Laïcité,gender equality and the politics of non-domination

Introduction

This article considers the relationship of gender equality to constitutional secularism through the prism of the laïcité concept in French law and political thought. In a broader optic, constitutional secularism is widely assumed as a necessary condition of gender equality – and specifically, of women’s equal religious liberty – in its claim to create a status of citizenship dissociated from any religious dimension or definition. This assumed link is given particularly forceful expression in contemporary France, in the context of an ongoing oscillation between a laïcité interpreted as a politics of emancipatory social transformation, and the more minimalist principle, redolent of a liberal logic of neutrality, which tends to prevail in French law. In denying any religious dimension to women’s citizenship by protecting the formal equality of their rights, laïcité is considered to protect women’s right of self-determination with respect to religion. ² In terms ostensibly similar to Rawlsian liberalism, it protects their exercise of moral personality against any presumed non-public identity upon which their public status might otherwise be defined. ³ Their religion then being irrelevant to their standing in the political community, their freedom of conscience is protected as against any imposed, assumed link to a particular community or religious affiliation. Laïcité, as a pillar of French republicanism, thus underpins a universalist definition of citizenship, with citizens’ public identities transcending ‘particularist’ identities, abstracted from ‘pre-political’ cultural and religious differences. ⁴ Thus, part of laïcité’s legitimacy-claim is its basis in a relatively open, republican conception of national identity, resting on the idea of ‘vouloir vivre ensemble’ ⁵ – on terms of social cooperation that do not presuppose any ‘blood and soil’ link, involuntary and organic, ethnic or religious, in the vein of romantic nationalism. ⁶ Laborde attributes this to ‘the Rousseau-influenced revolutionary hostility to intermediary groups and “factions” – associated with privileges, divisiveness and corruption’. ⁷

Thus, within the prevailing narrative of French republicanism, women are recognized as free and equal citizens because their citizenship or public identity is abstracted both from their gender identity, but also from any religious identity that might be assigned to them through a politics of recognition. With the quality and terms of their citizenship dissociated from religion, religious precepts cannot be imposed on them through the machinery of the state, in the form of cultural or group rights. As Laborde points out, ⁸ laïcité is positioned close to Brian Barry’s egalitarian critique of multiculturalism, ⁹ hostile to any politics of recognition, eschewing the recognition of religious or cultural identity as itself a basis for determining individual rights. Its insistence on a unitary and singular public identity echoes Rawls’s formulation of a right of persons ‘to view [themselves] as independent from and not identified with any particular conceptions of the good, or scheme of final ends’. ¹⁰ Therefore, while some have claimed that laïcité represents something of a ‘comprehensive’ liberalism, assuming, within Rawls’s terms, a ‘regulative role for all of life’, ¹¹ it may alternatively be seen as inscribed within the ‘liberal principle of legitimacy’, in that it claims to ground the ‘terms of social cooperation’ not on any particular conception of the good, but rather, on a shared ‘political’ basis for justification that may be embraced by those holding conflicting ‘comprehensive’ views. ¹² Thus, laïcité is posited as a republican bulwark against normative multiculturalism and communitarianism: it follows that women’s equal religious liberty is to be secured not through recognition of their religious difference, but rather, the assertion of a unitary political and legal status transcending such difference. ¹³

Yet the narrative of laïcité also seeks to set it apart from the fastidious non-interventionism of liberal policies. ¹⁴ The discourse surrounding the 2004 prohibition on ‘conspicuous’ religious attire in public schools claims that laïcité offers a more ambitious project of equal liberty than a project of formal state neutrality. It claims to guarantee a range of goods, capacities and resources necessary to the effective and independent exercise of undominated religious choice – by ensuring, for example, that schoolgirls are not subject to inordinate pressure to veil themselves. ¹⁵ The aim of a religiously neutral public school environment was rationalized by the need to ensure not only that religious observance was uncoerced, but also that it could be intelligently and effectively exercised independently of the power relations operating within private, familial and associational spheres. ¹⁶ Therefore, it represents a rather expansive interpretation of the background social and institutional conditions needed for the free exercise of religious choice – not only as against coercive interference by the state, but also the potentially overwhelming pressures of family and community. Moreover, it was according to this same narrative that the measure was able to find a good deal of feminist support. This dominant narrative holds that freedom from religious pressures and influences within the public school environment will enable child-citizens to exercise self-determination with respect to beliefs, whatever their circumstances of origin, ¹⁷ endowing them with the goods, resources and capacities to resist intimidation and domination of religious choices.

