Laïcité: Why, Where, When and How? A Synthesis, and the Test France Fails

Laïcité: Why, Where, When and How?

CICNS (June 2011)

1) Definition of laïcité

Definition given by the historian Jean Baubérot and the sociologist Micheline Milot:

“Laïcité, the conjunction of four principles, is declined in the singular and in the plural: in the plural, because according to national and regional traditions, geopolitical conjunctures, dominant social mutations and socio-historical periods, different types of laïcité prove more or less hegemonic. Empirical reality is infinite and mixes multiple ingredients. One can also conjugate laïcité in the singular because, however diverse their forms, and the situations to which they correspond, all laïcités have in common the fact of articulating, in a more or less harmonious way, four principles. Two bear on the ends: the guarantee of freedom of conscience, equality and non-discrimination. Two concern the means: the separation of the political and the religious, the neutrality of the State with regard to the various beliefs. The term laïcité is therefore irreplaceable, (…) because it alone is capable of gathering these four elements.” (Jean Baubérot, Micheline Milot, Laïcités sans frontières, Seuil).

2) Typology of laïcité

The sociologist Micheline Milot lists five types of laïcité (Micheline Milot, La Laïcité, Novalis):

“Separatist laïcité consists in a way of conceiving the arrangement of the secular principles by placing the accent on an almost ‘tangible’ division between the space of private life and the public sphere which concerns the State and the institutions falling under its governance”. Micheline Milot specifies that this type of laïcité was enunciated in English philosophy of the eighteenth century.

“The frontier between separatist laïcité and antireligious laïcité is relatively thin. The second differs however from the first: the holders of this secular conception make themselves the defenders of a public space (the streets and the places where citizens circulate freely) sanitised of every religious sign. For certain people, religion is synonymous with obscurantism and the irrational. (…) But let us note (…) that this secular conception represents only a moment, which can take on more importance during a historical period, but which will thereafter be conjugated with another modality of laïcité”.

“Laïcité of the authoritarian type corresponds historically to that adopted by a State which suddenly and radically frees itself from the religious powers that it considers as social forces threatening the stability of political governance (…) The State then overhangs the confessions, justifying the imposition of limitations on their own autonomy in the name of superior values, a sort of ‘reason of State’. The secularisation of Turkey by Atatürk (1937) is emblematic of this type of laïcité. (…) In another scenario, the France of the Gallican era presented the features of a will to authoritarian secularisation on the part of the State (even if the term was not yet used as such)”.

(…) Laïcité of civic faith (…) carries a weak conception of neutrality. This is manifest in the requirement made of certain citizens to compensate for their will to religious expression by a manifestation of loyalty to civic values. The abdication of freedom of religious expression would become the criterion of integration of the good citizen. Laïcité of civic faith also weakens the principle of freedom of conscience and of religion, since the “religious” conscience is suspect and, from then on, stigmatised. (…) In its will to define a strong republican citizenship, the French State has taken care to exercise a sort of moral magisterium claiming to emancipate consciences from the hold of the religions”.

(…) [Laïcité of recognition]. This type of laïcité is characterised by a recognition of the autonomy of thought of which each citizen is considered the bearer (…) it follows that all conceptions of life (apart from those that infringe the rights of others) deserve the same protection on the part of the State. (…) It is without any doubt, among the different modalities of implementing laïcité, the most demanding socially, ethically and politically.

3) To whom laïcité applies

Laïcité applies to the public authorities, to the Republic and therefore to public agents, but not to persons, whether they be in the public space or in a private space:

“It is precisely because the space of the public authority that founds the liberties is rigorously secular that the civil space open to the public and the private space, where they are exercised, do not have to be secular, but simply tolerant. The tolerance that reigns in civil society has as its condition and as its guarantee the laïcité to which the space of the public authority submits. In other words, the regime of laïcité articulates the principle of laïcité with the principle of tolerance.” (Catherine Kintzler)

4) Difference between laïcité and secularisation

“Secularisation corresponds to a progressive loss of social and cultural pertinence of religion as a normative framework orienting the conduct and the moral life of society as a whole.” (Micheline Milot, ibid.), whereas “laicisation, laïcité concerns the dissociation between the political and the religious, the arbitrating neutrality of the State, of legal norms, of institutional rules”. (Jean Baubérot, La laïcité expliquée à M. Sarkozy, Albin Michel).

