BY NICHOLAS BUTLER –
President of France Emmanuel Macron spoke these words in response to the news that an Islamist terrorist had murdered three people in the French city of Nice. The attack took place less than two weeks after the murder of teacher Samuel Paty on October 29, 2020. Paty’s murderer was angered by Paty’s presentation of a Charlie Hebdo caricature of Mohammed in his class on freedom of expression.
Macron’s comment was not mere rhetorical flourish designed to rouse the populace in the face of terror. Even before these two attacks, France had been planning a crackdown on Islamism and a more aggressive defence of French republican values. The two attacks only fuelled the push for stronger laws. The bill, which has now become law (accessible in French here), can be summed up in five words: using illiberalism to save liberalism.
Even liberal societies know that liberalism has its limits. No society can abandon state coercion or punishment completely. Criminal activity is often a threat to liberalism, and it needs to be punished lest liberalism destroy itself entirely. But while France is steering clear of Polish or Hungarian-style illiberalism (which is religious, socially conservative, and enforced for its own sake), it is pushing the boundaries of what have traditionally been considered appropriate limits on liberalism in the West.
So, what exactly does the bill do? And what makes it so notorious?
The most controversial aspect of the bill is its perceived discriminatory nature.
Although its responsibilities and its restrictions apply equally to all religious groups, as required by the French constitution, its status as a response to Islamist terrorism has fuelled a perception that it is anti-Muslim. Also fuelling that perception is France’s symbolic, non-legislative response to the two attacks, which included projecting Charlie Hebdo cartoons onto government buildings.
These two criticisms are unfair. Islamism is a threat to France more than other religious extremisms. It’s unreasonable to demand that a country not take action against religious extremism and terrorism unless, and until, there is sufficient representation of every religious community by religious terrorists. As for the projection of the cartoons: it is true that ordinary Muslims who abhor terrorism may nonetheless be deeply offended by that display — an unfortunate side effect. But the need to send a message to would-be Islamist terrorists that their violence would be counterproductive must take priority.
However, many French politicians did themselves no favours in combating perceptions that the bill is discriminatory. During the process of amending the bill, the French Senate voted to prohibit girls under 18 from wearing the headscarf (although the ban did not make it into the final version of the bill). Furthermore, in May, President Macron’s La République En Marche party banned one of its local election candidates from contesting that election due to campaign material in which she was photographed wearing a headscarf.
Meanwhile, the prohibitions imposed by the bill are causing their own controversy.
One such provision is Article 6, which requires organisations that receive public funding to agree to a “contract of republican commitment”. Amnesty International considers this to be a “vaguely defined concept which is wide open to abuse”. However, Article 6 specifies the obligations of this contract. They are:
- to respect the principles of liberty, equality, brotherhood and human dignity, as well as Republic’s symbols;
- to not call into question the Republic’s secular character; and
- to refrain from any action that undermines public order.
While it’s possible that an organisation will consequently be excluded from public funding unfairly, Article 6’s broader principle is reasonable. No society can reasonably be expected to fund organisations that seek to destroy its very foundations. Amnesty called on France “to allocate funds in a non-discriminatory manner”, but discrimination in public funding against those seeking to destroy France’s republican society is a justifiable form of discrimination.
Another controversial provision is Article 21, which significantly restricts home schooling. Parents may only home school their children if specifically permitted to do so by the authorities, and authorities can only grant such permission for four reasons:
- The child’s health or disability;
- The practice of intensive sport or artistic activities;
- The child’s family’s itinerancy or distance from a public school;
- The child’s specific situation, as long as home schooling is in their best interests.
This is a considerable restriction on freedom, which has provoked opposition not just from France’s Muslim community, but from families and parents involved in homeschooling generally. But it is responding to an urgent need. As French Education Minister Jean Michel-Blanquer pointed out in a legislative debate, it aims to protect “the little girls who are sent to sheds to be indoctrinated from the age of 3”.
However, one aspect of the bill is highly hypocritical. While freedom of expression is purported to be a French republican value, Article 44 of the bill significantly clamps down on it. That article authorises state representatives in charge of départements to order “the temporary closure of places of worship in which remarks which are made, ideas or theories which are disseminated or activities which take place provoke hatred or violence towards a person or a group of people”. (France is divided into 101 départements, a type of political entity with its own government.)
While no reasonable objection can be made to taking such action where violence is encouraged, hatred is another matter. Hatred is far more subjective and difficult to define than violence. But even if it can be defined clearly, deciding whether a particular commentary falls under that definition is an entirely separate task, fraught with uncertainty. As such, prohibiting hate speech runs a real risk of prohibiting legitimate and necessary debate (as well as counterproductively breeding more extremism by fuelling the persecution complex of extremists).
The bill would have been even more illiberal were it not for massive protests: one eventually rejected provision would have made it illegal to share videos of police officers if the sharer had an “obvious intention to harm”.
But despite its controversial provisions, the opponents of the bill are out of luck: France’s Constitutional Court has given approval to all but two provisions of the law. One authorises the denial of residence permits to non-citizens who manifest opposition to French republican principles; the other authorises the forced dissolution of certain associations or organisations. Unless next year’s legislative elections deliver a majority of députés (MPs) who want the law repealed — unlikely given presidential election polling showing a contest between LREM and Marine Le Pen’s Rassemblement National (National Rally), a party with a sordid far-right history — it won’t be.
The French government’s decision that sticks, not carrots, are needed to combat Islamism, has risks beyond illiberalism. French Interior Minister Gerard Darmanin has acknowledged the risk of “pushing towards the Islamists the vast majority of Muslims who respect the Republic” that an overly hard line approach would entail. But this vigorous a commitment by a Western country to protecting its values by law is perhaps unprecedented. If the French model succeeds in suppressing Islamism without too many unintended consequences, it may become a model in other countries as well.