In this article, I argue that this narrative positions laïcité close, at least in its contemporary conception, to the neo-republican account of freedom as non-domination. Associated with ancient, Renaissance and Commonwealth thinkers such as Cicero, Machievelli and Harrington, the republican conception has been revived in the modern era by Skinner and Pettit in particular. It is conceived as an alternative to the classically liberal conception of ‘liberty as non-interference’ associated with Hobbes, Bentham and Berlin. It claims to offer a more expansive and egalitarian account of freedom than liberalism, while also eschewing any perfectionist foundation, not being rooted in any conception of the good, of human flourishing or excellence. This argument surrounding the parallels between laïcité and neo-republican thought applies with particular force to issues surrounding gender equality: As Kahn notes, ¹⁸ laïcité has been recast in recent decades as not only a politically liberal juridical framework for the state–religion relationship, but also as a vehicle for projecting republican values more broadly across society – including, notably, the value of gender equality. Moreover, the relationship of laïcité to women’s equal religious liberty may be viewed through the prism of contemporary debates on the relationship between Rawlsian political liberalism and the neo-republican conception. The challenge for the laïcité project in modern France, it is argued, is to guarantee citizens the resources and capacities necessary to resist any domination of religious choice, while ensuring this politics of non-domination does not receive an aggressively emancipatory translation.

Laïcité, liberalism and emancipation

A deceptively consensual definition of laïcité would refer to the state neutrality towards religion necessary to equal liberty of conscience. Although laïcité enjoys a distinct historical and philosophical pedigree, having liberal, perfectionist, Jacobinist and anticlericalist influences, ¹⁹ its rather heterogeneous interpretations may be located within a broader dichotomy of liberal and perfectionst secularisms – roughly echoing the Rawlsian distinction between ‘political’ and ‘comprehensive’ liberalisms. ²⁰ In its liberal guise, laïcité avoids any thick construction of public selves; in Rawlsian terms, it inscribes a ‘political’ basis for public justification, eschewing any ‘comprehensive’, secular conception of the good as a legitimation of state action. ²¹ In this optic, it has no metaphysical dimension and no ‘regulative role for all of life’, not seeking to cultivate distinct virtues of individuality and autonomy, but merely securing, in Rawls’s terms, the ‘institutional and social conditions’ necessary for the ‘exercise and development of the two moral powers’. ²² This constitutionally secular state would protect citizens’ sovereignty over their conceptions of the good without asserting any such particular conception. This liberal interpretation prevailed in the form of the 1905 law of separation of church and state, the cornerstone of laïcité in modern France. This was as much the product of political compromise as of any singular theoretical stance; nonetheless, it represented a broadly liberal settlement to the question of the church–state relationship that had inflamed late 19th-century France, and ended the anti-congregationalist excesses of the Third Republic. ²³ While guaranteeing freedom of conscience, it most notably provides that the state ‘neither recognises, nor remunerates, nor subsidises any religion’, ending the historical Concordat framework of established religion. In Kahn’s terms, liberal laïcité ‘does not appeal, for its justification, to any particular philosophy, whether of Enlightenment, of individual emancipation, or of free thought’. ²⁴ Through the Rawlsian lens, laïcité is rather ‘a value of justice, a juridical edifice for liberty of conscience, but not … a conception of the good’. ²⁵

Yet in its ‘comprehensive’ guise – which has an older pedigree than the 1905 law and arguably resonates in the contemporary debates on Islamic dress – a more emancipatory laïcité appears close to assuming a regulative role for religious choice itself. On this interpretation, it promotes thicker values of autonomy and individuality, representing, in Laborde’s terms, an ‘independent secular ethics’. ²⁶ In the more zealous form, laïcité would not seek merely to guarantee formal religious liberty and equality, but rather, exalting Enlightenment and self-mastery, positively emancipate citizens from belief systems perceived as servile or irrational. It would express a public commitment to freedom as self-mastery, rather than merely to equal liberty of conscience – or in the terms used in American discourse – an ‘[established] religion of secular humanism’. ²⁷ In Kahn’s terms, ‘political’ laïcité would represent merely an institutional appendage of equal liberty of conscience, whereas its ‘comprehensive’ version promotes free thought, as a privileged set of human attributes or virtues. ²⁸ It is often overlooked, in the urge to fit laïcité within a neat ideological typology, that the regulation of women’s religious dress is simultaneously rationalized with reference to both versions of laïcité, as evident in the rationale for the 2004 and 2010 laws directed at the hijab and burqa respectively. ²⁹

