CAIRN-INT.INFO : International Edition

1On 7 October 2010, the French Conseil constitutionnel (Constitutional Court) confirmed the legality of the prohibition on concealing one’s face in public. [1] According to the legislative definition used, public space includes government and public-service workplaces, areas open to the public, and all public thoroughfares. Concealing one’s face constitutes a criminal offence punishable by a fine and/or a citizenship training programme. The law also stipulates that it is a crime to incite someone to conceal his or her face. Once deemed constitutional, this piece of legislation – whose compliance with the law had raised a number of questions during its development – finally moved towards implementation.

2The Constitutional Court’s involvement while this law was being drafted – a law whose sole intent, despite being couched in vague generalisations, was to ban full-face veils – illustrates the role that this body now plays in the French institutional landscape; [2] and, more broadly, the role played by constitutional justice in the realm of political decision-making. [3] The Court’s intervention confirms the existence of judicial politics in France, whose emergence was described by the American political scientist Alec Stone Sweet in a pioneering text. [4] However, the Constitutional Court’s intervention was nevertheless an unprecedented phenomenon. It was neither the result of an attempt by the executive branch to thwart the legislative branch, nor of the opposition’s strategic efforts to influence the laws being drafted. [5] As the fruit of an a priori referral by the presidents of both assemblies, the Court’s intervention in fact resembles a procedural technique used to pre-emptively neutralise any risk of judicial activism by women who wear full-face veils and their advocates. It is thus a direct consequence of the 2008 constitutional reform, which opened up the possibility for all individuals to demand a posteriori constitutional review, as a result of the implementation of the “priority preliminary ruling on constitutionality” mechanism (called QPC in France – question prioritaire de constitutionnalité).

3This constitutional blessing also conferred greater legitimacy to a law that, despite stemming from a very broad social and political consensus, had hitherto been based on uncertain and controversial legal grounds. While the ruling was criticised abroad, it provoked little public protest in France, if we set aside the reservations expressed by jurists. Regardless of whether these legal experts applauded the effects of the decision or lamented them, many constitutional law specialists in particular identified the weakness, or perhaps even incoherence, of the legal argument justifying constitutional approval. [6] Although some of these experts simply refused to consider the ruling as a “major” decision [7] and highlighted its “awkward” construction, [8] other jurists condemned its “peremptory” character, arguing that such a decision was not far from “subverting the rule of law”. [9]

4However, in this article I shall not focus on gauging the legal validity of the aforementioned ruling, first and foremost because it is not within the competence of the political scientist to do so. And second, because proceeding in such a fashion would mean succumbing to the illusion of the “‘immaculate conception’ of legal speech”, [10] implicitly endorsing the assumptions of jurists regarding the purity of legal reasoning, and ignoring the underlying “interwoven relationships” [11] between politics and the law. By shifting perspectives, the legal agnosticism adopted by many political scientists thus leads to an investigation of how this legislative text, despite encountering problems of legal feasibility due to the risk of unconstitutionality, managed to overcome this obstacle.

5Situating the discussion at a macro-sociological level, it might be tempting to view constitutional approval for the law banning the burqa in public as illustrative of France’s unique political culture. Indeed, the approval might initially be interpreted as a form of reverence on the part of the constitutional judge for the legislator; in other words, as the expression of a legicentric tradition unique to civil law countries, of which France is an archetypal example. We might also see in this approval the reflection of a national history marked by the Republic’s mistrust – born of the struggle for secularism – regarding the encroachment of religion into the public sphere: ultimately, as the fruit of a unique division that Ahmet T. Kuru sees as a form of “assertive secularism”. [12]

6Immediately ascribing the Constitutional Court’s decision to the quasi-deterministic action of an alleged political culture or an alleged national model would be hasty, to say the least. It would mean reducing extensively discussed political cultures and national models to an essentialist vision. [13] This would also mean largely overlooking the scope of the legal and political controversies that the law in question engendered, and their direct consequences as embodied in referrals to the Constitutional Court. Finally, such an approach would entail ignoring the fact that, in reality, the principle of secularism, far from having favoured the adoption of this law, was revealed to be legally incapable of banning the wearing of full-face veils.

7Naturally, this article does not seek to deny that France’s historical legacy and the specific nature of its resulting institutional arrangements played a part in the country’s reaction to the issue of full-face veils. The incomprehension expressed on the international stage – including by neighbouring European countries – is enough to prove that France continues to have a unique national policy style. [14] It is important however to avoid a facile analysis of the latter’s impact that freezes actors in predetermined and homogenous representations, modes and schemes of action, and instead examine from a more constructivist angle how this national style perpetuates itself through reinvention.

8To do so, we shall trace the development of the law and the controversies that it engendered, closely examining the strategies, resources and arguments deployed by advocates for a full-face veil ban to free the legislative text from constitutional constraints and make legally possible what had seemed impossible just a few months earlier. Beyond the unique story of a controversial law, this article also seeks to highlight an insufficiently addressed aspect of political science studies on constitutional justice. It is true that political scientists have somewhat punctured the view of jurists who argued that constitutional courts were necessarily in the service of the rule of law. In that regard, analyses of constitutional politics in France [15] are consistent with the seminal work conducted by Dahl, [16] McCloskey, [17] and Shapiro, [18] which reveals the interdependent relationships between politics and constitutionality. But while a number of studies have focused on identifying the political determinants behind constitutional rulings, [19] little is known about how events concretely unfold behind the scenes. To this end, process-tracing is an effective methodology to uncover that which is masked by decision-making approaches, which take no account of the dynamic produced by the sequences that precede a ruling’s legal formalisation. If the Constitutional Court is the body empowered to have the final say on constitutional law, when explaining the pronouncement the Court makes on constitutional law we cannot overlook how the constitutional argument is raised, debated and analysed during the law-making process. Some authors have pointed out the effects of such “out-of-court deliberation” [20] on legislative work and the increasing overlap between legislative and judicial work in political decision-making due to expectations regarding the possible reaction of constitutional judges. Alec Stone Sweet thus showed that while constitutional judges were increasingly involved in legislative work, legislators were increasingly behaving like judges. However, parliamentarians and government regulators are no longer content with merely anticipating and overcoming obstacles. Constitutional deliberation outside of the Constitutional Court affects how laws are drafted, ultimately helping to shape the final rulings handed down by the Court.

9This is the perspective adopted when the process leading to the 7 October 2010 ruling is analysed below. [21] This article begins by recalling the conditions surrounding, and the actors participating in, the return of the question of the veil onto the political agenda through its new avatar, the burqa. Then it examines how this controversial affair became juridified and pitted the political desire to ban full-face veils against the consortium of jurists challenging the parliamentarians’ right to shape the law. In turn, my analysis will show how this controversy, in becoming politicised, put the law to the test. The final section of this article will examine the political strategy implemented to bring on side not just constitutional law but also its supreme embodiment, the Constitutional Court. I shall demonstrate that, although the Court strove to minimise the legal impact of a ruling which, given its context, could only help to validate the legislative text, the constitutional blessing that it gave to this particular law nevertheless illustrates the de facto decline of liberal secularism.

10This argument relies on the analysis of an abundant amount of material made available by the media coverage that surrounded all the different stages in political and/or legal deliberations on the subject: the audio-visual transcripts of hearings before the parliamentary fact-finding mission on the wearing of full-face veils, the verbatim accounts appended to the report, [22] the opinion of the Conseil d’État (Council of State) on the legal possibility of banning full-face veils published on 30 March 2010, [23] the different components of the legislative file, especially the reports of the law commissions of both assemblies, [24] the minutes of parliamentary debates in the National Assembly and the Senate, and the analysis of the Constitutional Court’s ruling as published in the Cahiers du Conseil constitutionnel.[25] In addition, this article takes a close look at the national and regional press to see how the debate unfolded in the media sphere.

The problem of the veil returns to parliament

11As the final scene in a new episode of the legal saga of the veil, the 7 October 2010 ruling must be contextualised with regard to the events that preceded it. In reality, the 2010 law was in part the result of the 2004 law prohibiting the wearing of religious symbols in the public school system. [26]

A lingering controversy in search of a new focus

12This law appeased the controversies which resulted from the judicial regulation and the case-by-case analysis that had become the norm in the wake of the Council of State’s opinion published on 27 November 1989. [27] But it was far from putting a definitive end to the debate, as the veil was a recurring facet of the “Muslim problem”. Although the law made the hijab vanish from the public school system, it hindered neither the veil’s trajectory nor the fear and condemnation provoked by this item of clothing in France. [28] Marking a success for the prohibitionist cause, the law encouraged mobilisations in favour of extending the scope of the veil ban and new laws to regulate this. [29] Symmetrically, it also reinforced the logic of resistance to restricting how it could be worn. Such resistance was expressed mutedly via various “exit” strategies adopted by religious communities (the founding of denominational schools, a shift towards ethnicity-based entrepreneurship, community labour markets, and the domestic sphere) and/or the intensification of veiling practices and rhetoric magnifying the religious signification of the sacrifices that the veil required. [30] Acts of resistance were also visible in the proliferation of individual legal claims brought before courts. Such claims went hand-in-hand with the growth of mobilisations and the emergence of new collective actors engaged in the fight to protect the veil, including the Collectif contre l’Islamophobie en France (CCIF - Collective Against Islamophobia in France). Created in 2003, this organisation favoured recourse to the law among its arsenal of weapons and thus garnered significant media and political attention for its cause, both nationally and internationally.

