Why the French Don't Like the Burqa: Laïcité, National Identity and Religious Freedom
International Law and Comparative Law Quarterly ICLQ 61, 2012, 1-27
31 Pages Posted: 6 Jul 2015
Date Written: July 2, 2012
This article examines the controversies over and implications of the 2010 French ban on the covering of the face. It carries out an internal critique of the new law and, in a broader European context, questions its compatibility with the European Convention on Human Rights. It argues that the ban has strayed away from the confines of laïcité by encompassing activities and people who in no way emanate from the State. Far from being a flagship of a secularism ʻà la françaiseʼ or a French way of life, the ban - it is argued - goes against entrenched French legal traditions and unduly conflates the concept of national identity at the cost of individual liberties, thus forgetting the true goal of secularism: the conciliation of different beliefs and values. Assuming that the defence of secularism is nevertheless (for reasons we will explore) upheld by the European Court of Human Rights as a legitimate aim pursued by the law, the French ban it is argued is likely to fall foul of European requirements for lack of proportionality.
Keywords: laïcité, burqa, French ban, article 9 ECHR, proportionality
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