Introduction
The philosopher Grotius distinguished three forms of law: 1) natural law (which is God given); 2) divine law (based on revelation); and 3) man-made law (that was secular). 1 The three monotheistic religious doctrines of Christianity, Judaism, and Islam all consider their laws to be the version of the truth. The secular basis of law expounds that men are autonomous, and the laws can be altered by the legislators and this is a process through which the civil laws are enacted and altered over the course of time. Instead of the sacred concepts the values are deemed to exist in the realm of individual freedom and liberty and these are relative and evolve within the advancements made in the arts and science. 2 It is a concept that needs consideration to the extent that the minorities which practice the Islamic faith have been accepted in France and where they have been excluded by the normative structure of public order or ordre public, the examination by laïcité is also necessary to understand the coercion of the Muslim community in accepting the secular values and override the spiritual dimension.
The Islamic faith draws its inspiration from the Shariah, a code of universal beliefs enshrined in the Quran that frame religion as a faith which overarches the secular and the divine and fuses into one value system. In modern times a question has arisen of integration because of the influx of refugees who have migrated to Europe from the Muslim countries. They have increased the population ratios in their destination countries and the legal system in the European countries has had to adapt and affirm its philosophical foundations and institutions. In France, this has been brought into sharp relief by the policy of not implementing a separate census of the population according to race and ethnic identity. 3
The influence of secularism on law and its application over the Muslims is a litmus test of the European framework’s acceptance of Muslim communities within their jurisdiction. The constitution of the European states is ostensibly secular and there are republican values in counties—such as France, Germany, and Italy—that are deemed to be at the core of its identity. The protection offered to the value system based on the laws of the state is to maintain and preserve the concept of ordre public that serves to sanction the legal norms of the minorities. This could lead to varying degrees of discrimination, which is contingent on the powers exercised by the state and its ability to integrate the populations.
In France, the secular values of the state have been superimposed by the doctrine of laïcité (secularism) that is fundamental to the French republic and owes itself to the lack of an institutional status for religion, the denial of a constitutional role for religious denominations, and outlawing the reverence for sacred symbols in public accommodation. Its basic purpose is for the State to abolish the “particular rights granted to institutions or religious congregations, and confine(s) religion itself to personal and private subjectivity”. 4
The French National Assembly, in order to reinforce its structural control, enacted the “separatism bill” under the Projet de loi confortant le respect des principes de la République or “consolidating respect for the principles of the Republic,” in 2021. 5 Article 6 concerns the Freedom of Association which states “that any organization that applies for a grant from the State or a local authority must sign a contract of ‘republican commitment’.” Article 18 is regarding the Freedom of Expression which creates an offence of “endangering life by disseminating information about a person’s private, family or professional situation that makes it possible to identify or locate them, with the aim of exposing them or members” to substantial risk of harm. This is despite existing criminal laws that punish those who breach privacy laws who are liable to be punished by the laws of the state.
The enactment of this law was accompanied by a statement in the National Assembly by the French government which reads: “An insidious but powerful communitarian entryism is slowly eroding the foundations of our society in certain regions. This entryism is essentially of Islamist inspiration.” 6 The law has the potential to infringe the principle that legislation has to be “necessary and proportionate,” and to respect the principle of non-discrimination, which is enshrined in numerous international human rights treaties, including the International Covenant on Civil and Political Rights (Articles 2.2 and 26) and the International Covenant on Economic and Social Rights (Article 2.2). These laws preclude the French authorities from adopting measures that could be directly or indirectly discriminate against groups defined by protected characteristics such as religion or belief, ethnic origin, nationality or migration status. 7
It raises several questions with regard to the relationship between basic rights and fundamental values and the discrimination against the Muslim individuals and groups in France. The issue that needs to be addressed is how much weight should be attached to the interests of the minority community whose belief system is a part of their sacred law and cultural inheritance. It also raises a number of questions with regard to the general values that have found expression in the legal framework of which ordre public would be a relevant factor.