5) The laws of 1905 and 2004

A certain number of laws and regulations have participated in the laicisation of the French Republic. Public agents in particular have a duty of religious neutrality in the exercise of their functions.

Law of 9 December 1905 concerning the separation of the Churches and the State

Art. 1. - The Republic ensures freedom of conscience. It guarantees the free exercise of worship under the sole restrictions enacted hereafter in the interest of public order.

Art. 2. - The Republic does not recognise, does not pay and does not subsidise any religion.

(…)

Law no. 2004-228 of 15 March 2004 regulating, in application of the principle of laïcité, the wearing of signs or dress manifesting a religious affiliation in public schools, collèges and lycées

Art. L141-5-1 - In public schools, collèges and lycées, the wearing of signs or dress by which pupils ostensibly manifest a religious affiliation is forbidden.

(…)

The 2004 law on the ostensible wearing of religious signs, also called the law on laïcité, has caused much ink to flow, notably because it extends the duty of laïcité to a public (the pupils) not forming part of the public agents and using a public service (republican schooling) in public establishments.

The philosopher Catherine Kintzler supports this initiative: “Following the remarkable work of the Stasi Commission, the 2004 law indeed forbids pupils to sport ostensible religious signs: they are asked, during school time, for a greater reserve than when they are in the ordinary civil space. This means that the school is integrally party to the space falling under the public authority. The public primary and secondary school is withdrawn from the ordinary civil space because it forms part of the apparatuses constitutive of liberty, because it welcomes liberties in the course of constitution. It is neither the street, nor a simple ‘service’ in the ordinary sense of the word. One does not come to school to ‘consume’ a service, one does not come to obtain a paper or fill in a form: one comes there to construct one’s own liberty. And for that one needs a common critical space, a moment of detour, of withdrawal and of doubt”. (Catherine Kintzler)

The historian Jean Baubérot, on the other hand, is the only member of the Stasi commission to have voted against that commission’s report recommending the putting in place of a law on the wearing of religious signs at school. Let us note in particular that the designation “religious signs” is hypocritical, since the sign targeted was the Islamic headscarf.

6) Is laïcité a French invention and a French exception?

The French law of separation of the Churches and the State of 1905 was largely copied from a similar law in force in Mexico since 1859, as Jean Baubérot illustrates. The sociologist cites Aristide Briand, the rapporteur of the 1905 law, in a substantial chapter on foreign legislations: “Mexico possesses (…) the most complete and most harmonious secular legislation that has ever been put into force to this day. It has been delivered from the clerical question for thirty years and has been able to devote itself entirely to its economic development: it really knows religious peace”. (Jean Baubérot).

The organisation of society in a secular manner is therefore neither a French invention nor a French exception. Yet, according to Micheline Milot: “One sometimes has the impression that laïcité is a strictly French product, a sort of sociopolitical exception proper to France. Three factors explain this association in good part. Firstly, the word was first defined in the language of Molière. It does not come from the translation of a term that would have existed at the same period in a language other than French. But one may wonder why the word laïcité has not been translated into other languages or easily transposed to other contexts (like the word ‘democracy’). The answer to this confinement of the term laïcité to French territory is perhaps to be found on the side of a second explanatory factor, that of the conflictual connotation associated with it. The French Republic was only belatedly qualified as ‘secular’, namely in the Constitution of 1946: ‘France is an indivisible, secular, democratic and social Republic’ (first title, article 1). However, one generally attributes to the French revolutionaries of 1789 the laïcité of combat, or anticlerical, indeed antireligious, laïcité”. (Micheline Milot, ibid.)

