Culture wars is an expression that was first popularized in U.S. politics by sociologist James Hunter in the early 1990s. While France traditionally prides itself in refusing the identity politics that fuel much of the polarization in U.S. political debate, it is increasingly the case that “republican values” — and, first among them, laïcité, the constitutional principle of secularism in France — find themselves at the forefront of much heated and, indeed, violent struggles that echo the concept. The recent attacks invoked by several members of the French government against so-called “Islamo-leftism,” which has been portrayed as gangrening academia and nurturing forms of defiance to the Republic and, indeed, of separatism, are a case in point.
Another one is the draft legislative proposal “reaffirming republican values and combating separatism” that is currently being passed in the French Parliament. After years of increased anxieties vis-à-vis Islam and the extent to which it threatens the constitutional principle of laïcité, only heightened by several waves of terrorist attacks perpetrated by individuals and groups related to Islamic radical terrorist organizations and doctrines, the draft bill was presented by the French government in December 2020. It presents itself as reaffirming the centrality of a number of foundational republican values (liberty, equality, fraternity, human dignity, laïcité, but also public order) to the French polity. It is, however, based on the premise that the country is “ill,” afflicted with “separatism,” the first iteration of which is “Islamist separatism” (to use the words used by the minister of the interior as he opened the parliamentary debates). The proposal thus aims at equipping public authorities with the tools to combat and fight back against this. In so doing, however, the bill evades any definition of the “separatist practices” it sets to combat and indeed targets a number of serious and benign forms of defiance to republican values, insisting that even the latter ought to be read as constituting the terrain of terrorism.
The end result is, first and foremost, a highly repressive text — one that creates new incriminations and offenses and broadens many existing ones. But the result also labels a number of practices (and behaviors) as problematic. In that, the proposal can indeed be read as one of the tools of a “culture war” à la française; in fact, the deputy minister of the interior has indeed referred to a “cultural combat” during parliamentary debates.
As such, the new draft legislation is a profound cause of concern for human rights organizations and institutions as it exemplifies three problematic turns. First, it is premised upon the necessity and legitimacy of requiring adhesion (rather than mere respect of) to republican values. Second, it is fueled with provisions that target visible expressions of religious — and indeed, Muslim — faith that have gradually been assimilated by a majority of law-making authorities as forms of separatism. Third, it does so in the form of sweeping legislative provisions that could well weaken core human rights protections for all.
Adhesion to republican values
The draft bill’s statement of reasons defines the Republic as a “project” and indeed, as one that requires the “adhesion of all citizens who embody it” (my translation). This is a core element of the analytical lens that is proposed here — one that reads the text as an illustration of the culture wars that are currently being fought over the meaning of the Republic and the extent to which it can and/or should tolerate diversity and indeed contestation.
It is hardly subversive or problematic to posit that any organized polity requires that all persons respect the rules. In contemporary constitutional regimes, this requirement has been translated as an obligation to respect the law — even if liberal regimes also tend to acknowledge the legitimacy of resistance to oppression and forms of civil disobedience. It is, however, altogether different to require that people actually adhere to the principles underpinning legislation. As German philosopher Immanuel Kant had expressed, ethics and law precisely differ in that conformity to the former requires adhesion (any ethical behavior’s maxim of action ought itself to be ethical) while conformity to the latter only requires respect (regardless of the actual motivations thereof). In light of this distinction, it is highly illustrative of the culturally agonistic dimension of legislative projects that expressly rest on the premise that they command adhesion to their underpinning values.
To be sure, laïcité in France constitutes a terrain on which such slippage is not uncommon. For instance, a report by the French Ministry of Education assessing the application of the 2004 Act prohibiting the wearing of religious signs in public schools laments that fact that, although it is well-respected overall, there is evidence suggesting that some pupils still do not “adhere” to the core value of laïcité underpinning the text. It stresses in particular the situation in which female Muslim students wearing the hijab or other religious symbols only remove them as they enter school premises and reposition them as soon as they exit.
A similar rationale is at stake in several provisions of the bill on republican values. The provisions pertaining to freedom of association are a case in point: It is envisaged to subject the application of any association (cultural, sports, charitable…) to public support (be it monetary or in kind, such as the provision of premises) to the signing of a “contract of republican commitment” by which the association is to pledge respect to liberty, equality, fraternity, human dignity, and public order. The bill would thus enable all authorities susceptible of providing support to associations to refuse to do so if they have reasons to believe that their raison d’être or their actions may challenge or disregard one of these values. They would also be in a position to claim monetary reimbursement of any form of support of advantage that would have unduly been awarded.
These provisions are causing deep concern to a wide range of associations and to human rights organizations. Associations are indeed numerous in France and range from large nation-wide organizations to much smaller local congregations; the vast majority of them rely, to various extents, on public forms of public support: the local municipality graciously allows this youth organization to use a sports facility, or the Ministry of Justice subsidizes the hiring of permanent staff for another association that provides educational activities to prison inmates. Many of them, however, fear that their very activity may be weakened by the new provisions. Think for instance of the many associations, large and small, who provide help and support to illegal aliens on French soil; or of activist groups who stage some of their protest actions on private grounds (such as, for instance, a temporary intrusion in the warehouse of a global company in order to denounce their practice of tax evasion). These could well fall under the prohibition of any action affecting public order — and they could lose funding or other forms of support. Regardless of the concrete fears that are raised, the very notion of subjecting freedom of association, in an economy in which public support to free association has become structural (In 2017, approximately 20 percent of associations’ resources came from public funding), to the signing of a republican contract, is illustrative of this legislative willingness to impose adhesion to values.
