Berkley Center

To describe current struggles over laïcité as culture wars would qualify as an Americanization of a French debate. The recent public and political discussions on laïcité are over its proper French historical sense, the limits of its policy space, and its application under current challenges. Loi confortant le respect des principes de la République, known as the law on separatism, was put through an accelerated legislative procedure on December 9, 2020, the date which marks the anniversary of Loi du 9 Décembre 1905 concernant la separation des Églises et de l’État. The symbolic weight of the date cannot be overstated. Yet the making of the 2020 law on separatism was a light version of the making of the 1905 law on separation. The 1905 debates, rich in passion and reasoning, are replaced today by pragmatism and politicians substituting for public intellectuals. Jean Baubérot points out the factual errors and serious misinterpretations made by Minister Delegate for Citizenship Marlène Schiappa in her book, Laïcité, point! Shortened deliberation, substituting intellectuals with politicians, factual errors: it looks nothing short of the neoliberal age of France. Luckily, in France, unlike the United States, no age lasts long.

Shortened deliberation, substituting intellectuals with politicians, factual errors: it looks nothing short of the neoliberal age of France.

The immediate problem is recurring violence, the last incidence of which was the beheading of a college teacher, Samuel Paty, in 2020. For a statement of the deeper problems, let’s turn to President Emmanuel Macron. He aired the term separatism as opposed to the usual antithesis of laicité, communitarianism, at Mulhouse on February 18, 2020. He introduced the new law at Mureaux, Yvelines on October 2, 2020. The choice of Mureaux was hardly arbitrary. Seventy persons from the department of Yvelines had parted to join ISIS. The problems Macron listed were beyond radical Islam: poverty, health care, unemployment, access to resources, in sum “ghettoization.” Ghettoization was undermining vivre ensemble, the expression that has become the key to laïcité and integration. The president explained, “we can have communities in the French Republic...these belongings should never be considered as subtractions from the Republic.” With separatism, he was referring to the abuse of religion for “building a project of separation from the Republic.” 

If these are the problems of France, do the 2020 law on separatism and the government’s concomitant plans provide the solutions? 

The new law inserts measures in all the relevant laws for reinforcing the boundaries of the public. It extends state regulation in public services, education, associations, and social media. On some gender-related matters, it reasserts equality and the boundary between the public and the private. In this brief commentary, I remark on some parts of this law from the perspective of the analysis I present in The Politics of Secularism on the institutions of laïcité in the Third French Republic, and certain restructurings which started in 2003. 

The new law inserts measures in all the relevant laws for reinforcing the boundaries of the public. It extends state regulation in public services, education, associations, and social media.

This was the year when the Stasi Commission—that would recommend in public schools a ban on religious symbols and the teaching of religious facts, as well as access to Muslim chaplains in hospitals, prisons, and the military—was formed, the first Muslim high school of France opened, and the French Muslim Council (CFCM) held its first elections. As Minister of Interior and later as President of the Republic, Nicolas Sarkozy pursued the well-known line of religions as sources of hope and social cement. He claimed inspiration from Alexis de Tocqueville and pushed for laïcité positive, calling for the responsibility of the state to build the necessary infrastructure for the exercise of religious freedom. CFCM was his creation, even though the idea was not only his.

The first controlling measure in the new law concerns the neutrality of outsourced public services. A focus on “public neutrality” as the principle of laïcité under challenge overshadows the fact that it is a process of privatization of state enterprises, which changes the boundaries of the public and gives rise to a “problem of neutrality.” Macron explained in his Mureaux address that “public sector impartiality was clear and established when it was in the hands of civil servants…a series of deviations developed when public services were outsourced.” The new law extends neutrality to “employees of subcontractors” but leaves unquestioned the practice of subcontracting public services. Privatization is a bigger challenge to the French republican and laic traditions, since both are built upon a strong state. When Macron not only shrinks state infrastructure but also invests in the police forces, the neoliberal background to this particular reemergence of the question of laïcité becomes even more visible.

When Macron not only shrinks state infrastructure but also invests in the police forces, the neoliberal background to this particular reemergence of the question of laïcité becomes even more visible.

