11. Laïcité in the Low Countries? On Headscarves in a Neutral State

The Charter was designed as Part II of the Constitution for Europe, but it was promulgated in a separate proclamation. After the draft Constitution for Europe had been rejected by referenda in France and the Netherlands in 2005, it was succeeded in 2009 by the Lisbon Treaty that gave the Charter full legal effect.

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 Commission uses ‘communautorisme’ as a sociological notion referring to a way of life that takes place in closed communities. The term does not have the philosophical meaning that man is a social being rather than an autonomous person.

For an overview of the French debate on what is preferable, an ‘Islam in France’ or an ‘Islam of France’, see Bowen (2004), p. 43-55.

Jules Ferry also secularized marriage and divorce law.

See Chap. 10.

Before 1905 the French state funded the ministers of the recognized (Catholic, Protestant and Jewish) denominations, and had a vote in their appointment.

As a consequence of laic neutrality and equality before the law, French authorities are reluctant to speak of ‘ethnic minorities’ and prefer ‘immigrés’. Official statistics and the national census do not register ethnic origin.

Baubérot (1997) notes that French laïcité includes two opposing tendencies. First, the concept implies state neutrality, which prohibits state interference in private religious affairs, in accordance with the freedom of conscience. But is also implies the freedom of thought, a tenet of the Enlightenment’s belief in progressive Reason that overcomes religious superstition. As a consequence of the second track, French laicity may have an anti-clerical and anti-religious stance.

During President Mitterand’s socialist regime, the Decentralization Acts of 1982 and 1983 detached the non-profit sector from governmental welfare policy, opening up the possibility of private funding of cultural and educational organisations and services. ‘This push toward decentralization induced a break with the two hundred-year Jacobin tradition, thus encouraging closer contact between the third sector and local authorities’ (Archambault et al. 1999, p. 82).

Albeit French urban policies formally concentrated on socio-economic progress, whereas the Dutch tended to multiculturalism

Jobard (2009, p. 34) cites Garbaye’s comment on the French integration model that, from 1983 onwards, ‘the strength of the FN effectively brought the issue of immigration to the forefront of the electoral debate and kept it there .... Because (the other) parties on the whole clung to the consensual policy, they effectively cleared the way for the FN’ (Garbaye 2005, p. 81).

i.e. models tending to favour certain outcomes rather than others.

‘Such a way of describing the Dutch model more accurately captures the distinctive characteristics of national traditions and how they have changed after the ending of pillarization. Importantly, it also makes clearer that many institutional changes of the Dutch church-state model, notably in the constitutional amendments of 1983, predate the development of policies of accommodation of Islam’ (Maussen 2012, p. 342).

For a general sociological analysis of the differences between the French and Dutch models, see Bruinsma and de Blois (2007).

Dutch court clerks serve as ‘court secretaries’. Apart from giving administrative assistance, they can also have an advisory role in judicial decision-making. See Holvast (2016), pp. 15-16.

In this context, I use subsidiarity in a sense that deviates from the draft of the Treaty establishing a Constitution for Europe: ‘Under the principle of subsidiarity (...) the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’. I use subsidiarity in reference to the available means to achieve an objective.

As to the traditional separation of the male and female worlds of men and women, see Gardet (1967), who maintains that headscarves are not prescribed by the Quran.

Translated from the French (Djavann 2003).

See for instance Hassan (2001). Hassan (1999) gives a feminist interpretation of Sura 4:34 (quoted above): a woman cannot be the breadwinner while childbearing, so during that period the man has to do the job. Amina Wadud writes in Qur’an and Woman: ‘Mercifully, the more research I did into the Qur’an, unfettered by centuries of historical androcentric reading and Arabo-Islamic cultural predilections, the more affirmed I was that in Islam a female person was intended to be primordially, cosmologically, eschatologically, spiritually, and morally a full human being, equal to all who accepted Allah as Lord, Muhammad as prophet, and Islam as din’ (Wadud 1999, p. ix).

According to Ayatullah Murtadha Mutahhari (1981), even now Islamic polygyny renders women an important service, obliging husbands to take permanent care of their wives, whereas modern man finds sexual variation by yearly changing his secretary.