From tackling “separatism” to stigmatizing Islam
From the outset, there is a profound stigmatization subtext to the legislative proposal. Without even referring to the general context of discussions, debates, and legal reforms over laïcité since the beginning of the 21st century that indicate a pattern of anxiety vis-à-vis Islam that has resulted in elevating Islam as at least partially incompatible with the French republic, the text itself was officially presented by the prime minister as targeting “radical Islam” as “the enemy.” Although the provisions of the proposal themselves avoid direct references to Islam or Islamic signs or practices, many of them are clearly directed against them as the chart below seeks to explain.
|Provision of the bill||Subtext|
|Extension of neutrality requirements in the expression of convictions (religious and political) to employees of companies who are contracted out for the execution of a public service.||Ever since a prominent judicial “affair” of 2010-2014 pertaining to the firing of a Muslim veiled employee (the Baby Loup case), there have been many judicial and legislative attempts seeking to extend requirements of religious neutrality in the workplace|
|Subjection of parents who accompany public school outings and activities (field days, theater plays …) to an obligation of (religious) neutrality||Again, this particular issue has been heatedly present in a number of judicial and legislative debates over the past 10 years, many legal and political actors seeking to extend the logic of the 2004 ban on religious signs in public schools to accompanying parents|
|Extension of the 2010 Act prohibiting the concealment of the face (the “burqa ban”), with the view to prohibit the wearing by minors of “signs or dress by which they ostensibly manifest their religious affiliation” as well as, more generally, “signs or dress that convey the meaning of women’s inferiority to men”||The 2010 Act was motivated from the outset by the notion that full-face coverings were incompatible with republican values (“La République se vit à visage découvert”); it has however been upheld by the Constitutional Council and the European Court of Human Rights.|
|Criminalization of the establishment by physicians of virginity certificates (one-year sentence and a fine of 15,000 euros)||Government members have presented the provision as a necessary tool for combating the requirement of the proof of virginity prior to religious marriages.|
|Prohibition of the wearing of religious costumes in public swimming pools||Ever since the summer 2016 and the wave of burkini bans in a number of seaside municipalities in France, the burkini has repeatedly been defined as an “anti-republican” dress par excellence|
|Creation of a system of legal oversight of local representatives of the government (préfets) over measures taken by local authorities (municipalities, regions, departments) with a view of enabling the expedited judicial stay of those who are deemed contrary to the principles of neutrality and laïcité of public services||This provision seeks to weaken any local decision to allow burkinis in public pools or possibly to accommodate menus in public school canteens on religious grounds.|
Many of the provisions of the bill are thus more or less explicitly motivated by anxieties that are specifically caused by Islam. This, of course, is worrisome in terms of the general state of equality and non-discrimination in France — only months after the fact that the main Muslim rights’ association in the country, the Collectif contre l’Islamophobie en France, was administratively dissolved by a presidential decree for reasons including the fact that they had criticized anti-terrorist law and practices as Islamophobic.
While there is no denying that France, as well as many other countries, are faced with serious security challenges that are partially related to the rise of ISIS-like terrorist groups that have nurtured confusions and blurred lines between Islam, radicalism, and terrorism, there is a very concerning trend of making French Muslims the target of policies that severely curtail their basic freedoms.
Weakening human rights for all
Furthermore, the proposed bill is phrased in very general terms and thus risks causing a severe setback of individual and collective freedoms for all. The generality of its terms results both from constitutional requirements (as an Act cannot target one religion in particular) and from more specific political choices (not to define the exact threat of “separatism” it chooses to combat). The result is a potentially sweeping regression on rights and freedoms for all.
Again, freedom of association is certainly a case in point. The proposal seeks to broaden the conditions in which the president of the Republic may exercise his highly extraordinary power to dissolve (and thus, terminate the legal existence of) any association that is deemed to threaten the State. The chief of State has this power thanks to a 1936 act, which was intended as a response to threats to overthrow the Republic by fascist leagues. It has traditionally been understood as an extraordinary power, and was indeed relatively parsimoniously used (approximately 130 dissolution decrees since 1937, i.e., between one and two per year, although a recent intensification was noted since 2010, with more than 30 measures over the past 11 years).
The conditions under the 1936 Act are strict. They basically target seditious organizations (those who call for armed protest on the streets, take the form of private military groups, threaten the integrity of the territory or seek to violently overthrow the government as well as those who take part in terrorist actions or call for violent and hateful acts of racial discrimination). The proposed bill considerably widens these conditions. Associations who call for “violent action against people or goods” could be dissolved by presidential decree, along with associations who prohibit participation in meetings on the basis of race (this latter addition having been caused by a vivid debate over the legitimacy of such meetings reserved to victims of discrimination in order to discuss experience and action). The bill further states that associations are to be held liable for all such actions undertaken by one or several of their members, as long as it can be established that they were informed thereof and took no action. All these envisaged changes thus considerably weaken freedom of association.
The Act’s reach is much broader than what has been mentioned here: It also contains provisions over the legal oversight of consent to marriage, the prohibition and tracking down of polygamy, the regulation of hate speech, the organization of religious groups and associations, freedom of education (and the refusal of homeschooling when motivated by religious beliefs) and the like. Surely, the relatively swift parliamentary process testifies to the fact that the political majority supports the bill. It is currently in the final stages of its adoption: although a final round of amendments should take place in May, it is expected to be voted into law before the summer.
It should however also be added that the wider context of enduring and largely normalized states of emergency is also a contributing factor. After two years of an anti-terrorist state of emergency France has again been placed under a sanitary state of emergency, due to COVID-19, since March 2020. For institutional as well as political reasons, the normalization of this mode of government weighs heavily on the ability of a number of legal and political actors to collectively uphold fundamental rights and freedoms.