7) A brief historical survey of the conflict of power between the political and the religious

Jean Baubérot has shown that the 1905 law defended by Aristide Briand was a law of appeasement and a liberal one, a “laïcité of cold blood” in Aristide Briand’s terms. But this episode is an exception and moreover followed a period of strong tension between “clericals” and “anticlericals”: the conflict of the “two Frances”, which was prolonged into the 1980s with the end of the public-private battle in the National Education system. Yet, according to Jean Baubérot, the end of this conflict left a pent-up rancour which turned against the movements called “cults” from the 1980s onwards (Jean Baubérot).

According to the sociologist Raphaël Liogier: “To sum up, one could say that France constructed itself in a monolithic manner, that is to say by eliminating the rough edges, by eliminating the competing enterprises of meaning — if one can call a religion an enterprise of meaning. That begins with Philip the Fair and the famous Gallicanism: the fact that the French State attempts to eliminate the external power of the Vatican, of Rome, in order to constitute a church that is the ideological relay of the French State”. (Raphaël Liogier)

“The problem is that the Republic, in a process dating from the nineteenth century, imposed itself as a content, putting itself in the place of the contents that could exist where individuals could do what they wished. It took the place of those contents in order to eject them, in a way, from the vase. One finds this again, from the philosophical point of view, quite clearly, in the essential difference that constitutes the distinction between the general interest according to John Locke and the general interest according to Jean-Jacques Rousseau. According to Locke, individuals, in the majority, have expressed an interest which is that of the majority, but the majority knows that it is only the interest of the majority. Beside them live the individuals of the minorities, who have chosen to live in a different manner, and there is more or less a good understanding with them. To a minority that refuses to live according to what is determined as being the interest of the majority, one will say that it must accommodate itself to it; that is the notion of ‘reasonable accommodation’ that one finds in the Anglo-Saxon countries. If it really does not want to, one will tell it that one recognises that it is not in its interest, but beyond a certain limit, one will advise its members to go and construct another social contract elsewhere (…). In the Rousseauist mode of thought, of which we are the heirs, it is different. When the general interest has been expressed, even if it is that of a majority, by a sort of abstraction it becomes the interest of everybody taken individually. (…) Hence the notion of a re-education even of your own view of what constitutes your interest. (…) One is not going to advise you to go and look elsewhere or to make compromises. (…) Under the pretext of a generalisation of the interest to each of us, this engenders a process of infantilisation”. (Raphaël Liogier, Sources review, 2nd quarter 2011).

8) Ambiguities and hypocrisies of French-style laïcité (non-exhaustive)

The law of associations

“The French exception is an exception characterised by the obsession with the religious”, according to Raphaël Liogier (ibid.). This obsession is found again in the great diversity of legal structures put in place to designate and control religious groupings: 1905-law associations, 1901-law associations, diocesan associations, congregations. On what criteria can the State judge the granting of this or that status, if not on criteria that are themselves religious, the sociologist asks. “In France there is no possibility, today, of contradicting what the State can do in religious matters. As a result this neutrality, which was constructed by legal doctrine progressively, which was not in the legal texts at the outset, has made it possible positively to do the contrary of what laïcité meant in the sense of ‘separation’. And, concretely, how has that manifested itself? Very clearly, it has manifested itself in the fact that France is one of the countries that intervenes the most in the religious domain in Europe, by giving religious definitions, by making religious classifications” (Raphaël Liogier, ibid.).

The status of religious association

The “statut cultuel” is a legal status for the granting of tax advantages to associations of worship. The term in itself is ambiguous, because it seems to attest the recognition of the religious nature of the grouping. Now article 2 of the 1905 law specifies “The Republic does not recognise any religion”. In fact this status, of fiscal scope, has become a sort of imprimatur of the State in religious matters. An association has the right to declare itself “cultuelle” at the Prefecture, and the Prefect cannot refuse this appellation insofar as the object of the structure is indeed of a religious nature (that is to say dedicated to the exclusive exercise of worship), but in the absence of this status the group will in general be suspected of being a “cult” in the eyes of the authorities.

