French Headscarf Law Of 2004 Religion Essay

The paper attempts to look into the contention environing Islamic headscarf in Gallic public schools. It begins with depicting the construct of Gallic laA?cite . The 2nd subdivision describes how the struggle between laA?cite and Islamic headscarf finally led to the passage of Headscarf Law in March 2004. The 3rd subdivision presents a argument on the Headscarf Law, concentrating on its constitutional and international facets. The last subdivision explains the existent motivation behind the Headscarf Law.

Introduction

The Gallic construct of laA?cite is critical to the apprehension of the headscarf contention and its legislative effects. LaA?cite , at its most general degree, refers to an official separation of church and province. But Gallic laA?cite embodies the hawkish secularist theoretical account par excellence ; harmonizing to Gallic Law of 9 December 1905 on the Separation of Churches and State, province has to distance itself from all things spiritual and therefore supports no belief or peculiar political orientation. At the same clip, persons were guaranteed the right to show any spiritual beliefs they might hold in public topographic points provided that these did non upset public order. However, under such a restrictive reading of laA?cite , single beliefs sometimes struggle with the demands of a secular democratic society. Indeed, l’affaire du Foulard or the “ Headscarf Affair ” clearly epitomized the tenseness between the rule of spiritual freedom and of separation between church and province.

L’affaire du Foulard

L’affaire du Foulard began in October 1989 at a school in Creil, outside Paris. The principal of a in-between school suspended three Muslim misss for declining to take their headscarves or hijab inside the school precincts which was judged by the principal as in dispute of Gallic Torahs on laA?cite . The incident dominated the national imperativeness and politicians seized on the hot subject, doing the erosion of headscarves an of all time more controversial issue. To work out the struggle, Lionel Jospin, so Minister of Education, requested Conseil d’Etat, the supreme administrative tribunal in France, to turn to the properness of the principal ‘s actions.

In November 1989, Conseil d’Etat published its avis which ruled that the erosion of spiritual symbols by students was non per Se reverse to the rule of laA?cite , but it constituted the exercising of the student ‘s right to attest his or her faith, and provided that such shows were non ‘ostentatious ‘ or amounted to Acts of the Apostless of ‘pressure, aggravation, proselytism or propaganda ‘ that would conflict the self-respect and freedom of other pupils or interrupt the school ‘s academic environment. Nevertheless, the Conseil ‘s avis has been criticised for its deficiency of lucidity since it had instructed principals to construe and implement the marked criterions on a individual footing. As a consequence, given the equivocal counsel of the Conseil d’Etat, the contention persisted as students were frequently capable to disparate intervention harmonizing to their principal ‘s personal sentiments.

Faced with the ongoing public argument over these extremely seeable instances, President Jacques Chirac set up an fact-finding commission, chaired by Bernard Stasi with the undertaking of reexamining on the application of the rule of laA?cite in modern France, in the visible radiation of tensenesss associating to the Islamic headscarf. In December 2003 the Stasi Commission issued its study, where among its tonss of proposals, the Commission recommended a jurisprudence that would censor all spiritual symbols from public schools. In March 2004, following the Stasi Report, President Jacques Chirac approved a prohibition on the erosion of symbols or vesture by which pupils ‘conspicuously ‘ ( ostensiblement ) manifest a spiritual visual aspect in public schools. The Headscarf Law, as it came to be known, was enthusiastically approved with ballots of 494 to 36 in the Gallic National Assembly and 276 to 20 in the Gallic Senate. The prohibition besides received an overpowering support of all forces on the left and right.

While the Headscarf Law prohibits students from have oning conspicuous spiritual symbols or vesture, including the Muslim headscarf, the kippa or Judaic skullcap, and big Christian crosses, and permits more discreet spiritual symbols, such necklaces with a cross, Star of David, or manus of Fatima, the focal point of the statute law and its intended consequence was to implement a state-wide prohibition on Muslim headscarves in public schools. Indeed, about six hundred Muslim misss broke the new jurisprudence when the school twelvemonth started in September 2004, and most of these misss, faced with ejection from school, hold given in to the new jurisprudence. By the school twelvemonth terminal in June 2005, the Ministry of Education reported that 44 Muslim misss had been expelled.

