1Both Europe and Canada are currently witnessing increasing attempts to restrict what Muslim women wear – hijab, niqab, burka – conducted at different political levels (municipal, national, European, or, for Canada, provincial). Whereas some states –such as France and Belgium [1] – have opted to introduce far-reaching bans, others (Spain, for instance) accept bans imposed by local authorities, or which are limited to certain categories, such as teachers in Switzerland and certain German Länder. [2] Yet others, such as the UK, Canada or Austria, incline towards accommodation, or at least towards the absence of legal prohibition. The courts – as the traditional protector of minorities and guardian of individual freedoms – are regularly called upon to rule on the question of religious accommodation, and play a central role in each of these different national contexts and at the European level. [3] As the typical range of decisions – from accommodation to prohibition – suggests, the courts do not evaluate Muslim religious practices consistently. Whereas populist-inspired political attempts to restrict certain Muslim religious practices cross borders and occur in broadly similar fashion from one European political context to another, [4] the judicial response concerning the possibility and legitimacy of such restrictions, on the other hand, varies considerably. Thus, despite repeated assertions that politics is an increasingly judicial process, particularly where regulation of religious matters is concerned, this is not experienced in the same way everywhere: the importance of religious belief and the reasonable limits within which it may be expressed in a liberal state vary greatly from one national context to another.

2The argument put forward in this article is that these variations in the regulation of the Muslim veil in French case law demonstrate the importance of legal writing traditions on how religion is regulated. Thus, for the French context, the legal scholar Stéphanie Hennette-Vauchez, in her analysis of the Conseil constitutionnel’s decision on the 2010 law banning the covering of faces in public which criticises the development of case law concerning the Muslim veil, noted that the French judges had started a “war of rights”, as not only did their judgements reveal, in terms of their substance, deep tensions between crucial guaranteed legal values such as freedom of conscience, secularism, and pluralism, but, equally importantly, they also demonstrated a lack of respect for the form of legal reasoning. [5] This important insight leads me to focus my analysis of the judicialisation of religion on legal writing styles per se, understood here as a specific framing of a political and judicial decision, subject to legal rules and techniques and normative values on which legitimisation of the judgement also relies.

3In this article, I shall thus analyse how specific forms of legal writing influence and shape decisions concerning the prohibition or accommodation of certain religious practices. In order to better understand the role that a tradition of legal writing plays in the regulation of religious minorities, I will compare the different judicial decisions taken in France concerning the wearing of the veil – both the face-veil (niqab) and the full-body covering burka – with the decisions by Canadian judges on similar cases. It is not my contention that styles of legal prose and the traditions which underlie them (common law/civil law) have the explanatory power of an independent variable. It is undeniable that legal styles of writing are themselves the product of historic institutional arrangements, and that, among other things, they reflect the position of judges in the political system, how they are recruited and trained, or how central the state is in the organisation of national politics. Moreover, how effective a decision is depends not only on how it is set out and articulated, but also on the actual authority of the judicial system, [6] and more broadly on the whole spectrum of legal and social dimensions within constitutional politics, which include conflict over norms, institutional design, and the interplay between actors [7] – all factors which contribute to legitimising or invalidating that decision. However the work of legal formalisation is an integral part of this complex dynamic, at the interface between law and politics, and must therefore also be the object of analysis. [8]

4In focusing on legal writing styles, the intention is to analyse closely the legal mechanisms which enable prohibition and accommodation to be justified in law. This focus allows us to better understand not why judges decide to ban or accommodate – a question which requires the use of a much wider set of explanatory variables – but to analyse how judges are able to justify their decisions; decisions which, contrary to the impression of permanency which their judgements convey, constitute real political and semantic revolutions that impact the meaning of earlier case law. This approach thus claims more modest aims and explanatory potential than those analyses which seek to explain how and why the regulation of religious practices varies, but it nonetheless offers a number of contributions to the literature on the judicialisation of minority religious practice by demonstrating how this works. First of all, this approach demonstrates how asymmetrical viewpoints are an inevitable consequence of, and justified by, the style of legal writing which characterises the French courts and which allows interests defined as general and universal – in this case, secularism – to prevail over the protection of individual rights for members of minority groups, which are defined as special requests which fall outside normal limits. Additionally, this approach allows me to demonstrate how courts perform the illusion of continuity in case law and give the impression of adhering to the same legal standards: criteria which are indispensable if their decisions are to be recognised as legitimate. In this, it enables a better understanding of the processes through which legal change operates in the regulation of religion. The analysis of the development of case law concerning the veil as a “war of rights” [9] effectively tends to place the emphasis on normative ruptures, and the formal hijacking and bypassing of the law which French judges resort to in order to justify their decisions to prohibit, thereby simultaneously suggesting that respecting the “real” law, or a law which respected its own legal forms, would have resulted in a different decision. Although such an analysis may indeed expose the holes in the legal reasoning employed, it also positions this outside of the law. The approach set out in this article, on the other hand, suggests that it is in fact in using the tools of the law, in other words by respecting and applying a style of writing and drawing on the formal resources of that prose style’s legal tradition – and not by waging war on the law – that French judges have succeeded in overthrowing their own case law whilst appearing to uphold the coherence and respect of legal forms.

