The Ambiguous Reach of Constitutional Secularism in Republican France: Revisiting the Idea of...

Oxford Journal of Legal Studies, Vol. 32, No. 3 (2012), pp. 583–608doi:10.1093/ojls/gqs011Published Advance Access June 20, 2012

The Ambiguous Reach of Constitutional

Secularism in Republican France:

Revisiting the Idea of Laıcite and Political

Liberalism as Alternatives

Eoin Daly*

Abstract—In the scholarship and discourse on French republicanism, it hasbecome something of a received wisdom that the distinct, yet amorphousconcept of laıcite in the French history of thought is set apart from the politicalliberalism of the Anglo-American world. While embracing the separation ofreligious and civil authority, laıcite is also associated with a highly abstractedand unitary ideal of citizenship, seeking to commit religious, cultural and ethnicdifferences to the ‘private sphere’, and a formal equality of rights that eschewsthe deterministic politics of ‘difference’. It is true that the origins of the ideallie partly in the perfectionist zeal of the late 19th century—when the neologism‘laıcite’ emerged—during which the anticlericalists of the Third Republicconceived constitutional secularism as a tool with which to emancipate thecitizenry from servile, irrational belief-systems. Audard claims that even today,the ‘positivist epistemic’ basis of laıcite renders it unsuitable as a basis forpublic justification within the ‘political’ strictures of Rawlsian liberalism. I arguethat this overlooks the very mixed ideological pedigree of laıcite in the Frenchhistory of thought—its committal of religious identities to the ‘private sphere’being compatible with the Rawlsian recognition of ‘reasonable pluralism’.Moreover, this juxtaposition also overlooks certain underexplored, Rawlsianresonances in the French republican history of thought.

Keywords: France, secularism, Rawls, republicanism

1. Introduction: Laıcite in French Republican Thought

Laıcite, or constitutional secularism, is the cornerstone of the State–religion

relationship in modern France, in both law and political discourse.

* Lecturer, School of Law and Government, Dublin City University. Email: [email protected]. French–Englishtranslations are the author’s, unless otherwise stated.

� The Author 2012. Published by Oxford University Press. All rights reserved. For permissions,please e-mail: [email protected]

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The term—which emerged as a late 19th century neologism1—refers to the

dissociation of public authority from any religious basis or legitimation, or

simply, state neutrality towards religion.2 It signifies ‘a system where religions

continue to exist but within a social and political order which they no longer

determine’.3 Its clearest legal expression is the 1905 Law of Separation of

Churches and State, which stipulates: ‘the Republic guarantees liberty of

conscience within the sole limits of public order . . . [it] neither recognises, nor

remunerates, nor subsidises any religion.’4 The much-celebrated law effectively

privatized denominations that had been publicly funded and recognized.5 The

concept now also enjoys an explicit constitutional footing.6 It is broadly

assumed that laıcite represents a distinct tradition, both as an institutional

model of constitutional secularism, but also in view of the peculiar, republican

concept of citizenship that underlies it. This perception of its singularity has

focused on the degree to which it excludes religion from politics and the

‘public’, but also, in how it forecloses any state recognition or positive

accommodation of religious identity. It is associated with a unitary civic

identity under which citizens’ rights and duties are defined in abstraction from

their religious affiliations. Indeed, the prevailing republican philosophy

precludes any legal or official recognition of intra-state group identities, any

differentiation on the basis of origin or private identity, ethnic or religious;7 it

espouses a formalist, individualist equality, based on the abstraction from

non-institutional identity to unitary civic status. In the revolutionary period,

Jewish emancipation entailed abolition of Judaism as a juridical category, and

the formal equality of Jewish citizens entailed the abstraction from their Jewish

identity to a common civic status. Clermont-Tonnerre warned the National

Assembly: ‘we must accord the Jews nothing as a nation, but everything as

individuals.’ Rousseau influenced this universalism in insisting: ‘the sovereign

recognises only the whole body of the nation and makes no distinction between

any of the members who compose it’.8

Thus, laıcite guarantees the religious neutrality of the State in the expansive

sense of precluding official recognition of particular identities and their

requirements. As Laborde points out,9 laıcite is thus positioned close to Brian

1 Jean Bauberot, Laıcite 1905–2005: entre passion et raison (Seuil 2009) 13.2 Guy Coq, La Laıcite, Principe Universel (Le Felin 2005).3 Comments by Marcel Gauchet noted in Jacques Myard (ed), La laıcite au cœur de la Republique,

(L’Harmattan 2003) 78.4 Loi du 9 decembre 1905 concernant la separation des Eglises et de l’Etat, art 2.5 See generally Daniel Moulinet, Genese de la laıcite (Cerf 2005).6 art 1 of the current (1958) Constitution simply states: ‘France is a secular (laıque), democratic and social

Republic.’7 See generally Olivia Bui-Xuan, Le Droit Public Francais entre Universalisme et Differencialisme (Economica

2004).8 Jean-Jacques Rousseau, Du Contrat Social (first published 1762, ENAG 1988) 76.9 Cecile Laborde, ‘Secular Philosophy and Muslim Headscarves in Schools’ (2005) 13 J Pol Phil 305, 309.

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Barry’s egalitarian critique of multiculturalism,10 being hostile to the

communautariste politics of recognition perceived as being more redolent of

the Anglo-American world, in eschewing any recognition of intra-state identity

as a basis for defining rights. Thus, it is posited as a republican alternative to

communitarian and normative–multiculturalist models. Rights and civic status

may never, in theory, be differentiated on religious grounds as such; rather,

equal citizenship means access to a common civic status defined independently

of identities of origin and belief. This is linked to the constitutional principle of

the ‘indivisibility’ of the people.11

The prevailing narrative surrounding laıcite juxtaposes it against what is

assumed to be the less zealous, less interventionist political liberalism more

characteristic of Anglo-American thought. The latter is depicted in French

discourse as being more uncritically accommodating of cultural difference, and

worse, prepared to translate the embodied, ‘private’ differences between groups

into differentiated juristic statuses for their members.12 The assumed contrast

between French-republican secularism and Anglo-American liberalism has

therefore centred both on laıcite’s perceived preclusion of any legal classifica-

tions or criteria constructed directly on religious grounds, and its attendant

presumption that equal citizenship in the secular republic precludes the

exemption of religiously-motivated activities from secular, generally applicable

laws. Indeed, the Conseil Constitutionnel interpreted laıcite as precluding ‘the use

of religious beliefs as a basis with which to gain exemption from the rules

governing the relationship between private individuals and public

authorities’13—thus apparently confirming its association with a peculiarly

strict view of formal equality.

Given the emancipatory rhetoric surrounding the 2004 and 2010 laws

directed at the hijab and burqa, the specificity of laıcite, in relation to political

liberalism, is also located in its rejection of any formalist voluntarism, or thin

concept of freedom as non-interference, in matters of religious freedom. Laıcite

is constructed as being more attuned to the problem of domination, to the

power disparities that, in private and intimate contexts, may intimidate the

effective exercise of religious choice: it is typically thought of as being attentive

to power relations as well as ostensible or formal consent in religion. This

reflects the neo-republican conception of freedom as non-domination and its

10 See Brian Barry, Culture and Equality: an Egalitarian Critique of Multiculturalism (Harvard University Press2001).

11 Claude Nicolet, Histoire, Nation, Republique (Odile Jacob 2000) 14, 58. See also Etienne Balibar, ‘Faut-ilqu’une laıcite soit ouverte ou fermee?’ (1991) 27 Mots: Les langages du politique 73, 74.

12 Liberalism in the Anglophone world is also sometimes typecast as being centred on group differences. Forexample, see Denis Meuret, ‘Interet, justice, laıcite’ in Alain Vergnioux (ed), Justice et Laıcite (PressesUniversitaires de Caen 1998) 67. For a different view, see Jean Bauberot, L’integrisme republicain contre la laıcite(Editions de l’Aube 2006).