Argument On The 2004 French Headscarf Law

( 1 ) Gallic Constitution and International Laws

The erosion of an Islamic headscarf and other spiritual symbols is an look of cardinal rights to freedom of faith and look, protected by a figure of Gallic constitutional texts. For case, Article 1 of the 1905 Law on the Separation of Churches and State reads: “ The Republic ensures freedom of scruples. It guarantees freedom of worship, capable merely to the undermentioned limitations in the involvement of maintaining the peace. ” France besides guarantees the rules of spiritual freedom under Article 1 of the 1958 Constitution of the Fifth Republic and of free pattern of faith under Article 10 of the Declaration of the Rights of Man and the Citizen of 1789.

While protecting the rights to freedom of faith and look, these articles, however, set out a negative impression of freedom of faith and manifestation as restricted by the demand to maintain the peace and keep public order. Therefore, province is entitled to put limitations on freedom of faith and manifestation in the involvements of wellness and safety, public order, ethical motives, or the protection of rights and freedoms of others. Indeed, the Stasi Commission ruled that the prohibition on hijab and other spiritual symbols was a justified and proportionate intervention to protect the rights and freedoms of others and of protecting public order, every bit good as to protect laA?cite which maps as a surety of democratic values, the rules of inviolability of spiritual freedom and the equality of citizens before the jurisprudence.

For the care of public order, the Commission argued the prohibition on hijab and other spiritual symbols was necessary as “ to react to administrative troubles suffered by school functionaries who are forced to implement confounding directives in state of affairss of intense force per unit area. ” This, nevertheless, suggests that the cause for the break of public order was the confusion generated by the ill-defined regulations set by the Gallic tribunals, non the presence of veiled schoolgirls. Furthermore, the riotous potency of Islamic symbols or vesture in public sphere is a really equivocal statement. Ever since the contention began in 1989, there has been no state of affairs of civil agitation, rioting or even public outrage in France as a consequence of Muslim headscarves.

The Commission besides contended that immature Muslim misss do non have on the hijab out of their ain will but instead as the consequence of force per unit area from their household and community and must therefore ban the Islamic headscarf from public schools in order to protect freedom of scruples enshrined in Article 1 of the 1905 Law every bit good as democratic values, such as sexual equality. The Commission failed, nevertheless, to offer any systematic informations refering the figure of immature Muslim misss coerced to have on the hijab. Yet, without this difficult information, the Commission merely assumed that the coercion to have on the hijab is unimpeachable and that hence immature misss need to be protected against such coercion and sexual inequality.

The statement put frontward by the Commission that spiritual symbols or vesture may be used as instruments of force per unit area by students is besides questionable. In the absence of any knowing aggression or immediate dire effects, have oning of such symbols does non represent an act to proselytise but instead an guiltless look which represents one ‘s religion. In virtually, none of the female Islamic vesture instances has the prohibition of the symbol been the effect of the violation of cardinal rights and freedoms of others. Rather, politicians, Judgess and protagonists of the jurisprudence position such symbols as an subjugation of adult females and sexual inequality that are at odds with Gallic laA?cite , which functions as a surety of freedom of faith and of equality before the jurisprudence.

One may, therefore, argue that if the demand to protect freedom of scruples and the cardinal rights of other were so pressing, so the prohibition can non be selectively applied in public schools while disregarding the same manifestation in private schools and other public services. Logically, the prohibition should hold been extended to all public establishments and to all age groups. Similarly, had the Headscarf Law been introduced to protect laA?cite and the rule of ( sexual ) equality it should hold banned any spiritual symbols whether they are ‘ostentatious ‘ or ‘discreet. ‘

The violation on the rights to freedom of faith and look by the Headscarf Law is besides in misdemeanor to International Torahs that France has signed. For case, Article 26 of the International Covenant on Civil and Political Rights ( ICCPR ) instructs provinces to implement equal protection before the jurisprudence “ without discriminationaˆ¦..on any land such as. . .sex, aˆ¦ religionaˆ¦ . ” Yet, the Headscarf Law constitutes both spiritual and gender favoritism.