Judges and the regulation of religion: towards an analysis of legal prose

5We can identify three types of explanation for the role of judges and the law in the regulation of religion, specifically in the controversial area relating to the individual practices of members of minority religious groups, such as the wearing of the Muslim veil or other minority religious symbols in Europe and Canada today. The first type of explanation might be described as exogenous: the explanatory factors are primarily related to the political and institutional sphere, and judges are not important actors in the regulations which are introduced. Thus, some research highlights the state-church model, or how the prevalent type of religious pluralism in a given country is governed (separation of powers, establishmentarianism, by concordat, Gallicanism, etc.). [10] In emphasising institutional path dependency, such explanations stress the structural constraints which influence the regulation of religion. Whilst such explanations are particularly suited to demonstrating how a certain number of institutionalised collective rights are regulated (religious schools, recognition of the status of religion/worship, recognition of religious courts, the building of mosques, Muslim areas within cemeteries, etc.), they seem far less useful for shedding light on the regulation of individual practices which relate to freedom of conscience – a principle shared by all liberal states, regardless of the model for governing religion that they have historically adopted. Countries which have opted for the concordat model – such as Germany and Austria – have pursued very different policies concerning the wearing of the veil; and although several German Länder have prohibited female teachers from wearing veils, no such ban exists in Austria.

6There is a second strand of research within the exogenous explanatory framework that is interested in the relationship between the state and religion, but this time in terms of ideology. These authors believe that there are different conceptions of the neutrality of the state within each national context, and that these conceptions are engaged in ideological battles, with the historically dominant view (assertive or passive neutrality) determining contemporary legal regulation. [11] One of the problems with this historical path dependency analysis is that it does not allow for the possibility of change and assumes long-term historical continuities which take no account of either legal or political developments. In this view, once a conception of neutrality has won the political battle, at the crucial point at which the church and the state separate, this conception is accepted by all actors involved and – even a century later, as is the case in France – is capable of explaining prohibitive regulations. This explanation might hold water if, for example, the regulations banning the veil were considered as the logical outcome of the legal regime regulating religion in France. However, if these prohibitive measures are instead seen as constituting a break with the previous legal framework, which demanded a certain liberalism, then this interpretation loses its explanatory power. [12]

7Other exogenous explanations not only take account of how the relationship between the state and religions is institutionalised, but also address other political factors which may contribute to the regulation of religion, particularly of Islam in western countries. In taking note of the ever-increasing attempts to legislate and judicialise Muslim religious practices in those European countries which have an immigrant population (or a population of immigrant origin) of Muslim faith, this research points to the importance of factors such as the national model of integration or citizenship in the development and resolution of controversies surrounding the accommodation of Muslim practices. [13] It thus demonstrates the link between the assimilationist – or multicultural – values which inform integration and citizenship policies, and the extent to which Muslim religious practices are accommodated. Finally, in a similar vein, comparative studies also account for the presence, or absence, of extreme right populism as a factor in explaining the increase in demands for Muslim practices to be banned in several European countries. [14] The value of these explanations lies in their emphasis on Islam’s status as a minority religion which, allied to other political processes such as immigration policies, plays a part in influencing how religious practice is regulated.

8Whilst all these explanations have something to say about why legal or judicial regulations banning or accommodating certain Muslim practices are adopted in liberal countries, they all however neglect the question of the relative autonomy of the legal arena. Yet this regulation of religion often implies, on the one hand, normative and discursive reformulation of the legal norms relating to the protection of individual rights, in particular freedom of conscience and the definition of the neutrality of the state; and, on the other hand, it involves the recurrent participation of specific actors: judges and the supreme courts.

9We must therefore turn to endogenous explanations to learn more about what judges do in relation to regulation of religion, and to understand to what extent they should be taken into account when attempting to grasp the variations in the accommodation and prohibition of Muslim religious practices. The literature on judicialisation and the “new constitutionalism” following the Second World War [15] posits certain hypotheses regarding the positive role supposedly played by the courts in the defence of minority rights – for example, those of immigrants in Europe [16] – and in the extension of individual rights. It would logically follow from this premise that judges are necessarily well disposed towards the demands from the Muslim communities in liberal states for religious accommodation. If this initially appears to be the case for Canada, numerous examples in Europe, at both national and regional level, [17] demonstrate that this is not universally true. Moreover, the conclusion to Ran Hirschl’s critical analysis of the development of the juristocracy also counsels caution concerning the role of the courts in defending minorities. [18]

10It thus seems important to move beyond the idea of the courts as “guardians” and protectors of individual freedoms against the tyranny of the majority, and as supposedly shielded from the pressure of the majority, which is assumed only to impact law-makers. In order to do this we must focus more closely on the content of judicial decisions, and in particular on the axiological tensions and conflicts which they translate. This attention to substance will enable us to offer a better explanation for the hesitation of the courts in granting certain rights, [19] for example, or the changes in case law which can take place in the area of religious regulation. [20] Thus John R. Bowen suggests that French case law concerning the veil can be better understood if we note the shift from a line of reasoning based on the “no harm” principle of protecting vulnerable people to one based on the protection of majority values such as the equality of the sexes, or the protection of public order. [21] Focusing more on legal reasoning and its shifts in emphasis, this approach enables a better understanding of the content of decisions (accommodation or prohibition), as well as of change and its necessary legal justification. However, it does not explain how judges came to develop this line of reasoning, particularly when it means overthrowing previously consistent case law. Nor does it explain which legal resources they drew on in order to do so: legal innovations, the diversion or extension of principles and reasoning used in other areas of law, or an import from another national legal context? To what extent did judges have at their disposal specific legal concepts or techniques which perhaps did not exist in other legal traditions?