13Micro-conflicts involving the veil also proliferated in more and more diverse arenas: for example, one bank refused to open its doors to a client who was wearing a veil, and other veiled women were prevented from participating in a naturalisation certificate ceremony. One school stopped veiled mothers from accompanying their children on school activities and field trips; the owner of a rural bed and breakfast barred access to its common spaces to women wearing the hijab; other veiled women were refused access to voting booths or immigration offices for the same reason, and so forth. These conflicts sometimes spilled over into the courtroom. The varying rulings handed down by the courts attest to the uncertain stability of the veil ban and its scope. The recommendations made by the French High Authority for the Fight against Discrimination and for Equality (HALDE - Haute autorité pour la lutte contre la discrimination et pour l’égalité), which was also solicited regarding a number of cases, reflect this process of legal trial and error. While a series of rulings published between 2005 and 2007 supported the women who felt they had been victims of discrimination, this support was in no way consistent; on the contrary, some recommendations supported restrictive measures regarding veil wearers. From 2004 to 2008, the issue of the veil thus remained a lingering public problem that the media regularly referred to following an incident or ruling, without, however, this media coverage leading to real politicisation of the issue.

The burqa debate, a new avatar for the veil

14It was only in 2008 that the issue of the veil, by transforming itself into the “burqa affair”, returned to the political and legislative agenda. Three particular events contributed to the resurgence of the problem, which, thanks to how it was framed by the media, established an equivalence between the full-face veils worn in France and those worn by Afghan women forcibly veiled by the Taliban. This connection was established despite the non-existence of the Afghan version of the full-face veil and the marginal nature of full-face veiling in France.

15It was following a ruling made by the Council of State in July 2008 [31] that the term “burqa” was first associated with events unfolding domestically. The ruling approved the refusal to grant naturalisation to a Muslim woman on account of her “radical” Islamism, which was “incompatible with the essential values of the French community”. The full-face veil worn by this woman was only one element among many invoked by the judge. However, both media and political figures highlighted this one criterion repeatedly. Fadéla Amara, the Minister for Urban Affairs, and Valérie Pécresse, the Minister for Research, made political use of the term burqa commonplace by explicitly referring to it when applauding the ruling. The burqa was back in the press only three months later, when a ruling passed by the HALDE confirmed a previous decision made by an administrative judge. [32] Once again media coverage and politicisation played off each other, while the HALDE’s recommendation provoked a large degree of unanimity within the political world. The problem returned in April 2009, when a Vénissieux family’s application for social housing was rejected because one of its members wore a full-face veil. The statements made by the parliamentary representative for the Rhône region, André Gérin, helped to push the affair into the media spotlight. The Communist representative stood apart from his political family as a result of his comments (on safety, the “Talibanisation of the suburbs” and the “oil slick of Islamism”) which garnered him popular support from the right and ostracised him from his own party. [33]

16While Gérin recognised the illegality of denying social housing on account of full-face veil-wearing, [34] he condemned in alarmist terms a practice, which, according to him, revealed the growing Salafist influence in the suburbs. Embarking on a moral crusade, he called for “Republican resistance” and tried to engage the interest of parliament. He thus instigated a proposal for a commission of inquiry to take stock of the situation and identify the recommendations that would be likely to put an end to “community-based separatism that is contrary to our principle of secularism, our values of liberty, equality and human dignity”. The proposition received broad support, especially from the right: 58 members of parliament (3 from the Parti Communiste, 7 from the Parti Socialiste, 43 from the UMP, 2 from the Nouveau Centre (NC) and 3 from independents) supported the project: [35] in other words, almost one-tenth of the National Assembly. The signs of political support proliferated, on the right of course, but also among the Parti radical de gauche, while the PC and a number of PS leaders (such as Laurent Fabius, Martine Aubrey and Robert Badinter) expressed reservations, accusing the majority of confounding the issue and instrumentalising the debate for purely political ends.

17Immediately after being tabled, the resolution received support from the highest levels in the Republic. On 22 June 2009, the President, breaking with the previous strategy that had seemed to favour the status quo regarding the issue of the veil, resumed the attack. [36] The Congress of Versailles became a forum for condemning a practice that the President denied was “a religious problem”, calling it instead a “problem of liberty and women’s dignity”, a symbol of the “debasement and enslavement” of women. Solemnly declaring that the burqa “would not be welcome on French soil”, Nicolas Sarkozy confirmed that the matter should be referred to parliament and was heartily applauded by members of parliament from both the left and the right. This declaration, interpreted by the parliamentary majority as a green light from the President, opened a window of opportunity for those in parliament who advocated for new restrictions on veil wearing, especially full-face veils. On 23 June, the National Assembly’s presidential committee, while it deemed creating a new commission of inquiry too comminatory, decided to establish a parliamentary fact-finding mission on the wearing of the burqa. [37]

A parliamentary fact-finding mission dominated by legislative entrepreneurs

18While the president of the Assembly, Bernard Accoyer, was an advocate for moderation and consistently presented the mission as a site for dialogue and evaluation of the situation, it was almost instantaneously transformed into the vector of a prohibitionist endeavour against full-face veils. The fact-finding mission suffered the effects of political one-upmanship within the majority group of the Assembly, pitting those who supported the President against followers of Jean-François Copé, the president of the UMP group. The mission had scarcely been created when Copé established an UMP working group on the same subject, and, without even waiting for the mission to start its work, publicly expressed the group’s intention to propose a bill in the near future to ban and criminalise full-face veils. Moreover, although the fact-finding mission met the existing proportionality criteria in terms of political composition (17 UMP, 12 PS, 2 NC, 1 PC), it turned out to be made up of a coalition of MPs well known for their hostility towards the veil in all its guises. The mission was presided over by André Gérin, who helped to create it, while the strategic post of rapporteur was held by Éric Raoult; both men used populist and Islamophobic rhetoric. The mission also included three MPs who, since the passing of the 2004 law, had spearheaded a number of new legislative restrictions on veils. Françoise Hostalier (UMP), the secretary of the mission, was also the author of a bill tabled in 2008 [38] that sought to ban, among other things, the wearing of religious symbols by individuals who worked, directly or indirectly, in public service. No fewer than eight of the bill’s signatories followed Hostalier to the fact-finding mission. In 2009, Hostalier had also been at the source of a controversy regarding a young woman who wore a veil when visiting the National Assembly in the context of a school fieldtrip. [39] Another heavyweight on the fact-finding mission, Jean Galvany (PS), proposed a bill to promote secularism in the Republic which sought to grant business leaders the right to regulate, under certain conditions, dress codes and the wearing of religious symbols. [40] Seven of its cosignatories were also members of the fact-finding mission. Jacques Myard (UMP) was also a part of the mission, and had been behind the very first draft legislation recommending the criminalisation of full-face veils in public. [41] The mission also included François Baroin (UMP), in charge of the UMP working group and who, much like the group’s president, expressed his support for a general ban on full-face veils. Nicole Ameline (UMP), former deputy minister for Parity and Professional Equality under Prime Minster Raffarin, and Bérengère Poletti (UMP), a member of the National Assembly’s commission on women’s rights, rounded out this core group of actors determined to put an end to a practice they deemed unacceptable.

19Thus, the fact-finding mission had barely been created before it became an investigative body working against full-face veils and exploring the possibilities of banning them as broadly as possible. [42] Among the more than 200 individuals who participated in the hearings, disagreements arose regarding whether it was necessary to ascertain if the practice was truly repressive for women and if a general ban was the best way to curb such a phenomenon. However, the practice was broadly condemned, including by Islamic representatives who viewed it as a form of religious deviance or a sectarian aberration. Buoyed by this moral consensus, the fact-finding mission – which chose to make its hearings public and thus received intense national and international media coverage – was where the image of the full-face veil was constructed and diffused as being fundamentally antithetical to the tripartite Republican motto. [43] As an impediment to the liberty of women to dress however they want, since they are required to conceal their faces, the practice was thus viewed as an attack on freedom in general. As a symbol of the inferiority of women and a form of “sexual apartheid”, the full-face veil violated the principle of gender equality. And since concealing one’s face was a way of exempting oneself from the bare minimum of civility, the reciprocal exchange of gazes, the veil also violated the principle of fraternity.

