EDITORIAL - French Laïcité and the terrorist attacks

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French Laïcité and the terrorist attacks Books & Journals
The French system of laïcité is often described as being quite intolerant towards religions and thereby reluctant to guarantee their freedom in the public sphere.  It is a quite common criticism, and it is regularly expressed by (some) French religious authorities, as well as by foreign observers, who can hardly understand how freedom of religion can constitutionally be granted on the basics of what they consider to be the opposite principle. The fact is that for French Conseil constitutionnel [See QPC n°2012-297, 21 feb. 2013, Association pour la promotion et l'expansion de la laïcité (Traitement des pasteurs des églises consistoriales dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle). Laïcité is one of the new “rights and freedoms guaranteed by the Constitution” (art.66-1, 2008)] and as such it has to ensure "freedom of conscience" and to guarantee "the free exercise of religion under the provisos enacted hereafter in the interest of public order” [1905 French law on the Separation of the Churches and the State, article 1].

The terrorist attack against Charlie Hebdo, in January 2015, has sometimes been interpreted as the direct result of this French national context, the prohibition of religious symbols in public schools (2004), and of the full veil in the public sphere (2010) being evidence of intolerance and discrimination against Muslim minorities. Since then, all democracies have unfortunately understood that they all are potential targets of Islamic terrorists.  

Such a spread of terrorist violence in 2015 and 2016 has led to the proclamation, by French government, of the State of Emergency, a few days after the slaughter of Bataclan in November 2015. Originally intended to be temporary (2 months), the State of Emergency has been prorogated five times by the Parliament, and it is programmed to last until July 2017after the next presidential election. The effect of Emergency is to strengthen the powers of police forces and to give public authorities powers that ordinarily belong to judges (searches, traffic ban, prohibition of stay…).

The State of emergency has no constitutional basis. It was created in 1955 by a single law (3 April 1955), at the time of the war for independence in Algeria. The powers of public authorities under the state of Emergency have been substantially strengthened in 2016 (21 July), in order to adapt the law to the present day conditions of fight against terrorism. The new provisions of the law do not mention religions and a fortiori Islam or Islamic radicalism, though they had been enacted following attacks ordered by Daech in the name of Islam. The only exception to the religious blindness of the law sits in article 8, that enables the Minister or home affairs and the prefects, who are the agents of the State in the departments, to order the temporary closure of “any kind of meeting places, in particular places of worship in which statements constituting a provocation to hatred or violence, or a provocation to the commission of terrorist acts or making the apology of such acts, are made”. In total less than ten salafist mosques were closed.

Parallel to the protection of public order, the French government decided to strengthen its policy of integration of Muslim communities. A process of dialogue [The process was called «Instance de dialogue entre l’Etat et l’Islam de France »] between the French Muslims and the government started in June 2015, consisting in three important meetings in the Ministry of Home Affairs (Place Beauvau) in June 2015, March and December 2016. Many questions have been discussed, such as the legal structures of Islam (Fondation pour les oeuvres de l’Islam, associations cultuelles…), financing of Islam (prohibition of foreign supports, collections, public financings), the academic and theological formation of French imams, chaplaincies, prevention of religious radicalism, construction of mosques…

A couple of days after the attack of Nice, the Franch Conseil d’Etat had to decide about the prohibition of “burkinis” on the beaches of some coastal cities (Nice, Menton, Fréjus…). It cancelled the mayor’s decisions [CE, ordonnance du 26 août 2016, Ligue des droits de l'homme et autres - association de défense des droits de l'homme collectif contre l'islamophobie en France, Website Conseil d’Etat], considering that public order did not require such prohibitions, which are contrary to freedom of religion, freedom of dress, and individual liberty. As evidenced by the debates in French Parliament in 1905, laïcité does not prohibit the public expression of religious opinions in the public sphere from the moment they do not infringe public order.

The public expression of their religious convictions by Muslims in a secularized country where citizens are not accustomed to express their religious convictions tends in return to provoke a reaffirmation of the Christian identity of French nation, “eldest daughter of the Church”. In recent years, Christian cribs have been exhibited in some city halls in the Christmas period, which heretofore was completely unusual. Article 28 of the separation Act (1905) prohibits the exhibition of any religious sign or emblem in the public sphere, in the name of neutrality of public authorities (Identifikationsverbot). In two important decisions of November 2016 [CE 9 novembre 2016, Fédération de la libre pensée de Vendée, n° 395223 et CE 9 novembre 2016, et  Fédération départementale des libres penseurs de Seine-et-Marne n° 395122], French Conseil d’Etat stated that a Christmas crib has several meanings. It is a certainly a representation of Christian iconography but it is also a part of decorations and illuminations that accompany the end of year celebrations. Considering this plurality of significations, the high jurisdiction stated that public exhibition of cribs is presumed legal, unless it is exhibited for religious purposes, which the concrete modalities of its exposition will establish in case of dispute.

Laïcité was invented at the beginning of the 20th century to separate the Churches and the republican State that had always been associated over centuries. Since then, the principle of laïcité has often been understood as a kind of dogma containing invariable truths. In fact, its application has always been moving, as show the recent evolutions following the terrorists attacks since 2015. This shows that laïcité is nothing else than a living principle, whose evolutions have always been customary.

Pierre-Henri Prélot
Université de Cergy-Pontoise

Shari'a Law and Modern Muslim Ethics
Religious Freedom in an Egalitarian Age
The Journal of Religion

WHAT'S NEW - conferences   JUST BORN

• African Consortium for Law and Religious Studies
The Fifth Conference on Law and Religion in Africa, Rabat – Morocco – 14-17 May 2017

• Consorcio Latinoamericano de Libertad Religiosa – Universidad Católica del Uruguay
XVII Coloquio Anual Consorcio Latinoamericano de Libertad Religiosa, Montevideo - Uruguay, 6-9 September 2017

• European Consortium for Church and State Research
Tallinn, Estonia 16 – 19 November 2017
[on invitation only]


  January 21st 2017
South Asia Consortium for Religion and Law Studies (SACRALS)
(…) With its headquarters in India, it will have institutional support from Amity University and conduct academic programs in all the eight South Asian nations – Afghanistan, Bangladesh, Bhutan, India, Nepal, Sri Lanka, Maldives and Pakistan – besides collaborating and interacting with similar institutions and organizations operating at national, regional and international levels in other parts of the world (…)

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