The road map of this article is as follows: Part I considers the origins of humanism in Europe with the advent of the European Convention of Human Rights and the concept of religious liberty enshrined in the international Declarations. It sets out the origins of ordre public in France and its intended purpose and the civil law and constitutional protection by the state; Part II examines the laïcité concept and the interpretation by the state and the sociologists who have elaborated it in the educational tool for France. The argument is sustain that it has become a doctrine of state in education and its misuse in power leads to discrimination against the Muslim minority; Part III conducts an examination into the Mayoral decrees in France which led to the prohibition of the Burkini that is a manifestation of the religious discrimination against the Muslim community; and Part IV is regarding the comparative legal method that is an analysis of the human rights judgments of the European Court of Human Rights and their divergence from the reasoning of the French state and the Civil law of Germany is examined in order to set out the different approaches of the two countries in order to contrast the harsh approach of the French courts. The argument is that there is Islamophobia enshrined in the legal framework in France and that it is a form of apartheid that does not acknowledge the normative diversity of a country with a colonial legacy that is reinforced by discriminatory practice.
Ordre Public and Constitutional Rights
The constitution of European nations has a fundamental principle that corresponds to the rule of law which is “ordre public” that is not confined to either “public policy” or “public order”, but is contingent in substance to the existence of mandatory rules. These are enforceable under the civil procedure and are not part of the criminal laws but are integral to the republican values under which the constitution is composed. The distinction exists between the droit public and order public which can be explored to determine how they impact the French legal system.
There is a concept of universal human rights for the protection of religion in the European continent that stems from the enactment of the Universal Declaration of Human Rights (UDHR) 1948, 8 which was the first international treaty which protected religion as a general human right. Article 48 states as follows:
Every one has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or beliefs and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice worship and observance.
The existence of ordre public and manifestation of the religious freedom of expression has a nexus because the faith is a sacred belief of each community or denomination. It is held as a right of every religion to have sufficient autonomy to be able to exercise its belief without any restrictions. In Europe this is viewed against the constitutional principles and nation states that have large Muslim minorities have to consider the expression of the faith with the impact on its public order that is enshrined in the Constitution. The national legal systems have to respect the freedoms protected by the European Convention of Human Rights to which they are bound.
Article 9 protects religious expression along with the freedom of thought and conscience. 9 It consists of two separate limbs that safeguard the right to practice faith which are, firstly, the internal freedom of thought, conscience and religion known as the forum internum, that includes the right to hold a religion or belief and to change to another set of beliefs. It is defined as similar to:
other humans rights, this internal freedom is primarily an individual right. The second right is the external freedom to manifest religion or belief in worship, teaching practice and observance - known as the forum externum - this may take place ‘either alone or in community with other and in public or in private’. 10
Article 1 of the French Constitution of 4 October 1958 states: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.” The principles that are the foundation stones of the republic are the ordre public which ensures that the secular framework maintains that France does not formally support any exemption for religious minorities and the concept of laïcité which underpins the secular framework in which no religion takes primacy. The reason is the preservation of the cultural homogeneity of the state.
The ordre public may be defined as the “collection of rules- legislative, departmental, and judge made which fix, or ought to fix the relation between the authorities (pouvoirs publics) and the different administrative organisations or public authorities as well as one another as with individuals. It comprises, therefore, constitutional law and administrative law.” 11 Criminal law is not included whose rules are considered personal and those that apply to the offender and the state under penal code of the republic.