Moreover, the debate surrounding religion in public schools, in particular, points to an apparent paradox within political liberalism in its claim to neutrality towards religion, undermining the very relevance of the dichotomy of ‘comprehensive’ and ‘political’ liberalisms within which laïcité has been analysed. ³⁰ The politically liberal state must remain neutral towards religious beliefs, merely sustaining the necessary background conditions for their free exercise. Therefore, it must hold open the rights of exit necessary for child-citizens to freely form, pursue and revise their identities and beliefs, over their complete lives. Yet for this to be plausible, it must keep public education free from sectarian pressures that would compromise child-citizens’ capacity to exercise and develop these capacities. The paradox is that the politically liberal state must guarantee child-citizens’ sovereignty over their beliefs by ensuring a pluralistic environment – yet in doing so, it seems inevitable that it must privilege, at least inadvertently, a quasi-‘comprehensive’ conception of the good life, as emancipated and autonomous. ³¹ It cannot hold open the institutional ‘right of exit’ cherished by political-liberalism without effectively promoting a conception of the self, itself quasi-religious, as detached, sovereign and autonomous, ³² thus ‘exalt[ing] self-expression [and] self-mastery’. ³³ However, this ostensibly compelling argument probably rests on an exaggeration of the neutrality, towards comprehensive doctrines, that Rawls’s theory itself claims. Indeed, Rawls was explicitly and acutely cognizant that the well-ordered society of justice as fairness would, in practice, be more hospitable to certain ‘reasonable’ comprehensive doctrines and less to others; the principles of justice are to be independent between worldviews, not equidistant or even ‘neutral’ between them – and on this view, any inadvertent overlap with comprehensive liberal worldviews does not reveal any contradiction in his theory. ³⁴

This theoretical background frames the role of laïcité in protecting women’s equal religious liberty – but in a way which necessarily goes beyond the dichotomy of ‘political’ and ‘comprehensive’ versions sketched above. First, what goods, resources and safeguards does laïcité provide in order to protect women’s exercise of religious choice? Does it extend beyond the narrow, formal guarantee of state neutrality and non-coercion, to protect against private domination and intimidation? How does it provide women with the resources necessary to resist the invigilation of their religious choices by arbitrary, unchecked private power, in the familial and associational spheres – and therefore, claim to represent a more morally plausible guarantee of equal religious liberty in relation to the more formal, liberal accounts? Second, how can it be avoided that any such positive state intervention to protect religious choice against arbitrary private power does not itself spill over into a form of arbitrary control of religious choice? The concern for domination in intimate spheres might mask a quasi-perfectionist view that the only legitimate religious choices are those the state regards as freely chosen, unburdened by the pressures of community and tradition. The neo-republican conundrum is that ‘while seeking to reduce domination through private power or influence … a robust state [might] itself become a source of domination … in an effort to reduce dominium, the ill of imperium begins to emerge’. ³⁵ While the preoccupation with dominium is characteristic of Anglophone neo-republican scholars such as Pettit, who believe that the ‘antonym of freedom is not interference, but domination’, ³⁶ it finds clear resonance in the use of laïcité, in France, as a justification both for the 2004 prohibition on religious attire in public schools, ³⁷ and the recent legislation directed against face-veiling in public space. This begs consideration of whether the neo-republican account of non-domination can offer a more morally plausible and expansive account of equal religious liberty, latent within laïcité, while eschewing any perfectionist, emancipatory stance. Does the attempt to provide women with the resources and capacities necessary to the non-domination of religious choice necessarily entail a commitment to an idea of the self as ‘freed from the sanctions of custom and tradition … unbound by moral ties antecedent to choice’? ³⁸

Revisiting laïcité-exceptionalism

In the scholarship on French secularism it is something of a received wisdom that laïcité represents a ‘thick’, emancipatory or ‘comprehensive’ account of constitutional secularism, a distinct alternative to political liberalism, born of a perfectionist republican ideology based, moreover – as Hazareesingh notes – on a privileged conception of the good life. ³⁹ Audard claims that it has a ‘positivist epistemic’ basis that renders it unsuitable as a basis for public justification within the terms of Rawlsian political liberalism. ⁴⁰ As noted, Laborde describes laïcité as representing an ‘independent secular ethics’, ⁴¹ while Scott argues that the headscarf law is underpinned by the aim of ‘suppressing or privatizing religion because it is taken to represent the irrationality of tradition’. ⁴² Kahn notes that, in using laïcité to condemn France’s supposed ‘communitarian turn’, ⁴³ France’s ‘New Republican’ secularists make a strange ‘common front’ with the anti-Rawlsian communitarians, because they ‘appeal to a common conception of the good life [or society] capable of federating a community’. ⁴⁴ This raises the spectre of a laïcité conceived not in the sense of a republican social contract transcending religious and ethnic differences, but instead as a unifying exhortation to cohesion and alikeness, to a supra-political common identity or ethnos, thus serving as an exclusionary criterion of national belonging. Conceived as such, it would warrant the secularization of citizens’ lives, rather than merely of the justificatory basis of social cooperation. Indeed, the anti-burqa measure was formulated in the context of a broader debate on ‘national identity’, replete with bruising exclusionary overtones surrounding immigrants’ duty to secularize their habits in order to effectively integrate in the national community. ⁴⁵