11I am positing here that each legal writing style is subject to the set of formal and technical constraints that are specific to each legal tradition, which frame a judge’s reasoning and even influence its content and thus the decisions reached. This hypothesis falls within a tradition of comparison between the two major legal approaches: common law and continental law. As Mitchel Lasser concludes, from the point of view of American comparative legal scholars, judicial decisions in common law are characterised by transparency, by individual judicial opinions (and dissents), by frank recognition of interpretive difficulties, and open discussion of the policy problems posed by the dispute. [22] These characteristics of deliberation, which concern both form and substance, encourage democratic debate and ensure a kind of control over the work of the judges. Conversely, decisions taken in the civil law tradition are perceived as “cryptic and technical judicial fiats. They offer monolithic, unsigned, collegial judgements that refuse to disclose judicial votes, prohibit concurrences or dissents, and shun the overt discussion of policy in favour of syllogistic – or at least highly deductive – statements that downplay, if not mask or ignore, all meaningful judicial interpretive work.” [23]

12Obviously the contrast comes close to caricature here. In particular, it fails to mention all the “unofficial” legal discourse (notes, doctrine, opinions of the Advocates General, etc.) which nonetheless contributes to guiding legal deliberation in the French context and which, as Lasser underlines, demonstrates characteristics which properly belong to democratic debate in that they interrogate political and social values and issues. However, the comparison serves to emphasise the resources and limits of each tradition, which judges must take account of as they deliberate. This is not to claim that it is the form – for example, the syllogism specific to French administrative law – which entirely shapes the substance. Each legal writing style is the historical product of a certain number of values and of a certain conception of the law. Moreover, although we may be able to make an analytical distinction between legal technique (the concepts and formalism of reasoning) and the axiological assumptions, or “précompréhension” [preconceptions] held by the judges, the two are inextricably intertwined in the process of deliberation. [24] To quote Géraud Geouffre de la Pradelle, “at the same time as they deliver their technical opinions, legal scholars more or less consciously transmit the legal ‘culture’ in which they are steeped via their texts”. [25] It’s precisely this intertwining of legal technique and values, and its influence on the content of decisions concerning the regulation of religion, which we need to grasp. The focus on legal writing in this article, via consideration of the formal and conceptual operations undertaken by the judge, thus aims to analyse how axiological presuppositions come to be legitimised in law within the framework of a given deliberation. [26]

13By paying close attention to legal writing, two gaps in the previous explanations of the regulation of religion may be filled. First of all, this approach helps to shed light on the variations between national contexts, concentrating in particular on the conceptual resources and legal techniques specific to each tradition, and on their effects on deliberations concerning religious regulation. Although the courts are traditionally depicted as a defence against the tyranny of the majority, is it possible that all courts exercise this role in the same way, with the same resources and effectiveness? The style of Canadian legal writing, particularly in how it approaches contextual analysis, pays more attention to concrete facts, and to the specific nature of the minority – including the subjectivity of that minority – than does the French judge. As a consequence, more space is given over to the expression and representation of minority viewpoints in Canadian deliberation, which favours accommodation. Moreover, by sticking to the facts and to the context, Canadian judges seem less inclined to reproduce and impose majority norms and values than the administrative and constitutional French judges, who often engage in abstract reasoning, are tempted to do.

14The second gap which this approach enables us to fill relates to the explanation of change. In effect, as we have seen, a number of explanations of how Muslim practices are regulated in liberal states have drawn on a type of institutional path dependency. Conversely, paying attention to the practices and strategies of legal writing allows us to emphasise the process by which the meaning of case law is transformed, and the meaning of a legal concept – such as secularism – is profoundly altered. [27] We thus need to examine the semantic operations – which, as we shall see, are also political operations – via which shifts in meaning enable the passage from accommodation to prohibition whilst maintaining the coherence of the legal edifice. [28]

15This article clearly does not claim that the style of legal writing alone can account for the decisions taken by French or Canadian judges concerning the accommodation of the Muslim veil or other religious symbols. The constitutional and institutional policy dynamic of each legal context, [29] and the role played by European courts [30] are also key in explaining these decisions. We must also remember that, over and beyond different styles of legal writing, France and Canada have very different constitutional architectures, which offer unequal protection for individual and minority rights. Canada displays all the characteristics of a juristocracy, [31] including a constitutional Charter of Rights (since 1982), a strong Supreme Court with powers of judicial review which it has used in favour of certain minority groups, [32] and a highly developed “support structure” [33] to ensure access to rights. In contrast, the variables characterising contexts favourable to a “rights revolution” which would benefit minorities – such as activist judges and judicial review mechanisms – are less obviously present in France. The absence of a charter of individual rights; the systematic refusal of the authors of the French constitution to grant rights to minority groups; the (until recently) limited access of citizens to the higher courts; and the politicisation of the Conseil constitutionnel [34] and the Conseil d’État; [35] all these elements combine to create an environment less likely to accede to the demands for accommodation by minority groups than is the case in Canada. However, these factors do not explain how these decisions are likely to be deliberated and justified, nor how French administrative judges have been able to change their minds since 1989 and move from accommodation to prohibition.