13 Conseil Constitutionnel, N 2004-505DC, 10 septembre 2008, para 18.

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critique of liberal freedom, echoing the tradition of what Skinner coined as

‘liberty before liberalism’.14 Neo-republicans emphasize the salience of dom-

ination in private relationships characterized by unequal bargaining power but

clothed with consent; similarly, recent discourses of French republicanism

reject liberal neutrality as insufficient to women’s effective exercise of religious

choice.15 Thus, laıcite, constructed as going beyond mere denominational

neutrality, commits the State to protecting against the domination of religious

choice, in private spheres, not just its coercion—giving religious freedom

sufficiently robust social protection to withstand intimidation within private

and familial spheres.16 It has been re-packaged by the light of a more socially

interventionist republican conception than that animating the 1905 law, which

privatized religion at an institutional level. This republican construction of

equal religious liberty appears to have a stronger social dimension than political

liberalism, seeking positively to endow citizens with resources necessary to the

autonomous exercise of formal religious freedom rights. In the context of

veiling debates, secularism as mere denominational neutrality was dismissed as

a minimal conservative liberalism, ill-equipped to secure equal religious liberty

in the private sphere.17 Thus, as Kahn notes, laıcite has been re-packaged in

recent decades as not simply a constitutional framework for the State–religion

relationship, but as a vehicle for projecting civic–republican values more

broadly across society.18 This has entailed a commitment to exclude strong

sectarian divisions from the public sphere and public education; Laborde notes

‘the central importance of education to laıcite. If the republic was to create

‘‘citizens’’. . . it had to engage in a strong formative project . . . a robust public

identity capable of transcending more particular loyalties.’19

This perceived singularity of laıcite partly lies in a Rousseauist heritage within

French thought, which conceives of republican freedom as depending on the

capacity of the law and state to embody the ‘general will’ as the institutional

expression of popular sovereignty and the common good.20 This entails an

accompanying hostility to factionalism, intermediary bodies and differentiated

civic statuses, which might divide the citizenry in ranks, destroy the unity and

singularity of the sovereign people, and thus disable the robust deliberative

processes necessary to embody the common good in legislation and political

14 Quentin Skinner, Liberty before Liberalism (CUP 1998).15 On this argument, see Patrick Weil, ‘Why the French Laıcite is Liberal’ (2009) 30 Cardozo L Rev 2705,

2713; Stephen Gey, ‘Free Will, Religious Liberty, and a Partial Defense of the French Approach to ReligiousExpression in Public Schools’ (2005) 42 Houston L Rev 1.

16 For such arguments, see Elysee Palace, Commission de reflexion sur l’application du principe de laıcite dans laRepublique (Palais de l’Elysee 2003) 46 (Stasi Commission report).

17 ibid.18 Pierre Kahn, ‘La laıcite est-elle une valeur?’ (2007) 39 SPIRALE - Revue de Recherches en Education 29.19 Laborde (n 9) 316.20 Rousseau (n 8).


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action. This found expression, to some degree, in the 1905 law, in its

administrative and juridical committal of religion—and its free exercise—to the

private sphere. However, laıcite has increasingly been perceived as excluding

visible religious identities from the broader public square, not solely from the

‘public’ sphere of state power—its object spilling over, increasingly, from the

institutional to the social. This is evident in the legislative prohibition on

‘conspicuous’ religious dress in public schools, in 2004, and on public

face-veiling in 2010.21 Laıcite has been re-formulated as embracing a regulative

role for private religious expression, as an imperative of national and social

cohesion, and thus as requiring public discretion in religious practice. It is

increasingly seen as requiring a deeper privatization of religion, on the

sociological and personal, as well as institutional planes.

On one reading, then, laıcite has reverted, in Rawlsian terms, to being a

‘comprehensive’ secular doctrine with a ‘regulatory role for all of life’—

reaching beyond the institutional scope of the 1905 law. It ostensibly revives

the zealous emancipatory spirit of the anti-clericalism that pervaded late 19th

century French republicanism, which sought to loosen religions’ hold on

society and individual lives as well as on institutions.22 On this expansionary

view, laıcite eschews liberal neutrality between ‘comprehensive’ worldviews,

seeking to emancipate citizens from belief systems perceived as servile,

absolutist or irrational, promoting Enlightenment ideals of human flourishing.

In contemporary scholarship, laıcite is typically represented as a perfectionist,

republican alternative to Rawlsian political liberalism. Rawls’s controversial

claim was to formulate principles of justice through the deliberative device of

the social contract, independently of any comprehensive liberal doctrine.23 But

laıcite, it is argued, addresses itself directly to the good, as a distinctly

emancipatory project.

Laıcite has recently been invoked to justify the prohibition on public

face-veiling and to criticize Muslim street prayers and Minarets.24 It is deployed

in a regulative, often disciplinary role for private religious conduct and

relationships. Sarkozy incongruously depicted laıcite as a tool for assimilating

minorities within a nation, which he described as having ‘Christian roots’.25

This arguably contradicted the historical conception of the nation-state in

French republican thought as independent of any assumed pre-political

commonality, religious or ethnic, of the citizens.26 This appropriation of the

21 The law prohibits ‘attire directed at covering the face in public places’. See loi no 2010-1192 du 11 octobre2010 interdisant la dissimulation du visage dans l’espace public.

22 See Sudhir Hazareesingh, Political Traditions in Modern France (OUP 1994) 90.23 John Rawls, A Theory of Justice (Harvard University Press 1999).24 Pierre Jaxel-Truer and Elise Vincent, ‘Voile integral, polygamie: comment un fait divers devient une

controverse politique’ Le Monde (Paris, 2 April 2010).25 Rawls, A Theory of Justice (n 23).26 See Ernest Renan, ‘Qu’est-ce qu’une nation’ (1882) in Philippe Forest, Qu’est-ce qu’une nation: Litterature et

identite nationale de 1871 a 1914 (Pierre Bordas 1991) 12–48.


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concept by nationalist politics, an assault on its republican ethos, was ironic

given the frequent invocation of laıcite as a riposte to a vague threat of

communautarisme, as a malign, destabilizing form of identity politics. These

diverse uses beg the question: what, if anything, is the theoretical distinctiveness

of laıcite as a model of constitutional secularism?

2. Laıcite integrale—Constitutional Secularismas a ‘comprehensive doctrine’

Laıcite is typically depicted as theoretically distinct from political liberalism,

first, in its supposedly deeper commitment to the privatization of religion,

sociologically as well as institutionally. Laborde, for example, argues that laıcite

represents an ‘independent secular ethics’.27 She claims that in comparison to

political liberalism, it embraces a more interventionist role in constructing the

‘public self ’, and correspondingly, in taming the relative intensity of religious

identity:

republican laıcite endorses a more expansive conception of the public sphere than

political liberalism, as well as a thicker construal of ‘public selves’ [as citizens] . . . cru-

cially, pupils, as potential citizens, are required to exercise restraint in the expression

of their religious beliefs.28

The Third Republic, during which laıcite was forged, is often associated with

a perfectionist republican ethics, a conception of the good life as autonomous,

rational and secular.29 Similarly, Scott argues that the 2004 anti-headscarf law

is underpinned by the aim of ‘suppressing or privatizing religion because it is

taken to represent the irrationality of tradition’.30 From a politically liberal

perspective, Audard argues that laıcite has a ‘positivist epistemic’ foundation

that renders it unsuitable as a basis for public justification within the terms of

Rawlsian political liberalism.31 Insofar as political liberalism entails above all

‘the refusal to impose a common doctrine [of the good]’, laıcite is depicted as

failing this test, by addressing itself to comprehensive questions of truth and

value in a way that fails to accommodate ‘reasonable pluralism’.32 Whereas

political liberalism recognizes the ‘burdens of judgment’ incumbent upon

reasonable citizens in their determination and pursuit of the good – and

thereby excludes State power from any competence to address such questions –

laıcite is perceived as optimistically predicating political authority on the values

of rationality, progress, Enlightenment and science. Laıcite’s embrace of an

27 Laborde (n 9).28 ibid 307.29 Hazareesingh (n 22) 90.30 Joan Wallach Scott, The Politics of the Veil (Princeton University Press 2007) 93.31 Catherine Audard, ‘Rawls et les alternatives liberales a la laıcite’ (2009) 34 Raisons Politiques 101, 104.32 ibid.