There is also a distinction between public policy and ordre public which is based on the substantive public policy concerned with legal norms, while the procedural public policy relates to civil procedure. This applies to a “different legal source and a different scope of application. It is difficult to define the limits of a general legal concept as broad as public policy and it is, therefore, not surprising that problems have arisen across all legal fields.” 12 The concept of public policy in France is applied as reflective to “for non-dispositive law, i.e. mandatory law (ordre public interne). However, unlike ordre public international, ordre public interne does not concern private international law.” 13
The French judiciary are also noted to be more inclined towards decisions in their court orders rather than developing precedence and judicial reasoning. 14 This can be discerned from the Conseil constituionnel, whose main function is to supervise the constitutional conformity of acts of Parliament and does not perform this role of a judicial body and oversee judicial review. The legality of executive and administrative regulation is examined by both the administrative courts the apex of which is the Conseil d’Etat, the supreme administrative court, which has broad powers to supersede administrative decisions. 15
The French droit administratof provides the underlying justification of public law and has been impacted “by a more legalist thinking that defines the law as an instrument to protect civil liberties while containing the excess of democratic participation, as well as to justify the administrative acts imposed by the state.” 16 The courts defer to the notion that the legal system is not only the sum of all existing statutes and regulations, but that it also includes general principles of administrative law, which in its “approach to the Etat de Droit is strongly influenced by a rationalist thinking à la Descartes. The state, and the administration of the state power, is perceived and defined as a rational actor whose actions and interactions with the citizens should be justified in light of the existing law.” 17
The ordre public is a concept that is a consequence of positive legislative action and functions in French law as a general standard by which courts have a judicial discretion to impugn transactions offensive to public order. 18 It is also applied to “fact situations falling under mandatory orders that arise outside of contract the parties agree to, and are typically designed to protect public interests that the state will not allow the parties to waive.” 19 Although the principles of ordre public interne were recognized when French law was “codified, the development of ordre public externe includes all mandatory rules such as lois de police, lois d’application immediate, règles d’ordre public from which parties have no freedom to derogate.” 20
The reasons behind the development of ordre public externe is the same as that which motivates public policy and is premised on the fact that it affords to the judges the ability to reject foreign law that is harmful to the state. The complex issue is how frequently, and based on which standards, are courts able to the convey the decision that foreign law cannot be accepted in the environment of the French republic. These place constraints on the ordre public which is governed by the need for the maintenance of social order or public security.
The French understanding and application of ordre public is that it is concerned with “policing as a bulwark of freedom and national sovereignty” that is essential to preserve and “the contested nature of rights protections and constitutional constraints on legislative authority can cause a nation’s legal culture to profoundly shape that contestation.” 21 The approach of the state to the interpretation of the concept endorses consistency and has the purpose of upholding a rational, and integrated, doctrinal element of French law. This allows for legal certainty and the maintenance of a judicial policy of consistency of applying the order public. This can be observed in the French republican tradition, when judicial review of the conformity of statutory law with the Constitution only appeared in 1958, when the Counsel de tat was formed and it was not until the Council granted itself the power to exercise judicial review under Articles 56 and 63 of the Constitution with regard to the declarations of rights referred to in the Preamble to the Constitution. 22
Secularism and the Doctrine of LaÏcitÉ
The central tenet of the French Ordre public and its most profound instrument is laïcité which is secularism which the state has established by severing the religious and the secular institutions. The French Republic’s adoption of the Separation of Churches and State Act 1905 led to the doctrine of laïcité which has fundamentally altered the relationship between the religion and the state. It removed any source of direct public funding for any religion in France and any form of state patronage for religion was abolished. The effect of this statute was felt in the official discourse of the French state which in its commitment to laïcité does not issue or recognize ethnic statistics except by circumventing the process such as in its quantification of “the population living in France, the French administration has long differentiated inhabitants according to their place of birth and nationality. At the end of the colonial period, even though they were French, the Algerians living in metropolitan France were labelled as ‘French Muslims in Algeria’ and enumerated separately in the census.” 23
