be aimed at keeping Muslim girls from wearing headscarves in school. The law was based on recommendations issues in late 2003 by two prestigious commissions, one formed by the Parliament, the other appointed by President Jacques Chirac (the Stasi Commission).”
3Wing and Smith, op. cit. 745–746: “During the fall 2005, France experienced more than two weeks of violence that spread to more than two hundred cities. The violence occurred to a large degree where people of color disproportionately live in conditions of high employment, poverty, and discrimination. The rioters included recent immigrants and long‐term inhabitants, many from France’s former colonies in Africa and elsewhere. Many were Muslims.”
4In this case, the neqab, a more conservative version of the hijab, which covers both the hair and face, exposing only the eyes. Women who wear the neqab also tend to dress more conservatively, usually exposing no part of their body.
5This is not to say that Islam and the headscarf were not viewed with suspicion before 9/11, but that this was exponentially increased following the terrorist attacks. Islam and the headscarf were consequently conflated with national security concerns.
6“In 1900 Islam was concentrated in the Arab world and Southeast Asia. Today, there may be as many practicing Muslims in England as there are practicing Anglicans; though in the 20thcentury, at least, Islam’s expansion has mostly come about through population growth and migration, rather than conversion” (‘The Battle of the Books’ The Economist (22 December 2007) 80).
7“In an ideal overlapping consensus, each citizen affirms both a comprehensive doctrine and the focal political conception, somehow related. In some cases the political conception is simply the consequence of, or continuous with, a citizen’s comprehensive doctrine; in others it may be related as an acceptable approximation given the circumstances of the social world” (John Rawls, Political Liberalism: Expanded Edition (Columbia University Press, New York 2005) xix).
8John Rawls, A Theory of Justice,
9Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the Qur’an (University of Texas Press, Austin 2002) 53.
10“To begin with, the Qur’an uses the words jilbab (cloak) and khumur (shawl), both of which, in ordinary usage, cover the bosom (juyub), not the face, heads, hands or feet. The Qur’an does not mandate such a form of veiling in any Ayat [verses]” (ibid. 55).
11Rawls, Political Liberalism, op. cit. 9–10.
12Rawls defines the political conception as follows: “While such a conception is, of course, a moral conception, it is a moral conception worked out for a specific kind of subject, namely, for political, social, and economic institutions. In particular, it applies to what I shall call the ‘basic structure’ of society, which for our present purposes I take to be a modern constitutional democracy” (ibid. 11).
13“First, it is a society in which everyone accepts, and knows that everyone else accepts, the very same principles of justice; and second, its basic structure – that is, its main political and social institutions and how they fit together as one system of cooperation… And third, its citizens have a normally effective sense of justice and so they generally comply with society’s basic institutions” (ibid. 35).
14Ibid. 39.
15A fundamental principle that must be examined before discussion of “endorsement of the political conception” and “overlapping consensus” is the initial phase of political bargaining that Rawls titles the “original position”. Rawls explains the original position thus: “We must find some point of view, removed from and not distorted by the particular features and circumstances of the all‐encompassing background framework, from which a fair agreement between persons regarded as free and equal can be reached… [The hypothetical original position] must eliminate the bargaining advantages that inevitably arise within the background institutions of any society from cumulative social, historical, and natural tendencies” (ibid. 23). This latter idea, addressing the political and social imbalance favoring one group, is particularly relevant to one of the questions addressed in this article – namely, whether the attainment of Islam’s endorsement of the political conceptions in France, the United States and Canada is undermined by the established social and political imprint left by the White and Christian traditions. Moreover, the original position theoretically mandates that each and every doctrine is symmetrically situated, which in reality. However, Rawls considers this exercise as the best available philosophical exercise by which to construct a political enterprise where a range of doctrines find collective accord, and thereupon, a common forum to resolve prospective dilemmas and debates.
16Rawls, Political Liberalism, xxi.
17Ibid. xxvii.
18“The general problems of moral philosophy are not the concern of political liberalism, except insofar as they affect how the background culture and its comprehensive doctrines tend to support a constitutional regime… To maintain impartiality between comprehensive doctrines, it does not specifically address the moral topics on which those doctrines divide” (ibid. xxviii).
19Rawls raison d’etre in Political Liberalism is providing a vision of political justness, not advancing a social contract, as in the works of ancient philosophers and theorists.
20Anver M Emon, ‘The Limits of Constitutionalism in the Muslim World: Identity and Narration in Islamic Law’ in Sujit Choudhry (ed), Constitutional Design for Divided Societies, ed. Sujit Choudhry (Oxford University Press, New York 2008) 14.
