Sheldon Leader, professeur de droit à l’université d’Essex, est membre du Conseil scientifique international de la Vigie de la laïcité. Ses travaux s’intéressent aux antinomies des droits dans l’ordre juridique contemporain et à la place du juge dans leur régulation. La réflexion théorique sur la laïcité qu’il nous propose ici s’inscrit dans cette ligne de recherche.
Son texte part d’un constat : les sociétés occidentales réunissent des populations qui ne partagent pas les mêmes modèles de pensée et d’action. Comment les faire vivre ensemble ? Deux stratégies, souvent articulées, se sont souvent imposées au cours de ces dernières années : celle de l’intégration à une communauté de valeurs nationales, celle de la privatisation des appartenances religieuses.
Le juriste anglais récuse ces modèles qui lui semblent faire obstacle à la liberté de choix sur laquelle repose la démocratie libérale. Ils conduisent en effet à imposer un coût disproportionné aux citoyens religieux : outre qu’ils mutilent leur identité en leur imposant la culture séculariste de la majorité, ils les privent du droit d’entrer dans les espaces communs à partir desquels ils pourront s’installer dans la société globale.
Cette critique conduit l’auteur à ouvrir, en connivence avec la jurisprudence du Conseil d’Etat des années 1990, une autre voie, nommée fédératrice, qui reconnaît aux croyants le droit de faire valoir leurs allégeances dans les différents espaces communs pourvu que l’exercice de ce droit, conçu ici comme strictement individuel, ne remette pas en cause leur bon fonctionnement.
The Problem
Plural Societies and the Judiciary
In many of today’s democracies the judiciary is called on to play a unexpected role: we are told, when we look in our textbook description of the division of powers, that courts should occupy a marginal place, filling in where Constitution and legislation are silent, and doing so in a way that mirrors as best they can the will of the people. In fact we see that as populations are on the move in Europe, bringing fundamentally different cultural outlooks side by side in the same society, this last element – the will of the people – is increasingly difficult to rely on even as a figure of thought. People suspect it of trying to convey a false unity: a common set of values where there is only division, and as with the positivist rebellion against natural law generations ago, there is once again the drive to demystify.
There is no unitary will of the people in a plural society, it is often said, it is a notion that can disguise the rule of the powerful over the marginal. At the same time, we know that decisions on the terms of common social life have to be made – and they often cannot be comfortably made by the legislature, in the grip as it usually is of precisely what worries the critic: a portion rather than a representative cross-section of a society, so the next port of call is naturally the judge. Only now it is a judge thrown into a limelight he or she never expected to have to endure: for it is often left to the judge to fashion solutions to social division that the legislature is either unwilling or unable to touch, and that call for principles that cannot be simply read off from the Constitution. In short, it is a creative role for judges that orthodox teaching on the division of powers would have been quick to condemn.
It is not surprising, for this reason, that we have seen grow up in the last twenty years a marriage between political philosophy and law. Theorist and practitioner alike look to reconcile two apparently irreconcilable features in this new role for the judiciary: that judges cannot avoid relying on their own political convictions in settling fundamental conflicts between values in a plural society; but that this is difficult to justify in a democracy where they function as often remote and unelected officials.
Several concrete cases show that this is more than an abstract worry. One of the most well known one was the famous « Foulard Islamique » case in France, in which the Conseil d’Etat held that state schools had no right to ban head scarves worn by certain Muslim girls, since that constituted a violation of the right to freedom of religion1Arrêt du Conseil d’Etat 2 November 1992 (M. Kherouaa et Mme Kachour et al). Another was a UK case that did not receive as much publicity, but raised issues just as acute, involving a Muslim teacher who faced dismissal from a state school for wishing to take some of a Friday afternoon off for religious observance. The Court of Appeal upheld his dismissal, over some strong dissents2Ahmad v Inner London Education Authority 1978 1 AER 574 Court of Appeal and Ahmad v UK (1982) 4 EHRR 126 (dismissing the application on a different ground). In both of these cases the judges are called on to adjust conflicting values: claims to religious freedom against claims that establishments such as schools or workplaces should be blind to religious affiliation, and should be able to shape their rules for their good functioning accordingly.