The impact of laïcité upon the Muslim population in France has been considerable and this has been manifest in the values that the dominant French culture has attempted to impose by its national hierarchy. It began the project of establishing Islamic organizations, after several attempts to address the “Islam question” in France, when the Minister of the Interior launched a vast consultative exercise in 1999 among the main national Islamic institutions, as well as several mosques. The registration of new mosques in France has been either under the category of either “cultural” (based on the 1901 law of associations) or “religious” (based on the 1905 law of separation) associations. It has been argued that since 2015 the “state representatives have pushed local mosque leaders to adopt the ‘religious’ status.” This is a manifestation of the “secular nature of the cultural/religious dichotomy and its role in the process of establishing mosques in France since the 1926 creation of the Grand Mosque of Paris” and is “a central component of the French secular governmentality of mosques.” 24
The promulgation of the Separatism Bill the Projet de loi confortant le respect des principes de la République or “consolidating respect for the principles of the Republic” 25 has placed several imperatives on Muslims that are discriminatory and oppressive. They not only raise the bar of criminal sanctions through civil procedure by defining as support for Islamic “militancy” any form of group affiliation that is in the form of cultural expression is deemed to be subversive. The bill stipulates that any association in France that receives public funding will have to sign a “republican contract of engagement” which, if breached, can result in the removal of that funding (Article 6). Furthermore, the grounds for dissolving an association are also no longer limited to court orders and even the administrative bodies are empowered to take remedial actions, such as prescribing associations, which is a discriminating act considering they could be acting from their own subjective motives. Any form of belief that is defensive or which challenges the writ of the state by disseminating information against any state official that may be deemed to be offensive to another’s “private, family or professional” life is considered to be dangerous to the state (Article 18).
There is a draconian provision in the Bill for those Muslims that are considered to be dissidents who could face deportation. Article 26 provides that the issue or renewal of any residence permit may be refused to a foreigner or that a residence permit may be withdrawn from him if it is established that he has expressed a rejection of the principles of the Republic, was also not validated. According to the authority, the terms of the bill do not make it possible to “determine with sufficient precision the behavior justifying” the withdrawal, the non-renewal or the non-issuance of a residence permit to a foreigner.
The underlying assumption on the part of the French state is that Muslims should accept the norms governing religious practices within the French tradition of laïcité. This commitment to secularism is so crucial that France entered a reservation with the Secretary General of the United Nations with respect to Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which reads:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
The sociologist Danièl Hervieu-Léger has reflected on the “question of Islam” in the following terms:
… one of the most decisive changes that have occurred since the beginning of the 1980s has been the transformation of a society in which cultural homogeneity seemed assured within the normative space defined by the great republican referents, to a multicultural society… The question of Islam, which has become the second religion in France after Catholicism – ahead of Protestantism and Judaism – constitutes the highly sensitive point of crystallization of a problem that is much more vast: the question of the relation between particularity and universality in the very definition of French identity. 26
This has to be set in the context of the policy analysis that is an “empirical” investigation tool of the power structures that exist in society and are maintained by the state. The “reality of power with the knowledge of reality” is an evaluation of public policy and the “relevance of the concepts it has developed for the knowledge of political reality that are the essential questions” that must be asked in France. This is an approach that is from the “perspective of the sociology of public action” that is the dominant analytical approach in order to “consider the social utility of that policy” from the manner in which race dynamics “are managed in modern societies” becomes necessary. 27
The policy approach consists of imposing secularization directed towards an enforced “integration” whose underlying message being that Islam prevents French Muslims’ assimilation in French society and their acceptance of “Republican values.” This serves to create antagonisms between the religious and the secular segments of society and is a policy that is implemented in the name of laïcité, with the objective of discriminating against those with separate cultural values. In modern times laïcité had become the cornerstone of the ideological dominance of a secularization movement, whose doctrine based on the quashing of dissent and protection through the overriding concept of the ordre public.