The second measure of the law fits with the first like the pieces of a jigsaw puzzle. Religious, cultural, and sports associations will have to pre-commit to a contract to respect the principles and values of the Republic. This extends laïcité into a matter of value from a matter of institutions and procedures, and it shifts the burden of sustaining laïcité as value—that is, a pre-commitment rather than a commitment resulting from socialization—unto society. A republic of values and “civility” is empowered over a republic of rights, procedures, and socializations as the state shrinks its infrastructure, and expands with values and security into associational life. 

This spirit of the law is clear in Macron’s address at Mureaux, where he referred to associations as helping “forge a lifestyle based on shared values,” posing a challenge to liberty of association and pluralism by French standards. Softer issues, such as refusing a handshake on religious grounds, and harder issues, such as the beheading of Paty, mingle undifferentiated in some of the justifications of the law. 

If associational life is a means of participating, integrating, and becoming a Republic, filling this space with value pre-commitments hinders certain trajectories of socialization. If the goal here is to combat illegal associations or any association which acts beyond its declared purposes, the Republic’s law already has procedures for that. The closure and the reopening of the Grand Mosque of Pantin is a case in point. If the goal is to prevent violence, again the Republic’s existing laws can intervene against any attack on human lives. It is unclear how asking for a value pre-commitment in associational life can solve the immediate problem of violence or the deeper economic and social problems. How could substituting values and security for infrastructure—more social policy and social workers—be a solution to ghettoization? 

If associational life is a means of participating, integrating, and becoming a Republic, filling this space with value pre-commitments hinders certain trajectories of socialization.

To these inefficacies is added an incoherence when Macron declares his enlightened Islam project. This is the same line Sarkozy had pursued. The Republic has every right to control international influence in religion in terms of finance and personnel; however, when it plays the age-old game of state-encouraged soft religion as a solution to hard religion, it relinquishes the thesis that religions are “the rocks of ages” and sticky. A proactive approach from laic institutions will encourage various new actors and new institutional paths not foreseen. Turkey is the pertinent case where “concordat-like” institutions put in place by the Kemalist laic line of soft Islam have eased the AKP’s path of religionizing the state and society. France and Erdoğan’s Turkey are at odds in diplomatic relations; however, in his domestic policy, President Macron is at risk of erecting a Turkish trajectory or, put in other terms, reviving the concordat trajectory that was halted in the Third French Republic with the 1905 law on separation.

Macron carefully refused the option of concordat with Islam after having pronounced the term in 2018, but he insisted on “the structuration of French Islam.” Instead of only investing in the laic socialization mechanisms of the Republic and guarding their boundaries, he inserts the state into the process of community-building, which risks opening the paths to communitarianism by the very hands of the state. This looks like the Sarkozy path, which while claiming to be anti-communitarian, led the formation of the CFCM. In his Malhouse speech, Macron said he was “in dialogue with the CFCM” for organizing and certifying imams in France; yet CFCM has a government-led origin. At Mureaux, Macron expressed this soft religion line when he declared that the state would “contribute €10 million to support initiatives by the Foundation for Islam in France in the areas of culture, history and science.” These are just not the Republican state’s primary tasks, and their consequences for vivre ensemble remain indeterminate.

Adding law to law for reinforcing values marks a use of law beyond its democratic capacity. Law can only set the general frame and boundaries for vivre ensemble—it cannot make us live together.

Another development casting unfavorable light on the Macron line is the discontinuation of the Observatory of Laïcité. The observatory was performing a slow pace strengthening, repairing, and reproducing laïcité at the public and social levels. The government’s intolerance in the face of its disagreements with the observatory over the law and its single-handed reaction to close the observatory sadly mark an anti-intellectualism, a disinclination for deliberation and a particular approach to institutions as governmental mouthpieces. I am worried of the risk of undoing certain French institutions—which have been put in place after long and slow processes—in reacting to crisis or making election calculations. The combined effect of a politics of crisis and a politics of elections can be a fulcrum of de-democratization. 

Adding law to law for reinforcing values marks a use of law beyond its democratic capacity. Law can only set the general frame and boundaries for vivre ensemble—it cannot make us live together. The Republic’s only bet is to get back to its own side of the court, guard its limits and capacity of integration rather than reducing itself to values and security, and stop entering the side of religions for arranging it with public funds.