Analysing the French Burqa Ban through a Habermasian and French Secularist Lens

[Shamik Datta, a student at the National Academy of Legal Studies and Research, Hyderabad, is interested in human rights law, gender studies, and public policy.]

Photo credit: Alain Jocard/AFP via Getty Images

Amidst the rising tide of Islamophobia in Europe, the French Senate seeks to impose a ban on minors wearing headscarves and veils- the burqa and the niqab. This recent development is a part of France’s ‘Separatism Bill’- stemming from the growing upsurge of anti-Islamic sentiments since the 9/11 attacks. The Macron government attempted to justify the ban as they deemed the ban necessary, to protect women’s rights and ‘French values’. However, the ban goes far beyond its stated objective. The ban infringes upon a woman’s right and autonomy to exercise her freedom of religion- an infringement of which goes against the much-acclaimed notions of ‘liberty’ and ‘equality in France.

Before this, in 2011, France was the first country to ban burqas and niqabs in public places. This formed a part of the French ‘right-wing’ narrative- as they started a nationwide debate on Muslims in France while hailing ‘Christian heritage’. Over the years, such anti-Islamic policies have been passed under the garb of law, order and ‘national integrity’. These policies showcase a systemic attempt of the French government to snatch the autonomy and agency of Muslim women coupled with their religious freedom. The government seeks to ‘liberate’ Muslim women by stigmatizing the hijab from areas of public life. However, this governmental intervention in the private sphere of an individual marks a clear infringement of the state into religion. Furthermore, this goes against the constitutional principle of laicite, or the French secularism ideology, which preaches a clear separation of the state and religion.

This article aims to analyse the hijab bans in the backdrop of the French secularism ideology. It further seeks to bring to the forefront the state’s implied distinction not only based on religion but also based on ethnic identity. Furthermore, it aims to analyse the implication of the ban on minority rights through the Habermasian perspective of the ‘public-private’ sphere, with a special emphasis on the state intrusion into the ‘private sphere’ of an individual.

The ban contravenes the notion of French secularism

The fundamental principles of French secularism have evolved based on the presumption of a marked ‘neutrality’ of the state in matters of religion. The origin of this notion can be traced back to the 1905 French Law on the Separation of the Church and the State. The ‘freedom to practice religion’ has been recognised since 1905, and far from being a weapon against religion- the 1905 law established state secularism in the public sphere. Theoretically, the French ideal of ‘secularism’ does not favour any particular religion and guarantees the peaceful co-existence of all with a clear separation between the state and religion. This clear separation between the two institutions can be found in the French Constitution itself. Article 1 of the Constitution emphasises on an ‘indivisible, secular, democratic and social’ French Republic guaranteeing equality to all citizens without ‘distinction of origin, race or religion’ with an aim to ‘respect all beliefs’.

However, the French notion of secularism in practice demonstrates a clear contrast. The act of the state banning the hijab for minors goes against this French notion of secularism. This is owing to the fact, that banning the hijab does not ensure a clear separation of the state and religion. The ban instils fear in the Muslim community, to conceal their religious expression in order to avoid any form of discrimination that they might face owing to the stigma that could arise from the ban. It must be understood that law is a medium of both preventing and creating stigma. The law moves beyond the text, and actively shapes the mindset of the society at large. A law banning the veil would not only lead to its disappearance from public spaces but also stigmatise the religious symbol from French society.

Furthermore, this ban goes against Article 1 of the French Constitution as it clearly distinguishes on the basis of religion and disrespects the Islamic ‘beliefs’ on which the hijab is founded upon. Far from a clear separation between the state and religion, the acts of the French state show signs of systemic targeted discrimination against Islam in general, and Muslim women in particular. 

The Ban Implicates a Distinction Not Only on the Basis of Religion, But Also on the Basis of Ethnicity

The hijab ban comes in the wake of a rising surge of Islamophobia in Europe, targeted against the Muslim population of the continent. France hosts 5.7 million Muslims, the largest Muslim population in Europe, This Muslim population predominantly consists of persons of Maghrebi origin hailing from Algeria, Morocco and Tunisia. This ethnic identity of the Maghrebis comes under the peril of a state-imposed ban on a fundamental religious belief of the Maghrebi Muslims. The ban on a religious practice commonly followed by an ethnic community signifies an implied distinction based not only on the basis of religion but also on ethnicity and origin. This ban has a wider societal implication as it represents a societal consensus on a discriminatory viewpoint towards a particular ethnicity and a growing ‘legitimisation’ of Islamophobia in the country. The effect of this legitimisation is clearly visible in the French social context, where Islamophobic attacks- particularly against Muslims of Maghrebi origin increased by 53 per cent in 2020. Over a period of time, this legitimisation leads to systemic stigmatisation of the members of the ethnic community. Therefore, the ban on the Islamic religious veil leads to a subsequent violation of Article 1 of the French Constitution as there is an implied distinction and disrespect to the beliefs of the Maghrebi ethnic community in France.