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independent secular ethic is therefore thought to render it incompatible with

political liberalism’s conception of equal liberty of conscience, and Rawls’s

liberal principle of legitimacy. For Rawls, principles of justice are decided upon

from the ‘original position’, which places ‘modelled constraints’ on the forms

of knowledge available to the deliberating parties; crucially, these constraints

deny the participants knowledge of their comprehensive doctrines; therefore,

the parties must choose principles which accommodate a broad, indeterminate

range of ‘reasonable’ conceptions of the good—not just secular-humanist

conceptions.33

Audard thus argues that laıcite is itself a comprehensive doctrine, because

given its commitment to a secular conception of the good, it spills beyond what

Rawls terms the ‘domain of the political’, a doctrine illicitly addressing itself to

our ‘final ends’. In addressing itself to supra-constitutional questions of the

good, in extending its regulatory scope beyond the institutional ‘basic structure’,

it is therefore disqualified as an inappropriate standard of public justification.34

Rawls’s political liberalism, in contrast, eschews any promotion of liberal virtues

of autonomy and individuality: ‘fair’ terms of social co-operation are those

capable of being endorsed by persons holding incommensurable, but ‘reason-

able’ worldviews35—reflecting the moral symmetry of the original position, in

which the relative power of each doctrine is set aside. Principles of justice

formulated behind the ‘veil of ignorance’ are addressed to the problem of social

co-operation, rather than to life and truth itself; they do not represent any

‘self-constituting’ order of values.36 Rawlsian justice is anti-perfectionist in that it

eschews any exclusive view of human flourishing, being predicated instead on

the ‘political’ conception of the person as free and equal, as possessing the two

‘moral powers’—the capacity to form and pursue a conception of the good, and

the ability to act from a sense of justice. Therefore, for Rawlsians, comprehen-

sive and perfectionist liberalisms are as inappropriate, to the role of public

justification, as are religious doctrines. This deflationary account of the

philosophical foundations of liberalism is best exemplified in Rawls’ assertion

that justice as fairness ‘is not an Enlightenment project’.37

Against political liberalism’s dualism of comprehensive and political doctrines,

Audard locates laıcite within an ‘arrogant monism’ of Enlightenment ideology.38

She argues that laıcite does not heed ‘reasonable pluralism’—the plurality of

incommensurable yet reasonable conceptions of the good that Rawls describes as

inherent to the very subject of justice.39 Audard argues that given laıcite’s

33 John Rawls, Political Liberalism (Harvard University Press 1999).34 ibid.35 John Rawls, ‘Justice as Fairness: Political not Metaphysical’ (1985) 14 P & PA 223.36 ibid.37 Rawls, Political Liberalism (n 33) 99.38 Audard (n 31).39 ibid.


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‘positivist epistemic’ basis and consequently, its supra-constitutional object, it

cannot be endorsed without reference to comprehensive worldviews, violating

the liberal principle of legitimacy.40

Indeed, a narrow definition of laıcite as state neutrality would overlook its

emancipatory and perfectionist influences in French republican thought. In

some historical guises, it extended beyond institutional projects of separation,

neutrality and disestablishment, tending towards the establishment of an

alternative humanist doctrine that would actively emancipate citizens from

servile belief-systems. It would not merely guarantee formal religious liberty

and equality, but rather, promote social progress and self-mastery by citizens.

Therefore, the anticlericals of the Third Republic aimed to privatize religion in

social as well as political spheres.41 Bauberot terms this perfectionist account

laıcite integrale, or ‘comprehensive secularism’. During the Third Republic,

laıcite received its formal expression not only in legislation secularizing France’s

education system, but also, in a series of anti-congregational laws which

prevented religious orders from teaching.42 Thus, Hazareesingh argues that the

Third Republic was ‘deeply imbued with this perfectionist spirit, which sought

to turn France away from the ignorance and servility of its past and promote a

conception of the good life based on the flowering of human reason’.43 The

optimistic, teleological commitment to science, progress and positivism

co-existed with a Rousseauist republicanism exalting abstraction from private

identities to a unitary civic status, an influence that equally militated against

any sectarian structuring or domination of the public square. Scott quotes the

Abbe Sieyes: ‘democracy is the complete sacrifice of the individual to the res

publica, that is to say of the concrete being to the abstract being’.44 This was

manifested, for example, in the campaign against regional languages over the

19th century.45 Thus, republicans advocated disestablishment to ‘end the

stranglehold of religion . . . which they regarded as a permanent obstacle

to . . . progress towards civilisation’.46

This emancipatory ethos sometimes emerges today, but directed at Islam

rather than Roman Catholicism. Despite the liberalization of laıcite reflected in

the 1905 law, its deployment against the burqa and niqab suggested a deeper

exclusion of religion from the ‘public’, from the public square—simply,

common space—as well as from institutional life. Thus, Kahn describes recent

interpretations of laıcite as invoking a peculiar ‘vision of intellectual emanci-

pation and social transformation’47—which renders laıcite ‘merely another

40 ibid 104.41 Weil (n 15).42 See Moulinet (n 5)43 Hazareesingh (n 22) 71.44 Scott (n 30) 13.45 Beatrice Durand, La Nouvelle Ideologie Francaise (Editions Stock 2010).46 Bauberot, L’integrisme republicain (n 12) 173.47 Kahn (n 18) 33.


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(secular) conception of the good life amongst others’.48 He points out the irony

of secularists invoking laıcite to condemn France’s supposed ‘communitarian

turn’,49 since this revived ‘comprehensive’ secularism appeals to a supra-

political conception of the good as a source of communal identity.50 Thus,

despite the evolution from an anticlericalist laıcite in the 19th century to a

politically liberal conception in the 20th century, the recent measures against

Muslim headdress have arguably disrupted this trajectory. Recent interpret-

ations echo Hazareesingh’s account of anti-clericalist republicanism:

the emphasis on the principle of intellectual autonomy was a distinctive feature of

republican ideology . . . [one could be] deemed a good republican, as long as one’s

religious and political beliefs were freely chosen. Alienation of thought to a foreign

institution, however, was always considered incompatible with the spirit of

republicanism.51

Similarly, Durand notes: ‘the wish to protect public space from any

expression of religious affiliation recalls more the conception of laıcite held

by [the anticlericalist] Combes than that contained in the law of 1905 drafted

by Briand and Jaures.’52 Its recent invocation against public manifestations of

faith raises the spectre of a laıcite recast as a unifying exhortation to social

cohesion, asserted against cultural practices perceived as threatening to

republican social order. This might warrant the secularization of citizens’

lives, not just their shared institutional identity. The anti-burqa proposal was

advanced during a broader debate on ‘national identity’ that focused partly on

immigrants’ duty to secularize their practices in order to effectively integrate.53

Accordingly, the discourses and laws recently formulated under the banner of

laıcite lend some credence to Audard’s depiction of the concept as incompatible

with political liberalism, in particular, supporting her depiction of it as

imposing a liberal conception of the good on illiberal religious minorities.54

3. Deflating Laıcite’s Emancipatory Ambition post-1905

Yet there are several problems in the characterization of laıcite and political

liberalism as alternatives. First, implicit in the prevailing conception of laıcite as

ideologically distinct is a wholly unwarranted assumption of it as singular, whereas

in fact, it embraces a multitude of diverse stances;55 it serves as a broad discursive

umbrella embracing contradictory liberal and perfectionist interpretations.56

48 ibid.49 In French, ‘communautarisme’ is often used in the sense of segregation, balkanization.50 Kahn (n 18) 33.51 Hazareesingh (n 22) 77.52 Durand (n 45) 35.53 See ‘L’identite nationale, theme recurrent de Nicolas Sarkozy’ Le Monde (Paris, 26 October 2009)54 Audard (n 31) 104.55 For commentary see Bauberot, L’integrisme republicain (n 12) 33; Durand (n 45) 10–11, 15, 17.56 Audard (n 31); Laborde (n 9).


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Of course, laıcite is constituted not only theoretically, but also by the ebb and flow

of ordinary politics, in which it has become a catch-all incantation. It is invoked as

a leftwing rejoinder to neo-liberalism,57 within what Bauberot depicts as an

‘Asterix complex’ of French exceptionalism and resistance.58 Yet recently, it is

deployed by the Right as an exclusionary criterion of cultural belonging, a

disciplinary tool of social cohesion, directed at culturally threateningly, ‘ostenta-

tious’ religious practices.59 Even the National Front has jettisoned the historical

animosity of the Far Right to republican laıcite, invoking the concept to criticize

Muslim practices such as street prayers:60 since it is interpreted as precluding the

ostentatious display of religious difference in public, laıcite offers a useful weapon

against unwelcome cultural diversity. Such interpretations contradict French

republicanism’s historical conception of nationalism as being predicated on

political values alone, rather than any organic conception based on cultural or

ethnic criteria.61 Yet this recent nationalist narrative of laıcite effectively constructs

‘national identity’ as a story about shared origins, rather than shared political

values—reflecting what Bauberot coins as a ‘Catho-laıque’ false universalism.62

This goes in tandem with a broader contemporary confusion as to whether laıcite

merely mandates the religious neutrality of the institutional sphere of the State, or

the broader exclusion of strong religious references in society. Recent debates on

Islamic dress assumed the need to suppress ‘ostentatious’ manifestations of

religious affiliation, in order to maintain a public square free of strong sectarian

markers.63 This is evident in the increasing invocation of laıcite against Muslim

practices—such as Minaret-construction and street prayers64—which although

visible and publicly conspicuous, in no sense jeopardize the institutional separation

of state and religion. Responding to the Swiss prohibition on Minarets, President

Sarkozy suggested that laıcite required French Muslims to refrain from ‘provocative’

or ‘ostentatious’displays of religious affiliation in public space.65 Yet in its historical

conception as a project of institutional separation, laıcite would appear to require

State indifference to the religious character or motivation of private actions,

accommodating religious freedom within the framework of generally applicable

laws.66 Yet it was solely the conspicuously ‘religious’ character of the Minarets

57 Henri Pena-Ruiz, Dieu et Marianne: Philosophie de la Laıcite (PUF 1999) 5–6.58 Bauberot, L’integrisme republicain (n 12) 35.59 Marine Le Pen, National Front leader, invoked laıcite in describing Muslim street prayers as an

‘Occupation’. See Dominique Sopo, ‘Le racisme de l’extreme droite revele son manque de modernite’ Le Monde(Paris, 14 January 2010); Caroline Fourest, ‘Desamorcer le FN’ Le Monde (Paris, 17 January 2010).

