Through the lens of the French law prohibiting Muslim headscarves in schools, this article examines the way in which societal tensions that arise in the context of religious and cultural pluralism are translated into legal discourses relating to human rights and equality. It explores the way in which the law is rooted in France's broader sociopolitical structure and history and contrasts it to the United Kingdom and Turkey. It proposes that the law is based on an anachronistic, formal interpretation of equality that is inappropriate for addressing the inevitable cultural diversity of modern French society, and through its permeation into law and policymaking more widely, it is a primary cause of the heightened social tensions involving the Muslim minority. An assessment of the legitimacy of a law that restricts minority groups' cultural practices in this way in any society should be based on a substantive interpretation of equality and should necessarily involve an active endeavor to understand the meanings of those cultural practices for those groups within their distinct context. Upon this foundation, law and policy can be developed in a way that better reconciles the pluralism of modern society with the common objectives of social harmony, stability, and tolerance.
Article L. 141-51 of the French Education Code provides:
"In state primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited." (Legislation passed on March 15, 2004)
The headscarf is a visible marker of the identity of Islam. As such, it is frequently presented as a symbol of both the controversies currently surrounding the religion in domestic and international affairs, and of the wider tensions relating to the multicultural nature of modern European societies. To question the legitimacy of the law banning headscarves in French schools is to open Pandora's box, revealing jumbled interrelationships and tensions between notions of equality, human rights, and the social and political theories that surround and inform them. There is disagreement on the matter between cultural relativists and universalists, liberals and communitarians, those on the left and on the right, those with "Western" and "non-Western" perspectives, and proponents of different branches of feminism. Most would unite in desiring an end result that reflects and supports a harmonious society that values equality. Yet most differ in how they envision the nature of that equality in a multicultural context, and the most appropriate means to achieve it.
In this article I explore ways in which the headscarf issue is invoked to characterize differentiated visions of equality. I examine the formal interpretation of equality which underpins this law and which is characteristic of the French administration's approach to minority groups more generally, and map this onto France's distinct sociopolitical structure and history. I contrast the French approach with the approaches of the United Kingdom and Turkey. I propose that, in a modern world characterized by cultural diversity, the legitimacy of any law affecting cultural practices depends on its consistency with a substantive vision of equality. Assessing the legitimacy of such a law consequently requires an active endeavor to understand the meaning and importance of those cultural practices for those affected within their particular context, in order to understand whether or not it ultimately imposes unfair disadvantage. This endeavor is particularly important in situations where such a law appears to target a minority group that is already experiencing widespread discrimination. On this basis, I argue that the French law is actively hindering French society in its efforts to improve integration and equality.
The French Law: Context and Constitutional Roots
The French legislation effecting a ban on headscarves is unique within the EU and has provoked controversy both domestically and internationally. …