Yet implicit in this prevailing conception of laïcité as ideologically distinct is a wholly unwarranted vision of it as singular – whereas in fact, it embraces a multitude of diverse and contradictory stances. ⁴⁶ Although perceived, in France and elsewhere, as distinct and unitary, ⁴⁷ it echoes broader normative debates rather than representing a distinct independent stance. Despite its perfectionist, Rousseauist and liberal pedigrees, ⁴⁸ it has become something of a catch-all incantation, invoked as everything from a left-wing riposte against neo-liberalism on some accounts ⁴⁹ – encapsulating what Baubérot terms an ‘Astérix complex’ of French exceptionalism and resistance ⁵⁰ – to an exclusionary criterion for integration and cultural belonging on the far right and now, increasingly, the governing centre-right. ⁵¹ In particular, confusion prevails as to whether, under laïcité, religious and cultural differences are merely ‘committed to the private sphere’, ⁵² privatized juridically, or whether, instead, laïcité warrants the restraint of ‘ostentatious’ manifestations of religious affiliation, in order to maintain a public square free of strong markers of religious difference. ⁵³ Durand documents a prevalent perception that laïcité requires ‘the expression of religious conviction and all other identitarian markers, to belong to the “private”’, but with no clear, coherent delimitation of the ‘public’ and ‘private’ ⁵⁴ If laïcité means the religious neutrality of the public sphere, there is confusion as to whether the religiously neutral ‘public’ refers to ‘the public sphere of the State [or] the public sphere of society more generally’. ⁵⁵

This confusion in laïcité’s delimitation of the ‘public’ and ‘private’ was evident, for example, in President Sarkozy’s response to the Swiss prohibition on minarets, in which he suggested that laïcité required French Muslims to refrain from ‘provocative’ or ‘ostentatious’ displays of religious affiliation in public space. ⁵⁶ However, the definition of laïcité merely as the religiously neutral state, or the ‘dissociation of citizenship from religious affiliation’, ⁵⁷ would logically appear to accommodate the construction of religious edifices, no matter how provocative, within the limits of generally applicable laws relating to public order, planning, etc. On the difference-blind logic of French republicanism, ⁵⁸ under which citizens’ religious affiliation must have no bearing on their standing in the political community, it would appear that, while the religious character of an edifice could not privilege it or exempt it from ‘neutral’ secular laws, ⁵⁹ neither could this religious character itself single it out for prohibition (a logic which would also apply to the hijab in the public schools ⁶⁰ ). This is the reason why the recent legislative prohibition on the burqa was in fact drafted as an ostensibly neutral prohibition on the secular act of face-covering ⁶¹ – with no explicit reference to the burqa, religion or Islam as such. This exemplifies the paradox I wish to illustrate – while ostentatious religious dress is deemed repugnant to laïcité and ‘French values’, these same values, as embodied in the Constitution, would have invalidated any legislative attempt to strike at the burqa or religion as such. Yet it was not the anodyne secular act of face-covering per se that was assumed to contravene republican principles. France’s public philosophy was purported to exclude radical forms of religious dress as incompatible with laïcité and gender equality, ⁶² but the formal expression of these values in the Constitution required this impulse to be implemented in an indirect, oblique way, ostensibly neutral towards religion and the burqa itself.

Durand documents how the ‘New Republicanism’ interprets laïcité as requiring citizens to practise religion as a discreet, ‘private’ activity, rather than as a primary, all-encompassing identity. ⁶³ This impulse towards the privatization of convictions – both in the personal and sociological as well as juridical domains – is born of a fear that a public sphere overwhelmed by ‘particularist’ identities could no longer accommodate a robust conception of the common good, ⁶⁴ echoing, perhaps, the Rousseauist impulse towards the formulation of a ‘General Will’ that would represent the basis of a republican social cement. ⁶⁵ More acutely, this confusion surrounding the delimitation of ‘public’ and ‘private’ bears significant implications for religious freedom.

This confused interpretation of laïcité was also evident, for example, in the reaction of members of the ruling UMP party to the conversion of branches of Quick, a prominent fast-food chain, to Halal meat. ⁶⁶ As with the anti-minaret polemic, the UMP deputies’ invocation of laïcité against the Islam-friendly marketing-strategy of a private restaurant chain implies an interpretation of the doctrine not as the juridical privatization of religious and cultural difference – a conception with which an all-Halal McDonalds would be perfectly harmonious – but rather as a requirement that citizens temper their religious expression so as to effectively integrate themselves within an ethnos, a national identity, defined in organic, ‘blood and soil’ terms. In the minarets controversy, Sarkozy’s suggestion that Muslims would have to respect France’s ‘Christian roots’, and refrain from ‘provocative’ displays of their religious faith in the public square, ⁶⁷ further illustrates a metamorphosis of the laïcité ideal so as make the obligation of religious ‘neutrality’ fall upon citizens themselves, rather than the state. Thus, the principle undergoes a metamorphosis into a quasi-cultural criterion of national belonging. This leads to a ‘generalised obligation of neutrality, applicable to everyone’ – one born of a ‘bourgeois habitus of discretion’ in matters touching on religion. ⁶⁸