20The Republican framework allowed for several different interests to overlap: a consensus was easily forged that presented full-face veils as “rejecting the principles of the Republic” and thus demanded their prohibition. [44] But as this prohibition concerned fundamental freedoms (regarding religion, dress and unrestricted movement), it ultimately faced the problem of legal feasibility. The hearings of legal experts, requested by the Assembly’s team of administrators, who wanted to situate the mission’s reflections in the context of legal possibilities, illustrated the tension that existed between the Republican tradition, in the name of which a ban on full-face veils seemed logical, and the limits imposed by the rule of law.

The controversy though the eyes of the law

21In 2004, legislators had already come up against the constraints imposed by the rule of law. However, it was the looming threat of censure by the ECHR that had occupied centre stage in the discussion on legal feasibility. [45] This was the case because, on the one hand, the risk of unconstitutionality seemed decidedly more limited, and on the other hand, because ordinary litigants did not at the time have the ability to demand the a posteriori constitutional review of a law. Without this means of legal recourse, the risk of constitutional censure was thus limited to a potential referral to the Constitutional Court before the law was enacted, by 60 members of parliament, by the presidents of the Assembly, or by the Prime Minister. Advocates for the law were able to prevent the case going to the Constitutional Court thanks to the work previously conducted by the Stasi Commission and the fact-finding mission on religious symbols in schools, which had produced a cross-party political consensus on the matter. With no internal form of recourse against the law, it seemed that appeals to the Strasbourg Court were highly likely, given the increasingly common invocation of the European Convention on Human Rights in cases brought by young women excluded because of their headscarves. This scenario did in fact later become the reality, even if the Strasbourg Court did not rule in favour of the plaintiffs.

A new institutional context

22The situation was entirely different when the issue of full-face veils was debated. The threat of the Strasbourg Court had become more predictable: whereas debates on the 2004 law had unfolded in an uncertain context with regard to the Court’s position, the doctrine of France’s national margin of appreciation that had since become the norm somewhat eased this worry, even if censure was in no way excluded from the realm of possibility. [46] Most importantly, censure was overshadowed by the new institutional context engendered by the 2008 reform that created the QPC mechanism (priority preliminary hearings on constitutionality), which entered into force in March 2010. The jurists who spoke before the fact-finding mission were careful to draw attention to this new element. Denys de Béchillon, a professor of public law, thus stated that:

The atmosphere of false legislative security that has existed in this country regarding a certain number of laws that were known to be bordering on unconstitutional – but for which there was a political consensus – no longer exists. (…) In three months time, any interested person who judges as unconstitutional a law prohibiting the burqa will have the right to expedite proceedings with the aim of having it deemed unconstitutional by the Constitutional Court. [47]
Consequently, the boomerang effects of constitutional censure could not be ignored: especially since the aforementioned QPC procedure was so rapid that the law’s advocates could no longer rely on the disjunction between political and judicial time frames and count on benefiting from the political dividends of the law’s enactment without having to assume any negative repercussions if it was ultimately struck down.

Parliamentarians grapple with constitutional experts over politics

23Overcoming the obstacle of unconstitutionality by downplaying and even neutralising that risk thus became an essential task in defending the pertinence of a general prohibitory law. This goal was all the more crucial because the law’s constitutionality put the risk of censure by the Strasbourg Court into perspective, without however automatically excluding the latter. Eight experts were called upon to undertake an investigation of the legal possibilities: one state councillor, four constitutional experts, [48] one lawyer specialised in the jurisprudence of the ECHR, [49] and two magistrates from the Court of Cassation. [50] This range of law professionals, chosen by the administrators in charge of the fact-finding mission’s secretariat, put at the disposal of the mission’s members the experience and skills of judges who had presided over supreme courts, both judicial and administrative, with expertise in both constitutional and European law, as well as different perspectives on the compatibility of a general ban on full-face veils with the requirements of the rule of law. [51]

24Although soliciting such expertise stems from the growing judicialisation of legislative work, a trend that began in the 1970s, the position occupied by the four public law specialists reflects the success with which constitutional experts have managed to impose themselves as the specialists of reference. [52] This process can also be seen in the media appearances made by these experts throughout the course of the debate. [53] Whether experts were invited to discuss the debate or spontaneously expressed their opinion, the media coverage of their comments reflected and magnified the real effect of legal language’s hold on political realities. [54] Without speaking on behalf of the constitutional judges, the experts nonetheless contributed to expanding the latter’s jurisdiction over politics, while simultaneously establishing themselves as legitimate arbiters of constitutional law. These media interventions illustrated a relationship of competitive co-operation between the doctrine’s theoreticians and its practitioners, which – according to Bastien François [55] – in turn helped to disseminate and legitimise constitutional law.

25While the jurists consulted by the fact-finding mission willingly played the part of experts, they highlighted the conflict between the existing political will and the reality of the judicialisation of legislative work, which limited the number of viable possibilities. The reservations they expressed regarding the possibility of a general ban on full-face veils clearly attest to the law’s autonomy with regard to politics – especially as some jurists did not hide their support for such a legal measure. Furthermore, the public law professionals consulted more closely resembled royal advisors or “legists” than academics in their ivory tower, or cause lawyers active alongside social movements. [56]

26The councillor of state Rémy Schwartz, who participated in the hearings on account of his former position as rapporteur for the Stasi Commission, immediately expressed doubts concerning such a “terribly complicated” endeavour. [57] The conclusion arrived at by the second speaker, Denys de Béchillon, was final:


We have neither the tools nor the political culture necessary to prohibit the wearing of this item of clothing on French soil. [58]

28Anne Levade echoed the colleagues who preceded her. [59]

29It was thus in vain that various experts explored possible “avenues of legal qualification” [60] that might allow for the issue to be reimagined on the basis of different legal rules likely to open up broader possibilities for action. The experts were unanimous that the veil needed to be de-designated as a religious symbol, thus removing it from the highly protected realm of freedom of religion. Shifting the issue to another area of the law did not, however, offer any useful leeway for a law of general prohibition. For Rémy Schwartz, the constitutional principles of dignity and gender equality seemed like a possible avenue. The famous case in Commune de Morsang-sur-Orge which prohibited dwarf-tossing in order to preserve the latters’ dignity, also seemed like a fruitful line to follow. [61] In 1995, this ruling opened up the possibility of banning behaviours that were deemed contrary to human dignity, even despite the consent of the person(s) involved. But this possibility dried up as soon as Denys de Béchillon highlighted the flimsiness of the argument in light of the Strasbourg Court’s recent decisions.

30The imperative of preserving the public order was thus the only argument left. But even that argument had limits and seemed only to offer the possibility of a partial ban. Bertrand Mathieu, a constitutional expert, suggested broadening the scope of possibilities by presenting a ban as justifiable because of the need to be able to identify people in public dealings. However, he also warned against any general prohibitory law, suggesting instead a law that banned wearing a full-face veil in so many different situations that it became virtually impossible to wear one. To the members of parliament who clearly expressed their dissatisfaction with such an “a minima” law that seemed, to them, to be synonymous with defeat, Mathieu answered: “Whether you like it or not, today legislators are controlled by judges. I myself lament this imbalance in favour of judges, but it’s the reality”. [62]

31The fact-finding mission was thus the scene of frequent sparring between its most legislatively inclined members and the legal professionals standing in their way. Through these verbal skirmishes and sometimes unpleasant exchanges, politics and the law mutually tested each other, revealing the irreducible margin of autonomy of separate yet interdependent social universes. While the jurists argued for the exteriority or transcendence of the law to which objects are subject, the politicians tried to bend the law by expressing their scepticism regarding its objectivity and highlighting its contingent nature. The statements made to the jurists by the UMP representative Jacques Myard – one of the more fervent champions of a general ban on full-face veils – were emblematic of this stance.