These cases have touched off strong debates in France and the UK respectively: it is not about whether there should be toleration of difference. All sides are agreed that there should be. The debate is instead over the proper penetration of that demand into the daily functions of society: can it extend beyond the rule that the state must not intentionally prejudice someone for their religious belief into the realm of indirect prejudice – where religion, work, and school meet up and the state tries both to remain neutral towards religions, while allowing workplace and school to thrive?
This challenge, over the proper reach of a demand for cultural freedom into the wide spectrum of functions of a plural society, poses a problem simultaneously for the judges and for the theories they might rely on. A surprisingly inadequate set of responses have come from liberalism, and we will investigate the problems it has encountered before considering some positive suggestions for a way forward.
The Strange Fate of Liberalism
Liberalism has been basically designed to deal with the very phenomenon we are considering: coping with the clash of fundamental values. However, as we watch some liberals propose solutions to cases such as these, they seem to have betrayed this initial promise. To see how, consider two responses in liberal public opinion to the problems we have been considering. One is based on the need for state neutrality. What this means in our context is that religion must be « privatised ». It must be kept well away from public institutions, so that in being blind to religious difference those with these different affiliations can be treated equally. Indeed, this can as we know lead to the denial that there are, in the eyes of the state, any minorities at all: by which we can understand not that there are no distinct religious groupings, but that all are equal before the neutral public institution. The concrete result of this perspective is, of course, that in the Foulard case the girls would be forbidden to wear their scarves since these were incompatible with the secular spirit animating pubic education in France; and in the second case that the employee’s religious activities were entirely his right to pursue, but not in a way that impinged on his employer’s right to pursue the business of running schools.
A second response relies on a different liberal value: not neutrality, but individual freedom. This is directed more towards our first case, and consists in saying that these girls should be in a position to critically assess for themselves whether or not they with to be identified with their religions in this way. A secular, neutral education will enable them to develop this critical faculty, and will be impeded if they are at the same time kept in the thrall of their families by being obliged to be set apart from their fellow students by such a badge of their religion.
When we look at these positions, it is important to keep as distinct two questions: a) what is the theory that in your view offers the greatest promise for healthy individual development, balanced against proper institutional needs?, and b) which is the solution that all in society can be forced to accept? You can’t, of course, please everyone: some common solutions have to be forced onto some of the population. I also happen to think that the liberal understandings of what is required for healthy personal development in education, work, and inside ones religious institutions, are the best. But it does not follow, in a democracy, that those like me who offer a liberal answer to the first question should be entitled to force their views on those who would offer a different answer to it.
The sign that all is not right here – and that an answer to the second question may, if one is not careful, betray the promise of liberalism – can be seen in the way tradition is invoked. In the French debate, for example, it is invoked by those wanting to prevent religious expression from entering school or workplace. Thus, a major argument advanced in the Foulard case was that France is a country with a long secular tradition, which does not believe in special places carved out of secular public space for particular religions. The claimants in these cases are spoken of as if they were foreigners bringing alien customs to French soil. But you then realise that many of these people have been born and reared in France, and are as fully French citizens as any others. Being on the other side of the liberal principle, they are citizens transformed into strangers: their rights to participate on equal terms in characterising the public institutions and culture that rule them is thereby subtly removed – removed for the best of intentions, certainly, but removed all the same. The result is precisely to do what secular liberalism set its sights on avoiding: a view that excludes other citizens from the full rights of citizenship because they don’t share the organising values of the dominant group. A society of insiders vs outsiders emerges, violating the principle that all are equal citizens.
Attempting Diagnosis
How have we reached this position? The problem has, I believe, arisen for two reasons. One is that liberalism sometimes borrows a leaf from the book of its opponents: it has aimed to settle questions about rights and duties via what can be called an integrating strategy. It has the same kind of global ambition, though very different in content, as does someone who wishes to see e.g. the values of Roman Catholicism colour every relevant aspect of our public lives, drawing all elements into a coherent and integrated whole. In place of Catholic values you need only place the value of personal autonomy. That is, as we have seen, one of the basic values animating this species of liberalism, and should, on the integrationist strategy, radiate out to solve all problems relating individuals and institutions.