This Sarkozian rendition of laïcité would appear to contradict the peculiar concept of the social contract historically prevailing within French republicanism, because it claims to define citizenship upon the ethnic and supra-political bases of citizens’ roots and origins, rather than on the shared political ideals of liberty, equality and fraternity. ⁶⁹ Then, it is less a condition of political legitimacy, a term of the republican social contract, but instead adopts a disciplinary role for culturally threatening, ‘ostentatious’ religious choices. ⁷⁰ Indeed it is possible to conclude that recent discourses not only contort the historical ethos of laïcité, but also that of republicanism itself: the political right’s recasting of the value brings to mind Viroli’s republican warning: ‘the danger threatening European democracies is once again nationalism, the ideology that claims that the principle of the state is to protect the unity of the nation or people from contamination by extraneous cultural, religious or ethnic elements’. ⁷¹

The ambiguous reach of laïcité across public and private spheres

The Sarkozian laïcité masquerades as a disciplinary tool of social cohesion, whereas it is typically understood in more minimalist terms by jurists and political theorists. ⁷² From the latter perspective, it is strange to contend that the mere wearing of the burqa – in the absence of any attempt by adherents to ‘establish’ or impose their religious views through the machinery of the state – can itself be ‘against’ laïcité. ⁷³ In its report on the then-putative face-veiling prohibition, the Conseil d’État noted: ‘the principle of laïcité applies directly to public bodies, which justifies an obligation of neutrality for public agents in the exercise of their functions. However, it cannot be applied directly to society or to individuals.’ ⁷⁴ This illustrated the contradiction between the broad discursive scope of laïcité as a tool with which to regulate religion itself – and perhaps, through which to promote intellectual autonomy and freedom as self-mastery – and its more minimalist juridical form. Thus, despite sometimes having the appearance of a consensual national value or distinct theoretical concept, laïcité is rather a mirror of the broader conflict surrounding the basis of social unity in the republican nation state. It is invoked in deeply contradictory senses, as the state neutrality towards convictions necessary to freedom of conscience, yet paradoxically, also, as a shared conception of the good. It is simultaneously posited in French discourse both as the institutional framework for guaranteeing citizens sovereignty over conceptions of the good, yet also as itself a distinct conception of the good ⁷⁵ – the import of political liberalism is to illustrate the incommensurability of these commitments. Thus, the confusion over the scope of the laïcité project turns on whether it warrants the ‘privatization’ of religion in the personal and sociological, as well as the juridical senses, with the broad dissensus on this point undermining any claim as to its theoretically distinctive nature. Yet Baubérot’s recent work ⁷⁶ illustrates how it is constructed in a quasi-xenophobic national discourse as an intellectual patrimony unique to France. Therefore, discourse on laïcité has been tainted somewhat by what Audard identifies as a philosophical nationalism, and by a tendency in broader scholarship to overlook the very mixed historical and ideological pedigree of laïcité, depicting it instead as a distinct and unitary concept. ⁷⁷ Both what Baubérot terms the ‘fundamentalist republican’ exaltations of a purportedly unique French secularism, and the critiques of the concept in Anglophone literature, depict it as pure and singular whereas in fact it is now, perhaps more than ever before, the object of disparate and contradictory claims, perfectionist and anti-perfectionist, ‘liberal’ and ‘republican’ to varying shades and degrees, and even, as Kahn suggests, ‘communitarian’, in its new-found role in grounding a shared sense of national belonging. ⁷⁸ The concept have become so blurred that it makes little more sense to speak of ‘laïcité’ as singular than of ‘liberalism’ as such.

