Myriam Hunter-Henin – Why Religious Freedom Matters for Democracy – Comparative Reflections from Britain and France for a Democratic “Vivre Ensemble” (Hart Publishing, Hart Studies in Comparative Public Law, 2020)

Should an employee be allowed to wear a religious symbol at work? Should a religious employer be allowed to impose constraints on employees’ private lives for the sake of enforcing a religious work ethos? Should an employee or service provider be allowed, on religious grounds, to refuse to work with customers of the opposite sex or of a same-sex sexual orientation? In recent years, judges in Western liberal democracies have increasingly had to grapple with such controversies. Through a comparative analysis of French and English solutions, I explore in my book (Why Religious Freedom Matters for Democracy. Comparative Reflections from Britain and France for a Democratic “Vivre Ensemble” (Hart Publishing, Hart Studies in Comparative Public Law, 2020)) how judges must decide these issues and defend a ‘democratic approach’ to religious freedom. Under the democratic approach, judges are to construe religious freedoms in ways amenable to pluralism and deepening of democracy, itself understood as ‘an open-ended reason-giving process of deliberation’ (A Gutmann and D Thompson, Why Deliberative Democracy? (Princeton University Press, 2004) 3) woven into the fabric of our vivre ensemble.

Comparative goals and methodologies

I adopt a comparative approach in two ways. First, the democratic paradigm I defend is grounded in a sociological and historical analysis of two national stories of the relationships between law, religion, diversity and the state, in England and France. Second, I then put the democratic paradigm to the test and elaborate upon it through the detailed scrutiny in both of the two selected jurisdictions of concrete cases involving clashes between religious freedoms and competing rights. By anchoring my analysis into an interdisciplinary contextual investigation, I shift the focus of comparative analysis from legal institutions, constitutional models of Church/State arrangements to the narratives, myths, power imbalances and aspirations underlying legal arrangements. I hereby share the preoccupations of what Günter Frankenberg has called ‘the comparative legal study’ movement to open up comparative investigations to law-in-action, interdisciplinary research and norms beyond the legocentric lens (Comparative Law as Critique, Elgar 2016, 11). Through this widening and diversification of the perspective, I seek to sharpen the critical gaze on legal concepts, which might otherwise be taken for granted and challenge the presentation of law as a purely abstract system.

The national contours chosen for my sociological/historical/legal enquiries should not be taken to mean that national borders exclusively delineate the legitimate sphere of comparative law investigation. They do however have a particular salience in debates about national identity, which, in contemporary times, have weighed upon solutions and discourses relating to religious freedom. In that sense, the national focus allows to test the proclaimed ‘internal commitment of each system’ (Catherine Valcke – Comparing Law: Comparative Law as Reconstruction of Collective Commitments (Cambridge University Press 2018)). The aim of the comparative analysis I undertake of Britain (with a focus mainly on England) and France is not, therefore, to devise a common model for both, or identify the better model. The goal is to add embeddedness and sharpen the critique of legal reflections, situated in the tensions between universality and particularity. Nonetheless, my goal is evaluative and normative, hence renounces any claims to a scientific objectivity or ideological agnosticism (David Kennedy, ‘The Methods and the Politics of Comparative Law’, in Legrand and Mundy (eds), Comparative Legal Studies 345). On the contrary, I spell out and justify my own evaluative system, based on the conceptual argument (which I develop in light of a political philosophy analysis in Chapter 4 of the book) that religious freedoms are important for and within democracy as well as for believers themselves.

Selected jurisdictions

Undoubtedly, my own expertise (and its limits) motivates my choice of France, and Britain (with a focus on England), as selected national contexts of reference.[1] However, England and France also make particularly opportune fields of enquiry. In many ways, England and France seem to offer a counterpoint to each other. In their differing and often contrasted policies of secularism versus multiculturalism; in their common (but different) colonial pasts and resulting waves of immigration; in the different role that religion historically played in national identity formation; in their strikingly different legal relationships between Church and state; in their diverging historical and philosophical conception of law; in their common, yet not identical, adherence (for now) to the EU Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation and to Article 9 of the European Convention on Human Rights, the comparison between England and France seems to be one of contrasts and differences. Yet a more dynamic approach, focused on trends within each story, also reveals common trajectories towards more inward-looking attitudes, which I reveal, criticise and then seek to mend.