Cultural Apartheid and Mayoral Decrees
The laws made to enable a minority to practice their religion have to be compatible with the constitutional guarantee of human dignity because of its possible effects ‘on the general values and social behaviour’ that is protected by the ordre public. This includes the national law, and whether such a prohibition would be compatible with European Community (EC) law. The implementation is protected within a secular framework and by constitutional guarantees in the states of the European countries that maintain “secular ideals as part of the national law framework.” 28
The French courts interpret the ordre public proactively—which was concerned originally with violations of the moral and political order, and not for the enforcement of a punitive legal regime, against which it now can be invoked. 29 The interpretation of the ordre public statute provides a background against which a judge can adjudicate on a current dispute and make a declaration that has wide effect on the right of a minority and to their freedom of expression. The ability of the French judiciary and the courts has been strengthened by the administrative law that came into force in 2017 that has enabled the courts to allow the police more discretion and the administrative bodies to be stringent with the community which is under suspicion.
In 2017, after a period of emergency came to an end which had been imposed in the wake of terrorist attacks in France in the 2015, the Code de la sécurité intérieure (Loi No. 2017–1510) was enacted. 30 The new security law has four main points. The first allows “local prefects to establish ‘protection perimeters’ around places and/or events deemed particularly vulnerable to a terrorist attack, such as concerts or sports events (Article 1). The individuals and vehicles entering such ‘protection perimeters’ could be subject to searches and could be denied entry if they refuse to be searched.” It also includes the Highway Code and it provides draconian measures to the police to stop and search those drivers it wants to investigate.
The second part of the new law allows the government to close places of worship where terrorism, hatred, or discrimination is promoted. The government decision to close a place of worship under this provision must be preceded by at least 48 hours’ notice, so as to allow the religious organization responsible for the place of worship to challenge the decision before an administrative court (Article 2). The fourth principal allows local prefects, upon authorization from a judge, to order law enforcement officials to conduct searches of any place when there is a “serious reason to believe” that a terrorism suspect frequents that place (Article 4).
This devolution of power granted to local law enforcement and administrative bodies to implement the ordre public has been present in the decrees issued by local mayors who have had to interpret freedom of expression of Muslims on the beaches in France. This is evident in the Burkini ban in France which was enforced in the local towns by the mayors rather than by national statute by the issuing of a decree or an arrêté. This is an obvious manifestation of how the defense of public order can be used to override the toleration of the minority that practices its own beliefs and customs which are harmless and non subversive but are still proscribed by the state because it considers it as a separatist approach of the minority. The issue of the Burkini emanated with Muslim women disregarding the bikini made of two pieces of cloth and instead wearing a long dress as beachwear.
This was an unacceptable manifestation of a religious belief to the French administration in the cities and towns and a ban was imposed. It was initiated in the city of Nice where the city Mayor, who is competent to issue arrêtés (a local decree) towards maintaining public order, issued a decree to ban burkinis as a breach of ordre public in his declaration. 31 The tribunal administratif affirmed the arrêtés on the argument that these swimming suits could be taken by others as a sign that is not just an expression of religion “but were a risk for public order.” 32
In a case that reached the Conseil d’État, the decree of the Villeneuve-Loubet mayor was challenged and, in its ruling, the highest administrative court accepted that the arrêté “limited the fundamental freedoms of citizens quite severely.” 33 The ruling stipulated that it was in consonance with good morality and hygiene and there had to be an apparent risk to the order public for the decree to be valid. After this ruling the tribunal administratif of Nice suspended the Villeneuve-Loubet arrêté on August 26, 2016, this was followed in another jurisdiction in Cannes where an arrêté was overturned on August 30, 2016 and the ban lifted on the burkini.
This did not prevent a high number of mayors attempting to reinforce their arrêtés to ban the burkini and the tribunal administratif of Bastia upheld the arrêté of the Mayor on the grounds of order public because of the actual unrest that had occurred on its beaches. 34 The enforcement was justified on the grounds of the order public, despite the fact that it was not in accordance with the logic of religious rights protection under Article 9 and there was no danger to the public or any disorder that was likely in the city or the towns.
