Law #2004-228 of March 15 2004, commonly known as the French law that bans the wearing of conspicuous religious symbols in public schools, seems to be a stale and old issue. Or is it? The answer is a NO because of three reasons:
1. Though the language of the 2004 law is neutral and applies to conspicuous symbols of any religion, popular allegations against it and some evidence of its actual implementation, to which I will come in a moment, shows that the Muslim headscarf or hijab is the actual target of the ban. This has important and controversial aspects cutting across political, social and sometimes racial dimensions considering France is home to the second largest Muslim population in Europe and some of the Muslims are immigrants from former French colonies of Northern Africa. (For a general history of the law, see here)
2. Law relating to such a ban is not confined to France but is a Europe-wide phenomenon with similar laws in Turkey, Germany and Belgium. Most recent practices of such sort without any law to authorize the same have been observed in Canada and India.
3. Following severe criticism from all spheres of international community in the last five years, France is contemplating a separate law banning hijab and possibly the burqa.
The validity of the 2004 law has been upheld, most recently by the European Court of Human Rights in Dogru v. France and Kervancki v. France (both decided in 2008).
In one of my several attempts to find contemporary relevance of jurisprudential analysis, I find it interesting to think about the 2004 law through the minds of Pound, Habermas and other jurists belonging to the sociological school of jurisprudence. This post is thus an effort at linking up philosophy of law and the law. Lest it should read like drudgery, I will make some quick points: (lets just talk of hijab and the Muslims of France who technically constitute a religious minority)
a) According to Jürgen Habermas, laws are valid only when all affected persons are given equal opportunity of communication in the rational discourse of making the law, the discourse being public and inclusive. Irrespective of several official surveys stating that majority of the French and even Muslims perhaps supported the law, the fact remains that the Muslims did not know how the members of the Stasi Commission were chosen, only one woman who actually wore hijab, out of 120 people, was interviewed by the Commission, the French Council for Muslim Faith representing the Muslims of France was not consulted and thus no opportunity of political participation/discourse in law-making was given to a group most affected by the law.
b) Roscoe Pound, the father of sociological school, (interestingly, he turned to law after obtaining his doctorate in Botany and served as the Dean at Harvard Law School for several years), insisted upon socio-legal study in the preparation of law making and a just individualized application of the legal precepts. All seem to have gone for a toss with respect to the 2004 law. No attempt was made by the Stasi Commission to find out what wearing hijab actually means to Muslim women. It was hurriedly dubbed oppression. The social waters thus remained untested before the law was to be in place. After the law found home in the statute book, school administration went bonkers with its implementation expelling students who wore not only hijab, but also veil and the bonnet. Children, in particular the girls, were found to be in need of psychological treatment after the whole process of sort of quarantining and expulsion. (For a full report of the aftermath, read here)
c) The 2004 law is often sought to be defended on grounds that it activates a most-needed divide between the public and private sphere, particularly with respect to the constitutional principle of separation of state from church in France (also known as laïcité). Ronald Dworkin once stated that notions of public-private are flexible with changing times. What is private today may very soon be seen as public or vice versa. Muslim women find it hard to get accepted in private employment/education once they have been expelled from the public spaces for refusing to remove their hijab.
The sociological school studies the actual function of the law in its sphere of action. The actual function of the 2004 law is unknown, at least officially, since no review of the impact of the law has been carried out by the French government though the requirement of such a review exists in the 2004 law itself and should have been fulfilled in 2005. Even in its Sixth Report to the CEDAW (2009), France cited no evidence to support the claim that the law was actually working.
Several issues relating to human right violations (irrespective of the fact that E.Ct HR has upheld the 2004 law), constitutional complexities and political angles of rights of religious and racial minorities in France still persist and are bound to resurface given the latest attempt at a separate new law on the subject. However, when we examine the law through the tenets of the sociological school and nothing else for the moment, we find it fails the test in all respects.