The Implication of the Ban on Minority Rights through a Habermasian Perspective

The German philosopher Jurgen Habermas brought out the distinction between the ‘public’ and the ‘private sphere’.  The  Habermasian notion of ‘public sphere’ includes the areas of social life where individuals discuss, deliberate and formulate policies. This ‘sphere’ extends to the governmental institutions which aim to regulate public life. However, in order to understand whether these institutions can regulate the private life of an individual- there is a need to delve deeper into what constitutes the ‘private sphere’. The ‘private sphere’ of an individual involves the area of private life where an individual exercises a significant degree of autonomy, free from state or governmental regulation or intervention. This implies that there are certain limits on governmental control and regulation which must not intrude into the ‘private sphere’ of the individual in order to maintain this public-private distinction. This distinction becomes all the more important when the ‘private sphere’ of the minority is highly vulnerable to politicised state action.

There is a need to stress the importance of a prohibition of state interference into the ‘private sphere’ of the individual. This ‘private sphere’ extends to the liberty of a minority woman to wear a hijab, based on the fundamental belief or notion of a metaphorical protection of modesty and privacy.. Furthermore, the individual behind the religious veil must possess the autonomy and the agency to decide whether the individual wants to embrace this metaphorical symbol of protection or not. However, a state-imposed intervention into the very autonomy and liberty of the individual serves as a clear governmental intrusion into the ‘private sphere’, thereby breaking the dichotomy.

It is also necessary to analyse the recent growth of Islamophobia in Europe in this Habermasian context. The public sphere is idealised to be representative of all cultures and backgrounds, facilitating the notion of participatory democracy and channelling public opinion into political action. However, the stigmatisation of Islamic cultural and religious values in public life eventually leads to a permanent confinement of these values into the private sphere and stifles Muslim minority voices in the participatory democracy. The culture, religion and opinion of the majority would be considered the ‘norm’ of the society which would dominate the public realm. This hegemony of the recognised ‘norm’ would push the stifled voices to the periphery of the democratic process and the confines of the private sphere. This would lead to a complete disregard of substantive ergo cultural existence of minorities, by restricting their cultural expression and right to profess and practice their religion. This would be a direct violation of Article 27 of the International Covenant on Civil and Political Rights which guarantees the minorities the same.

Violation of minority rights, coupled with a growth of Islamophobia would eventually lead to a Europe where hate and ethno-religious discrimination becomes the foundation of European normative thinking. Therefore, there is an urgent need to recognise this burgeoning ‘majoritarian reality’ and effectively address the same before it is too late.

Conclusion

The article has attempted to analyse the disproportionate effect of Islamophobia on Muslim women in Europe. Practices, fundamental to their religion such as the ‘religious veil’, are considered an apparent threat to ‘Western ideals’. Furthermore,  there is a paradoxical portrayal of Muslim women as victims of alleged sexism fuelled by religion. These narratives circulating in popular European discourse leads to systemic discrimination, not simply based on religion but also on ethnicity. These narratives gain legitimisation by the state via policies such as the burqa ban. Such actions of ‘legitimised’ state-imposed intrusion into the ‘private sphere’ of an individual disregard the elements of autonomy and privacy analogous with the private sphere. Therefore, there is a need to firstly identify this systemic discrimination, then document the effects of the same. This should be followed by an active deconstruction of the false ‘legitimised’ narratives surrounding Muslim women in contemporary Europe. These three changes are fundamental to reconstruct the notions that reflect the true picture of the Muslim population in Europe. The changes must be accompanied by an unwavering respect accorded to the autonomy and agency of individuals to practice their religious beliefs, by the state. Only this would lead to the true realisation of the principles of French secularism by truly respecting all religious beliefs, with a clearly marked separation between the state and religion.