The critique of this policy can be defined as a manifestation of cultural discrimination. The courts have “failed to qualify this factor beyond the language of fear and security that were scrutinized by the Conseil d’État. It remains unclear what specific threats occurred from the burkini itself and for this reason, a restriction of the burkini appears symbolic – an ineffective measure towards an intangible threat.” 35
In May 2022 the Grenoble Mayor authorized all swimwear in its public swimming pools, including burkinis and permitted women to swim topless. The city’s administrative court, however, suspended the wearing of burkinis, arguing that it violates “the principle of neutrality in public service.” 36 The court stated there was no prohibition on any kind of swimwear for women this was based on neutrality. The Grenoble city council adopted the Mayor’s decree which authorized the burkini by a narrow majority.
The Ministry of the Interior, via the prefecture of Isère, had immediately filed a “secularism referral,” a procedure resulting from the “law against separatism” which allows prefects to seize the administrative judge of an act of a local authority considered contrary to the principles of secularism. 37 The appeal reached the Conseil d’Etat which overturned the suspension and confirmed the burkini ban. It considered its judgment as the “first application of the new secularism referral” against “cases of serious breaches of the principles of secularism and neutrality of public services.” 38
The judge also referenced the Conseil d’État était saisi pour la première fois d’un recours dans le cadre du nouveau “déféré laïcité” issu de in the context of the new “referred secularism” resulting from the law of August 24, 2021 confirming the respect seized for the first time of an appeal of the principles of the Republic. The ban on burkinis has been upheld by the Conseil d’État in all of France and it has been affirmed as the normative interpretation of the ordre public as it is not in accordance with the French public morality, tradition or concepts of beach wear.
It is a notional threat based on any display of cultural deference to the state and the incompatibility of the religious freedom and expression of a minority with the dominant norm of society. The infringement of the ordre public is confront with the vigorous test of civil procedure and the constitutional framework of secularism. The public order is integrated structurally within the constitutional logic by laïcité which is a vivid expression of the states norms and any expression of religious autonomy by a minority is deemed as a breach of the state’s doctrinal approach of “neutrality” to religion The scope for expression by the religious minorities is severely narrowed by the discriminatory acts of the state and the criminalization of the section of the population by the burkini bans that is a manifestation that France has a public policy that is based on a public policy that rejects pluralism.
Ahmed Ghouri and Abigail Champion argue that the “rise of secularism” and the discourse between the “right to religious freedom and the state’s interest in restraining religious freedom is in order to remain true to its secular identities.” They argue that for Muslims in Europe the “issue of identity becomes a twofold and sometimes a disparate challenge: they follow Islamic law as part of their religious obligation but are also bound by the secular state law as citizens. This in turn creates a situation of legal pluralism whereby Muslim citizens face a dichotomy of obligations that they have to meet at the same time.” 39
The recourse to Mayoral decrees is an instance of an overbearing state using its administrative powers to issue executive orders in order to nullify the expression of religious freedom by a community. This is not an exercise of promoting equality but has the objective of declaring the practice of religious community as a nullity. The issue is not that this was motivated to achieve a balanced exercise in retaining the fundamental values of the republic but instead towards making it repressive and intentionally dismantling its cultural heritage. This is a reminiscent of colonialism and has the echoes of the imperial history when metropolitan France was the dominant power in north Africa and in the Orient.
Comparative Law Method and Human Rights
This relationship between states to the formulation and protection of international human rights guarantees, which invariably included provision on religion, is further support to the notion that the legal organs of the state should be concerned with enacting legislation that is concerned with preventing discrimination. 40 The European Court of Human Rights (ECtHR) has, from its inception, been involved in the examination of the concept of the restrictions on religion and the right to practice a belief while not encroaching on the secular laws that are in contradiction to traditional religious practice.
In Dogra v France 41 the applicant was a student who had been expelled from school for wearing the hijab. She had been wearing the scarf during physical education classes, against the policy of the educational institution. She was deemed to have breached the law that had strengthened laïcité (Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics).