As is always the case when speaking to legal experts, one must recall the scene from La Guerre de Troie n’aura pas lieu (…) where the jurisconsult must give Hector a legal interpretation of the Greeks’ attitude. He starts by saying that since the Greeks arrived right on the coast, it was an act of war. And then, being threatened, he immediately finds another interpretation. [63]

33This tension could equally be felt when public law expert Anne Levade was criticised, at the end of her speech, for refusing to adopt a position on whether legislators should limit themselves to the legal status quo or not. Tension flared up again when Bertrand Mathieu took the floor: Jacques Myard described him as a “mechanic of a constrained and self-censoring form of law”. [64] And it rose to the surface once again when parliamentarian Pierre Forgues accused him of “thinking like a judge”:


“Professor, I understand that judges can be prisoners of the existing laws, but I have a hard time understanding how a professor and researcher can be. You start with the idea that wearing a full-face veil is a personal freedom, but as you yourself have said, this is a (legal) fiction. Legislators must not let themselves get trapped by fictions, their role is to make laws on behalf of and in the interest of the people. They must be law creators. Freedom itself must be organised, and it falls to legislators to protect citizens, even when this is in spite of themselves. (…) In your view, can the law evolve? If legal matters are immutable, if no break from tradition is possible, I wonder what we’re doing here…” [65]

A new constitutional possibility

35Ultimately, the members of parliament had Guy Carcassonne to thank for creating a new constitutional possibility. One of the last jurists to be heard, Carcassonne’s line of thinking diverged from that of his predecessors. He identified a narrow but useable avenue to shift the law towards a general ban on full-face veils. A left-wing constitutional expert well known to members of parliament, Carcassonne agreed with his colleagues when arguing that neither secularism (a principle, he added, “which was required of the Republic but not of its citizens”) nor dignity (which could be “invoked with regard to legislators, but that legislators could not impose on citizens”) constituted solid legal grounds. Like Bertrand Mathieu, he argued that the notion of public order offered the greatest resources for the law. He proposed a broader view, however, not merely limiting public order to material considerations like public safety, health and order, but encompassing an axiological dimension. According to Carcassonne, public order included social issues and questions of public morality that justified not just a partial, but a general ban. Public order is linked to “social codes” that are seen as constitutive elements forming a shared value base. [66] These social codes mean that “there are parts of our bodies that we conceal and others that we show. Maybe in a thousand years we’ll show our genitals and conceal our faces, but right now the reverse is unanimously accepted.” [67] Considered from this angle, concealing one’s face disrupts the rules of normal civility and can be seen both as harmful to society’s interests and to justify, under Article 5 of the Declaration of the Rights of Man and the Citizen, legislative intervention to limit personal freedom. It can moreover be interpreted as an assault on others, in the sense that hiding one’s face means considering that others are insufficiently “pure, respectable or worthy” of seeing it. In that regard, Carcassonne saw the legal grounds for a functional ban under Article 4 of the Declaration of the Rights of Man, according to which “liberty consists in the freedom to do everything which injures no one else”. These were the arguments that allowed the expert to challenge the reality of any chance of constitutional censure.

36However marginal this interpretation of the law might seem, it nonetheless assumed almost instant authority among the members of parliament listening to Guy Carcassonne. Such authority doubtless stemmed from the fact that the interpretation benefited the parliamentarians’ legal utilitarianism, allowing them to transpose into law their political desiderata. However, some of this authority also came from Carcassonne himself, who was not only a well-known constitutional expert in parliamentary circles, but also a fervent advocate for strengthening the parliament’s role. His intimate and practical knowledge of how political power was exercised set him apart from his academic colleagues, who were less used to the political reality. [68] His proximity to political practitioners, who regularly praised his legal inventiveness, [69] his mastery of intersecting law-making institutions, his familiarity with the parliamentary world (which was clearly evident in the friendly exchanges that took place during his hearing): these were some of the main reasons that made Carcassonne a virtuoso at the overlapping games played between politics and the law.

37In order to open up a possible path for legislation, however, this hearing was not sufficient to put an end to the legal controversy. The controversy quickly rebounded thanks to the effects of the political rivalry between supporters of the President and those of Jean-François Copé within the fact-finding mission.

The politicisation of the constitutional controversy

38The end of the fact-finding mission’s work was in fact disrupted by the announcement by Jean-François Copé (the UMP group’s president) in December 2009 that he was going to file a legislative bill, even before the mission’s cloture and concluding remarks. This announcement exacerbated the political cleavage that already divided rightwing parliamentarians within the fact-finding mission.In reigniting the legal controversy, the announcement also changed its character and placed it centre stage. Interpreting constitutional law was no longer the sole purview of rival professionals in politics and law; it also became a politicised struggle wherein the issue of respecting the rule of law was entirely secondary to deploying constitutional arguments for political gain. [70]

The constitutional argument caught in the political game

39In response to Jean-François Copé’s announcement, socialist representatives not only boycotted the end of the fact-finding mission’s work, but also brandished the constitutional argument to justify their opposition to any bill proposing a general ban. In its official position paper, the PS thus emphasised the need “to give preference to public actions […] that are indisputable with respect to our constitutional order […], nearly all jurists, including those consulted by the mission, believe that a general and absolute ban on full-face veils could not be established on solid legal, and especially constitutional, grounds”. [71]

40This argument was also wielded by members of the executive branch, who looked askance at losing control of a process from which they had hoped to reap political benefits. Several active ministers who participated in the hearings [72] thus systematically mentioned the risk of constitutional censure to challenge the pertinence of a general ban. [73] The statements made by Nathalie Kosciusko-Morizet, minister and vice-president of the UMP, and by Bernard Accoyer, the president of the National Assembly, likewise urged legal caution. The Elysée’s Secretary-General, Claude Guéant, and in turn the President himself warned those within their camp against advocating for a general ban and called for a solution that would garner broader political support.

41Invoking the risk of constitutional censure was also a sort of hobbyhorse for Sarkozy supporters in the fact-finding mission, among whom its rapporteur, Éric Raoult, could be counted. The attempts by Copé’s supporters to include a general ban in the report’s recommendations were thwarted. The report’s third section, titled simply “Prohibition?”, was entirely devoted to outlining the doubts that remained regarding the risk of constitutional annulment or the ECHR’s condemnation. Instead of a general ban, which was deemed too uncertain, three measures were recommended: adopting a resolution solemnly condemning the wearing of full-face veils as inherently contradicting Republican values; strengthening awareness regarding mutual respect and diversity, as well as voting on a law that would “ensure the protection of women who were victims of duress, which would strengthen the position of public officials confronted with this phenomenon”; and finally, a referral to the Council of State to continue exploring legal solutions to limit as much as possible the legality of wearing full-face veils.

The Council of State versus the law

42It is possible that this referral to the Council of State stemmed from the desire of some parliamentarians and the executive branch to preserve the rule of law. In addition to the fact that the followers of a liberal-conservative approach within the majority (represented by Bernard Accoyer and François Fillon) expressed hesitation regarding a general ban, several high-ranking government officials echoed the uncertainty expressed by the experts heard during the fact-finding mission. [74] All in all, the referral was a useful card for the executive branch to play to buy more time and regain control over the law-making processes that were slipping out of its grasp.

43In fact, the government resumed its legislative initiatives without waiting for the results of the judges’ deliberations. Right on the heels of the UMP’s defeat in the March 2010 regional elections, which also demonstrated the rise of the Front national, the French President announced his decision to pass a bill “in compliance with the general principles of the law”. While the announcement remained rather vague regarding the scope of the ban intended, only a few weeks later specific details were supplied: the Minister of Justice was tasked with developing a bill for a general ban.

44This news sparked even more controversy since in the meantime, the Council of State had published its opinion, [75] concluding that a general ban would be exposed “to serious legal risks regarding the rights and freedoms that were conventionally and constitutionally guaranteed”. [76] The Council’s report barred the constitutional path previously opened up by Guy Carcassonne during the fact-finding mission’s hearings, [77] thus rejecting the “non-material” notion of public order defended by the constitutional expert. The report did admit that references to a shared base of demands and guarantees – which this vision of public order entailed – had occasionally been used on an ad hoc basis to limit the right to family reunification in cases of polygamy, or to prohibit the use of the Pacte civil de solidarité (PACS-Civil Solidarity Pact) to legitimise incest, without the opposition of the Constitutional Court. But although the report highlighted these situations, it did so precisely to emphasise that such a definition of public order, having never been enshrined in the law by the Council or the Strasbourg Court, did not offer any guarantees against their censure. Consequently, the judges of the Palais-Royal advised a “strategy of encirclement” designed to extend the legally justified possibilities of prohibition.

