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Notes
Notes

Secularism : the French Model under European influence

01/09/2004
Editor : Fondation Robert Schuman
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The law concerning the wearing of the veil in school and the hostage crisis have revealed the French consensus on the principle of secularism.

The Robert Schuman Foundation asked Mr Olivier Dord, agrégé in public law and professor at the University of Paris X Nanterre, to make a comparative study of the specific nature of French secularism within the framework of Europe to include the types of relationship there exists between the authorities and religious communities in each member state of the Union.

This study is prefaced by Mr Bernard Stasi, President of the High Authority in the fight against discrimination and for equality, who chaired the work of the commission for the application of the principle of secularism in the Republic.

In this document the author reminds us primarily about the specific nature of the French Secular Model: it is an original conception of the relationship between the State and religions that has no equivalent elsewhere in the European Union. The principle of secularism of the Republic, that is established on a constitutional level, has several specific legal consequences. It protects the freedom of conscience of individuals against the intervention of the authorities, ensures neutrality of public services and their agents and also ensures that the personal religious freedom of everyone is in harmony with the rights and obligations of life within society.

However this model cannot be found in other States in the Union. Beyond specific national features, three main types of relationship between the State and religions exist in Europe. First and foremost there is the unique situation of the UK, where religious freedom is respected to the extent that there is no legal framework and this even melts in with a State religion that enjoys no privileges: the Anglican Church. Then there is the German model that tends to become widespread where the neutral state cohabits with powerful churches who participate in public life in order to ensure freedom of conscience to the full. Finally there are still - and the arrival of the ten new States confirms this trend - specific cases where a religion, because it is identified with a collective History influences public life and sometimes threatens religious pluralism, as in Greece, for example.

The authors secondly enquires about the compatibility of this original model with the requirements resulting from France's commitment to Europe. A first observation is made. Within the framework of the European Union Community institutions maintain a traditional neutrality in terms of denomination. Community law tackles religion in an indirect manner in its economic effects. The progression in the construction of the community (Amsterdam Treaty, Charter of Fundamental Rights, European Constitution) places the question of increased protection of religious freedom and the recognition of religion amongst the Union's values. France accepted the first and yet rejected the second premise. As far as the European Court of Human Rights in Strasbourg is concerned, it protects, within the context of article 9 of the European Convention of Human Rights and Fundamental Freedom, an individual conception of the freedom of religion. In its subtle jurisprudence it increasingly takes into account the damaging consequences for democracy that might result from religious radicalism. It even acknowledges, since its decree on 13th February 2003, that the principle of secularism may comprise a barrier against the dangers of religious radicalism.

Finally Oliver Dord highlights that the French conception of secularism has developed on a continual basis. The principle of secularism of the Republic is applied today with greater flexibility across France than is generally believed (regime of compromise in Alsace-Moselle and Guyana; unequal application of the Ferry Laws overseas, public financing of some private schools …). European law and especially the guarantees established by the European Convention of Human Rights are part of the present definition of French secularism that is open to all religions. The situation in the state schools and hospitals highlights this. The law that emanated from the opinion of the Council of State on 27th November 1989, particularly in the case of State schools, did not prohibit religious signs in themselves but the ostentatious display of them ie the violation of the freedom of others (proselytism) and the principles governing public services (equality and continuity). The application of the law prohibiting the ostentatious display of religious symbols in public establishments does not however prohibit discreet symbols of denomination being worn. It will be up to the judge to decree whether this law is conform, along with the circular on its application dating from 18th May 2004, with religious freedom protected in particular by article 9 of the European Convention of Human Rights.

This study highlights both the specific and relative nature of the French model of secularism in comparison with the national experience of other Member States of the European Union. It also reveals the unequal influence of France over our partners, likewise over the European institutions and more indisputably of European law over our rules of domestic law.
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Auteurs

Olivier Dord :
Professor "agrégé" in Public Law at the University Paris Ouest - Nanterre La Défense (Paris X). Specialist with regard to constitutional issues and secularity - he is notably the author of a Robert Schuman Foundation "Note" entitled : Laïcité: le modèle français sous influence européenne (2004). (Secularity: the French model under European influence)

Bernard Stasi
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