The confusion reigning around the statut cultuel and around what laïcité really covers is found almost daily in the media: extract from an article on the Jehovah’s Witnesses: “The Conseil d’Etat granted in 2000 the status of ‘association cultuelle’ to the Jehovah’s Witnesses (150,000 in France), but the latter do not form part of the religions recognised by the French authorities, who assimilate their federation to a cult” (Le Figaro, citing the AFP, 29 May 2011). The statut cultuel could in no way serve to “recognise” a religion, and inversely the refusal to grant it could not be the marker of a “cult”, a notion moreover without legal value. Yet the author of the article, in his ignorance, is right in fact: the statut cultuel does effectively serve to join the closed club of the religions “licensed” by the State, from which are of course excluded the “cults” of which the MIVILUDES, under the authority of the Prime Minister, keeps an arbitrary referential up to date.

The case of the “cults” in France

The political treatment of the alleged social scourge that the “cults” are said to represent (hypocritically rebaptised the social scourge of “dérives sectaires” since the creation of the MIVILUDES in 2002), which, by its virulence and its lack of discernment, represents an authentic French exception, allows by itself the secular nature of our republic to be questioned. Let us take up again the definition of laïcité given by Jean Baubérot and Micheline Milot:

Guarantee of freedom of conscience: this freedom is not guaranteed for the spiritual minorities when a henceforth degrading rhetoric (cult, movement with cultic deviance, guru, mental manipulation, etc.) is systematically used to designate these groups, thus delivering them to popular and media vindictiveness; it is not guaranteed when police assaults or “raids” by the MIVILUDES are planned on peaceful spiritual, therapeutic or educational minorities.

Equality and non-discrimination: discrimination is the rule when interministerial missions (MILS, then MIVILUDES) have as their principal object the generation of a climate of suspicion and fear around these groups under cover of a protection of the “victims of cults”: the MIVILUDES allows itself to assert, through its president Georges Fenech, without any proof in support, that “80,000 children are directly threatened by dérives sectaires” and that “Justice could not remain insensible to this endemic ill which touches some 500,000 of our fellow citizens”. Equality is a pious wish when three parliamentary commissions of enquiry (1995, 1999, 2006) refuse contradictory debate and constitute (1995, 1999) arbitrary and non-opposable lists of movements designated as dangerous, used regularly by public agents.

Separation of the political and the religious: the political and the religious are not separated when the delivery or non-delivery of the statut cultuel becomes a tool of recognition or of ostracism, and when the MIVILUDES constitutes a referential of movements whose spiritual vocation it denies after having judged them “cultic”, a qualification which it applies itself to delivering far from any recognised and independent expertise (this referential is made available to all public agents and local elected representatives, but it is to this day inaccessible to the incriminated groups, according to our information).

Neutrality of the State with regard to the various beliefs: the neutrality of the State does not exist, nor that of Parliament, since specific laws have been conceived explicitly targeting groups designated as “cults”:

About-Picard law - Law no. 2001-504 of 12 June 2001 tending to reinforce the prevention and the repression of cultic movements infringing human rights and fundamental freedoms; Law no. 98-1165 of 18 December 1998 tending to reinforce the control of compulsory schooling; Law no. 2008-1187 of 14 November 2008 relating to the status of witnesses before parliamentary commissions of enquiry.

On 30 May 2011, the Paris Court of Appeal found for the Jehovah’s Witnesses, against the prison administration represented by the Chancellery, in their claim for access for three of their chaplains to the prisons (Le Monde, 31 May 2011).