The uncertain harnessing of constitutional law

45That which, a few weeks earlier, had been a political resource to regain control over the legislative process thus became a constraint that needed to be neutralised: which the executive branch sought to do by countering the law’s resistance with the political need for action. When the Council of State reiterated its reservations during the review customary for all legislative bills, it incurred the government’s wrath. The Prime Minister argued that it was the government’s responsibility to “force changes in the case law of the Constitutional Court and the European Court of Human Rights in order to address a new problem that did not exist twenty years ago”. [78] The President then used his authority to join the fray and attempt to influence the law. Insisting on his “political and moral responsibility”, the President did not hesitate to defy legal spokespersons by referencing the Canal, Robin & Godot case. The president of the UMP group also downplayed the scope of the report, which he saw as incapable of binding the government. While the issue was submitted to the law commission and then the plenary assembly, the Minister of Justice and the majority MPs tried in turn to clear the constitutional path that had been obstructed by the judges’ arguments. In this vein, the law commission’s report endeavoured to demonstrate the legal soundness of a law that had been presented as embodying consensus. A lengthy passage titled “A clear constitutional basis: public order” was devoted to reversing the Council of State’s argument regarding the immaterial public order. As an argument in favour of the law, the outline drawn up in the Council’s opinion to illustrate where this notion of public order had been more or less explicitly mobilised was reused. The argument’s logic was thus reversed to highlight what had been downplayed as ad hoc interpretations. The commission’s report not only confirmed that the immaterial public order “was (…) deeply rooted in our legal tradition and embedded in our constitutional framework”, but also that it “is the legislator’s job to define its contours by establishing the limits of the few rules without which social life is impossible”. [79] The report justified the democratic legitimacy of this situation by emphasising the “broad Republican support” enjoyed by the parliamentary resolution that had been adopted a few weeks earlier.

46The opposition leaders, on the other hand, were quick to frame the Council of State’s recommendations as confirming the political relevancy of their position in favour of a partial ban. Despite having voted for the resolution on the attachment to the respect of Republican values (11 May 2010), the socialists continually warned of the threat of constitutional rebuttal. As the leader of the parliamentary opposition to the bill, Jean Galvany condemned what he saw as “a legally weak and thus politically dangerous path”, [80] raising the spectre of “fundamentalist jurists” ready to exploit any legal loopholes.

47This controversy entailed new attention to jurisprudence, attested to by both the importance of the legal debates and the vast mobilisation of new legal consultations by the actors involved. If the debate surrounding the law grew so much in scope during the parliamentary trajectory of the government-proposed bill, this was in reality because its outcome was not just a numbers game. Thanks to the vote on a resolution, the parliamentary majority managed to forestall the risk of an a priori referral to a judicial authority. [81] The opposition’s resistance was thus limited to abstention. Nevertheless, the threat of an a posteriori review still loomed, likely to occur in the short term. Regardless of the political work needed to make the proposed bill legally viable in the political debate – and of the overwhelming majority that ended up supporting it [82] – nothing was guaranteed regarding the ensuing law’s ability to survive constitutional review. This was about a different type of political engagement: not only the engagement of constitutional law, expressed via authorised spokespersons, but the direct participation of the Constitutional Court, without which there was likely to be a political fiasco for the politicians who had drafted the bill.

From constitutional law to the Constitutional Court

48In her analysis of the Constitutional Court, Dominique Schnapper cautions against wholeheartedly believing in the internal coherence of case law as purveyed by a doctrine often in thrall to “the retrospective illusion of necessity”. [83] She does recognise an element of “legal necessity” in the Court’s rulings, viewing the body as a force that “transcends the personal reactions of individuals, circumstantial political conditions, and the apparent contingencies of daily life”. [84] However, she stresses the effects produced by the Court’s position in the political system and the inevitable role played by opportunity in the judgments handed down. She writes:

“The Constitutional Court is still a weak institution and it cannot overlook the political and economic consequences of its rulings, nor the latters’ effects on its own future.” [85]
This analysis ties in with those proposed by political scientists who have studied how a given political environment partially conditions constitutional rulings, as well as how supreme courts strive to preserve their legitimacy when pronouncing their judgments.

A political coup: the presidents of the Assembly refer the issue to the Constitutional Court

49The extraordinary conditions under which the law regarding the concealment of one’s face was referred to the Constitutional Court warrants more analysis from this perspective. During the Assembly’s debate, shortly before reviewing the proposed amendments, Jean-François Copé recommended this measure:


“So that no ambiguity exists, and because some representatives have expressed doubts that the vote, regardless of how broad the consensus, could not appease, I wish for the law to be submitted to the Constitutional Court before its enactment, so that its implementation cannot be challenged […]). In my opinion, this will be a good way to put a definitive end to the polemic and not give any fodder to the extremists, who would be all too happy to claim victory.” [86]

51In accordance with this announcement, once the bill was voted through in the Senate, the presidents of both houses referred it to the Constitutional Council.

52Several gains ensued from this political “coup”. First of all, this procedural technique which sought to avoid a QPC was a move towards reconciliation with the opposition: one of its members, Jean Galvany, had called for this in the law commission. Though it was not sufficient to rally members from the opposition, most of whom refused to take part in the vote, the measure stripped the debate of all meaning, as it had until then focused on the constitutional argument.

53Second, this unusual procedure heightened the drama: the simultaneous referral to the Court by both presidents of the Assembly was in fact a new phenomenon. This extraordinary “blank” referral [87] was not without a certain solemnity, which, since it attested to a particular attachment to the Court’s role, accentuated its political responsibility. As a public staging of political power’s subordination to the law and its reverence regarding constitutional principles, this approach increasingly externalised the potential failure of the law onto the Court.

54However, several factors increased in advance the political illegitimacy of a potential censure. On the one hand, advocates for the bill were using this technique to try the Constitutional Court in the court of public opinion, which was largely favourable to a ban on full-face veils, if we refer to the polls published on the subject. On the other hand, the text, which was voted through by a large majority (and with no votes against it) ultimately did not provoke any real political opposition, or any visible social protests, and it benefited from the indirect legitimacy conferred by the unanimous parliamentary resolution condemning the wearing of full-face veils. Finally, the intense media coverage that the fact-finding mission received worked as a sort of echo chamber for the full-face veil phenomenon (which was otherwise quite marginal) and its representation as an act of incivility that broke the social pact, enslaved women and menaced society as a whole. [88] The reappearance of the terrorist threat in reaction to the legislative proposal [89] was the final element in the perfect storm in which constitutional review sought to intervene.

Approving the law without constitutionalising immaterial public order

55If we approach this situation from the perspective of game theory, approval of the law seemed evident, and the errors in its legal grammaticality spotted by commentators well-versed in constitutional case law were a small price to pay. In fact, most commentators saw the ruling as opportunistic, as trying to obscure the legal grounds for a decision while simultaneously approving it.

56Although clearing political actors of any future blame, the Court in fact strove to minimise the legal scope of its own ruling. Established as a one-off, unable to serve as precedent in the future, the ruling was moreover elaborated a minima. As Stéphanie Hennette-Vauchez observes, doing so meant “making its discourse not only elusive, but also tamper-proof […], a text that left no room for discussion, and even less for criticism”. [90]

57If such was the case, the entire point of this minimal control was to avoid explicitly recognising the notion of immaterial public order, lest it open a breach in the protection of individual freedoms. The constitutional arguments used to justify the Court’s decision, however, were the same as those put forth by Guy Carcassonne during his hearing before the fact-finding mission, and as those contained in the law commission’s report. The peremptory equating of facial concealment with a “practice breaching the requirements of life in society”, as well as a practice excluding women and making them inferior, were the main justifications given by the judges of the Constitutional Court. The latter also confirmed that legislators could set out a general ban on a practice as long as the practice concerned constituted “an action that is harmful to society” pursuant to Article 5 of the Declaration of the Rights of Man; such a tactic, however, would reverse the liberal logic behind Article 5, paragraph 2, which states that nothing may be prevented which is not forbidden by law.

The Republican conception of public order and the decline of liberal secularism

58Nevertheless, by confirming that the law could intervene in order to limit individual freedoms in the name of shared values, the constitutional review implicitly endorsed a societal concept of public order. This entails considering as acceptable general and permanent bans on certain practices in the name of allegedly shared values: in other words, this marks a significant departure from the past. Moreover, redefining the concept of public order – done explicitly by legislators and implicitly by constitutional judges – goes hand-in-hand with extending its scope, thus blurring the traditional boundary between public and private space, since public roadways and spaces open to the public are henceforth affected.

59By contributing a decisive argumentative link to the legal justifications for banning full-face veils, this new vision of public order governed by Republican values appears to be a necessary detour to limit a practice that, regardless of the efforts made to define it otherwise, remains a religious one. The reservations expressed regarding how to interpret “the exercise of religious freedom in places of worship open to the public” emitted by the Court thus laid bare the legal artifice used to justify the law. By requiring that the bill modify the ban regarding facial coverings in places of worship, the ruling cut through the fiction of generality and made explicit the real target, which was in fact a very specific practice. These interpretative reservations, designed to protect the law from censure by the ECHR, not only specified the true objective that had guided the legislation from the beginning, but also restored its religious dimension.