21Here, when identifying the French and American narratives, the focus is specifically on the 1905 law in France, and the First Amendment in the United States. The narrative is not used in its comprehensive sense, to encompass the entire legal charters’ of both states.
22See generally Jurgen Habermas, Between Facts and Norms (Massachusetts Institute of Technology, Cambridge, MA 1998).
23Emon, op. cit. 9.
25Emon, op. cit. 13, n. 19.
24 See Robert Cover, ‘Foreword: Nomos and Narrative’ (1983) 97(4) Harvard LR 4, 4–5.
26“Cover’s principal concern is with how the law as coercive state institution selects some narratives over others. The selectivity of the law, or its jurispathic tendencies, raises concerns about the institutional effect on the meaningfulness of existence for those whose narratives of identity have been ignored, marginalized, or even forgotten over time. The selectivity of the law, or its ‘violence’ as Cover calls it, satisfies the need for the state to fulfill its imperial function of world maintenance” (ibid. 14).
31Michael W McConnell, ‘Accommodation of Religion’ (1985) 1 Sup Ct Rev, 14.
27John T. Noonan, Jr., ‘Religious Liberty at the Stake’ (1998) 84(3) Virginia LR, 459, 466.
28His views on liberty were very much influenced by the French Revolution and the Declaration of the Rights of Man and Citizen of 1789.
29“In 1791 the French in their first constitution declared, ‘No one should be disturbed for his opinion, even religious ones, provided their expression does not trouble the public order established by the Law’” (Noonan, op. cit. 465).
30“In the aftermath Madison steered to passage Jefferson’s great act establishing religious freedom (it had failed of passage six years earlier when Jefferson had tried). The law’s enactment, as Madison wrote Jefferson in Paris, ‘extinguished for ever the ambitious hope of making laws for the human mind.” (Noonan, op. cit. 461–462).
33Bowen, op. cit. 11.
32The assimilatory project of “Frenchification” that was practiced during France’s colonial era, an enterprise aimed at rigidly imposing French language and culture upon the colonized at the expense of their indigenous forms, reflected the nation’s ethnocentrism. “In France today, the history of the Algerian colonization is not forgotten. When you have an Arab face and you speak French like the French do, and you say, ‘I am a Muslim,’ there is a great deal of suspicion. I am just a symbol of what’s coming, which is a new generation of Muslim leaders, men and women, able to speak English as you are speaking English, French as they do in France’ (Paul Berman, ‘Who’s Afraid of Tariq Ramadan: Interview with Ramadan’, Foreign Policy (November/December 2004) 3).
36Ibid. 5.
34“Most historians of laïcité emphasize the continuity of Republican thought. The Revolution laid down the basic principles; the Third Republic extracted the church from the schools; the Assembly ratified laïcité in 1905” (ibid. 28).
35“In accordance with its official name, Commission de reflexion sur l’application du principe de laïcité dans la Republique, the Commission concentrates on the principle of ‘laicity,’ or secularism. It presents laicity as a typically French principle, constituting the very foundation of the Republic. Born with the French Revolution and the Declaration of the Rights of Man and Citizen of 1789, in the course of the nineteenth century laïcité has evolved in a struggle between the Republic and the Catholic Church, gaining victory with the legal separation of state and church in 1905” (Cees Maris, ‘Laïcité in the Low Countries: On Headscarves in a Neutral State’, Jean Monnet Working Papers, 14, 2007, 3).
37“It’s time for the Old Continent to face facts and make some profound changes in its outlook on immigration, integration and the coming Muslim demographic surge. After decades of appeasement and political correctness, combined with a growing fear of a radical minority prepared to commit serious violence, Europe’s moment of truth is here” (Fleming Rose, ‘Why I published the Muhammad cartoons’ New York Times (31 May 2006) 〈http://spiegel.de/international/spiegel/0,1518,418930,00.html〉).
38“The European Court of Human Rights on Thursday threw out an appeal by a Muslim student against Turkey’s ban on women wearing headscarves in universities… The court ruled that the prohibition did not breach the fundamental rights of the secular state’s Muslim population… Leyla Sahin had appealed to the court claiming she was excluded from Istanbul University during her medical studies in 1998 because she insisted on wearing a headscarf” (Staff, ‘European Court Upholds Scarf Ban’ International Herald Tribune (11 November 2005) 〈http://www.iht.com/articles/2005/11/10/news/court.php〉 accessed 24 June 2008).