The Headscarf Law discriminates against Islam and other faiths ; it prohibits all spiritual symbols including big Christian crosses from public schools, in practise, nevertheless, the prohibition will fall disproportionately on Islamic headscarves. Since Muslim schoolgirls can merely attest their spiritual beliefs by their headscarf which is perfectly prohibited by jurisprudence, the Headscarf Law, therefore, guarantees the right to attest belief merely to Christian students who can utilize a more modest symbol such as a necklace with a little cross. Furthermore, the Headscarf Law besides relies on the word ‘conspicuous ‘ in judging which spiritual symbols or vesture in public school will or will non be deemed acceptable. The term ‘conspicuous ‘ , nevertheless, merely truly refers to Christian symbols, since they are the lone 1s that are judged to find if there is some purpose to affect or to be ‘conspicuous ‘ , as evidenced by their size. Therefore, if the Headscarf Law were to give similar adjustment to Islamic symbols as it does to the Christian 1s by acknowledging the most basic manifestation of Muslim beliefs, so the erosion of the Islamic headscarf or hijab would non hold been so ‘conspicuous ‘ or ‘ostentatious ‘ since Muslim schoolgirls can besides have on the more noticeable jilbab or burka.

Additionally, the Headscarf Law besides discriminates against Muslim schoolgirls because the jurisprudence creates effects which challenge sexual equality by doing an inauspicious disparate impact on schoolgirls, who are punished for have oning the headscarf. Furthermore, if censoring the Islamic headscarf is so necessary to protect Muslim schoolgirls from being forced or pressured to have on the hijab by their household and community, logically, so such protection should be given to every bed of the society and public establishments instead limited merely to pupils or public schools.

( 2 ) National and International Courts and Their Jurisprudence

The Conseil Constitutionel ( Constitutional Council ) is the lone authorization that can strike down a loi in France ; but given the overpowering support from both Chamberss of parliament for the Headscarf Law, it is improbable that Conseil Constitutionel will make so. This means appliers have no other option but to convey the Headscarf Law before the Human Rights Committee as a misdemeanor of Article 26 of the International Covenant on Civil and Political Rights ( ICCPR ) , for case. Indeed, under Article 55 of the Gallic Constitution, the norms of international human rights instruments are self-executing and may be invoked before national tribunals. Yet, the Human Rights Committee offers no existent redress because France makes a reserve to Article 5, paragraph 2 ( a ) of the ICCPR Optional Protocol, it specified that the Human Rights Committee should non hold the legal power to see a communicating from an person if the same affair is being investigated, brought for colony, or considered in another international locale.

Furthermore, even if the applier ‘s claim is recognized under Article 9 ( 1 ) of the European Convention, the European Court of Human Rights ( ECHR ) may cover with the applier ‘s instance by supplanting his/her primary right under Article 9 ( 2 ) of the Convention. This is because Gallic authorities may set frontward laA?cite , which functions as a surety of democratic values, the rules of inviolability of spiritual freedom and the equality of citizens before the jurisprudence, as a land for the acceptance of the step censoring the hijab. With this land, the ECHR would probably formalize the prohibition on Islamic headscarves in public schools as ‘necessary in a democratic society. ‘ Furthermore, the Gallic authorities may besides reason that the Headscarf Law as prosecuting the ‘legitimate purpose ‘ of keeping public order and protecting the rights of others. With this justification, the ECHR would about surely conclude that the Headscarf Law is a justifiable intervention on the spiritual freedoms enshrined in Article 9 ( 1 ) of the Convention.