Structure of the book

Following an introductory chapter, which sets out the goals and scope of the book, chapter 2 explores the French story of laïcité.  Using a typology suggested by Dieter Grimm (‘Conflicts Between General Laws and Religious Norms’ in S Mancini and M Rosenfeld (eds), Constitutional Secularism in an Age of Religious Revival (Oxford, Oxford University Press, 2014),  I work from within the French culture to construe the interpretation of laïcité, which is closest to an inclusive ideal type of secularism: ‘a type of secularism that recognizes religion as an elementary human urge that seeks public expression, an urge that the state not only has to respect, but also must protect and maybe even promote’. Drawing on the history and sociology of laïcité, I argue that, in recent times, in reaction against fears of Islamic radicalisation, French laïcité has strayed away from this ideal inclusive type and has, on the contrary, become a means to relegate religion to the private sphere and assert national common values in the public sphere, itself broadly construed.

Chapter 3 tells the English Experience. Similarly to the French concept of laïcité, but through different routes, the English form of mild establishment contains features of an inclusive ideal type of secularism, respectful of religious diversity and of political autonomy. However, just like in France, the inclusive aspirations of the English model of secularism have never fully materialised. Besides, in England too, just like in France, the fear of religious (Islamic) radicalisation and terrorism has prompted certain illiberal and exclusionary trends. Recent calls for national values have cast a doubt on the legitimacy of certain religious ways, which, previously, had been acknowledged, if not encouraged.

Chapter 4 dives into political philosophy to make the normative case for an inclusive secularism along the lines of Grimm’s type three secularism and puts forward my democratic approach, based on three criteria of avoidance, inclusion and revision. Under the method of avoidance, the state is to refrain from interfering with religious beliefs and thereby protect both the public sphere from intractable controversies and religious citizens’ sense of identity and autonomy from undue interferences. Following the principle of inclusion, the state is to ensure that minority marginalised voices have opportunities to be heard on an equal footing. Finally, according to the principle of revision, both citizens and state institutions are expected to revise their commitments, in order to preserve the (ever renewed and revisited) horizon of a vivre ensemble.

Chapters 5 and 6 in Part II of the book revert to context and explore the consequences of the democratic approach for legal controversies involving religious freedoms in England and France, taking the employment sphere as an area of investigation. As the functionalist methods in comparative law have shown, such incorporation of the ‘facts’ in legal reasoning help the critique to reveal and challenge assumptions in legal reasoning which are empirically untenable (B Markesinis and J Fedtke, Engaging with Foreign Law (Oxford, Hart Publishing, 2009)). An extensive analysis of European jurisprudence (from the Court of Justice of the European Union as well as from the European Court of Human Rights) complements and enriches the focus on the two selected national jurisdictions, bringing in detailed examinations of the intertwinements of norms at both supra and infra-state level.

As the general conclusion in chapter 7 recaps, normative proposals emerge from this intermediary space between universality (a democratic paradigm) and particularity (born out of case-studies and contextual anchoring). Whilst the principle of revision I advocate postulates that precise outcomes must depend on contextual evolving deliberations between stakeholders (including in the courtroom), Part II of the book nonetheless yields guidelines on how courts should address instances of competing rights and interests involving religious freedoms.

In short, this book explicitly and unapologetically adopts a comparative method for normative aims: to foster a more inclusive, tolerant and vibrant vivre ensemble for our societies, in England and France, as studied in this book, and beyond, in other western liberal democracies.

Posted by Dr Myriam Hunter-Henin

(Reader in Comparative Law and Law & Religion at University College London)

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[1] I was brought up in a Franco-English family, have lived in both countries, graduated in both countries, worked as a teaching fellow or lecturer in both countries, have researched and written about each country and am a national of both countries.