39406 US 205 (1972) 214–30.
40494 US 872 (1990). Justice Scalia delivered the majority opinion, writing: “Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”
41“Organized religion has a cognitively salient template for most French in the institutions of the Catholic Church: a liturgy, performed inside a familiar sacred place once a week, with teaching intended to guide over private claim. Claims to do other things in the name of religion (sell tracts, ring doorbells, wear headscarves) are outside the template (and outside protection) and could be prosecuted if they contravened ‘public order’” (Bowen, op. cit. 20).
42The ‘Establishment Clause’ of the First Amendment is based on the rationale that the state cannot endorse one religious doctrine to the detriment of others, which accords with the precepts of political liberalism, as we shall show.
43Mohammed H Fadel, ‘Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law’ (2008) 8(1) Chicago J of Intl L, 1.
44See generally, Samuel P Huntington, The Clash of Civilizations and the Remaking of World Order (Touchstone, Beaverton, OR 1996).
45These tactics were also brought to bear against non‐antagonistic Muslim and some non‐Muslim communities and citizens were targets of this legislation too.
47Bowen, op. cit. 31.
46“To believe that the Orient was created – or, as I call it, ‘Orientalized’ – and to believe that such things happen simply as a necessity of the imagination, is to be disingenuous. The relationship between Occident and Orient is a relationship of power, of domination, of varying degrees of a complex hegemony” (Edward Said, Orientalism (Vintage Books, New York 1979) 5). In the present article, Orientalism is germane because the West’s conception of Islam is not genuine or accurate, but a politically constructed distortion that fuels political or economic ends. In relation to a politically liberal state, this orientalization of Islam has politically deleterious consequences on that state’s Muslim citizens. This is to put it theoretically, but this matter will be considered more concretely in what follows. The construction of an Oriental‐Islam, if you will, in today’s geopolitical landscape, starkly reflects why Orientalism still matters.
48“The fate of Islam in Western democracies, however, has not been the only casualty of the ‘war on terrorism:’ liberalism has found itself under increasing attack as irrelevant to a world in which, we are told, terrorists can threaten death and destruction on the scale of Hiroshima or Nagasaki. Ironically, political realities created by the ‘war on terrorism’ have created conditions – perhaps for the first time in the last two hundred years – in which both liberals and Muslims have a mutual interest in effecting a meaningful rapprochement” (Mohammed Fadel, The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law, Draft Version – November 20, 2007,1, 7
49“It is sometimes forgotten that religious liberty is the central value and animating purpose of the Religion Clauses of the First Amendment” (McConnell, op. cit. 1).
50Berman, op. cit. 3.
53Bowen, op. cit. 20.
51Tariq Ramadan has become arguably the most controversial public figure in Europe in recent times. The debate about whether Muslims can integrate culturally into Europe ranks among the most salient questions investigated on the continent today, and Ramadan in large part has assumed the role of de facto spokesperson for the Muslim community in Europe. Ramadan, however, is viewed with the same careful suspicion that European politicians and lay people view Islam. In one camp, Ramadan is considered an enigma at best, a skilled politician who says one thing although he really represents another view, while others champion him as a refreshing voice for a progressive and modernist Islam. Mainstream media forums routinely provide Ramadan with a platform to voice his disenchantment with the plight of Palestinians or his certainty of Islam’s compatibility with European values and culture, for instance, but are nevertheless highly skeptical of the views he presents to their (generally non‐Muslim) audiences. Berman (op. cit.) addresses the common “double‐speak” critique that is level against Ramadan, which alleges that Ramadan appeases mainstream Western media by voicing moderate and modernist views to resonate with non‐Muslims audiences, but preaches a fundamentalist Islamic worldview when speaking to his base.
52“Especially in Europe now, there is a competition: Are the Arabs or Muslims more targeted than the Jews? I think that all together, if we really are citizens – and it’s exactly the same in the United States – all kinds of racism are wrong. If we see acts of anti‐Semitism or Islamophobia, we should condemn them not simply as Jews or Muslims. As citizens, we have to condemn them all these cases” (Berman, op. cit. 1).
54“The argument is that in France, people are expected to be French. Muslim refugees flaunt their religion to the point where it is offensive. The women are being insolent and disrespectful toward French institutions. Some may think that it is a deliberate insult to French customs and values to wear such garb” (Wing and Smith, op. cit. 773–774). Cf. Fadel, who discusses how political movements use Islamophobia as a method for rallying support, and brand Muslims in general as subversive. “This in turn contributes to fostering domestic political movements in various democracies that promote fear of Muslim immigrants as a subversive cultural and political force” (‘Public Reason as a Strategy for Principled Reconciliation’, op. cit. 1).