Adopting the viewpoint of the minority

16In most instances, the demands for religious accommodation concern those who are members of minority groups whose practices have not yet been incorporated somehow by the state as part of the construction of the nation state, as has generally been the case for the majority religion. For the latter, certain requirements (a specific day of rest during the week, or a specific date for the main religious holidays) have been secularised – in other words, adopted by the state and rolled out to the whole population with no reference to their religious content. [36] As a consequence, demands for accommodation logically tend to set the minority against the majority. The response such demands receive thus depend on the ability and willingness of judges to take the minority viewpoint into account when formulating their judgement, and to take seriously the religious demands to which that minority feels itself subject.

17The preferred legal techniques adopted by French and Canadian judges for regulating religious practices appear most sharply differentiated in terms of how far they take into account the material context of the case being judged. So, in the Canadian tradition of legal writing, and particularly in cases concerning freedom of religion, the judge must set out an in concreto contextual analysis of the case, which highlights a whole series of facts, and in which the minority point of view and the relation to religious belief is fully covered. Conversely, the French judge, even when judging a specific case in concreto, appears to prefer axiological assumptions, which often reflect the dominant norms of the majority, to facts and a material analysis of the effects of minority religious practices. These two styles of writing do not, therefore, devote the same attention to the minority viewpoint, nor offer the same opportunity for the judges to base their judgement on majority values.

18In France, the syllogism which characterises all judicial deliberation is by nature “non dialogic”. [37] The inexorable logic of a major premise, a minor one, and a decision leaves no place for discussion, or for competing points of view to be weighed against one another. Moreover, in the deliberation, the French judge adopts the perspective of a “lector” who eschews his or her own creativity in order to appear merely as the “mouthpiece” of the law – and of a law which must emanate from the common interest. [38] The concision of the decisions and the way they are structured give the impression that the judge’s interpretive work is particularly limited, and that the concrete circumstances of the case – which are never mentioned – are of no matter. When it comes to judging demands linked to identity and religious belief – in other words, which imply normative systems which are in competition with the law itself [39] – these characteristics of the French legal writing style play a part in minimising, or ignoring, the potential legitimacy of these demands and, conversely in favouring and reaffirming the pre-eminence of the law over demands which are religious in nature, and its monopoly as the normative order. [40]

19Moreover, these same stylistic characteristics make it more difficult to express a minority viewpoint and take its context into account. [41] Although discussion of how to interpret and contextualise minority demands may occur via other types of text – for example, in the 1989 opinion of the Conseil d’État concerning the veil, [42] or in the conclusions of government commissions – it has no place in judicial decisions per se, as demonstrated by the decisions of the Conseil d’État and the Conseil constitutionnel on the regulation of the veil which are in no way encumbered by such considerations. The contrast between the Conseil constitutionnel decision approving the ban on concealing one’s face in public (only 6 paragraphs long, citing 3 articles from the 1789 Déclaration des droits de l’homme et du citoyen, plus a paragraph from the Preamble to the 1946 Constitution [43]) and that handed down by Canada’s Supreme Court allowing Sikh ceremonial daggers (kirpans) to be worn in the public school system [44] (with no fewer than 155 paragraphs, a majority opinion citing 23 case law decisions, 6 laws, and 8 doctrinal texts) clearly demonstrates the differences in the deliberative methods of the two high courts.

20However the logic and concision of syllogism do not on their own explain why the French judge does not attempt to represent minority identity, views and interests in the judgement, whereas the Canadian judge does. It is because this terse syllogism in decisions of administrative and constitutional law is allied to an analysis which deliberately ignores the concrete circumstances that the minority viewpoint can also easily be ignored. Indeed, the judicial analysis in relation to the wearing of Muslim religious symbols is never contextualised, be it in the in abstracto decisions handed down by the Conseil constitutionnel or in the administrative decisions made by the Conseil d’État. Even when the Conseil d’État judges specific cases, in concreto and in relation to a specific dispute, the conclusions published by the government commissions demonstrate that not only does the deliberation make no mention of any contextual dimension of the case, but the commissioners themselves reduce their analysis of the facts and context to a minimum. If, as Lasser suggests, deliberation does indeed exist in related documents rather than in the decision itself, it remains limited, and the absence of contextualisation which characterises the writing style of French judges appears to enable them not to take minority views seriously, particularly when such views make reference to religious normativity.

21The comparison with Canadian case law thus allows us to highlight two strategies of legal writing and their effects on how minority views are taken into account. While the Canadian judge favours a concrete analysis of the context which, in order to justify banning a religious practice must, for example, demonstrate the existence of concrete prejudicial consequences, [45] the French judge, after recalling this principle – for example in the 1989 opinion – appears then largely to forget it, delivering instead an abstract and normative analysis. In matters of religious freedom, Canadian judges must study individual cases using the detailed analytical method established under the first article of the Canadian charter, which guarantees rights and freedoms within reasonable limits, because this method “involv[es] the review of a whole range of factors for the assessment of competing interests and the imposition of restrictions upon individual rights and freedoms”. [46] The legal technique associated with a contextual analysis involves a multi-stage “test”. Thus any limit set on the freedom of religion must be in order to achieve a legitimate objective, have a rational connection with the objective in question, and represent a minimal impairment of this right. These very precise criteria provide the framework for the judge’s reasoning, and mean that s/he must analyse the case and evaluate the concrete consequences of the religious practice in great depth. Thus, in terms of safety, where a risk to safety would be a legitimate objective which might justify limiting a religious practice, then this risk must be both credible and supported by evidence. In the case concerning the wearing of the kirpan at school, Judge Charron thus specified:

22

§57 The evidence shows that Gurbaj Singh does not have behavioural problems and has never resorted to violence at school. The risk that this particular student would use his kirpan for violent purposes seems highly unlikely to me. In fact, the CSMB has never argued that there was a risk of his doing so.
§58 As for the risk of another student taking his kirpan away from him, it also seems to me to be quite low, especially if the kirpan is worn under conditions such as were imposed by Grenier J. of the Superior Court. In the instant case, if the kirpan were worn in accordance with those conditions, any student wanting to take it away from Gurbaj Singh would first have to physically restrain him, then search through his clothes, remove the sheath from his guthra, and try to unstitch or tear open the cloth enclosing the sheath in order to get to the kirpan. There is no question that a student who wanted to commit an act of violence could find another way to obtain a weapon, such as bringing one in from outside the school. Furthermore, there are many objects in schools that could be used to commit violent acts and that are much more easily obtained by students, such as scissors, pencils and baseball bats. [47]

23Contextual analysis means that the prejudices which supposedly arise in relation to a religious practice in a specific context – here, in a school – can be concretely evaluated. In these terms, negative majority prejudices concerning a religious practice are replaced by a detailed analysis of the concrete effects of that practice based on an examination of the facts. In addition, contextual analysis enables the inclusion of the minority viewpoint in the decision, and takes seriously both the motivations of this minority and its willingness to be subject to religious normativity. In a case submitted to the Ontario Court of Appeal concerning authorisation for the victim to wear the niqab during a sexual assault trial, the Canadian judge made specific reference to the importance of contextual analysis, particularly the role it plays in shifting the balance between dominant/majority opinion and the minority view.

24

“Perhaps the most difficult aspect of the contextual analysis is that which requires the court to take into account other constitutional values and societal interests that may be affected by the judge’s decision whether a witness should be required to remove her niqab. N.S. is a Muslim, a minority that many believe is unfairly maligned and stereotyped in contemporary Canada.
A failure to give adequate consideration to N.S.’s religious beliefs would reflect and, to some extent, legitimize that negative stereotyping. Allowing her to wear a niqab could be seen as a recognition and acceptance of those minority beliefs and practices and, therefore, a reflection of the multicultural heritage of Canada recognized in s. 27 of the Charter. Permitting N.S. to wear her niqab would also broaden access to the justice system for those in the position of N.S., by indicating that participation in the justice system would not come at the cost of compromising one’s religious beliefs.” [48]

25Contextual analysis thus translates the concern of the Canadian judge to not impose majority norms and standards on members of minority groups, as, under the guise of uniform treatment, this risks ignoring their particular nature and thus reproducing the relationship of domination or marginalisation between majority and minority.

26Conversely, the in abstracto analysis adopted by French judges often relies not on an analysis of concrete circumstances, but on assumptions concerning certain religious behaviours which are presented as intrinsically prejudicial and contradictory to the normative values legitimised by the legal order. Although the 1989 Conseil d’État opinion noted that it was not within the remit of the judge to determine what the wearing of the headscarf signified, and that each case should be judged on its own merits to determine whether wearing this religious symbol had threatened the smooth running of the establishment, constituted a form of proselytism, or went against safety requirements, subsequent judgements did not always apply this kind of analysis. For instance, in the conclusion to a 1995 judgement, [49] the government commissioner used the argument of the safety and smooth running of the establishment to confirm the exclusion of two sisters who wished to wear their headscarves during physical education (PE) lessons. Yet the safety risk involved in wearing a headscarf in a PE lesson has never been concretely evaluated. [50] The PE teacher’s word was taken as law in the matter without further debate (in contrast to the Canadian case, which nonetheless concerned an object far more dangerous than a headscarf). Moreover, the risk to the smooth functioning of the school came about as a result of the mediatisation of the affair, with journalists intruding on school premises, which could – as the commissioner himself admitted – hardly be held to be the responsibility of the plaintiffs. Thus standards concerning the safety and smooth functioning of the school were used to justify the expulsion of the plaintiffs, with no real attempt by the judge to analyse how wearing the veil might concretely affect these standards.

27The justification given by the Conseil constitutionnel for its approval of the ban on the full face-veil in public places was even more succinct:

28

“Such practices may constitute a danger to public safety and do not respect the minimum requirements of life in society.”

29However neither the nature of the danger, its social consequences, nor what constituted the minimum requirements of life in society were clearly defined and specified.

30The two strategies of judicial writing set out here, and the space allocated within them to concrete analysis of the circumstances of a case, mean that Canadian and French judges take radically different approaches to investigating and accounting for minority individuals’ beliefs, and the nature and concrete impact of their practices. While Canadian judges have opted for a subjective definition of belief which means that they consider not the compatibility of the practice with the larger dogma, but the sincerity of the individual and the authenticity of their belief, [51] French judges claim not to enter into the debate concerning the nature or sincerity of belief, but only to establish its incompatibility with the dominant social order, or the danger it presents to the latter. In so doing, to the extent that they do not consider minority subjectivity, nor the importance of belief to the identity and religious conviction of the plaintiff, they ultimately become the only judges of the meaning of the religious practice in question. In excluding all analysis of minority subjectivity and evaluation of the religious normativity which underlies this subjectivity, French judges can rely on their own evaluation of the religious practice to lend it meaning and deduce its positive or negative effects on the legal order. In this context, the minority viewpoint is usually rendered invisible because it is judged to be extreme, inadmissible, and incompatible with the values underlying the dominant legal order. The judge has thus no need to evaluate the extent to which religious normativity might be compatible with legal normativity; he or she need only define the former as excessive in order to justify a whole series of limitations which are thus no longer considered as “manifestly disproportionate” [52] – without however being required to specify what “normal” religious behaviour might involve in terms of concrete practices, or in what respect the offending practice is “extreme”.