Jean Baubérot comments on the article thus: “The president of the MIVILUDES Georges Fenech declares to the daily that cites him: ‘One senses clearly that through their actions, the Jehovah’s Witnesses are seeking a respectability of official Church’. And he adds that the fact that imprisoned Jehovah’s Witnesses could receive spiritual help of the same type as that received, for example, by imprisoned Catholics, ‘would be the door opened to all sorts of religious dissidences in the prisons: Pentecostals, Mormons, Adventists’. And the Le Monde journalist comments coldly: ‘Pentecostal chaplains already work in the prisons’. Let us observe that the term ‘religious dissidences’ is the administrative term used in the nineteenth century, before 1905, when the regime of ‘recognised religions’ and the Concordat with the Holy See existed. Mr Fenech is ‘Mr Anti-Article 2 of the Law of 1905’. As he is incapable of being a partisan of the free exercise of religions and therefore of perceiving the chaplaincies in that republican perspective, he is forced to pretend that there exist official churches in France and dissident religions, and that the former have a right to chaplaincies and not the latter” (Jean Baubérot).

The teaching of the religious fact

After long procrastinations, Régis Debray’s report L’enseignement du fait religieux dans l’école laïque (2002) made it possible to relax the National Education system’s relationship with the religious fact. The IESR was thus created to “bring pedagogical approaches and scientific research closer together”.

Yet, when it is a matter of evoking the emergence of new spiritualities, certain schools, sensitised by the circulars and reports of the MIVILUDES, call on the anti-cult associations (ADFI, CCMM), partial and incompetent to bring a genuine critical spirit to this sensitive subject of society.

Poisoned debates

“When there is an inflationary use of the term laïcité, it is always to mask something else. At the end of the 19th and the beginning of the 20th century, it was the partisans of Emile Combes who used it to fight Catholicism and to hunt down the congregationists… Likewise today, those who want to revive that laïcité of combat use the word as a politically correct term to dress up their aggressiveness towards Islam.” (Jean Baubérot).

Three recent debates illustrate the incantatory use of the notion of laïcité.

• The debate on national identity (2 November 2009 to 31 January 2010)

Initiated by Nicolas Sarkozy, this debate, considered a stinging failure by the majority of observers (example: Rue89), rapidly derailed towards a stigmatisation of Islam and of immigrants. The government’s summary nevertheless does not hesitate to assert that “the debates reveal a broad consensus on the constitutive elements of national identity (history, language, culture, the will to live together) and on a certain number of values (liberty, equality, fraternity, but also laïcité, respect, tolerance, solidarity, etc.)” (source).

• The debate on the full veil

This debate gave rise to an information mission on the practice of the full veil on national territory (1 July 2009 to 26 January 2010) (see our commentary illustrating the irruption of anti-cult rhetoric into a reflection touching a “recognised” religion). Respect for laïcité was brandished by numerous political speakers as a weighty argument for forbidding the full veil in the public space. It took the patient intervention of constitutionalists (Guy Carcassonne notably), of sociologists and of jurists to convince this large areopagus, visibly ignorant of the foundations of laïcité, that it could not be invoked in that case (since laïcité does not apply to persons in the public space). In the end, Law no. 2010-1192 of 11 October 2010 forbidding the concealment of the face in the public space therefore makes no reference to laïcité, and the Constitutional Council validated it, considering with the legislator “that such practices can constitute a danger for public security and disregard the minimal requirements of life in society; that it also considered that women concealing their faces, voluntarily or not, find themselves placed in a situation of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality”. The “disturbance of public order”, a potentially catch-all notion when one cannot find an adequate article of the Penal Code to forbid or to sanction, is henceforth completed by the no less arbitrary concept of “minimal requirements of life in society”.

• The debate on laïcité (10 February to 5 April 2011)

The “debate on laïcité” initiated by the UMP, initially entitled “debate on Islam” then rapidly rebaptised following the outcry generated, was, among other things, summed up thus: “Three hours of debate to conclude two months of polemic” (Le Monde, 5 April 2011). It is to be noted that the question of the spiritual, therapeutic and educational minorities was not even evoked: the qualification of these groups as “cults” excludes them from the social field and therefore from any debate on laïcité, however poor its quality (see our letter to the UMP).