60 Sopo, ibid.61 Durand (n 45).62 Bauberot, L’integrisme republicain (n 12).63 Durand (n 45).64 Sopo (n 59).65 N Sarkozy, ‘Respecter ceux qui arrivent, respecter ceux qui accuiellent’ Le Monde (Paris, 9 December

2009).66 Durand (n 45) 20.


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which was interpreted as transgressing laıcite, rather than any claim to exemption or

special treatment, never mind ‘establishment’. Accordingly, Durand documents an

increasingly prevalent perception that laıcite requires religious expression to be

confined to the ‘private’, yet based on a confused and disorderly conception of the

public–private divide.67 Laıcite as such, in any case, offers no distinctive model as to

the parameters of the secular ‘public’.68

Yet at any rate it is clear that laıcite is increasingly seen as requiring citizens

to adopt discrete, ‘private’ forms of religious practice, and as eschewing

‘ostentatious’ religious identities, no matter how juridically ‘private’. What

explains this expansion in the boundaries of the secular ‘public’, and

the corresponding shrinking of the social space afforded to religion? The

‘comprehensive’ dimensions of this expansionary laıcite may lie partly in the

underlying apprehension of the capacity of radical religious practices, such as

face-veiling, to stifle human flourishing or autonomy. Alternatively, these may

be seen as jeopardizing the republican geometry of the social order, as

undermining the conditions of stability and of social cohesion necessary to

enable a robust republican politics to flourish. Accordingly, the impulse

towards discretion in religious expression is borne of a fear that a public sphere

overwhelmed by sectarian references could no longer provide an appropriate

terrain for deliberation on the common good—again echoing, distantly,

Rousseau’s concern for deep social cohesion as the cement of republican

politics.69 Secularists, therefore, might oppose public veil-wearing both

instrumentally, fearing the effect of sectarian divisions on republican politics

and society, or more directly, out of concern for the obstacles it presents to

human flourishing. An example of the former was provided in the testimony of

the prominent feminist, Elisabeth Badinter, to the parliamentary commission

on veiling. She argued that hiding one’s face from fellow citizens contravened

the devoir de fraternite (‘obligation of fraternity’).70 Obviously, this inflationary

laıcite imposes deeper control on private and intimate choices; in a broader

light, the anti-burqa polemic illuminated an ambiguity as to the very object, the

regulative reach of laıcite. Whereas the anti-burqa polemic assumed that

‘ostentatious’ private religious practices contravened laıcite where practised in

the public square, the advisory report of the Conseil d’Etat on the then-putative

face-veiling ban noted that laıcite simply applied to the relationship between

religion and public authorities, and could not be invoked against voluntary,

private religious practices.71 This suggested a more politically liberal

67 ibid 32.68 ibid 39.69 See generally Seyla Benhabib, ‘Review of Joan Wallach Scott’s Parite: Sexual Equality and the Crisis of French

Universalism’ (2008) 23 Hypatia 220, 222.70 See Assemblee Nationale, Rapport d’information au nom de la mission d’information sur la pratique du port du

voile integral sur le territoire national (National Assembly 2010) 335 (Gerin report).71 Conseil d’Etat, Etude relative aux possibilites juridiques d’interdiction du port du voile integral (Conseil d’Etat

2010).


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interpretation of the concept. Yet in a recent ruling, Mme M,72 the Conseil

upheld an administrative denial of naturalization to a Moroccan woman—a

niqab-wearer—on grounds of ‘failure of assimilation’. It found she had ‘adopted

a radical practice of her religion, incompatible with the essential values of

French society’—confusingly hinting that constitutional secularism in France

did, after all, extend to ‘private’ religious practices.73 Sarkozy’s imploring of

‘discretion’ on the part of French Muslims further illustrated a creeping

expansion—perhaps opportunistic—in the very reach and subject of laıcite.74 As

Durand notes, these discourses signal the emergence of a general obligation of

religious discretion, borne, she argues, of a ‘bourgeois habitus’ in matters

touching on religion.75

On this narration, again, the laıcite fashioned in the era of veiling bans

transgresses political liberalism’s principle of legitimacy, in that it fails to

accommodate the flourishing and free exercise of a range of reasonable

conceptions of the good. Moreover, it illuminates laıcite’s location within an

older antagonism of liberal and emancipatory secularisms. Bauberot describes a

debate in the Chamber of Deputies in 1905 that echoes contemporary interpret-

ations of laıcite. An (ultimately unsuccessful) amendment to the 1905 law

proposed to ban the wearing of priests’ vestments in public space, outside of

churches. Echoing contemporary anti-burqa arguments, the priest’s habit was said

to symbolize submission to servile belief systems, to un-republican ways of life;

priestly vestments were not freely chosen, but imposed by bishops,76 who wished

to impose ‘an impermeable barrier with secular society’.77 Being a ‘dress’, the garb

was cast as an affront to masculine dignity, and it was not a religious obligation, but

rather a clericalist, fundamentalist pretension. Since the vestment betrayed an

ultramontanist outlook, it was a fanatical foreign practice—Roman rather than

French—an act of ‘proselytism’ and of provocation against the Republic.78 It

deprived the priest of his ‘dignity’. However, Aristide Briand, anticipating laıcite’s

liberal evolution, protested that ‘in a regime of separation’, the State could assume

‘no role in interpreting the meaning of ecclesiastical clothing’.79

These early debates germinated the idea of laıcite as warranting the religious

neutrality of public space—a conception which re-emerged in the late 1980s with

the first hijab controversy in French schools. Durand argues that today, laıcite is

increasingly interpreted much by the same light as those who wished to prohibit

72 Conseil d’Etat, no 286798, 27 juin 2008.73 See Anastasia Vakulenko, ‘Gender Equality as an Essential French Value: the Case of Mme M’ (2009) 9

HRLR 143, 144.74 For more on Sarkozy’s argument for an ‘open’ laıcite see Jean Bauberot, La Laıcite expliquee a M. Sarkozy

(Albin Michel 2008).75 Durand (n 45) 33, 39.76 Bauberot, L’integrisme republicain (n 12) 181–82.77 Ibid.78 ibid.79 ibid.


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the very ‘public’, Catholic displays of religious faith, such as devotional

processions, during the Third Republic—but whose views did not ultimately

prevail in the 1905 law.80 The laıcite embodied post-1905 generally discarded the

anticlericalist ambition of displacing the social, as well as institutional influence of

religion using constitutional and administrative machinery.81 Yet the 2004

prohibition on ‘conspicuous’82 religious attire in public schools arguably revived

the older fear that a mere institutional secularization would be insufficient to secure

the social cohesion and solidarities necessary for a republican politics and social

life to thrive. This revived apprehension of deep religious identities partly

underlies the motivation to project constitutional secularism into juridically

private contexts. In turn, this underlies the tension between the contemporary

perception of laıcite as imposing religious ‘discretion’ in public, and the

observation of the Conseil d’Etat—echoing the politically liberal view—that

laıcite applies to the State alone, not ‘directly to society or to individuals’.83

The confusion in the parameters of laıcite in contemporary France is partly

attributable to this historical and ideological oscillation between different

secularisms.84 It is simultaneously invoked as perfectionist and politically

liberal—always ‘republican’—a totem-pole of national discourse, sufficiently

vague to embrace different strands of politics, and to be deployed for extraordin-

arily diverse arguments. This undermines any claim as to its theoretically

distinctive nature. ‘Laıcite’, indeed, is hardly more singular than ‘liberalism’.