This internal tension within laïcité has a firm historical pedigree; we can see its antagonistic sources and inspirations in Jules Ferry’s famous instruction to the public school teachers that ‘you are in no way the apostles of a new religion of secularism’, but also in the anticlericalism of the late 19th century which sought to ‘privatize’ religion by diminishing clerical power in social as well as political spheres. ⁷⁹ Historically, the institutional dissociation of state and religion was broadly conceived in the perfectionist terms of emancipating citizens from belief systems perceived as servile. Hazareesingh argues that the Third Republic, during which the laïcité project was conceived, 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’. ⁸⁰ The anticlerical republicans advocated church–state separation in order to ‘end the stranglehold of religion … which they regarded as a permanent obstacle to the social development of the republic and all progress towards civilisation’. ⁸¹ However, the liberal 1905 law of separation ⁸² greatly attenuated the anticlerical excesses of the previous decades, and resisted the radical republican ⁸³ claim to impose democratic concepts and structures within the internal life of the churches. ⁸⁴ The suggestion that religions themselves adopt and internalize the values of the Republic subsided thereafter. ⁸⁵ Libre pensée, or ‘free-thought’ was – along with religion – essentially disestablished and rejected as a basis of social unity. ⁸⁶ As Hazareesingh notes, ‘the perfectionist strand in the republican tradition was always circumscribed by other imperatives’. ⁸⁷ The liberal variant of laïcité is also reflected in the current Constitution, ⁸⁸ in the 1956 Debré law permitting state aid to religious schools under a ‘contract of association’, ⁸⁹ and in certain pluralist provisions of the Code de l’Education. ⁹⁰ While Baubérot and others chart the evolution from an anticlerical to a politically liberal laïcité, ⁹¹ the recent measures against Muslim women’s dress arguably rekindle, at least in a distorted form, laïcité’s perfectionist and authoritarian ancestry. ⁹² The re-emergence of an explicitly emancipatory laïcité in this century echoes Hazareesingh’s description of anticlericalist 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. ⁹³

This oscillation has recently culminated in a conflict between the liberal interpretation of the concept prevailing within legal institutions such as the Conseil d’État – manifest in its report expressing doubt as to the constitutionality of any burqa prohibition ⁹⁴ – and the more expansive, ‘comprehensive’ conception prevalent in the anti-burqa polemic. Durand notes that ‘the wish to protect public space from any expression of religious affiliation recalls more the conception of laïcité held by [the anticlericalist] Combes – than that contained in the law of 1905 drafted by Briand and Jaurès’. ⁹⁵ This historical contradiction within laïcité persists in modern France through a confusion, as described, as to whether laïcité warrants merely the neutrality of state institutions necessary to equal liberty of conscience, or alternatively, a broader commitment to the secularization of society – as to whether the state must remain indifferent towards the religious dimensions of private expression, or whether ostentatious religious expression in the public square must be checked for the sake of social cohesion.

This contradiction is also expressed in the rather confused assertion that the burqa may legitimately be prohibited precisely because it is not a doctrinal requirement of Islam. ⁹⁶ The republican ethos of laïcité suggests that the individual’s claim to freedom of conscience cannot be made subject to licence or authentication by some external authority – citizens’ religious claims, in Rawlsian terms, are ‘self-authenticating’, ⁹⁷ the basis for religious freedom being the autonomy of conscience, rather than the state recognition of doctrinal religious obligations. Yet this stance would appear to have the effect of making the state an arbiter of religious orthodoxy, licensing religious claims with reference to the authenticity of their doctrinal basis. Laïcité would seem to preclude any state competence to interpret citizens’ religious duties. ⁹⁸

The best explanation for these anomalies is probably that the recent polemic on Islamic religious expression, minarets, hijab and burqa, raises the spectre of laïcité not quite perhaps as ‘comprehensive’, in the vein of its anti-clericalist 19th-century pedigree – but rather, as a unifying nationalist exhortation, imposing criteria of national belonging (and exclusion). ⁹⁹ Under Sarkozian laïcité, these terms of national belonging, representing a reappropriation of the republican ideal, will pervade, regulate and check private religious affiliations, demanding loyalty and integration on the supra-political plane. The restraint of intense, devout or ‘ostentatious’ display of religious belief has come to represent something of a social goal in itself, independent of the requirements of equal liberty of conscience, which might otherwise be said to represent the deeper purpose of the laïcité ideal. Thus, constitutional secularism degenerates into a form of identity politics, entailing the profound confusion of the secular basis of social union, with the secularity of citizens’ lives. Under this Sarkozian narration, the demand on those of immigrant ‘origin’ is not merely that they renounce any claim to ‘political religion’ – to remould the Republic’s institutions so as to reflect the specificities of their faith – but rather that their way of life, their intimate and private habits and affiliations, be sufficiently secularized to enable them to integrate them within a cohesive ethnos. Thus, in Rawlsian terms, laïcité goes beyond the ideal of an institutional arrangement that could accommodate a plurality of conceptions of the good, in recognition of ‘reasonable pluralism’, instead representing a tool for the assimilation of minorities into what Baubérot coins as a ‘Catho-laïque’ false universalism, constructed on the terms of a dominant majority. ¹⁰⁰

Laïcité and women’s equal religious liberty: historical echoes of laïcité-as-emancipation