60The concept of an immaterial public order thus paves the way for the law to be mapped against Republican values, which, despite corresponding to the spirit of the constitutional principle of secularism, nonetheless operate politically. It also helps to reframe secularism which, when dealing with Islam, tends not only to become more exclusive than inclusive, but also veers towards becoming a civil religion. [91] As it presupposed legislative intervention to define its contours, the appearance of the concept of immaterial public order confirmed the decline in the use of case law to address religious matters. This trend began with the 2004 law, which followed a bitter legal battle challenging the legitimacy of administrative judges to have the final word on secularism by virtue of their role as the guardians of freedom. As a synonym for liberal secularism, the legal regulation of religious controversies – which in the past had lent the Council of State its nickname as “the regulator of parish life”, according to Gabriel Lebras – consisted first and foremost in protecting all individual freedoms from state encroachment: prohibition being the exception, and freedom being the rule. However, it is this almost procedural view of the management of religious affairs (in which judges limit themselves to arbitrating on a case-by-case basis) that is today being disrupted by repeated legislative interventions, which not only generalise prohibitory measures in the name of an increasingly broader definition of the common good, but also extend their scope via a similarly comprehensive definition of public space.


62If any doubts still remained, examining how the law prohibiting full-face veils was elaborated attests to the crucial role played by the law in determining how the rules of the game are defined when attempting to integrate Islam into Western societies. [92] This essential role is also a remarkable vantage point for observing how law-making has been reconfigured, thanks to the rise of constitutional justice and to the toppling of the legal equilibrium that had hitherto governed religious practices, following the emergence of practices that were apparently contradictory to the values of democratic society.

63With regard to this first dimension, tracing the creation of the law banning full-face veils reveals just how futile it would be to proceed to an analysis in terms of communicating vessels, as if increased intervention by constitutional judges necessarily entailed a loss of power for parliament or the executive branch. It is undeniable that constitutional judges in France have become full-fledged actors in the legislative process and that they now represent a source of pressure that governmental and parliamentary actors can no longer ignore. Nevertheless, the latter do not lack resources to mitigate this pressure. While it is largely accepted today that the Constitutional Court has become a co-legislator or co-author of laws, [93] governmental and parliamentary actors also appear to be co-producers of the Court’s rulings. Although the Court’s decisions partially neutralise the legal arguments developed by governmental and parliamentary actors, they are nevertheless the product of time-consuming and costly “tinkering” with the law – in which constitutional experts engage more or less willingly – as well as the fruit of political strategies seeking, if not to bring the Court into alignment with the law, at least to prevent it from speaking out against it.

64Part of the explanation for this specific law’s constitutional approval lies in the socio-political context in which the Court conducted the constitutional review: a context that was partly the result of the media coverage of the parliamentary fact-finding mission, and of political strategies looking to pre-emptively delegitimise the possibility of censure. In that regard, constitutional approval merely reminds us of the importance of realistically interpreting constitutional justice, which, as it is embedded within the political realm, is partially dependent on the latter. However, it would be inappropriate to disregard or underestimate the extent of the legal and political work expended to enlist constitutional law and have the Court speak out against the burqa. While politics influenced the law, the law’s reasoning can also be seen in the drafting of the text. These “extrajudicial” constitutional deliberations certainly entailed political aims being tested by the law, forcing political actors to take the law seriously and to justify their legislative attempt in legal terms, which ended up being a particularly laborious collective endeavour. If the stamp of constitutionality at first appears to be the expression of a legicentric political and judicial tradition, we must nonetheless ultimately conclude that the law was created in the shadow of constitutional justice. The fact that this shadow had such influence on the process proves that constitutional approval was far from certain.

65If a French exception truly exists, we must look elsewhere to find it, perhaps in the form taken by the Constitutional Court’s ruling: its argument is both peremptory and laconic, [94] expressing a moral paternalism according to which wearing a full-face veil is defined in terms of society’s interests – which it supposedly endangers – rather than in terms of the meaning conferred upon the practice by its adherents. [95] The French exception reveals the symbolic effectiveness of Republican values, which in the name of the public interest and preserving the social contract of a holistic view of society, has come to subvert the liberal spirit of secularism: or in other words, to legitimise change in the name of continuity.