Laıcite’s conceptual elusiveness is echoed in its inconsistent application. The

republican-universalism underlying it theoretically is juxtaposed by its uneven

application as dictated both geographically and by simple expediency. The

1905 law is not applied in the eastern departements of Alsace-Moselle, where

the pre-1905 Concordat arrangement applies, with the State still remunerating

certain clergy.85 Separation never applied to many overseas territories, such as

Mayotte and French Guyane.86

The 1905 law of separation, as a settlement to the Church–State question

that inflamed the late 19th century France, represented a triumph of the

politically liberal conception, ending the anti-congregationalist excesses of the

Third Republic,87. Since it essentially privatized the established denominations,

Weil argues that the law represented a more liberal conception of laıcite in

relation to the preceding anti-congregational laws,88 given the receptiveness to

80 Durand (n 45) 36.81 Hazareesingh (n 22).82 Code de l’Education, art L 141-5-1.83 Conseil d’Etat (n 72).84 See Eoin Daly, ‘Religious Liberty and the Rawlsian Idea of Legitimacy: the French Laıcite Project between

Comprehensive and Political Liberalisms’ (2010) 5 Religion and Human Rights 11.85 Bauberot, Laıcite 1905–2005 (n 1).86 Bauberot, L’integrisme republicain (n 12) 64–65.87 See generally Weil (n 15); Bauberot, L’integrisme republicain (n 12).88 Weil (n 15) 2712.


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religious freedom of its main architects, Briand and Jaures.89 It represented the

end of any serious claim to forcefully to project republican values into the

internal lives of religions themselves, or to displace the social role of religion

with a secular perfectionist ethics.90 This ‘political’ laıcite would, in Kahn’s

terms, represent merely an institutional framework for equal liberty of

conscience—whereas its ‘comprehensive’ antecedent promoted free thought, and

a set of personal liberal virtues.91 In this deflated form, laıcite would, in

Rawlsian terms, enjoy no ‘regulative role for all of life’, addressing itself to a

much narrower social and political consensus. Thus, the 1905 law may be

interpreted as having disestablished libre-pensee along with religion itself.92 Of

course, this is perhaps as attributable to the ebb and flow of ordinary politics,

as to any normative, pluralist turn: Hazareesingh notes that ‘the perfectionist

strand in the republican tradition was always circumscribed by other

imperatives’.93

The triumph of the liberal account was neatly expressed in Jules Ferry’s

famous directive to public school teachers: ‘you are in no way the apostles of a

new religion of secularism’.94 Indeed, amidst recent veiling controversies, it has

been forgotten that historically, laıcite provided a robust institutional bulwark of

religious liberty in a majority-Catholic country, particularly in schools.

Provisions of the Education Code originating in the Ferry laws of the 1880s

guarantee free and secular primary education.95 The Conseil d’Etat held that

laıcite requires ‘instruction to be dispensed with respect for the freedom of

conscience of students’.96 Laıcite precludes the inculcation of any comprehen-

sive secular ideology, say, atheism or anticlericalism, within public schools.97

4. Unearthing a Rawlsian Reading of Laıcite

I have suggested that the startlingly disparate interpretations of laıcite may be

located within a broader theoretical dichotomy, roughly echoing the Rawlsian

distinction between ‘political’ and ‘comprehensive’ liberalisms.98 I argue that

although laıcite has, certainly, been constructed in the French history of

thought with reference to perfectionist doctrines, its institutional and juridical

expression is capable of being located and justified within the landscape of

Rawls’ political liberalism. Audard’s construction of laıcite and political

liberalism as antagonistic overlooks that a set of institutional arrangements

89 ibid 2703.90 Bauberot, L’integrisme republicain (n 12) 174.91 Kahn (n 18) 32.92 Bauberot, L’integrisme republicain (n 12) 173.93 Hazareesingh (n 22) 71.94 Letter of 17 November 1883. See Laborde (n 9) 324.95 Code de l’Education, art L 141-1.96 No 130394, 2 novembre 1992, p 4.97 The Code prescribes ‘respect’ of ‘all beliefs’. Code de l’Education, L 141-2.98 Rawls, ‘Justice as Fairness’ (n 35).


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historically sustained by perfectionist and comprehensive doctrines may

nonetheless be justifiable by the light of the liberal principle of legitimacy.

That laıcite and political liberalism have often been viewed as antagonistic

may be explained partly by the fact that Rawls has not, on the whole, been well

received in France, despite obvious echoes of his work in its republican

tradition. Audard observes:

his reference to the ‘social contract tradition’ should have been popular in the country

of Rousseau . . . his ‘political liberalism’ shares many dimensions of the French

republican tradition: neutrality of the state, separation of the public and the private

spheres, priority of the right over the good, the value of citizenship and public

reason.99

The depiction of laıcite as a ‘comprehensive’ liberalism, exalting autonomy

and Enlightenment, overlooks the politically liberal values of neutrality and

toleration that underlie its institutionalized expression, as described above. This

alternative historical account, routinely downplayed in scholarship, allows it to

be reconciled with Rawls’s insistence on state power being justifiable within the

‘domain of the political’. Insofar as laıcite is constructed as the set of

institutional arrangements necessary to secure equal liberty of conscience,

rather than an instrumental means of secularizing citizens’ worldviews, it may

be inscribed within this liberal principle of legitimacy. Its justification may be

rendered appropriately ‘public’ in the sense that may be embraced by those

holding incommensurable ‘comprehensive’ views. In prescribing the religious

neutrality of the State, it then approximates the Rawlsian idea of liberty of

conscience as encompassing the ‘social and institutional conditions’ necessary

to the realization of the two ‘moral powers’.100 Rawls argues that principles of

justice are modelled from the standpoint of what is owed to citizens conceived

as ‘free and equal’, abstracted from their comprehensive worldview, who are

presumed to possess, as the powers of ‘moral personality’, the capacity to have

and pursue a conception of the good, and the capacity to act from a shared

sense of justice.101 Through this lens, laıcite fits with Rawls’s description of an

appropriately ‘political’ conception of justice as one ‘that all citizens as

reasonable and rational can endorse from within their own comprehensive

doctrines’.102 In Rawls’ ‘original position’, principles of justice are selected

from behind a ‘veil of ignorance’ which impose ‘modelled constraints’ on the

knowledge available to the deliberating parties, in order that the principles

decided can be legitimated with reference to the fairness of the deliberative

procedure from which they emerge. The ‘veil of ignorance’ represents the

99 Catherine Audard, ‘Rawls in France’ (2002) 2 Eur J Pol Theory 215, 219.100 John Rawls, Justice as Fairness: a Restatement (Harvard University Press 2001) 18.101 ibid.102 ibid 55.


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deliberating parties as being motivated by their interest in securing and

realizing the capacity to have and revise a ‘conception of the good’, but it denies

them knowledge of their particular beliefs of conceptions. Therefore, they must

select principles whose institutional expression will allow for the ‘exercise and

development’ of an indeterminate range of possible comprehensive doctrines,

religious and secular. Insofar as laıcite is confined to providing the social and

institutional conditions necessary to the exercise of a broad, indeterminate

range of reasonable conceptions of the good—rather than tailoring institutional

arrangements to specific, recognized conceptions, singular or plural—it reflects

these ‘modelled constraints’, of fairness, of the original position. Thus, given its

protection of freedom of religion in the ‘private’ sphere and the requirement of

denominational neutrality imposed on the State, laıcite may be seen as redolent

with Rawls’s eschewal of any comprehensive doctrine as the justificatory basis

for State action.103

It is true that institutional separation or secularization might be justified or

motivated by the hope of it indirectly promoting perfectionist ethics or personal

liberal virtues in a society over the longer run. However, the various forms,

arrangements, rules and standards it has embraced are equally justifiable with

reference to the need to secure the social conditions necessary for the effective

realization and exercise of ‘moral personality’—an appropriately political and

publicly accessible rationale in that it sets aside the ‘comprehensive’ or ‘final’

ends for which these capacities and guarantees are harnessed. This order of

justifications sets aside reasonable conflict surrounding the good; in Rawlsian

terms, it recognizes the ‘burdens of judgment’ in acknowledging a necessary

dualism of public and ‘comprehensive’ philosophy. As argued above, in its

post-1905 incarnation, laıcite has no vocation to cultivate personal liberal

virtues of individuality and autonomy as such, so may be viewed as merely

securing, in Rawls’s terms, the institutional and social conditions necessary for

the ‘exercise and development of the two moral powers’.104 Through this lens,

it may be an appropriately public standard of justification inasmuch as it allows

for recognition of ‘reasonable pluralism’ as inherent to the subject of political

justification. While historically unsympathetic to the ‘particularist’ claims of

religious communities, laıcite does not set down or specify any singular

conception of the good with a ‘regulative role for all of life’.105 In Kahn’s

terms, liberal laıcite may be re-constructed as ‘a value of justice [rather than] a

conception of the good’.106 Insofar, therefore, as it may be framed in terms of

those terms of political legitimacy capable of endorsement by reasonable agents

103 Daly, ‘Religious Liberty and the Rawlsian Idea of Legitimacy’ (n 84).104 Rawls, Justice as Fairness (n 100) 19.105 Rawls, Political Liberalism (n 33) 99.106 Kahn (n 18) 30.