The problem with this approach, in a democracy, is that the strategy is no stronger than are its initial set of organising values. If you don’t share the ambition to make yourself and your near ones as free from natural or inherited social ties as possible, then you will find little appealing in this. That leaves the liberal with only the option of forcing his view onto you because, say, he is in the majority. Minorities are then forced to comply simply because majorities are convinced that they are wrong: not what the liberal tradition of resistance to majoritarianism had promised.
One might object strongly here that my point is built on a mistake: the objection might be that we cannot pursue simultaneously an infinite number of ways of organising the polity, but must choose one, even though the result will not appeal to everyone in that polity. So since cannot have it all ways, we should choose the one with best core of values informing healthy human development.
But this objection itself rests on a mistaken inference: just because a polity must choose one way of organizing itself, it doesn’t follow that the content of that one way – the content of its laws fixing the meaning of freedom of religion and the limits of its exercise – must be drawn from any single set of values in society. It may be possible, as the Conseil d’Etat actually did, to work out a content for those principles that is more representative of a plurality of outlooks.
We shall return to what the Conseil did in a moment, but before doing that, we can consider that other approach to religious freedom: the privatizing strategy. This, recall, insists on creating a two-world society. There is the private sphere in which one can freely express one’s fundamental religious belief, and there is the public sphere which must remain strictly neutral – one enters it only at the price of leaving ones religious practices behind for the time one is in school or the workplace. What is the difficulty here? Again, it does not lie in the motives behind the aim of state neutrality, but in its effects: it supposes that people such as the young schoolgirls in the Foulard case could compartmentalise their lives in this way. It calls for a world in which they are observant at home and in their communities, and not observant in the wider world such as their schools. To the outsider who does not share with the same intensity the belief that this observance is morally required, this looks like a reasonable accommodations: but to the insider (including some but not all of the girls in question) it is a requirement that they be hypocrites. Not surprisingly, the result of making this demand in many countries is that these religious communities have withdrawn into themselves, and have given their children educations that are inferior in important areas of scientific instruction, as well as depriving them of the richness of contact with people who have different understandings of history and ethics from their own.
In other words, this well-intentioned aim of liberal neutrality has yielded an unequal impact on these young people: since they cannot accept the emotional cost of abandoning their understanding of what decorum in personal behaviour requires, they must pay the price of having second class educations.
In short, the privatizing approach to religious freedom, like the integrating approach, turns some citizens from being equals into those who are unequal outsiders: they are either outsiders because they cannot, like their fellows, carve up their lives into the compartments that the two-world vision of public and private activity requires; or they are outsiders because they do not share the animating ideal of personal autonomy that the integrating approach requires.
I say this as someone, to repeat, who embraces many liberal values. I also think that the fundamental freedoms that liberalism has given us are crucial for societies in Europe to embrace. But it may be that we can give content to those freedoms in a way that avoids the tragic outcomes for these marginalized minorities. To see what an alternative approach might involve, the French Conseil d’Etat offers some useful guidance.
Proposal: A Federating Strategy
The Foulard case can be seen as a clash of two conceptions of freedom of religion: one invoked by a portion of the Muslim community and another invoked by the secular state officials. In their decision, the Conseil implicitly provided a definition of that freedom that aims to make room for a portion of both of these perspectives: it allows space for those who see religion as entirely a matter of free choice, and it allows space for those who do not. It denies full satisfaction to either side: the Muslim community must accept that certain core functions of the school, such as safety at gym classes must take priority over the wearing of the scarves; and the secular community and its officials must accept that some students can carry their religious affiliations into the public institution. The privatising strategy is rejected, but and so is the integrating strategy: in its place there is put what we can call a federating strategy. The terms fixing the balance between social order and freedom are those in which all sides of the community have participated. In other words, it implicitly calls on the one democratic value that we saw the other approaches fail to respect: the equal right of all citizens to democratic participation. The lesson in the Foulard case is that this right of participation is not simply a matter of votes, but extends further into being entitled to share in fixing the character of all public institutions that govern daily life, from schools to workplaces. All sides are federated around their common commitment to religious freedom, while all sides are entitled to participate in fixing the meaning of that common commitment.