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    Ruling no. 2010-613 DC from 7 October 2010; law no. 2010-1192 from 11 October 2010.
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    Alec Stone Sweet, The Birth of Judicial Politics in France. The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992); Yves Poirmeur, “Thèmes et débats autour du constitutionnalisme”, in CURAPP, Droit et politique (Paris: PUF, 1993), 14-39; Bastien François, “Le Conseil constitutionnel et la Cinquième République. Réflexions sur l’émergence et les effets du contrôle de constitutionnalité en France”, Revue française de science politique, 47(3-4), 1997, 377-403; Jacques Chevallier, L’État de droit (Paris: Montchrestien, 1999); Dominique Schnapper, Une sociologue au Conseil constitutionnel (Paris: Gallimard, 2010).
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    See, among others, Alec Stone Sweet, Governing with Judges. Constitutional Politics in Europe (Oxford: Oxford University Press, 1990); Martin Shapiro, Alec Stone Sweet, On Law, Politics and Judicialization (Oxford: Oxford University Press, 1992); C. Neal Tate, Torbjörn Vallinder (eds), The Global Expansion of Judicial Power (New York: New York University Press, 1995); Tom Ginzburg, “The global spread of constitutional review”, in Keith E. Whittington, R. Daniel Kelemen, Gregory A. Caldeira (eds), Oxford Handbook of Law and Politics (Oxford: Oxford University Press, 2008), 81-98; Ran Hirschl, Towards Juristocracy. The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004); Jacques Commaille, Laurence Dumoulin, “Heurs et malheurs de la légalité dans les sociétés contemporaines. Une sociologie politique de la ‘judiciarisation’”, L’Année sociologique, 59(1), 2009, 63-107.
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    A. Stone Sweet, The Birth of Judicial Politics in France.
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    Benoît Mercuzot, “Saisines parlementaires et constitutionnalisme”, in CURAPP, Droit et politique; Pascal Jan, Jean-Philippe Roy (eds), Le Conseil constitutionnel vu du Parlement (Paris: Ellipses, 1997).
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    See on this subject “Débat autour de la décision du Conseil constitutionnel no 2010-613 DC du 7 octobre ‘loi interdisant la dissimulation du visage dans l’espace public’” (Recueil Dalloz 2011, 1166ff.). This text published the debate organised on 16 November 2011 between Guy Carcassonne (a professor at the Université Paris Ouest-Nanterre-La Défense), Olivier Cayla (a research director at the École des hautes études en sciences sociales), Jean-Louis Halpérin (a professor at the École normale supérieure, Ulm), Stéphanie Hennette-Vauchez (a professor at the Université de Paris Ouest-Nanterre-La Défense), Anne Levade (a professor at the Université Paris XII), Éric Millard (a professor at the Université Paris Ouest-Nanterre-La Défense) and Dominique Rousseau (a professor at the Université Paris Ouest-Nanterre-La Défense).
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    G. Carcassonne, “Débat autour de la décision…”.
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    O. Cayla, “Débat autour de la décision…”.
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    Stéphanie Hennette-Vauchez, “Derrière la burqa, les rapports entre Droit et Laïcité: la subversion de l’État de droit?”, in David Koussens, Olivier Roy (eds), Quand la burqa passe à l’Ouest (Rennes: Presses Universitaires de Rennes, 2013), 159-75.
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    B. François, “Le Conseil constitutionnel et la Cinquième République…”, 383.
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    Daniel Gaxie, “Jeux croisés. Droit et politique dans la polémique sur le refus de signature des ordonnances par le président de la République”, in CURAPP, Droit et politique, 209-29.
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    In opposition to the more conciliatory regime of separation between church and state (“passive secularism”) practised in the United States. Cf. Ahmet T. Kuru, Secularism and States Towards Religion. The United States, France and Turkey (Cambridge: Cambridge University Press, 2009), 11.
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    Daniel Cefaï, Cultures politiques (Paris: PUF, 2001); John R. Bowen, “A view from France on the internal complexity of national models”, Journal of Ethnic and Migration Studies, 33(6), 2007, 1003-16; John R. Bowen, Christophe Bertossi, Jan Willem Duyvendak, Mona Lena Krook, European States and their Muslim Citizens (Cambridge: Cambridge University Press, 2013).
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    It is precisely that national particularity which the European Court of Human Rights referred to in justifying its recent ruling (1 July 2014) regarding this law. A supporter of full-face veils brought a case before the Court, but the Court refused to sanction France, arguing that such a law, as long as it was the product of a society’s choice (based on the societal value of being able to see one another’s faces) was not in violation of the ECHR.
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    A. Stone Sweet, The Birth of Judicial Politics in France; B. François, “Le Conseil constitutionnel et la Cinquième République…”; Y. Poirmeur, “Thèmes et débats…”.
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    Robert Dahl, “Decision making in a democracy. The Supreme Court as a national policy maker”, Journal of Public Law, 6, 1957, 267-90.
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    Robert Green McCloskey, Essays on Constitutional Law (New York: Random House, 1957).
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    Martin Shapiro, “Juridicalization of politics in the United States”, International Political Science Review, 15(2), 1994, 101-12.
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    Interpretative models, often supported by statistics, have been developed to implement rational choice theory and game theory. See Jeffrey A. Segal “Judicial behavior”, in K. E. Whittington et al. (eds), Oxford Handbook of Law and Politics, 19-33 (19); Pablo T. Spiller, Rafael Gely, “Strategic judicial decision-making”, in Oxford Handbook of Law and Politics, 34-45; Lee Epstein, Jack Knight, “Towards a strategic revolution in judicial politics. A look back, a look ahead”, Political Research Quarterly, 45, 2000, 625-61; Georg Vanberg, “Legislative-judicial relations. A game-theoretic approach to constitutional review”, American Journal of Political Science, 45(2), 2001, 346-61.
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    J. Mitchell Pickerill, Constitutional Deliberation in Congress. The Impact of Judicial Review in a Separated System (Durham: Duke University Press, 2004).
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    This article’s analysis is thus complementary to the chapter written by Christian Joppke and John Torpey in Legal Integration of Islam. A Transatlantic Comparison (Cambridge: Harvard University Press, 2013). The authors admit that they have only scratched the surface regarding mechanisms for judicialisation (83).
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    André Gérin, Éric Raoult, “Voile intégral: le refus de la République. Rapport d’information de la mission parlementaire no 2262”, disclosure documents, Assemblée nationale, 2010.
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    Conseil d’État, “Étude relative aux possibilités juridiques d’interdiction du port du voile intégral”, 30 March 2010.
  • [24]
    Michel Garraud, “Rapport no 2648 fait au nom de la commission des lois constitutionnelles, de la législation et de l’administration générale sur le projet de loi (no 2520) interdisant la dissimulation du visage dans l’espace public”, recorded by the office of the presidency of the Assemblée nationale on 23 June 2010; Bérengère Poletti, “Rapport d’information fait au nom de la délégation aux droits des femmes et à l’égalité des chances entre les hommes et les femmes sur le projet de loi interdisant la dissimulation du visage dans l’espace public no 2646”, filed on 23 June 2010, Assemblée nationale.
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    Cahiers du Conseil constitutionnel, 30, ruling no. 2010-613 DC, 7 October 2010.
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    Françoise Lorcerie, La politisation du voile en France, en Europe et dans le monde arabe (Paris: L’Harmattan, 2005); John R. Bowen, Why the French Don’t Like Headscarves. Islam, the State and Public Space (Princeton: Princeton University Press, 2007).
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    Claire de Galembert, “La fabrique du droit entre le juge administratif et le législateur. La carrière juridique du foulard islamique (1989-2004)”, in Jacques Commaille, Martine Kaluszynski (eds), La fonction politique de la justice (Paris: La Découverte, 2007), 95-117; “Le voile en procès”, issue edited by Claire de Galembert, Droit et société, 68, 2008.
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    Claire de Galembert, “Cause du voile et lutte pour la parole légitime”, Sociétés contemporaines, 74, 2009, 19-47.
  • [29]
    Draft law proposed by Jacques Myard, no. 3056 seeking to combat infringements of a woman’s dignity which were the result of certain religious practices.
  • [30]
    Alma and Lila Levy, Des filles comme les autres. Au-delà du foulard (Paris: La Découverte, 2004); Julien Baugé, “La force d’une institution disqualifiée. Les logiques sociales du voilement des musulmanes en France”, doctoral thesis in political science supervised by Patrick Lehingue, Amiens, Université de Picardie, 2013; Maryam Borghée, Voile intégral en France. Sociologie d’un paradoxe (Paris: Michalon, 2012).
  • [31]
    Conseil d’État, 27 June 2008, Madame F. Machbour (no. 286798).
  • [32]
    This deliberation supported the refusal to grant a residence permit to a woman who wore a full-face veil during an integration workshop organised by the National Agency for the Reception of Foreign Nationals (l’Agence nationale de l’accueil des étrangers).
  • [33]
    His book, Les ghettos de la République, was published in 2006 and immediately provoked indignation from his own political camp on account of both its populist content and its preface, written at the author’s request by Éric Raoult, a very right-wing suburban UMP (Union pour un mouvement populaire) mayor.
  • [34]
    Le Progrès, 9 April 2009.
  • [35]
    Proposal for a resolution to create a commission of inquiry on the wearing of the burqa or niqab on the national territory, no. 1725, recorded in the office of the presidency of the National Assembly on 9 June 2009.
  • [36]
    Which was illustrated, just a few weeks earlier, by Sarkozy’s approval of President Obama’s comments in his speech in Cairo (June 2009) regarding the wearing of the veil. In this speech, Obama told Western countries to avoid “impeding Muslim citizens from practising religion as they see fit – for instance, by dictating what clothes a Muslim woman should wear”, which was a thinly veiled allusion to the 2004 French law.
  • [37]
    The comment made by Dounia Bouzar regarding the burqa’s absence in France (A. Gérin, É. Raoult, “Voile intégral: le refus de la République. Rapport…”, 274) ultimately changed the name of the fact-finding mission, substituting the expression “voile intégral” (full-face veil) for burqa that very same day.
  • [38]
    Bill no. 1080, tabled on 22 July 2008 before the National Assembly.
  • [39]
    The incident caused the President to send a memo to all members of the Assembly, stipulating that no provision granted the right to bar access for this reason. Faced with the threat of a petition by Hostalier on the matter, an initiative that was supported by Jean-François Copé, Bernard Accoyer declared that he would “review this long-standing question”.
  • [40]
    Bill no. 710, tabled before the National Assembly in February 2008.
  • [41]
    Bill no. 3056, presented on 26 April 2006, which aimed to combat attacks on the dignity of women stemming from certain religious practices. A new bill on the subject, no. 1121, was tabled on 23 September 2008. The text proposed that wearing full-face veils or inciting others to do so would be subject to two months in jail and a €15,000 fine.
  • [42]
    On the internal dynamics of the fact-finding mission, cf. the account given by Jean Baubérot, “Voile intégral et laïcité. La Mission d’information parlementaire sur le voile intégral”, in D. Koussens, O. Roy (eds), Quand la burqa passe à l’Ouest, 67-77. Cf. also infra the tension provoked by exchanges with legal experts.
  • [43]
    As explained in the second part of the mission’s report titled “Une pratique aux antipodes des valeurs de la République”.
  • [44]
    As indicated by the title of the fact-finding mission’s report.
  • [45]
    Claire de Galembert, “L’affaire du foulard in the shadow of the Strasbourg Court. Article Nine and the public career of the veil in France”, in Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah (eds), Legal Practice and Cultural Diversity (Farnham: Ashgate, 2009), 237-66.
  • [46]
    This theory was largely set out in November 2008 in the “Manual on the wearing of religious symbols in public areas” published by the Council of Europe and which gave policymakers a number of reference points regarding the judgment criteria used by the Strasbourg Court. This doctrine seems moreover to have been supported by the ECHR’s recent ruling regarding the French ban on face coverings in public space, since the country’s national margin of appreciation was once again upheld by the Court to justify the law’s conventionality.
  • [47]
    A. Gérin, É. Raoult, “Voile intégral: le refus de la République. Rapport…”, 412.
  • [48]
    Denys de Béchillon (public law professor at the Université de Pau), Anne Levade (public law professor at the Université Paris II), Bertrand Mathieu (director of the Centre for Constitutional Law Studies at the Université Paris I-Panthéon Sorbonne), Guy Carcassonne (professor of constitutional law at the Université Paris X).
  • [49]
    Jean-Pierre Marguénaud (professor of private law at the Université de Limoges and a specialist in European human rights law).
  • [50]
    Bertrand Louvel (chamber president and director of the study and documentation service of the Court of Cassation) and Cécile Petit (advocate-general of the Court of Cassation).
  • [51]
    Although, as one member put it, it was impossible to identify jurists who were “completely for prohibition”, differences existed between, for example, Denys de Béchillon’s liberal position and Guy Carcassonne’s more Republican stance.
  • [52]
    Bastien François, “Une revendication de juridiction. Compétence et justice dans le droit constitutionnel de la Cinquième République”, Politix, 10-11, 1990, 92-109.
  • [53]
    Amongst others: the interviews by Pierre-Henri Prélot in Libération on 20 June 2009, by Bertrand Mathieu in La Croix on 22 June 2009, in Les Échos on 13 July 2009; a position stated by Anne-Marie Le Pourhiet in Marianne on 30 March 2010; an interview with Guy Carcassonne on 22 April 2010 in Le Parisien; an interview with Dominique Rousseau in La Charente libre on 22 April 2010.
  • [54]
    D. Gaxie, “Jeux croisés…”.
  • [55]
    B. François, “Une revendication de juridiction…”.
  • [56]
    Denys de Béchillon, Anne Levade, Bertrand Mathieu and Guy Carcassonne were all members of the Balladur Commission. The first two were appointed in 2008 to the Conseil d’analyse de la société (CAS), a body created in 2004 and put in the service of the Prime Minister in order to shed light on the government’s political choices by analysing and comparing perspectives on various societal issues. Moreover, Denys de Béchillon was also a member of the commission for the continuity of public transport services (2004), the committee tasked with reviewing the Preamble of the Constitution (2008), of the aforementioned CAS (2008), and a founding member of the Club des juristes (2007). Like Bertrand Mathieu, Anne Levade was a member of the committee responsible for analysing the criminal status of the head of state (2002) and the strategic planning committee for the French presidency of the European Union (2008).
  • [57]
    A. Gérin, É. Raoult, “Voile intégral: le refus de la République. Rapport…”, 386.
  • [58]
    A. Gérin, É. Raoult, “Voile intégral”, 417.
  • [59]
    A. Gérin, É. Raoult, “Voile intégral”, 522.
  • [60]
    According to the expression coined by Pierre Lascoumes and Jean-Pierre Le Bourhis, who use it to mean the room for manœuvre that this fundamental operation of legal work offers actors. Pierre Lascoumes, Jean-Pierre Le Bourhis, “Des ‘passe-droits’ aux passes du droit. La mise en œuvre socio-juridique de l’action publique”, Droit et société, 32, 1996, 51-73.
  • [61]
    Conseil d’État, 27 October 1995.
  • [62]
    A. Gérin, É. Raoult, “Voile intégral”, 551.
  • [63]
    To which Rémy Schwartz responded: “I doubt that you can threaten the Constitutional Court or the ECHR to obtain a favourable ruling.” N.B. The play was translated into English as The Trojan War Will Not Take Place.
  • [64]
    An excerpt from their exchange, which was in fact omitted from the written account of the debate.
  • [65]
    A. Gérin, É. Raoult, “Voile intégral”, 552.
  • [66]
    A. Gérin, É. Raoult, “Voile intégral”, 554-59.
  • [67]
    A. Gérin, É. Raoult, “Voile intégral”, 552.
  • [68]
    Carcassonne was a legal advisor for the PS in the National Assembly, as well as an advisor to Michel Rocard when the latter was the Minister of Agriculture (1984). When Rocard became Prime Minister, Carcassonne was a member of his cabinet, in charge of relations with parliament.
  • [69]
    This was a common theme in many declarations made by political figures commemorating Guy Carcassonne after his death in May 2013.
  • [70]
    As Y. Poirmeur observed, “being legally right, being able to come out as a defender of freedom, showing that on the contrary, the authors of the law are violating freedom, but also countering one’s rivals with a legal ruling, forcing them to revisit their text, can all be very politically beneficial, especially when the parliamentary majority is very large and leaves little room for the opposition to intervene”. Yves Poirmeur, “Des raisons de croire et de douter: la légitimité du Conseil constitutionnel pour les parlementaires”, in P. Jan, J.-P. Roy (eds), Le Conseil constitutionnel vu du Parlement, 59-85 (70-71).
  • [71]
    A. Gérin, É. Raoult, “Voile intégral”, 235ff.
  • [72]
    Brice Hortefeux (Minister of the Interior), Éric Besson (Minister of National Identity) and Xavier Darcos (Minister of National Education).
  • [73]
    A. Gérin, É. Raoult, “Voile intégral”, 610ff.
  • [74]
    This was especially true for Emmanuelle Mignon (President Sarkozy’s cabinet secretary) and for Jean-Paul Faugère (the Prime Minister’s cabinet secretary).
  • [75]
    Conseil d’État, “Étude relative aux possibilités juridiques d’interdiction du port du voile intégral”, 30 March 2010.
  • [76]
    Conseil d’État, “Étude relative aux possibilités juridiques d’interdiction du port du voile intégral”.
  • [77]
    Cf. Denys de Béchillon, “Voile intégral. Éloge du Conseil d’État en théoricien des droits fondamentaux”, Revue française de droit administratif, 26(3), 2010, 467-71; Anne Levade, “Le Conseil d’État aux prises avec le voile intégral. Les enjeux d’un refus du risque juridique”, JCP: Juris-Classeur périodique (La Semaine Juridique), 15, 12 April 2010 (online).
  • [78]
    AFP, 21 April 2010.
  • [79]
    Jean-Paul Garraud, Report no. 2648 to the law commission, 23 June 2010, 15ff.
  • [80]
    Verbatim record of the parliamentary debate, 3rd session on 6 July 2010, Journal officiel de la République française, 5374.
  • [81]
    On 19 May 2010, the PS leader, Jean-Marc Ayrault, declared that all judicial referrals were excluded, a position that provoked internal tension and criticism, such as that voiced by the jurist Jean-Jacques Urvoas (Mediapart, 6 July 2010).
  • [82]
    The National Assembly adopted the law on 15 July 2010 with an overwhelming majority (335 to 1). The text was supported by all right-wing representatives (UMP and NC) and 20 left-wing representatives, while nearly all of the opposition (PS, PCF and Verts), while remaining staunchly opposed to the wearing of full-face veils, abstained from voting. In the Senate, the text was adopted 246 to 1.
  • [83]
    D. Schnapper, Une sociologue au Conseil constitutionnel, 353.
  • [84]
    D. Schnapper, Une sociologue au Conseil constitutionnel, 356.
  • [85]
    D. Schnapper, Une sociologue au Conseil constitutionnel, 354.
  • [86]
    Verbatim record of the debates, 1st session on 7 July 2010, 5415.
  • [87]
    Since no specific complaint had been brought up by the presidents referring the matter, the Court therefore had full discretion in its ruling.
  • [88]
    The fact-finding mission received significant coverage during the six months of its work, which was then followed by national and international media coverage. According to internal accounts, the scope of this coverage was comparable to that received by the Outreau trial and the debate surrounding same-sex marriage in France.
  • [89]
    According to the head of the Direction centrale du renseignement intérieur (DCRI - Central Directorate of Internal Intelligence), this threat “had never been as great” (interview given by Bernard Squarcini to the Journal du Dimanche, 10 September 2010).
  • [90]
    S. Hennette-Vauchez, “Derrière la burqa…”, 171.
  • [91]
    J. Baubérot, “Voile intégral et laïcité…”, 67-77.
  • [92]
    C. Joppke, J. Torpey, Legal Integration of Islam.
  • [93]
    Michel Troper, “Justice constitutionnelle et démocratie”, Revue française de droit constitutionnel, 1, 1990, 31-48 (34). This idea should be nuanced further still: as Georges Vedel used to say, the Court has an eraser but it doesn’t have a pencil…
  • [94]
    S. Hennette-Vauchez, “Derrière la burqa…”.
  • [95]
    On this topic, see the article by Éléonore Lépinard in this issue.