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from a standpoint of deliberative symmetry, laıcite echoes the Rawlsian

conception of democratic public authority as independent of any metaphysical

legitimation—the premise that ‘the public conception of justice should

be . . . independent of controversial philosophical and religious doctrines’.107

Indeed, Poulat describes laıcite as the ‘de-sacralisation’108 of the state’s claim to

authority. It assumes the religious neutrality of the State as a necessary

corollary of liberty of conscience, within a social contract that eschews the

imposition of any ‘organic’, official identity.109 This republican construction of

constitutional secularism thus echoes dual features of Rawls’s theory; firstly, his

construction of the status of citizenship in relation to the common public goal

of facilitating the realization of moral personality, securing citizens’ sovereignty

over their ‘final ends’; and secondly, the related assertion that a democratic

society cannot constitute a ‘community in the sense of a body of persons united

in sharing the same comprehensive doctrine’.110

It may also be recalled that laıcite is associated with an abstract republican

conception of citizenship, which eschews any division, or ranking of citizenship

on the grounds of what Rawls termed citizens’ ‘non-institutional’ identities.

Expressing the broader French-republican ethos, it is hostile to any recognition

of ‘communitarian’ intra-political identities. This constitutes a commonality

between laıcite and Rawlsian liberalism;111 their shared eschewal of compre-

hensive doctrines as the normative basis for social union lies in a recognition of

citizens as sovereign over their ends, rather than epistemically detached from

their ends, identities and worldviews—a distinction articulated by Rawls in his

reply to Sandel’s critique.112 The prevailing narrative of French republicanism

predicates equality, in citizenship, on its abstraction from any religious or other

‘comprehensive’ identity.113 It is defined civically and politically rather than

organically,114 echoing Rawls’ abstracted ‘political’ conception of the person;

indeed, laıcite is often defended as preventing religious precepts from being

imposed in the form of differentiated cultural or group rights.115 Conversely,

the free exercise of private, non-institutional identities must not hinge on any

specific, official recognition or accommodation; rather, the bundle of rights and

statuses embraced by citizenship must be fully adequate for the exercise of an

indeterminate range of possible conceptions of the good, transcending the

107 Rawls, ‘Justice as Fairness’ (n 35) 223.108 Emile Poulat, Liberte, Laıcite (Editions du Cerf 1987) 199.109 ibid 205.110 Rawls, Justice as Fairness (n 100) 3.111 Kahn (n 18).112 Michael Sandel, Liberalism and the Limits of Justice (CUP 1998); for Rawls’ reply, Rawls, Justice as Fairness

(n 100).113 See further Section 5.114 Nicolet (n 11); Bui-Xuan (n 7).115 Pena-Ruiz (n 57).


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vagaries and hazards of any recognition process. In this way, laıcite is conceived

as protecting a right of self-determination with respect to religion:116 it protects

citizens’ exercise of moral personality against any presumed non-public identity

upon which their public status might be defined,117 against any assumed,

imposed link to a particular organic community or supra-political identity.

Laıcite’s association with this universalist and abstracted definition of citizen-

ship is illustrated, as Bui-Xuan documents, in a strongly individualist and

formalist conception of equality.118

Thus, notwithstanding laıcite’s historical support from ‘comprehensive’,

perfectionist doctrines, it may be justified from within the ‘modelled constraints’

of the Rawlsian original position, in that the institutional arrangements it promotes

may form the object of an ‘overlapping consensus’ between those holding

incommensurable comprehensive worldviews. The primary weakness in the

analysis of laıcite as incompatible with political liberalism is to overemphasize the

significance of these contingent political and ideological sources that historically

sustained it. That laıcite may have been historically promoted by comprehensive

epistemic doctrines is no more remarkable than the fact that political liberalism

itself might be sustained through the support of comprehensive liberalisms. The

salient point is that laıcite need not rely on such doctrines for its public justification.

Audard’s thesis relies primarily on the observation that laıcite is supported by

‘epistemic’ doctrines and thus somehow spills over the boundaries of the political

and the publicly accessible. However, Rawls envisaged that political liberalism

itself, as a public standard of justification, would be supported and sustained by an

‘overlapping consensus’ between comprehensive doctrines, whereby citizens

motivated by different, reasonable comprehensive doctrines would find support

for a common, public standard of justification from within their own doctrines.119

Thus, political liberalism, like laıcite, could itself be sustained and promoted by the

epistemic reasons of comprehensive liberalisms, yet without relying on these as

such. That laıcite historically was propelled by ‘comprehensive’ Enlightenment

thought does not, therefore, render it incapable of justification from the ‘political’

standpoint. The thesis of laıcite and political liberalism as incompatible relies on

the attribution of an over-broad imperative of ‘neutrality’ to the latter. Political

liberalisms cannot be held responsible for any embarrassingly zealous ‘compre-

hensive’ buttresses they might find in society, as long as the separate public

philosophy and institutional arrangements that underlie them may be justified

independently of these. Certainly, some interpretations amount to the sort of

‘Enlightenment project’ that Rawls rejects as a standard of public justification.120

116 ibid.117 Rawls, Justice as Fairness (n 100) 21.118 Bui-Xuan (n 7).119 John Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7 OJLS 1.120 Rawls, Political Liberalism (n 33) 4.


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It is true that in its recent preoccupation with private religious expression, laıcite

has assumed a more interventionist, robust role in comparison to other

constitutional secularisms. However, to qualify as an appropriately ‘political’

public philosophy, laıcite’s institutional propositions and arrangements must

simply be capable of justification deliberatively, rather than comprehensively and

theoretically—from within the moral symmetry of the original position—

irrespective of whatever comprehensive doctrines constitute the ‘overlapping

consensus’ that supports the stability of constitutional democracy. Accordingly, the

politically liberal expression of laıcite in institutional life may be separated out from

its sometimes ‘comprehensive’ supports. Within political liberalism,

comprehensive doctrines are to provide the social basis for stability of the political

conception of justice; they constitute the social horizon within which the

normative project of justice must be concretely framed and sustained. Laıcite’s

perfectionist hues can be fit within this narrative of political liberalism; more

broadly, it is wrong to impute the social bases of support for a constitutional

doctrine to the essence of the doctrine itself.

An analogy may lie in constitutional secularism in the USA, with the support

it found in Protestantism along with Enlightenment thought.121 This contin-

gent historical source of support no more makes American constitutional

secularism ‘comprehensive’ than does the influence of perfectionism upon

laıcite. Thus, for example, Laborde’s claim that laıcite, as a public philosophy

and institutional arrangement, stands apart from political liberalism in

embodying an ‘independent secular ethics’ is undermined by the fact that its

institutional and legal expression in modern France has attracted impressive

support from organized religions.122 Far from substituting religious affiliation,

laıcite may be rendered a solely ‘political’ justification as the object of an

overlapping consensus between ‘reasonable’ comprehensive doctrines, inde-

pendent of but capable of being endorsed from within each.

5. Laıcite and Unitary Citizenship:Resonances in Rawlsian Liberalism

Audard’s and others’ depiction of laıcite as ‘comprehensive’ is also based, I argue,

on a misinterpretation of Rawls’s theory itself. The commonality of laıcite and

Rawlsian liberalism lies in their claim to define citizenship as independent or prior

to any organic identity, or ‘final ends’—yet without promoting any deeper,

‘comprehensive’ conception of the self as detached or independent, epistemically or

socially, from her religious ends and identities. If this distinction can be sustained,

121 John Witte, Religion and the American Constitutional Experiment (Westview 2000) 25.122 Dounia Bouzar, ‘Ce que veulent les musulmans? La loi de 1905, c’est tout’ Le Monde (1 April 2011).


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both may accommodate so-called ‘constitutive’ religious (or other) comprehensive

identities that reject the comprehensive-liberal conception of the self as, in

Walzer’s description, ‘constituted only by his wilfulness, liberated from all

connection [or] common values’.123 Then, both laıcite and political liberalism

might offer an appropriate standard of public justification whose political

legitimacy is predicted on the limited, political, object they address, in the ‘setting

aside’ of matters such as the ontology of the self.