31The strategy of legal writing characteristic of French decisions thus has the effect of minimising the minority point of view in its deliberations, even of (negatively) judging the morality and normalcy of such a point of view, and thus increases the chances of the practice being prohibited. Nor is the Canadian approach, with its emphasis on researching evidence of authenticity and its interest in the subjective belief of the minority, devoid of normative effects. In effect, through close scrutiny of minority identity, good faith, and practices, the judge allows more space for the minority viewpoint and thus increases the likelihood that the practice will be accommodated; nonetheless it remains the judge who must decide which identities and which demands are admissible as being authentic and sincere. [53]

Judging facts or values?

32The weakness of the analysis of concrete circumstances in the reasoning of French judges is somewhat compensated for by an abstract (and negative) analysis of religious normativity. The schoolgirls’ refusal to remove their headscarves, and their parents’ insistence that they should be allowed to wear them, were thus described as “radical” actions, thereby denoting a fervour which the government commissioner saw as being outside the limits of normalcy. Thus, in 1995, in a case concerning the exclusion of a schoolgirl following her refusal to take off her headscarf during PE and sports lessons, the government commissioner made the following statement in relation to the parents of the excluded girl, who were contesting the school’s decision and had sought support within the local community:

33

“Then there are unusually intransigent parents […] who meet a quest for reciprocal tolerance with radicalism.” [54]

34Similar reasoning was at work in the decision to refuse to grant French nationality to a woman wearing the full-face veil, because of the lack of assimilation which this supposedly demonstrated; [55] or, following the introduction of the 2004 law, in the decision to refuse to accommodate a high-school student who substituted a simple bandana for the veil. [56] Here again, the government commissioner noted that the girl’s refusal to remove her bandana demonstrated a form of intransigence and resoluteness which led to her exclusion. Her resoluteness was never analysed as a legitimate sign of religious fervour, or as an accommodation (since the girl had agreed to replace her veil with a bandana), but as a refusal to conform to the dominant norms of the majority, and as the sign of a morality which threatened the common order. Since there is no mention of any concrete consequence relating to the safety of the school, nor of any problems in its smooth running, it is clearly the morality of the religious practice which is being judged, rather than its effects.

35How context is accounted for in the two traditions of legal writing, then, also has consequences on the relationship between the law and morality. By forgoing a detailed and concrete contextual analysis, the administrative judge has more latitude to base his or her decision on values rather than facts. In the absence of concrete facts, he or she can judge on the basis of unrelated normative criteria, whilst claiming to apply a legal rule. The series of stylistic shortcuts via which a religious symbol becomes evidence of a radical religious practice which necessarily constitutes an impediment to the smooth functioning of the establishment thus allows the Conseil d’État to align itself with majority opinion and to judge opportunistically rather than legally. [57] What we have here then, in the regulation of religious practices, is an axiological syllogism in which it is extra-legal values which define how normal a behaviour is, on the basis of a standard that reflects either the judge’s values or those of the majority. [58] This is a legal technique – substituting or adding the extra-legal norm to the legally defined fact (the offence) – which is characteristic of French administrative law and of the relation between individual freedom and public order. As Anne Simonin points out, the judgements of the Conseil d’État concerning the refusal of nationality on the grounds of indignité [unworthiness], an offence invented in 1893, illustrate this tension clearly. [59] During an initial period from 1893 to 1918, administrative judges made restricted use of this new tool and demanded concrete proof of indignité (a criminal record, etc.) such that mere witness statements from neighbours employing sexist or xenophobic stereotyping – proceedings alleging indignité usually concerned foreigners and women considered immoral – carried no weight. This wasn’t about judging moral standards, but judging an offence. After 1918, judges shrugged off the constraint imposed by a concrete analysis of the facts and based their decisions to refuse nationality on nothing more than vague witness statements, the desire of public authorities to exclude individuals they judged to be politically non-desirable, or even on rumours concerning an individual’s moral standards. As a consequence, their decisions (and the increasing number of refusals of requests for nationality) reflect the anti-German prejudice of the majority as much as the desire of the political authorities to police public morality and protect public order against individuals who – on the basis of their origins, gender, or political activities – were considered potential troublemakers. [60]

36The line separating legitimate application of the legal standard from its instrumentalisation for the political ends of excluding individuals from the national community is thus to be found in whether or not “objective facts” exist on which the judgement should be based. Thus, in relation to nationality law, Geouffre de la Pradelle states that the “organic” conception of the nation which permeates French law and the 1993 reform of nationality law tends to assert that “Frenchness” as a quality – as a nationality – must be attributed to those who are already de facto French, a conception which thus tends to exclude all those who are judged a priori to be incapable of assimilation. However, the application of this conception of nationality to racist ends, for example, normally comes up against the necessity for judges to justify objectively the absence of ties between the individual requesting nationality and the state.