55Chouki El Hamel, ‘Muslim Diaspora in Western Europe: The Islamic Headscarf (Hijab), the Media and Muslims’ Integration in France’ (2002) 6(3) Citizenship Studies, 293, 303.
56Wing and Smith, op. cit. 765.
57“The intuitive notion is that one can be rational, meaning that one’s actions make sense in light of one’s beliefs and desires, but unreasonable, meaning that one is unwilling to acknowledge the legitimate claims of others. Rawls put it this way, “what rational but unreasonable agents lack is the particular form of moral sensibility that underlies the desire to engage in fair cooperation as such, and to do so on terms that others as equal might reasonably be expected to endorse” (Lawrence B Solum, ‘Situating Political Liberalism’ (1994) 69 Chicago‐Kent LR, 558, 564–565.
61Maris, op. cit. 5.
58“The issue of females choosing to wear the headgear first arose in 1989 when three girls in Creil, a suburb of Paris, were suspended for wearing their headscarves in their public middle school. This incident and its aftermath became known as the “Headscarf Affair.” Between 1989 and 1998, more than 1,200 articles were written on the headscarf controversy in the French press” (Rawls, Political Liberalism, op. cit. 754–755).
59“The public school is part of the public because it is where civil education takes place. And so it is public administration” (Bowen, op. cit. 14).
60“
62“A rational solution requires a more subtle balancing of the component values of laïcité. In order to establish the proportionality of a prohibition of headscarves, one should differentiate according to the importance of state neutrality in diverse social domains. To this end, it is helpful to construe a sliding scale running in between the extremes of private and public life” (ibid. 9).
63See John R. Bowen, Why the French Don’t Like Headscarves: Islam, the State, and Public Space (Princeton University Press, Princeton, NJ 2007): “By allowing the veil or headscarf in schools, teenagers in the suburbs are once more placed under the yoke of Islamic dogmas, hampering their emancipation even stronger. Some are raped or called whores because they refuse wearing a veil or headscarf” (Stasi Commission Report (2004) 57, quoting the testimony of Chahdortt Djavann).
64Rawls, Political Liberalism, op. cit. 354.
65“The liberal requirement that religious groups not seek to use the state to force others – those not sharing their comprehensive commitments – to comply with the moral precepts flowing from those commitments, and the liberal requirement that religious groups not use non‐state coercion to prevent members from leaving the group or flouting its rules, both flow from the same conception of the person as free and equal” (Andrew F March, ‘Liberal Citizenship and the Search for an Overlapping Consensus: The Case of Muslim Minorities’ (2006) 34(4) Philosophy and Public Affairs, 1, 34).
66“Some people may wish to argue that the terrorist attacks of September 11thare reflective of the Islamic faith and thus pose a serious threat to the state. It would be incorrect, however, to label all Muslims under one common religion. To suggest that the actions of fundamentalist Islamic organizations such as the Taliban is indicative of the Islamic faith would be similar to suggesting that the IRA is indicative of Catholicism. Terrorist actions are obviously not to be condoned or ignored. Stating that Islam is ‘unreasonable’ is a burdensome position to take” (Dianne Gereluk, ‘Should Muslim Headscarves Be Banned in French Schools’ (2005) 3(3) Theory and Research in Education, 259 〈www.ioe.ac.uk/pesgb/x/gereluk.pdf〉 accessed February 2008.
67“Under the proviso of neutrality, state schools have been strict in enforcing the ban of the hijab. Yet small crucifixes and small yarmulkes are inconsistently enforced, with many state schools turning a blind eye to similar religious symbols. This raises a worrisome question of why some religious symbols are not being prohibited, while other religious are being strictly banned” (ibid.).
68Bowen, op. cit. 4.
69Current Prime Minister Nikolas Sarkozy and his administration have been actively engaged in an enterprise to weld Islam into a more agreeable faith that harmoniously aligns with French culture, free of its “fundamentalist” and “foreign” components: “France’s center‐right government is trying to create a model Muslim citizenry. President Jacques Chirac has spoken about his vision of a ‘tolerant’ Islam. M Sarkozy said recently, ‘There is no room for fundamentalism at the Republic’s table.’ For them, model Muslims would be French‐speaking and law‐abiding. They would celebrate the 1905 French law that requires total separation between church and state. They would attend mosques presided over by clerics who are French‐trained and avoid politics in their sermons. Model Muslim women would not try to wear headscarves in the workplace; model Muslim girls would not try to wear headscarves to school. Most important, model Muslims would call themselves French first and Muslim second. The thinking goes something like this: Muslims must be integrated into French society to avoid a culture clash that could contribute to terrorism. So the French government has embarked on a two‐pronged strategy that will give Muslims what French leaders call ‘a place at the table,’ but monitor and regulate their activities at the same time.” (Elaine Sciolino, ‘France Envisions a Citizenry of Model Muslims’ New York Times (6 May 2003).