The European Court of Human Rights ruled there had not been a derogation of Article 9 by the French government. After the Dogra ruling the French Prime Minister Fillon issued an executive order 2009-724 forbidding citizens to cover their faces in an area where a gathering is taking place without a “legitimate reason” there were protests. The effect of this was to grant the French government the basis for upholding laïcité in order to prevent the manifestation of religion in an educational institution and to conform to secular values that are underpinned in the 2004 law.
In another ruling the Strasbourg Court 42 had stated that there had been a violation of Article 9 when the members of a religious group who had dressed in a particular manner were criminally convicted. This was under the anti-terrorism legislation where they were judged before the State Security Court in January 1997. The ECtHR stated the “importance of the principle of secularism in the democratic system of Turkey” in maintaining the “legitimate aims” listed in article 9 to make a contingent on “protection of public security, prevention of disorder, and protection of the rights and freedoms of others.” 43 The Court found “no evidence that the applicants represented a threat to public order (ibid. at § 50) or that they were involved in proselytism”. 44
In SAS v France 45 the applicant, a practicing Muslim elected to wear religious clothing that conceals her face, such as a burqa or a niqab. The French law enacted in April 2011, 46 prohibited the concealment of a person’s face in public entered into force in France. The applicant claimed that the law violated her rights under articles 3 (cruel and degrading treatment), 8 (private life), 9 (freedom of religion), 10 (freedom of expression), and 11 (freedom of assembly and association) of the European Convention on Human Rights, separately and in conjunction with Article 14 (freedom from discrimination).
The Grand Chamber declared inadmissible the claims under articles 3 and 11 and gave their reasoning on the compatibility of the French law with Article 8 (respect for private life) and Article 9 (freedom of religion) of the Convention. 47 The Court found that the law constituted an “interference” with, or “limitation” on, the exercise of both of these rights, it considered whether the interference was “prescribed by law,” pursues a legitimate aim, and is “necessary in a democratic society.” 48
The Court endorsed the French judges and stated that the State is “in principle better placed than an international court to evaluate local needs and conditions” and therefore is typically granted a wide margin of appreciation in determining the extent to which a limitation on freedom of religion is necessary in a democratic society. 49 Despite the discretion given to the State, the Court stated that an absolute ban “on face coverings was not necessary for the promotion of public safety within the context of articles 8 or 9 of the Convention.” The ban on facial coverings in public places “was only proportionate in the case of a general threat to public safety, which the French government did not demonstrate in this case.” 50 The Court ruled that “the impugned ban can be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of ‘living together’.” 51
The decisions of the Strasbourg Court reflect “a more human rights based effort in interpreting the jurisprudence”. 52 The policy of human rights has to confront the ordre public that is ingrained in the judicial system and public policy of the individual European states. This has been recognized as an arduous path and often irreconcilable in the framework of the legal system of these states. This is because the “
Council of Europe, alongside the Council of Ministers, the Parliamentary Assembly and the Venice Commission, all of which have a role in the operation of the Convention on Human Rights and all of which have been concerned with questions of religious manifestation and its wider effects on society. There are, however, wider, unresolved questions as to the relationship between the Court and the judicial systems of the member states. 53
In Germany the ordre public has been preserved in the German Civil code which was formulated in 1896 and conceptualized as the ‘oeffentliche Ordung’ in Article 30. The preamble “the application of foreign law is precluded if such application would be opposed to good morals or the purpose of a German law.” The German concept of ordre public is not premised on “an integration with ordinary jurisprudence, as is the case in France. Instead it is concerned as an anomaly in conflicts law and hence relegated to a minimal role.” 54
The Basic Law of the Federal Republic of Germany enacted in 23 May 1949 consisted of two important judicial principles that were based on the concept of public order within the acceptable standards and the optional clause which meant that a practitioner of another religion could chose not be bound by the contract law of the state and conduct their agreement under the codes of their own framework. If these requirements are not met, these groups must organize themselves as mere associations under private law. 55 Article 4 of the Constitution guarantees freedom of faith and religious practice but is has come under challenge against orders by the district Councils who have enforced the ordre public. 56