This article traces the controversy sparked by the political attempt to legislate against full-face veils and burqas in public space in France. The decision made in 2010 by the Conseil Constitutionnel to validate the law, thus putting an end to the constitutional controversy, could be interpreted as the by-product of both a legicentric tradition and French assertive secularism. Yet this tells us nothing about how this decision was made possible. By delving into the law-making process, this article shows how seriously constitutional law was taken into account, and traces how political stakeholders and legal experts clashed with and accommodated one another. It highlights the virtue of process-tracing analysis to understand how constitutional law frames the political game and determines the path of the law; and conversely how political and legal stakeholders manage to enlist the law to their political enterprise, forcing it to pronounce against full-face veils.

Claire de Galembert
Claire de Galembert is a political scientist and a research fellow at the CNRS in the Institut des sciences sociales du politique (ENS Cachan-Université Paris Ouest). Focusing on the governance of religion, her research pays particular attention to the role played by the law. Her most recent publications on the subject are: “L’affaire du foulard in the shadow of the Strasbourg Court. Article Nine and the public career of the veil in France”, in Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah (eds), Legal Practice and Cultural Diversity (Farnham: Ashgate, 2009), 237-66; and the issue “Le voile en procès”, Droit et société, 66, 2008. She has also edited (with Olivier Rozenberg and Cécile Vigour) Faire parler le Parlement. Méthodes et enjeux de l’analyse des débats parlementaires pour les sciences sociales (Paris: LGDJ, 2013); and published (with Thierry Delpeuch and Laurence Dumoulin) Manuel de sociologie du droit et la justice (Paris: Armand Colin, 2014) (ISP, ENS Cachan, 61 avenue du Président Wilson, 94235 Cachan).
Translated from French by
Sarah-Louise Raillard
Uploaded on on 19/05/2015
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