70Wing and Smith, op. cit. 755.
71Maris, op. cit. 4.
72Wing and Smith, op. cit. 773.
74Gereluk, op. cit. 4.
73“Reasonable persons will think it unreasonable to use political power, should they possess it, to repress comprehensive views that are not unreasonable, though different form their own” (Rawls, Political Liberalism, 90–91).
75“There are almost three‐million Muslims in the United States. The American Muslim Council reports that 42 percent are African–American, 24 percent are of South Asian origin and 12 percent of Arab origin” (Omid Memarian, ‘Keeping the Muslim Faith – and a Low Profile’ Arab American News (20–26 October 2007) 10). 〈http://ipsnews.net/news.asp?idnews=39675〉 accessed 27 June 2008).
76“The [Bush] government has explicitly engaged in racial profiling in terms of its targets of our ‘war on terrorism.’ Furthermore, President Bush and other top officials have characterized the war against terrorism as a battle for ‘civilization’ – indeed, a ‘crusade’” (Leti Volpp, ‘The Citizen and the Terrorist’ (2002) 49 UCLA LR 1575, 1581–2).
79Ibid.
77“A devout Muslim, she wore a neqab – a scarf and veil to cover her face and head except for her eyes – October 11thas she contested a rental car company’s charging her $2,750 to repair a vehicle after thieves broke into it” (Zachary Gorchow, ‘Veil Costs Her Claim in Court – Judge: Face Key in Deciding Truth’ Detroit Free Press (22 October 2006)).
78“Mark Somers, chief judge of the Dearborn District Court, which covers the bulk of the Detroit area’s Muslim population, said he could not recall an instance when a woman who wore a neqab came before his court to testify” (ibid.)
80“’Although a neqab is donned by a minority of Muslim females, it is still a bona fide religious practice… There definitely needs to be greater sensitivity toward the growing populace in that municipality,’ stated Dawud Walid, Executive Director of the Council on American–Islamic Relations‐Michigan, in regard to Judge Paruk’s position.” (ibid.).
81“’Judges should seek to strike a balance between running their courtrooms and respecting the religious views of those appearing before them,’ said Steve Leben, a Kansas trial court judge who Is president of the American Judges Association, ‘But if it’s a person’s legitimate religious belief, we have a duty to reconcile these competing differences’” (Ron French, ‘Michigan Tries to Accommodate Muslim Women’ Detroit News (11 June 2003).
82CNN News Staff, ‘Judge: Woman Can’t Cover Face on Driver’s License’ CNN News, (10 June 2003).
83Ibid.
84Ibid.
86French, op. cit.
85Rawls, Political Liberalism, Introduction.
87“It’s a compromise between the state and the city’s large Muslim population that has worked for years, a rare accommodation of bureaucracy and religion in a world where the two often lock horns” (ibid.).
88“It is crucial that public reason is not specified by any one political conception of justice, certainly not by justice as fairness alone. Rather, its content – the principles, ideals, and standards that may be appealed to – are those of a family of reasonable conceptions of justice and this family changes over time” (Rawls, Political Liberalism, xlx–xlxi).
89“Janice Trimm, support manager for Secretary of State branches in the area, said women wearing face veils is ‘a daily occurrence’ in the Dearborn office. Women who call ahead can arrange to have a woman employee take their photograph at the office when the office is closed” (French, op. cit. 80).
91Graham Darling, ‘Quebec Town Adopts Controversial Social Code of Conduct for Newcomers’, University of Alberta Faculty of Law, Center for Constitutional Studies 〈http://www.law.ualberta.ca/centres/ccs/Current‐Constitutional‐Issues/Quebec‐town‐adopts‐controversial‐social‐code‐of‐conduct‐for‐newcomers.php〉 accessed 27 June 2008.
90“So Sweden now has a Muslim population of 200,000 to 400,000; the higher tally would place it among the most heavily Muslim countries in Western Europe” (Christopher Caldwell, ‘Islam on the Outskirts of the Welfare State’ New York Times (5 February 2006) 3).
92Richard Brennan, ‘Tory Bill Would Require Veiled Voters to Show Faces’ Toronto Star (26 October 2007) 〈http://www.thestar.com/News/article/271037〉 accessed 27 June 2008.