In the document of “proposed resolution on attachment to respect for the principles of laïcité, foundation of the republican pact, and of religious liberty” produced by the participating deputies, fourteen proposals are formulated, of which several go in the direction of an ever broader imposition of secular neutrality on citizens: example in proposal 7: “[The National Assembly] considers it necessary that the principle of laïcité be extended to all persons collaborating in a public service as well as to all the private structures of the social, medico-social or early-childhood sectors charged with a mission of public service or of general interest”; example in proposal 10: “[The National Assembly] considers it desirable that, in businesses, a certain neutrality in religious matters may be imposed, and notably, when this is necessary, a regulation of the practices and dress liable to harm a harmonious living together”.

The authors go further in the intrusion of the political into the religious and the private sphere, since they wish to put in place a “code of religious liberty” (proposal 2).

They condemn moreover the “‘allegedly reasonable accommodations’ [which] consist in transgressing the laws of the Republic by yielding to communitarian demands”. The deputies do not mention “reasonable accommodations” plain and simple, which are nevertheless the mark of a mature secular management of society (see the works of the Bouchard-Taylor commission in Canada and Jean Baubérot’s study on the subject, Une laïcité interculturelle - Le Québec, avenir de la France, L’aube).

Other incongruities and points of questioning

Among the numerous points of tension linked to the theme of laïcité, let us cite: the concordatory regime of Alsace-Moselle with its recognised religions; the little arrangements of the French State with the Catholic Church (a regular institutional dialogue instituted when the left was in power in 2002, the upkeep of places of worship from which the other religions do not benefit, advantageous rules for the payment of funds to charitable associations, the agreement passed between France and the Vatican which may cover university diplomas - Le Monde, 12 May 2009); the “catho-laïcité” of Nicolas Sarkozy.

Let us also observe the great restraint of the commentary regarding the paedophile affairs within the Catholic Church if one compares it with the letting-off of steam, indeed the media hysteria, accompanying every so-called “cult” affair. Let us note also how membership of a controversial religion (Islam) or of a spiritual minority becomes an additional element of suspicion during a legal treatment (see our press release on the subject).

9) Does France respect the spirit of laïcité?

This question is not incongruous.

“Two symmetrical drifts threaten laïcité. One, which endorses communitarianism, consists in wanting to extend to the domain of the public authority the regime of civil society: it was disavowed and blocked by the vote of the law of March 2004 forbidding the wearing of religious signs in the public school. The other, in which one recognises the ultra-laicism that is a form of antireligious dogmatism, consists inversely in wanting to harden the civil space by demanding that it submit to the abstention that reigns in the sphere of the public authority” (Catherine Kintzler).

“Laïcité must take care not to transform itself into a civil religion which attempts to appeal to a transcendent closure of the social bond. Two versions of this civil religion are to be avoided: the so-called republican version, where the transcendence is nothing more than the Republic itself; the American version, where this transcendence overhangs the norms that the Republic claims to incarnate. (…) A living laïcité can no longer be in the ‘enlightened despotism’ of the nation-State, which the Enlightenment favoured; it must be a laïcité from below, anchored in the pluricultural diversity of civil society. This laïcité of the 21st century is still to be constructed. It is a more exhilarating task than that which consists in repeating ritual formulas.” (Jean Baubérot, La laïcité expliquée à M. Sarkozy, ibid.).

“Once again, I do not say that laïcité does not exist; I say that it exists, I say that it is an exception but that it is not an exception in the sense in which one imagines it. It is an exception in the sense that laïcité is a more massive intervention than elsewhere in the religious domain, and an intervention that supposes ceaselessly judging movements according to a religious definition. The sociological definition of laïcité, really, is that. What one would not allow oneself to do elsewhere, by reason of the very fact that one is in a secularised state, in France one allows oneself because one is ‘secular’. It is something quite paradoxical, but that is how it functions” (Raphaël Liogier, ibid.).

The CICNS considers that France cannot claim to respect an emancipating secular pact so long as it tramples underfoot, ostentatiously and with arrogance, the right of the spiritual, therapeutic and educational minorities to flourish in a tolerant and respectful environment. A first step towards maturity would be to put in place an Observatory of these minorities, independent and competent, in place of the MIVILUDES.