In the Name of the Nation: the burqa ban, French values and Islam

Daniela Alaattinoğlu - PhD Candidate, European University Institute - Florence, Italy


In the Name of the Nation: the burqa ban, French values and Islam

 

In many European countries, few clothing practices are more politicised and more frequently object of discussion than Islamic face veiling. This is exemplified in the French blanket ban on face veiling in public places, lately and famously dealt with in the case of S.A.S. v. France before the European Court of Human Rights (the Court).[1] The question I would primarily like to raise in this column is why Islamic face veiling is subjected to legal control in Europe, in this context particularly France.[2] To develop this analysis further, I will use the context-specific concepts of laïcité (state secularism), national identity and the so-called public/ private divide.[3]

 

To begin with, I regard it necessary to briefly introduce the case of S.A.S v. France before elaborating further on the question raised in the previous paragraph. In the court case, the French law of 2010 “prohibiting the concealment of one's face in public places”, particularly targeting the wearing of burqa and niqab, was tried as infringements of art. 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association) and 14 (prohibition of discrimination) of the European Convention on Human Rights (the Convention), but considered by the Court to be lawful restrictions – necessary in a democratic society – of the rights protected by art. 8 and 9.[4] The justifying ground referred to by the Court was that of social cohesion,“living together”,[5] with numerous referrals to French national identity and laïcité. The prohibition of face veiling in France is, according to the relevant law, connected to the threat of a fine of maximum 150 €, along with a possible obligation to follow a citizenship course, where French Republican values are taught.[6] In the following, I will look closer at the meaning of secularism in France and its view on law and religion.

 

In her insightful article Piercing the Veil, legal scholar Madhavi Sunder describes the relationship between law and religion as dichotomous: religion is perceived as both the “past” and the “other” of law.[7] These statements are motivated by her reasoning that (international) law as a concept is temporally located after the 1648 Westphalia peace treaty, as the end of a great religious conflict,[8] and that this replacement of religion with law largely pushed religion to the “private” sphere, while the rule of law dominated the “public” sphere through the notion of secularism.[9] Hence, the “other” of the public state became the religious private. In France, the power struggle between the Catholic Church and the French Republic resulted in the laic laws in the end of the 19th and beginning of the 20th centuries, which clearly forms today's concept of laïcité.[10] The principle of laïcité separates the state and religion in the sense that it confines religion to the private sphere, while Republican values are supposed to govern the public sphere. [11] The Republican understanding of French identity is intimately connected to this particular relationship between the rule of law (the state) and religion.

 

This relationship becomes clear in the S.A.S case, when the concept of “living together” is applied by the Court. The practice of face veiling challenges the legal division of public and private, as it introduces the symbol of religion (the face veil) in the sphere that is assumingly governed by French Republican values. What follows is that the practice becomes understood as an attempt to redefine the borders between the “public” and the “private”: ultimately, Muslim women embodying a challenge to state power. Apparently, the fact that the number of practitioners of face veiling in France was low (1.900 according to a state report)[12], did not matter to defining its potential nature as a “threat” to French Republican values, as the practice by virtue seemed to motivate the establishment of the ban.[13]

 

This turns us to the question of who is affected. National identity is not given, but created. The inclusion and exclusion happening on the social and state level can be mainly explained by power struggles in the construction of national identity. I believe this is one of the main reasons to why full inclusion of the people who are visibly religious in the eyes of the nation, i.e. Muslim women, is made difficult in the case described. In France, Muslim women are currently marginally accepted as part of society within the framework of “pluralism” or diversity, one of the “necessary ills” of democracy.[14] This becomes clear in the reasoning by the Court: The Court is aware that the clothing in question is perceived as strange by many of those who observe it. It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy.[15]

 

The aim of this column has been to render visible the unspoken creation of public and private that lies behind the principle of laïcité and French national identity. It has showed how Muslim women visibly practicing their religion through face veiling are – through the recently mentioned conceptualisations of national identity and state secularism – understood as other, as their clothing does not confirm to the socially constructed borders between the public and the private.[16] Even though this text refers to a case-specific context, it should be said that the problematic controversy surrounding face veiling also occurs elsewhere than France. However, the case of S.A.S. v. France embodies a compelling example, as it has been dealt with in the European Court of Human Rights and therefore forms a binding, authoritative interpretation of the Convention. Finally, in order for a conscious development of democracy and justice in Europe (and elsewhere), I call for a more cautious approach towards the concept of 'national identity' and the understanding of secularism, as well as an increased consciousness of whose rights are (repeatedly) limited in the name of the nation.

 

[1]    European Court of Human Rights, S.A.S. v. France. Application no. 43835/11, 1 July 2014.

