Religion in France: A Juridical Approach

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  • 1 Professor of Comparative Public Law and Senior Researcher, European Academy of Bolzano/ Bozen.

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  • 1 The French word laicitéis translated here with the English expression 'secular nature' or `secularity'. 2 On decentralization in France, compared to devolution in the United Kingdom, see Giovanni Poggeschi, "United Kingdom and France: A Stronger Decentralization or Just an Institutional 'Maquillage'", in Voitech Mastny, Sergio Ortino and Mitja Zagar, Changing Faces ofFederalism, (Manchester, forthcoming). 3 In Italy a special issue of the journal Amministrare (no. 2) was devoted to French decentralization in August 2003.

  • 4 This does not mean that regionalism (or, a fortiori, federalism) is synonymous with a higher standard of democracy. 5 Philippe Segur, "Le principe constitutionnel de laicite", Annales de fUniversite des Sciences Sociales de Toulouse (1996),117-34. 6 The question of the representation of Muslims within the institutions of the French Republic is well explained in Xavier Ternisien, La France des mosgues (Paris, 2002), 255-82. 7 This statement must be completed with a necessary mention that, despite the intense secularisa- tion that France has known in the last decades, some of the most important contemporary or modern Catholic thinkers are French, like Jacques Maritain and Jean Guitton. 8 For a general overview on the French legislation on secularity see http://encyclopedia.thefree- dictionary.com/French%20taw%20to%20ban%20conspicuous%20religious%20symbols. See also Henri Pena-Ruiz, Qu'est-ce que la laicite? (Paris, 2003). 9 For instance, in Italy the Constitutional Court is expected to render a judgment on the hanging of crosses in state schools. This issue has had a very strong media presence in recent months also because of the controversial actions of Mr. Adel Smith, a Muslim activist with Italian citizenship, not very important inside the Italian Islamic community but capable of attracting the attention of the press and television. But it would be very fallacious to link the question of hanging crosses

  • in state schools only to the polemic activity of some isolated and fanatic Muslim activist. The question is much more complex, dealing with the strong influence that the Catholic hierarchies have always used on the Italian institutions, and it cannot be forgotten that a case has been given to the Constitutional Court by the Venice Administrative Court starting from a complaint of an agnostic who wanted to see a cross removed from the walls of the school his child attends in Abano Terme (Padova). The expectations for a decision which has to take into consideration a very unclear legislation on the issue and a possible conflict between a majority feeling of affection for a religious and cultural symbol like the cross and the need to preserve the secular character of the state and the equality among citizens and residents irrespective of their religious beliefs are very high. It is very likely in my opinion that the Italian Constitutional Court will adopt a compromise. A very interesting seminar on this issue has been held in the Faculty of Law of the University of Ferrara on the 28 May 2004, with the title "La laicita crocifissa? Il nodo costituzi- onale dei simboli religiosi nei luoghi pubblici". Some of the papers and the related documents can be consulted at http://web.unife.it/dipartimento/scienze,giuridiche/index.phtml?id=32. 10 Samuel Huntington, The Clash of Civilizations and the Remake of a World Order (New York, 1996). 11 Oriana Fallaci, The Rage and the Pride (New York, 2002). After having made clear that I do not agree with the theories in these texts, I also want to underline that I find the condemnation by some courts of Fallaci's theories to be illiberal. Another example is the condemnation of actress Brigitte Bardot, who has been declared guilty of hate speech for what she has said about northern African immigrants in France in her biography. Freedom of expression should always be con- sidered as a fundamental value, with very restricted exceptions to it (for example, an apology for Nazism, clear racist statements and few other cases to be decided on their individual merit). Or maybe we want to follow the example of the "fat�rvah" that Salman Rushdie has to suffer? 12 Gilles Kepel, Allah in the West: Islamic Movements in America and Europe (Stanford, 1997). 13 The issue of the constitutional recognition of cultural diversity is very deeply analyzed (though not very much regarding the religious aspect) by James Tully, Strange Multiplicity Constitutional- ism in an Age of Diversity (Cambridge, 1995, reprinted 2002). 14 It is not only the case with Muslims; every religion has rules that, if strictly interpreted, are against some secular provisions.

  • 15 Stefano Ceccanti, Una liberta comparata. Liberia religiosa, fondamentalismi e societi multietniche (Bologna, 2001), 75. 16 Yves Carlier and Michel Vermilghen (eds.), Le Statut personnel des musulmans: Droit compare et droit internationalprivi� (Bruxelles, 1992). 17 Raymond Carre de Malberg, La loi, expression de la volonté générale (Paris, 1931).

  • 18 On the debate in that historical period see Francs Gaspard and Farhad Khosrokhavar, Les foulards et la Republique (Paris, 1995). 19 Giovanni Poggeschi, "Il velo islamico: un problema di una societa multietnica", 2 Quaderni costi- tuxionali (1995), 287-302.

  • 20 Comments on PetitesAffiches, n. 53,1996. 21 See at http://www.assemblee-nationale.fr/12/rapports/r1381.asp.

  • 22 Both can be consulted at http://www.laic.info/Members/webmestre/Revue_de_presse.2003-12- 11.0736/view. 23 See at http://www.laic.info/Members/webmestre/Droits_ecdevoirs.2004-05- 24.3305.

  • 24 Many books and articles have been issued in France during the parliamentary discussion of the law. I quote two books with totally different positions: Cahhdortt Djavann, Bas les voiles! (Paris, 2003); Alma et Lila Levy, Des filles comme les autres. llu-dela du foulard (Paris, 2004).

  • 25 A passionate and bright defence of the principle of laicite which is questioned by the vague notion of open secularity' is in Henri Pena-Ruiz, Qu'est-ce gue la laicize2 ...,128 et seq.

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