Decision

Given France ‘s rigorous reading of laA?cite , the province is basically politically independent of any spiritual authorization and the rights to freedom of faith and manifestation exists within the confines prescribed by the province. L’affaire du Foulard along its legislative effects indicates France ‘s strong committedness in keeping a wholly laA?que public schools and where the demand for public order or the protection of rights and freedoms of others can be used to warrant intervention with freedom of faith.

In general, the passage of the Headscarf Law was based upon two tenable evidences: foremost the public order philosophy justified the prohibition on Islamic headscarf, that is, to continue peaceable operation of the school system which is in conformity with the 1905 Law that guarantees the free pattern of faith, limited merely by “ limitations in the involvement of maintaining the peace. “ ; back the philosophies of laA?cite ( which rest upon three interrelated rules, which are church/state separation ; equality of citizens before the jurisprudence ; and freedom of scruples ) legitimized the prohibition on the erosion of hijab in public schools which is in understanding with the 1958 Constitution of the Fifth Republic that allows limitation on freedom of faith as to “ guarantee the equality of all citizens before the jurisprudence, without differentiation of beginning, race or faith. ”

However, upon a closer analysis, one could reason that the Gallic Headscarf Law was foremost and foremost a step of confirming national republican individuality and the homogeneousness of Gallic civilization over and against increasing Moslem immigrants. Like most states, France uses public instruction to instil chauvinistic republican values in its immature citizens and public schools serve as cardinal establishments for solidifying the laA?que foundations of the Gallic Republic by learning the secular values and the impression that a national, republican individuality must take precedency over other facets of an person ‘s character, whether they are spiritual, lingual or cultural. This means for the bulk of Gallic citizens, adhering to secular values and adopting a national republican individuality of laA?cite is an intrinsic portion of being Gallic.

Millions of other Gallic citizens and immigrants, nevertheless, do non portion the secular roots and national republican individuality that native Frenchmen portion in common. In recent decennaries, many immigrants to France have come from Muslim states, peculiarly North Africa. By 2004, France was home to the largest Moslem population in Western Europe, about five to six million persons of Muslim beginning or about 8 to 10 % of its population. With the growing of Muslim school kids, there have been increasing visual aspect of Muslim school misss have oning the headscarf in public schools. This has created a challenge to France ‘s laA?que tradition which sees national, republican individuality must take precedency over other facets of an person ‘s character, whether they are spiritual, lingual or cultural ; and hence by have oning the hijab it created an premise that those who wear the headscarf prefer their Muslim individuality over Gallic republican individuality and do non wish to incorporate themselves to the full into Gallic life or accept Gallic secular values.

The prohibition on Islamic headscarf besides served to continue the homogeneousness of Gallic civilization. Since laA?cite corresponds to a Christian mentality, being the merchandise of the historical procedure of separation between province and Christian churches ; France therefore ends up preferring the secularized Christian symbols that are culturally and universally shared by Gallic citizens. Furthermore, while the Christian crosses symbolize the cultural and democratic values of tolerance, cardinal rights, solidarity and non-discrimination, the hijab are interpreted as looks of cultural values and patterns ( peculiarly sexual inequality ) which are at odds with broad and democratic 1s.

In short, in an effort to guard the national republican individuality and the cultural homogeneousness over and against the increasing Muslim immigrants, France uses the construct of maintaining public order, disguised by the general rhetoric of protecting laA?cite , to supply a justification for puting bounds on the constitutionally and internationally protected rights of freedom of faith and manifestation.

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SCHOOL OF LANGUAGES AND SOCIAL SCIENCES

COVERSHEET FOR ASSESSED COURSEWORK

Candidate Number ( six figures ) : 103098

Degree Programme: ( BSc ) Politics with International Relationss

Degree of Degree: Final Year

Faculty Name: Law and Politicss

Module Number: LP 3027

Name of Lecturer: Nicola Corkin

Due day of the month: 15 January 2011

Number of words: 2770

Title of assessed essay: “ FRENCH HEADSCARF LAW OF 2004: French LAA?CITE V. THE RIGHTS TO FREEDOM OF RELIGION AND MANIFESTATION OF MUSLIM GIRLS. ”