Under both laıcite and political liberalism, the bundle of rights, claims and

statuses embraced by citizenship are defined independently of the requirements

of any particular religious or comprehensive doctrines; although exercised for

incommensurable ends, the rights themselves are the same for those of

different affiliations, and claims on those rights must be articulated independ-

ently of the ends for which they are exercised.124 In this way, religious

doctrines are never themselves determinative of the content of liberty of

conscience. Rawls’s definition of the primary goods clarifies this: these are

owed independently of the requirements of citizens’ comprehensive doctrines;

being formulated instead from a shared political conception of the person as

free and equal, the basic liberties constituting the means for the exercise of

moral personality for indeterminate reasonable ends. This ‘detachment of

reasons of justice from reasons of preference’125 means the primary goods are

defined from the standpoint of what citizens require in order to exercise the

moral powers ‘over a complete life’—for these indeterminate ends—rather than

what is required by any comprehensive doctrine they hold. In contrast to

utilitarianism, citizens’ specific preferences or desires or beliefs are accorded no

intrinsic, initial value in the formulation of principles of right.126 Rights claims

must be formulated from a common, publicly accessible standard independent

of the ends for which they are exercised; propositions of religious freedom must

be made out without reference to religious doctrines as such, appealing only to

moral personality as a status of sovereignty over ‘final ends’. While Sandel and

others argue that this abstracted account of citizenship relies on a conception of

the self as constituted prior to its ends, it may be viewed instead as arising from

the deliberative constraints of the original position as a ‘device of represen-

tation’. Given the moral psychology attributed to the participants—since they

must deliberate without knowledge of any of their worldviews—the principles

of justice they select must ensure a civic status guaranteeing free exercise of

their reasonable conceptions of the good, which in turn cannot be allowed to

depend on the official recognition of comprehensive identities, with the

political hazards this entails. The abstracted conception of citizenship is less a

123 Michael Walzer, The Communitarian Critique of Liberalism’ in Thinking Politically (Yale University Press2007) 98.

124 Rawls, Political Liberalism (n 33).125 John Rawls, ‘Social Unity and Primary Goods’ in Amartya Sen and Bernard Williams (eds), Utilitarianism

and Beyond (CUP 1982) 171.126 ibid.


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high ontological claim about the self than a function of the eminently political

concern for fairness imposed via the ‘veil of ignorance’.

Rawls recognizes that the necessity of locating a common, non-comprehensive

basis for defining basic liberties derives from the exclusive claim of citizens,

themselves, as against the State, to define their ‘non-institutional’ selves. This is

the key similarity to laıcite: citizens, in the Rawlsian republic, will articulate their

right claims on shared terms that appeal to the common faculty of moral

personality, on terms others can recognize and endorse. Audard overlooks this in

setting political liberalism against laıcite’s ‘indifference’ to the specificities of

religion itself.127 Political liberalism, too, accords no intrinsic juridical or

normative status to the specificities of faith. Citizens enjoy equal religious liberty

under laıcite not because the specific content of their religious doctrines is

recognized and protected, but because their standing in the political community is

defined independently of these,128 the content of their basic liberties being worked

out in abstraction from the requirements of their comprehensive doctrines. This

evokes the Rawlsian claim that citizens’ status, under political liberalism, is not

‘different and unequal as settled by religion or culture’.129 Citizens claim ‘the right

to view their persons as independent from and not identified with any particular

conceptions of the good, or scheme of final ends’.130 Laıcite’s abstracted

‘indifference’ to religion resonates with Rawls’s insistence that ‘given their moral

power to form, to revise, and rationally to pursue a conception of the good,

[citizens’] public or legal identity as free persons is not affected by changes over

times in their determinate conception of the good’.131 Thus, both distinguish

between the diverse ends for which rights might be exercised, and the unitary and

undifferentiated nature of these rights themselves. Rawls’s conception of ‘citizens

tak[ing] responsibility for their own ends’132 represents a point of convergence

with the universalism of French republicanism, in its resistance to any legal

distinction between groups along the lines of identity or origin.133 While citizens

are guaranteed the free exercise of their private and ‘non-institutional’ identities,

Nicolet notes how the republican doxa precludes citizens’ public use of reasons and

claims based on identity or origin as such.134 What I hope to illustrate is how laıcite

and Rawlsian liberalism both view these elements as conceptually interdependent,

how the free exercise of moral personality is realisable only through the abstraction

of citizenship, with the exclusion of reasons and claims this inevitably entails.

127 Audard (n 31) 106.128 See generally Patchen Markell, Bound by Recognition (Princeton University Press 2003).129 Rawls, Political Liberalism (n 33) 110.130 Rawls, Justice as Fairness (n 100) 21.131 ibid.132 Rawls, Political Liberalism (n 33) 34.133 Bui-Xuan (n 7).134 Nicolet (n 11) 35, 42.


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I noted already that the supposed ‘comprehensive’ character of laıcite is also

attributed to its emancipatory ambition—specifically, its emphasis (officially) on

endowing citizens with the positive resources and capacities necessary to the

effective exercise of the formal right of religious freedom. However, that laıcite has

been re-conceived as a regulative of private relationships, to check domination of

religious choice, does not make it a ‘comprehensive’ doctrine in Rawlsian terms.

That effective guarantees for the free exercise of conceptions of the good might

require greater intervention in the ‘private’ sphere does not equate to a

perfectionist stance, to a proposition that the only legitimate religious choices

are those the State regards as freely chosen, unburdened by community and

tradition. Such intervention can, in principle, be justified in accordance with the

liberal conception of legitimacy: the desire for a more effective social guarantee of

religious freedom, within private, intimate spheres, need not be rooted in the

promotion or establishment of thick, ‘comprehensive’ liberal values, or any

conception of the self as ‘unbound by moral ties antecedent to choice’.135 In this

light, the juxtaposition of laıcite and political liberalism is also partly rooted in a

narrow, conservative interpretation of political liberalism itself.136 It is sometimes

assumed that Rawls’ ‘political not metaphysical’ stricture bars significant state

intervention in the ‘private sphere’, that the pursuit of transformative social

changes in familial and associational spheres promotes ‘comprehensive’ liberal

values. On this account, the confinement of Rawlsian justice to the ‘domain of the

political’ limits its capacity to remedy injustice and oppression within familial,

associational and religious contexts. Maynor argues that the goal of

non-domination commits the State to promoting, within private spheres, the

‘values and virtues’ necessary to prevent citizens from dominating others,137 and

to resist domination themselves, inevitably ‘affect[ing] the whole of an individual’s

life’138 and therefore amounting to a ‘comprehensive’, republican doctrine.

Thus, its exclusively ‘political’ object is sometimes assumed to represent a

conservative stricture on the reach of political liberalism as a social project,

denying it any transformative social role.139 This is in turn assumed to set the

Rawlsian social contract apart from republican thought, it being supposedly less

attentive to the spectre of domination within formally consensual private

relationships. However, this dislocates the frontiers of the ‘political’ and the

‘comprehensive’; it conceives political liberalism as circumscribing State power in

terms of the social spheres in which it is deployed—rather than the orders of value

135 Michael Sandel, Liberalism and the Limits of Justice (CUP 1998) 75.136 Eoin Daly, ‘Non-domination as a Primary Good: Re-thinking the Frontiers of the Political in Rawls’s

Political Liberalism’ (2011) 2 Jurisprudence 37.137 John Maynor, ‘Without Regret: the Comprehensive Nature of Non-domination’ (2002) 22 Politics 51.138 ibid 51.139 For example, see Jurgen Habermas, ‘Reconciliation through the Public Use of Reason: Remarks on John

Rawls’s Political Liberalism’ (1995) 92 J Pol Phil 109, 128–29.


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against which it is justified.140 Under a republican interpretation of Rawls, the

‘veil of ignorance’ imposes a justificatory circumscription on State power, not an

empirical and social cordon around the social context of its deployment, and

certainly not on the degree of its transformative effect on ‘private’ life.141

Comprehensive doctrines are eschewed given their ‘regulative role for all of life’,

but the ‘all’ refers to the ends of life, rather than ‘all’ social spaces in which the

regulatory force of a public philosophy might have a transformative effect.142 The

exclusively ‘political’ legitimation of the Rawlsian social contract is based on

citizens’ shared commitment to fostering the institutional and social conditions

that may enable the realization of moral personality. This, in turn, may necessitate

the goods and resources associated with the republican conception of non-

domination, so redolent of the contemporary conception of laıcite. Rawlsian

justice may require non-domination to enable citizens to resist arbitrary

interference in the exercise and development of their conceptions of the good.

Non-domination may figure among the ‘primary goods’ that enable persons to

claim sovereignty over their ends without amounting to a ‘comprehensive’

doctrine as such. Rawlsian liberty must provide social goods necessary to enable

the ‘formation, revision, and successful execution’ of ‘rational plans of life’.143

However, its anti-perfectionism has obscured the potentially expansive form of

these goods.