Democracy, on this perspective, federates but does not aim to integrate different moralities.
Of course, there are dangers on this route as well. It is clear that the power of some of traditionalist groups over their members can be abused. It can be exercised over the young in a way that stifles their prospects for a fulfilling life in the wider world. It seems wrong that if a young person wants a valuable scientific education, for example, and it is an education that their religious community condemns, that they should be put before the tragic choice of opting for family or future. At that point we can see that it is right for the wider society to force their way into the internal workings of the community: to prise apart their grip on the young person’s prospects for a future as, say, a scientist from their grip on the young person’s longing for acceptance by those they have grown up with. The group can often be made to relax its hold on the former while carrying on providing the latter: the law should step in to prevent the group from insisting, as its price for continuing to accept a member, that he or she settle for a second class future, just as it must prevent it from insisting that the member accept physical abuse as a price for staying in.3Cf. Lovelace v Canada H Rts Comm, No. R. 6/24,
But this is a far cry from the integrationist aim of penetrating into the affairs of religious and cultural minorities so as to get them to totally revise their fundamental understandings of human morality and freedom. Instead, it is a recognition that the equal right of citizens to democratic participation extends into in the equal right to participate in the central benefits that a society has to offer – of satisfactory work and progress: it is not a guarantee of the same benefit to all, but is a guarantee that none should be unfairly disadvantaged in this pursuit at the outset of their lives. If this is not done, then the other parts of the citizen’s equal right to democratic participation in the affairs of the polity shrink to being merely formal.
It is right that cultural and religious groups be required to keep such young people in their midst, even if they wish to pursue these opportunities in the outside world. It is wrong, as we have seen, for the outside world to insist on entry on the strict secular terms it would most like; and it is equally wrong for the religious group so insist that it will allow its members into that outside world only on the strict terms it would like to impose. Both sides must accommodate in the name of the equal right of all citizens to participate in the affairs of their society.
Conclusion
The European judiciary must play a federating role I have described, when the other organs of the polity fail to link people across fundamental moral divides. The tensions in a plural society with which it has to deal are provoked by an ambiguous understanding of progress: the demand to change seems to have run beyond the ring of values with which we used to surround the actors who impose it, as well as those who resist it. Instead, we have stepped into a confusing area in which radical social change is called for without there being in place a federating social project: a project that would show all of those affected exactly why they should follow along – especially those who are told no longer to expect to have what they grew up thinking made life satisfying. There is a collective will to maintain progress, but against the backdrop of a loss of social faith in progress. The latter is not the same as a loss of commitment: instead, it marks a commitment that has become in crucial respects blind. We doggedly pursue change, more intensely than ever, but we have lost the tools with which one can recommend any given change that begins in some local domain, such as the workplace or a school, as also being healthy for society at large, or less ambitiously, for all of those directly involved in the institution making the changes. Initiatives are piecemeal and local in their focus – modernising a company or school here, making a bureaucracy more efficient there – with managers claiming to be able to do no more than do their best by the institution in question. We lack a stable overall view of how these initiatives – and the people affected by them – link up in society.
It is not surprising, therefore, to see cultural and religious minorities express, in their own way, an attempt to bring back values as guides that will filter out true from false promises about progress. We may disagree with them, but must respect their desire to restore that faith in progress that must accompany a will to bring it about – on pain of seeing social changes drive us more and more apart. The challenge for the judiciary is to encourage plurality of values to thrive, without allowing any one of them to strangle progress in a different way: by creating new outsiders among citizens with an equal right to participate in the life of a democracy.
Sheldon Leader, Professor of Law, University of Essex and Member of the Essex Centre of Human Rights. Paper prepared for the Conference on the Role of the Judiciary in the Protection of Human Rights, Cairo. This has appeared in E. Cotran and O. Sharif (eds) The Role of the Judiciary in the Protection of Human Rights (Kluwer: 1997)