[2]    In Europe, only France and Belgium have national bans prohibiting face veiling. However, other European countries, including Spain, Turkey, Italy, Germany, Russia and Switzerland, have regional bans regarding Islamic veiling (not only face veiling). See BBC News, The Islamic Veil across Europe. Published 1 July 2014. <http://www.bbc.com/news/world-europe-13038095> Last accessed 31 March 2015.

[3]    Here, the use of 'so-called' can be seen as an expression of a challenge of the division between the public and the private. This critique is grounded in multiple feminist theories. See Gavison, Ruth, 'Feminism and the Private/Public Distinction'. Stanford Law Review vol. 45 issue 1/1992; O'Donovan, Katherine, Sexual Divisions in Law. Weidenfield and Nicholson 1985;  de Beauvoir, Simone, The Second Sex. Penguin Books 1987; See Fraser, Nancy, 'Rethinking the Public Sphere: a contribution to the critique of actually existing democracy'. Social Text vol. 11 issue 25/26/1990, at 56–80; and Gal, Susan, 'A Semiotics of the Public/Private Distinction'. Differences: A Journal of Feminist Cultural Studies vol. 15 issue 1/2002, at 77–95.

[4]    As art. 10 and 14 were not tried separately and the allegations of violation art. 11 were considered to be ill-founded. See European Court of Human Rights, S.A.S. v. France. Application no. 43835/11, 1 July 2014, paras 72–73 and 160–163.

[5]    See E-International Relations, S.A.S. v. France: the French burqa ban and religious freedom. Written by Lucy Vickers, published 10 September 2014. <http://www.e-ir.info/2014/09/10/sas-v-france-the-french-burqa-ban-and-religious-freedom/> Last accessed 22 March 2015.

[6]    See European Court of Human Rights, S.A.S. v. France. Application no. 43835/11, 1 July 2014, paras 28 and 160–163. However, the citizenship course is not applied to 'violators' of the ban as often as the fine. The Wall Street Journal, European Human Rights Court Upholds France's Burqa Ban: ruling gives government broad discretion on limiting the display of religious symbols. Written by Gabrele Steinhauser and Inti Landauro, published 1 July 2014. <http://www.wsj.com/articles/european-human-rights-court-upholds-frances-burqa-ban-1404210496> Last accessed 30 March 2015.

[7]    Sunder, Madhavi, 'Piercing the Veil', The Yale Law Journal vol. 112 issue 6/2003, at 1399–1472.

[8]    Sunder, Madhavi, 'Piercing the Veil', The Yale Law Journal vol. 112 issue 6/2003, at 1415.

[9]    Sunder, Madhavi, 'Piercing the Veil', The Yale Law Journal vol. 112 issue 6/2003, at 1417.

[10]  The question if this struggle was not already initiated in the French revolution of 1789, manifested in the reference to “être suprême” (supreme being) in the 1789 Déclaration des droits de l'homme et du citoyen. However, this column does not provide the space for this to be further explored, so the question will remain a speculation.

[11]  See Clark, Christopher and Kaiser, Wolfram (edit), Culture Wars: secular-Catholic conflict in nineteenth-century Europe. Cambridge University Press 2003.

[12]  Assemblé Nationale, Rapport d'information sur la pratique du port du voile intégral sur le territoire national. No. 2262, 26 January 2010, at 29.

[13]  According to the 2010 state report on the wearing of the full-face veil in France, it was reported that 1.900 women wore the full-face veil in French territory, 270 of them living in French overseas administrative areas. European Court of Human Rights, S.A.S. v. France. Application no. 43835/11, final judgment 1 July 2014, para 16.

[14]  However, it should be said that this ”inclusion” of Muslim women remains a controversy in a largely Islamophobic political environment. The Guardian, France Needs to Start Facing Up to Islamophobia. Written by Valérie Amiraux and Marwan Mohammed, published 26 July 2013. <http://www.theguardian.com/commentisfree/2013/jul/26/france-denounce-islamophobia-veil-riots> Last accessed 2 April 2015. For the debate about the Muslim population vs. Muslim community in France, see The Huffington Post, There Are More French Muslims Working for French Security Than for Al Qaeda. Written by Olivier Roy, published 9 January 2015. <http://www.huffingtonpost.com/olivier-roy/paris-attack-muslim-cliches_b_6445582.html> Last accessed 2 April 2015.

[15]  European Court of Human Rights, S.A.S. v. France. Application no. 43835/11, 1 July 2014, para 120.

[16]  The social construction of public and private can be seen as a reflection state racism and sexism, which is well demonstrated in the fact that male religious clothing, e.g. kippa or turban, are not objects to the same intense political debate and legal control as burqa or niqab. See Kalaycıoğlu, Ersin, Hicab, Türban, and Democracy: religious freedom versus political protest. University of Aberdeen Press 2009.

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Daniela Alaattinoğlu

PhD Candidate, European University Institute - Florence, Italy


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