37

“The rules must make the attribution of French nationality dependent upon conditions which take account of ‘the intensity of objective ties’ (descent, birth, education, residence, military service) between the individual and the French state. This involves nothing resembling an essence.” [61]

38Thus, as these two examples demonstrate, if we are to avoid legal rules being mobilised to exclude all those perceived as being morally incapable of assimilation into the nation, then these rules must be applied on the basis of concrete and objectifiable facts, and not on perceived moral qualities. [62]

39In distancing themselves from the need to prove concrete facts, judges equate moral failings with legal failings, and thereby become both judge and moral censor. A similar logic of distancing oneself from concrete facts was also at work in the 2008 case cited above when the Conseil d’État refused to grant nationality on the grounds of a failure to assimilate. Whilst up until that point failure to assimilate had to be proved with concrete facts in the public sphere (publicly contesting essential values) and not solely on the basis of the private beliefs or relationships maintained by the person requesting nationality, in the case of Madame Machbour private religious practice was held to be a failure to assimilate. [63] Similarly, in the case concerning the Baby Loup crèche, wearing the veil was considered by the civil judge to be incompatible with the protection of freedom of conscience which every child should be allowed to develop, without the negative relationship between these two elements ever being explained or substantiated with concrete facts, expert reports by psychologists, or child testimony. It was posited, never tested, as a result of the negative moral value with which the veil is constantly associated. In the decision handed down by the Paris Court of Appeal, [64] there is both the reassertion of the ontological incompatibility between the presence of the veil and the secularisation of the crèche – a space which had not previously been subject to the requirements of secularism, but which is today [65] – and the assertion of the incompatibility between the presence of a veil and the protection of children’s freedom of religion. Both these assertions are based solely on value judgements, which reflect the majority viewpoint, and not on judgements of facts.

40The introduction of the offence of concealing one’s face in a public space in some senses closed the loop concerning the relationship between morality and the law. Whilst previously it was necessary to prove a legal offence (which affected the smooth running of the institution, or risked safety, for example) in order for morality (in this instance, religion) to become an argument for exclusion (refusal of application for nationality, exclusion from school, etc.), since the 2010 law the religious practice of wearing the full face-veil, and the morality which this conveys, have been legally considered as facts constituting an offence, and thus a disturbance to public order, albeit one which is eminently intangible. Religious morality has thus been turned into a legal fault deserving punishment, and the legal prophecy which has been developed through French case law since the middle of the 1990s – which even then tended to equate religious practices with legal faults and with a threat to the social order – finds itself now come true, and retrospectively legitimised.

41The mirror held up to this state of affairs by Canadian case law shows how, conversely, a tradition of contextualising judgements means that judges have to evaluate the real concrete effects of the normative issues raised by cases of religious accommodation. Thus in the case of the wearing of the niqab mentioned above, a majority of the Supreme Court judges opted not to make an absolute decision concerning whether or not it was possible for a witness who had been called to appear to wear a veil concealing part of her face. [66] Although two dissenting judges respectively proposed that full-face veils should always be banned or always accepted, the president of the Supreme Court (Chief Justice McLachlin) reiterated the importance of evaluating on a case-by-case basis how, without making definitive rules, a balance between freedom of religion and the right to a fair trial might be achieved. Even the dissenting judges who had proposed a rule to be applied in all cases had had to substantiate their arguments with concrete facts, attempting to assess to what extent having the face concealed would prevent an analysis of the witness’s reactions, how far such reactions might provide valid indications affecting the judgement, and how the absence of such reactions might prejudice the accused’s case. In this context, concealing the face was compared to the arrangements put in place to allow disabled people to testify, or to the need for a translator. These practical considerations anchor the question of the protection of individual rights in the facts of a case. This does not mean that the Supreme Court judges turned their back on a debate on values, since they discussed at length in their decision the respective importance of the values of religious freedom and the right to a fair trial, but the Court laid out this debate, in this particular case, in such a way as to establish concretely to what extent freedom of religion might infringe another right. As a consequence, the focus is not on morality, or the values which underlie the religious practice, or on its social significance for the minority individual or for the majority, but on the practical compatibility of freedom of religion with the other rights under consideration in the particular case under scrutiny.

Plus ça change…: performing the illusion of continuity

42The legitimacy of legal normativity rests in part on its internal coherence. Yet, in the area of regulation of religion what was permitted – for example, wearing a headscarf in the state school system – is now prohibited. As Danièle Lochak observes, “a ban which at the time constituted an excessive assault on religious freedom is no longer considered disproportionate fifteen years later”. [67] If shifts in case law are necessary for the law to track changes in society, one particularity relating to French judges dealing with religious issues, for example, is that these changes are never flagged or defined as such. Indeed, quite the contrary: the same legal principles and norms seem to be applied with opposite results. By paying attention to strategies of legal writing we can identify certain extensions and shifts in the meaning of legal concepts which allow judges to change position whilst claiming to apply the same principles. Thus a new legal objective is translated into already existing legal terms, whose meanings are thereby altered. Below is one example concerning the meaning of the word “neutrality”, understood as defining the legal content of secularism.