The perception that laıcite is committed to a comparatively, and excessively

interventionist role outside the ‘basic structure’ is confounded by Rawls’s

description of one of the lesser-emphasized roles of the politically liberal state.144

‘Reducing ideological consciousness’, he says, will require that ‘people know the

principles of political justice their basic institutions satisfy’.145 Citizens must

‘recognise each other as free and equal’.146 Thus, justice within the ‘domain of

the political’ does not preclude the projection of civic values in intimate social

spheres. This constitutes the overlooked Rousseauist hue of Rawlsian liberalism.

Rawls’ ‘basic liberties’ are not defined as liberties of non-interference, as the

residual ‘liberty of the heath’.147 They are politically constituted, because they

depend on the institutional framework which, in Rawls’ terms, not only allows for

the exercise, but also the ‘development’ of ‘moral personality’—that is, citizens’

capacity to pursue a conception of the good, but also to act from a sense of

justice, to reason from a shared public standard. This conception of freedom as

140 Daly, ‘Non-domination as a Primary Good’ (n 136).141 ibid.142 ibid.143 Rawls, Justice as Fairness (n 100) 58.144 On the republican dimensions of political liberalism, see Anthony Laden, ‘Republican Moments in

Political Liberalism’ (2006) 237 Revue Internationale de Philosophie 341.145 Rawls, Justice as Fairness (n 100) 121–22.146 ibid 56.147 This phrase is borrowed from Laden (n 144).


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institutionally constituted, encompassing an inherent social and institutional

dimension, gives Rawlsian liberty its republican colour. Rawls says the state must

educate citizens ‘to a conception of themselves as free and equal . . . a conception

which, if left to their own devices, they would most likely never form’.148 This

republican project will require the inculcation of virtues, beliefs and attitudes. It

illuminates Rawlsian liberty, again, as politically constituted, not as negative or

residual, in the Benthamite sense of existing only in the vacuum of external

interference in the exercise of will, in ‘the silence of the laws’.149 It is through a

conception of themselves as free and equal, made possible only by the existence of

a political community, that citizens may live as such.150 Rawls conceives no

pre-social ‘state of nature’ in which citizens are ideally free (of interference),151

and no pre-social freedom of non-interference which the liberal state preserves.

Rawlsian citizens are not merely afforded the security to exercise moral powers

that are formed pre-politically; freedom is only attainable within an institutional

framework for social co-operation, and is defined relative to it. This retains

certain elements of Rousseau’s description of the transition from ‘natural’ to

‘civil’ freedom;152 he asserts the rights created by the social contract are

‘conventional’ rather than ‘natural’,153 whereas Rawls’ social contract specifies

‘the conditions for [citizens’] legitimately exercising coercive political power over

one another’.154 In Rawls’ social contract, as in Rousseau’s, ‘natural’ freedom is

substituted by a politically constituted conception. Both reflect a conception of

freedom as self-government, consisting in citizens’ common subjection to rule in

accordance with terms they would impose on themselves from within the moral

symmetry of the social contract, whether Rousseau’s General Will, or Rawls’

original position. Rawls conceives the relationship of law and freedom from an

essentially Rousseauist angle: law is more or less compatible with freedom

depending on the extent to which it embodies principles which express the moral

symmetry of the social contract155—principles they would impose upon

themselves when deliberating within constraints that reflect their status as free

and equal. His modern echo of the ‘general will’ lies in the abstraction from the

particularist, contextualized self to the political citizen, and the definition of

freedom as being realized not in the vacuum of power, but rather through

common subjection to the institutionalized expression of this moral symmetry of

148 Rawls, Justice as Fairness (n 100) 56.149 Phillip Pettit, ‘The Tree of Liberty: Republicanism, American, French and Irish’ (2005) 1 Field Day

Review 29, 30.150 Rawls, Justice as Fairness (n 100) 57.151 See Laden (n 144) 347.152 Rousseau (n 8).153 ‘The right (of social order) does not come from nature, it is founded on conventions’, ibid 46.154 Rawls, Political Liberalism (n 33) 390.155 Rawls, Justice as Fairness (n 100) 41.


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social contract. De Francisco notes: ‘the situational symmetry guaranteed by the

veil of ignorance [makes] the original position a mechanism of self-representation

of a single will.’156

This undermines Audard’s claim that political liberalism, being more redolent

of Montesquieu and Locke, confounds laıcite’s Rousseauist pedigree.157 The

republican interpretation sheds light on Rawls’ ostensibly incongruous declar-

ation of hostility against ‘ideological consciousness’. The ‘realisation’ and

development of moral personality, the cultivation in citizens of a sense of

themselves as free and equal, may entail a commitment to positively endowing

citizens with a sense of ownership and sovereignty over their conceptions of the

good, which may, for example, require them to be educated in an environment

free from overwhelming sectarian pressures. This is not to say that political

liberalism could support measures such as the 2004 ‘conspicuous dress’ ban—but

it is possible to view by this light—within the landscape of political liberalism—the

French concern to exclude strong sectarian divisions from public education. In

Rawlsian terms, these anti-sectarian impulses might be cast as ‘necessary

conditions for realising the powers of moral personality’.158 By this light, political

liberalism might also accommodate the republican proposal that the state should

not only prevent coercion of religious choice, but also, its invigilation in the

‘private sphere’. Through this lens, non-domination is necessary to liberty of

conscience in its fullest sense. These republican references of Rawls’ weaken

Laborde’s argument that laıcite embraces a comparatively stronger transformative

role in the construction of citizenship and public selves. Rawls’ emphasis on

facilitating the realization of moral personality through a common civic identity

means political liberalism and anti-sectarian laıcite cannot be viewed in a neatly

antagonistic light. The aim of deploying goods necessary to a socially effective

liberty of conscience, capable of holding firm against domination, is not, in Rawls’

terms, to impose any ‘specific metaphysical or epistemological doctrine’.159

Laıcite may be interpreted as offering a more robust interpretation of the

institutional and social infrastructure necessary for the realization of politically

liberal goals, or ‘primary goods’, at least in the context of faith and belief. Yet this

distinction evokes Barry’s critique of political liberalism as inevitably ‘exalt[ing]

self-expression [and] self-mastery’, despite its protestations of neutrality.160

Similarly, it appears laıcite must inevitably, albeit inadvertently, promote values of

individualism and autonomy in its implementation. This is the root of Maynor’s

argument that republican education will inculate ‘a high degree of moral

autonomy’,161 transgressing Rawlsian strictures. Politically liberal policies may

156 Andres De Francisco, ‘A Republican Interpretation of the Late Rawls’ (2006) 14 J Pol Phil 270, 272.157 Audard (n 31) 111.158 Rawls, Justice as Fairness (n 100) 167.159 Rawls, Political Liberalism (n 33) 10.160 Barry (n 10) 126–27.161 Maynor (n 137) 51.


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indeed effectively favour ‘comprehensive liberalisms’ over other doctrines, but

Rawls’s limited conception of ‘neutrality’ allows for this; it allows that laıcite, like

any public philosophy, cannot help but have some causal influence on citizens’

beliefs and conceptions of the good.162 Rawls’s ‘lament’ for the ‘limited

space . . . of social worlds’163 echoes the qualified, self-limiting pluralism of

republican laıcite.

6. Conclusion

Laıcite cannot be regarded as a unitary or monolithic concept, serving, as it

does, as a front for startlingly incommensurable stances.164 The purpose of this

contribution is not to distil or locate any singularly authentic conception.

French law, on the whole, privileges a liberal variant of the concept which is

quite compatible, even resonant, with political liberalism. In the

rightward-leaning, nationalist and exclusionary political discourse that gained

traction during Sarkozy’s Presidency, under threat from the National Front,

laıcite has outgrown its republican and liberal ethos to be appropriated as a

disciplinary tool for ‘ostentatious’ displays of religious difference in the public

square. While this discursive appropriation of the concept does echo, to a

certain degree, the emancipatory spirit of its 19th century origins, it contradicts

the subsequent, politically liberal construction of the principle as permitting the

co-existence of orthodox religious identities in the ‘private’ sphere, and their

manifestation in the public square—as opposed to their establishment or official

recognition in the political sphere of state and law. Rawls’s political liberalism

not only displays a surprising resonance with the French republican history of

thought, but also provides a theoretical framework to understand a laıcite that is

a counterfoil to the authoritarian politics of national belonging for which it has

recently been harnessed.

162 Rawls, Justice as Fairness (n 100) 53. He states: ‘any reasonable political conception must imposerestrictions on permissible comprehensive views, and the basic institutions these principles require inevitablyencourage some ways of life and discourage others, or even exclude them altogether.’

163 ibid 154.164 Bauberot, L’integrisme republicain (n 12).


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The Ambiguous Reach of Constitutional Secularism in Republican France: Revisiting the Idea of...

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