Some claim that Sura 4:3, properly interpreted, implies a universal prescription of monogamy. The text reads ‘marry such women as seem good to you, two, three and four; but if you fear that you will not do justice, then only one’. In this reading, ‘justice’ requires loving all one’s wives equally; if this is impossible, a man should only marry one woman. (The text continues ‘or what your right hand possess’, which is generally understood to mean that a man may also have recourse to his female slaves as concubines, for in the case of slaves love is not required. Obviously this is not the feminist view. Feminist Muslims will also oppose the macho reading that ‘two, three and four’ should not be taken literally but stands for an infinite number.)

Naema Tahir (2004), a lawyer of Dutch-Pakistani descent, depicts the choice of headscarves by Dutch Muslim women as a juvenile pursuit of social influence and freedom of movement in the new Western environment, in a strategic effort to have their cake and eat it. On the one hand, they try to please their fellow-Muslims while simultaneously enlarging their freedom of movement; on the other hand, they demand the autochthonous population to respect their religious identity by appealing to secular arguments.

See also van den Bremen and van Kuijeren (2004), who present the headscarf as an elegant accessory that used to be worn by movie stars such as Grace Kelly and Audrey Hepburn during the 1950s and 1960s. In their view, as Muslim headgear, the scarf is a relatively innocent garment that enables Muslim women to participate in Dutch society and to fight sexist interpretations of Islam.

More generally, many non-Muslim citizens tend to comply with conformist ways of life, yet nobody demands they should be forced to be free. Political Liberalism does not include Mill’s anti-conformist ideal of man as a progressive being. Obviously, in addition to education, the government should do all it can to prevent the development of an under-class living in ghettos and seeking refuge in a neo-fundamentalist counter-culture.

According to The Netherlands Institute for Social Research, wearing of headscarves has decreased strongly among the second generation: ‘Women from the first generation do wear the headscarf more often: 58% of Muslim women of Turkish origin and 79% of those of Moroccan origin, compared with 20% and 38%, respectively, among second-generation Muslim women’ (Maliepaard and Gijsberts 2012, p. 182). The number of women wearing a niquab or burqa is estimated at 50-300.

For a discussion of the criticism of Rawls’ application of the concept of public reason to the judiciary in Dworkin (2004), see Maris (2007), p. 17, note 43.

Only believers who want to preserve their chastity by wearing a headscarf cannot be expected to venture out bareheaded into the man’s world. But this belief seems hard to combine with judicial neutrality for substantive reasons.

But, as the British Lord Chief Justice has rightly declared, lawyers are allowed to wear an Islamic veil in court, as they have no arbitral function.

For an extensive analysis, see Holvast (2017).

As I have argued elsewhere, the ‘requirements of adequacy’ set for private schools by the Dutch Constitution should imply courses in constitutional principles and civic duties. In the same vein, Macedo (1995) argues that private schools should impart knowledge of the basic civic values, because an acquaintance with democratic principles, including tolerance, is indispensable in a plural society. Macedo maintains that the requirement of civic education satisfies the demand of state neutrality, even if its results are not neutral since pupils will be exposed to a diversity, and critical ways, of thinking. In spite of its respect for diversity, even Galston’s liberal pluralism implies far-reaching governmental requirements for private schools, among others, to provide adequate information about alternative ways of life. See Galston (1995).

But as indicated in an earlier note, the wearing of headscarves has strongly decreased among the second generation.

Schools should be able to take specific measures against pupils who disturb the order in the classroom, for instance, by rejecting the authority of female or homosexual teachers, or by hindering a discussion of the Holocaust.

From the perspective of the liberal tradition of the United States with its emphasis on individual freedom and respect for religion, French laical fundamentalism may be hard to understand. As for Dutch even-handed state funding of religious organizations, Monsma and Soper (2009) comment: ‘What is often viewed in the United States as discriminating in favour of religion, and thereby a form of establishing religion, is viewed in the Netherlands as necessary in order to avoid discrimination against religion’ (p. 81).

The Stasi Report has been heavily criticized for its lack of adequate underpinning: ‘The researchers of the Stasi report, despite the commission’s strong opinions on Muslim women’s lives and social conditions, interviewed only two Muslim women’ (Elver 2012, p. 119).