43Jean Rivero noted in 1949:

44

“For the legal expert, the definition of secularism raises no major difficulties […] The legislative texts, the parliamentary reports which discuss them, and the circulars which accompany their implementation have always understood secularism to mean one and the same thing: the religious neutrality of the state.” [68]

45Moreover, the content of that neutrality was clarified and substantially developed under the Fifth Republic, since the Constitution states that the Republic “respects” religious beliefs, implying a (positive) value judgement. The secular state therefore goes beyond neutrality as indifference and accepts an obligation to allow its citizens to follow the dictates of their conscience, for instance by facilitating worship in the public services sector. [69] Civil servants’ freedom of conscience is particularly protected; for example it is not permitted to record their political or religious opinions and “in general terms, any measure based on the belief or religion of a public servant or a candidate to the civil service is against the law”. The administrative court thus banned the practice of refusing a permanent position to a trainee on religious grounds (CE 28 April 1938 Dlle Weiss), or rejecting a candidate who studied in a religious establishment (CE 25 July 1939 Dlle Beis). In 1979, Jean-Claude Maestre was able to assert that “case law has not changed”. [70] Except in primary education, where the law forbade clergy from becoming teachers, the neutrality of the state in public services could be summed up in this principle: that public servants had to respect the religious beliefs of the people they served. Yet the recent case law emanating from the Conseil d’État bears witness to a shift in the meaning of neutrality, moving from what one might term “neutrality of intention” to a performative conception of neutrality as a visible demonstration of an absence of religion. This shift in meaning occurs in critical fashion in the 2000 Marteaux decision, and can be glimpsed in the conclusions of the government commissioner. It is in this decision that the fundamental and historical Republican principle of neutrality of public service finds a new concrete expression in banning all public officials from wearing conspicuous religious symbols. This is a particularly radical reversal when we compare this decision with the opinion of 21 December 1972 which asserted that there was no incompatibility in principle between being a member of the clergy – which state, one might suppose, is ostentatiously visible – and fulfilling a teaching role.

46The question of the ban imposed on all public servants is raised once again when it comes to the Islamic headscarf. Reasoning metonymically, the commissioner achieves a real shift in the meaning of the neutrality of public service, which enables him to equate the wearing of a religious symbol with a lack of neutrality. Thus he writes:

47

“Public servants, especially those working in the public national education system, are thus subject to a strict obligation of neutrality. They may not express their [religious] convictions within the context of the public service, nor wear symbols which are intended to express them.”

48Expressing one’s convictions and wearing a symbol of belonging are thus presented as equivalent here, for the first time in the Conseil d’État’s “unchanging” case law concerning public servants. Whereas the latter previously forbade the display of religious belief within public service – meaning deliberate behaviours or actions (proselytism, or behaving in a discriminatory fashion) – now, by equating a symbol with a display (which is what the usage of the term “obvious” or “conspicuous” sign means here), the demands of neutrality (and thus the impact of the ban) can be extended, with neutrality here being defined as the performance of an absence of religious identity. In this decision, the Conseil d’État in some ways anticipated the aspirations of the 2004 legislators, by lending new legal substance to the term “neutrality”, in keeping with the political aspirations of the time. Moreover, we can discern similar reasoning in the Conseil d’État decisions following the 2004 law: [71] a conspicuous symbol is one which enables a person to be identified immediately as a member of a particular religion. This conception of neutrality thus tends to mean the absence of religion in public space. [72] The concept of neutrality is therefore a relatively imprecise and abstract legal concept which has allowed the judge to create the norm, rather than simply execute it. [73]

49***

50In her critique of impartiality and universality as ideals of justice, the philosopher Iris Young emphasises that these two values play a part in denying the material differences (socioeconomic, racial, cultural, etc.) between individuals, and do not in reality allow a true ideal of inclusive justice to be achieved; conversely, they may contribute to the oppression of individual members of minority groups. [74] Recalling that the universalist ideal of citizenship which emerged from the French and American Revolutions historically contributed to the exclusion of Black and Jewish people and women, Young notes that there is a tension between universality as an ideal for the inclusion of all and universality understood as generality – in other words as an expression of common, as opposed to individual, good – and that they are logically incompatible. In reality, the ideal of the common good which was supposed to transcend group and private interests has in practice served to exclude the interests of groups defined as incapable of adopting an impartial, abstract, and universal perspective. According to Young, one way to get round the limits of impartiality and universality in order to establish a theory of justice is to ensure the involvement and inclusion of members of minority groups within the institutions responsible for applying norms of justice. Although Young’s analysis primarily concerns democratic institutions and political participation, it could equally well be applied to the courts and, at the very least, allows us to frame the question of how the values and perspectives of minority and deprived groups might be represented and taken into account in judicial deliberation. This question is even more crucial for the regulation of minority religious practices. Although freedom of conscience, in particular the “forum internum” (freedom to hold an inner conviction) should know no limits in a liberal democracy, the concrete application of this principle, and especially the assessment of the boundaries which can legitimately be set on the expression of religious fervour, vary greatly depending on the religion in question, particularly between majority and minority religions. [75] Young’s analysis, with its emphasis on inclusion of the minority perspective as indispensable for fair deliberation, encourages us to examine to what extent each tradition of legal writing might offer the possibility for the minority viewpoint to be expressed or adopted by the judge in the process of deliberation. In this article, France and Canada have provided contrasting case studies. While the form of deliberation within Canadian law and its legal technique make it possible to take minority subjectivity into account in deliberations, the writing strategy of French judges reinforces the existing asymmetry between dominant norm and minority subjectivity.