The German courts approach invocation of ordre public with a less doctrinaire approach. The form of ordre public generally differs from public policy in that it is embodied by statute in the rules of its civil code. The German courts are closer to Anglo-American practice in their general reluctance to rely on ordre public and apply discretion in their discourse and frequently depart from ordinary conflicts jurisprudence. 57 This is manifested by the basic concepts of public policy that the German and Anglo-American courts both approach, both permit rejection of foreign laws restrictive of personal liberty, freedom to contract, and freedom to acquire and dispose of property. However, “[the exclusion of foreign law for reasons of public policy does not go farther than is necessary in the public interest.” 58
The parallel objectives of public policy and ordre public are recognized acknowledged and are used interchangeably even though the conflicts of laws do arise in the German courts as forum non conveniens. 59 The German Citizenship Law (1999) introduced the importance of ancestral origin that has gradually diminished the requirement of naturalization and allows the children of immigrants born in Germany after the 2000 to be granted dual citizenship which consists of both the German citizenship and that of the native country. In such circumstances there is a requirement that the child must renounce the citizenship of her parent’s country of origin between the ages of 18 to 23. 60
This appears to be recognition of a collective right to religious liberty. However, it can be argued that this affects the exercise of the right to be manifest as an individual right that may be exercised individually (“alone”) or collectively (“in community with others”). Article 9 recognizes the choice of the individual, and it does not recognize a collective right of religious liberty as such. 61 The right to freedom of religious expression is considered along with the elimination of all forms of discrimination and intolerance which conveys that any derogation from the right to freedom of expression with respect to religious observance is discriminatory. 62
The ordre public is a part of German law by statute, as Germany is also a civil law country and the Basic law and the concept is premised on the idea of integration with jurisprudence within the concept of creating of harmonization. The conflict of laws is viewed as an anomaly in private legal disputes and hence relegated to a minimal role. The German courts approach in invoking ordre public is based on concepts of public policy within the shared framework of Western Europe in rejection of foreign laws restrictive of personal liberty, freedom to contract, and freedom to acquire and dispose of property. These parallel purposes of public policy and ordre public are recognized widely and are within the framework of private international law where it is employed interchangeably when considering the role and universality of forum reservations against lending the state’s authority to regulate the foreign parties disputes under its auspices.
Conclusion
The discriminatory “republican” value system in France has superimposed a set of colonial values on the Muslim minority and the approach of cultural denigration and humiliation creates second class citizens in the French legal order and its approach is repressive towards the minority religious faith. Its inclusionary approach as a state that provides equal treatment to all religions by separation the state and religions has not bred homogeneity but instead caused more divisions because it rejects heterogeneity and the fissures are common place. The evidence is it no longer subscribes to the values of liberty, equality and fraternity originated in 1789 for universal application and not as a discriminatory doctrine.
There is a clear nexus between the principle of laïcité and order public in the refusal by the French government to allow the freedom of expression in the observance of religious belief to Muslims in France. This applies to the proscription on the veil; the ban on the headscarf to be worn by Muslim pupils in schools; and the preclusion of the burkini by Muslim women on French beaches. The issue is if this form of discrimination can be deemed to be a breach of the European Convention on Human Rights (ECHR) and other international treaties to which France is signatory.
There is a commonly assumed distinction between toleration and constitutional religious freedom and the case law that invokes the breach of ordre public is a cause for reflection of variables of legal neutrality, and its relationship with individual religious freedom. the ordre public which is the control mechanism of the state over its citizens and prescribes the laws in accordance with the values of the state. The Islamic faith is based on a ‘revealed’ law and its interpretation is arrived at through the human conscience and reasoning and is adapted through this process of legislation to implement an order for society to work under an omnipotent God.