It has been argued that laïcité may be positioned within a broader theoretical dualism of ‘political’ and ‘comprehensive’ liberalisms. What is its significance for women’s equal religious liberty – specifically, for the claim of constitutional secularism to secure this through the religious neutrality of the public sphere? On the politically liberal view, the state can have no regulative role for religious choice; it is confined to providing the background social and institutional conditions necessary for its effective exercise, without privileging any conception of the good. Thus, it enjoys no emancipatory role with regard to women’s religious choices, merely providing the legally protected pathways and opportunities to enable women to pursue, revise and, if necessary, abandon their religious beliefs, ‘over a complete life’ ¹⁰¹ (although this interpretation of Rawlsian liberties as purely ‘formal’ is contestable). On the more radical republican view, however, politically liberal secularism fails to provide the broader range of goods and resources necessary to enable women to achieve a more complete independence with respect to their religious choices and life plans, overlooking the more subtle forms of domination within families and communities that liberals tend inadvertently to legitimize under the banner of formal consent. An overemphasis on the religious neutrality of the state, which ignores pressures on religious choice in the private sphere, neglects the goods, resources and capacities which women, in particular, might require in order to effectively exercise religious choice – including the ‘right of exit’. ¹⁰²

This tension was demonstrated in the discourses surrounding both the anti-hijab and anti-burqa legislation. Such decisive markers of religious identity in the public square were conceived as symbolic offences against national values or national identity, whether of gender equality, liberty or laïcité itself. The burqa, it was even claimed by the prominent feminist Elisabeth Badinter, contravened what she termed the devoir de fraternité (the ‘obligation of fraternity’), ¹⁰³ violated by hiding one’s face from fellow citizens – with fraternité thus completing the republican trinity of ‘national values’ offended by face-veiling. Again, this transforms the idea of the republican social contract as being based on a ‘vouloir vivre ensemble’ – or the consent of individuals conceived as free and equal – as instead demanding citizens’ commonality on the supra-political plane, across private and intimate spheres. This excludes ‘ostentatious’ markers of difference and voluntary self-exclusion on the part of radically religious citizens. Thus, the confusion illuminated by the anti-burqa polemic pertains less to the question of what are national values – of liberty, equality, fraternity, ‘secularism’ and so forth – than to what it is, and how far, they apply, that is, whether they adopt, in Rawlsian terms, a ‘regulative role for all of life’. ¹⁰⁴ Do they demand fidelity on the non-institutional as well as institutional planes, checking private and intimate behaviours, penetrating into the ‘private sphere’? Upon this ambiguity pivots the question of whether voluntary radical religious practice may, after all, be compatible with a laïcité conceived as a purely institutional value that has no regulative role for citizens’ ‘final ends’ per se. Similarly, the Conseil d’État noted that juridical principles of gender equality could not be applied so as to preclude voluntarily adopted forms of radical religious practice such as religious dress. ¹⁰⁵ This suggests a more conventional interpretation of the constitutional norm of gender equality as binding on the state, rather than as demanding the symbolic and affective fidelity of individuals in their intimate lives.

Additionally, the burqa ban is claimed to secure a form of the ‘right of exit’ ¹⁰⁶ by providing women with certain pathways to resist the imposition of religious norms within their families and communities. In seeking to account for disparities of bargaining powers and resources that may lead to the intimidation or invigilation of religious choice in these contexts, it is therefore seen as being grounded in a thicker conception of freedom than the usual liberal accounts. It is perceived as extending beyond the formal guarantees of state neutrality and non-coercion of religious choice, seeking instead to provide the goods, opportunities and resources necessary to its effective exercise, that may safeguard against the domination of religious choice. This is also the prevailing narrative underpinning the removal of conspicuous religious dress from the public classroom: to prevent the imposition of religious dress norms within families and communities. Alsowayel notes: ‘unencumbered by the family’s dictates … students are open to a larger menu of choices, enabling them to reach their own decisions about their religious pursuits’. ¹⁰⁷

It is noteworthy that the recent burqa debate is positioned within a much older theoretical antagonism of liberal and emancipatory secularisms, with the latter seeking to emancipate women from the servility and ignorance associated with certain belief systems. In a way, the emancipatory rationale for the anti-burqa measure finds echoes in the ideological foment of the Third Republic, specifically, in the anti-congregationalist measures of the late 19th century, and the broader secularizing zeal of the republican elite, whose anticlericalist hostility to religion was partly grounded, as noted, in the obstacle it represented to the advance of reason and enlightenment amongst citizens. ¹⁰⁸ An optimistic, teleological commitment to science, reason and epistemic positivism coexisted with a zealous Rousseauist republicanism. Surprisingly, the anti-burqa polemic is not entirely unfamiliar to French history. Baubérot gives a fascinating account of a debate in the Chamber of Deputies in 1905 in which an (ultimately unsuccessful) amendment to the 1905 law of separation proposed to ban the wearing of priests’ vestments in public space, outside of churches. Extraordinarily, almost precisely the same arguments invoked in relation to the burqa today were used. The priest’s habit was said to symbolize submission to servile belief systems, and ways of life incompatible with republican values; priestly vestments were not freely chosen but rather imposed by bishops. ¹⁰⁹ Being a ‘dress’, essentially, the garb was condemned as an affront to masculine dignity, but it was also argued – in terms that have recently become familiar – that the vestment was not in fact a religious obligation (just as it is argued the burqa is not warranted by Islam) – but instead, being clericalist rather than genuinely religious, it symbolized a fundamentalist pretension to integrate religion within the social order. ¹¹⁰ Indeed, not even the nativist dimension of the anti-burqa argument would appear to be novel: the anticlericalist deputies argued that, since the vestment betrayed an ultramontanist outlook, it was a fanatical foreign practice – Roman rather than French – and an act of ‘proselytism’ and of provocation against the republican order. ¹¹¹ It made the priest ‘a prisoner of his clerical training, of this own ignorance’, being ‘a sign of submission and obedience opposed to human dignity’. The bishops supposedly imposed the vestments to create ‘an impassable barrier with secular society’. ¹¹² However, Aristide Briand, anticipating the future, more liberal development of laïcité, protested that ‘in a regime of separation’, the state could enjoy ‘no role in interpreting the meaning of ecclesiastical clothing’. ¹¹³

Laïcité and the neo-republican theory of freedom as non-domination

These early debates contain echoes of the idea of laïcité as warranting the religious neutrality of public space for the sake of social cohesion, and the survival of a fragile and perennially endangered republican order. This conception dissipated with the 1905 law but arguably re-emerged in the late 1980s with the first hijab controversy in French schools. ¹¹⁴ Durand argues that today laïcité is increasingly interpreted by much the same light as those who wished to prohibit 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. ¹¹⁵ However, these debates also contain the germ of the more expansive idea of religious liberty according to which citizens – whether servile priests, burqa-wearers or otherwise – must be provided not merely with the formal right to religious choice, but be endowed, by the state, with a broader range of goods, capacities and resources necessary to exercise undominated rather than merely uncoerced religious choice. At first glance, this might simply be fitted within Berlin’s famous dichotomy of ‘positive’ and ‘negative’ liberty, ¹¹⁶ or Constant’s sketch of the ‘liberty of the ancients and the liberty of the moderns’. ¹¹⁷ However, it is easy to edify false alternatives. To query the adequacy of liberal legal frameworks for the free exercise of religion is not necessarily to advocate any perfectionist or emancipatory alternative: in a different optic, laïcité’s expansive idea of liberty of conscience bears some resemblance to the contemporary scholarship of neo-republicanism. The neo-republican critique of Benthamite and Hobbesian ideas of liberty as non-interference – more Atlanticist than Rousseauist – is exemplified by Philip Pettit’s claim that ‘the antonym of freedom is not interference, but domination’, with ‘domination’ being conceived as the capacity of agents to arbitrarily interfere in others’ choices. ¹¹⁸ Freedom is denied not by the fact of interference in the exercise of will per se – in the Hobbesian and Benthamite tradition – but rather, by the invigilation and constraint of citizens’ choices by the arbitrary, unchecked powers of a ‘master’. Therefore, on the neo-republican view, the role of the republican state is to contain the arbitrary ‘intimidation’ and ‘invigilation’ of religious choice, rather than solely its coercion. This makes it more attentive than liberalism, it is claimed, to the disparate power relations and bargaining inequalities that can distort and render ineffective the exercise of formal liberal rights. ¹¹⁹ In distinction to liberalism, the republican ideal of non-domination regards ‘properly constituted’, non-‘arbitrary’ interference, in accordance with law, as itself constitutive of liberty. ¹²⁰ It is attentive to the arbitrium of private domination that may persist under the liberal state, to citizens’ ‘fawning and toadying’ to ‘masters’ that accompanies the mere threat or capacity of arbitrary interference perpetrated at ‘the agent’s pleasure’, ¹²¹ which may compel the citizen to fearfully self-regulate in the apprehension of potential interference. ¹²² It is something akin to this rationale through which prevailing French discourse over the past decade has rejected liberal norms as insufficient to protect women’s (and especially schoolgirls’) effective exercise of religious choice. Given the French history of thought, it is unsurprising that current discourse is somewhat redolent of what Skinner terms ‘liberty before liberalism’. ¹²³

Yet neo-republicanism also shares political liberalism’s eschewal of any ‘thick’ account of freedom as self-mastery. In Pettit’s terms, it defines freedom in terms of the absence of mastery by others rather than the possession of mastery by the self, in the vein of the ‘continental romantics’ whom Pettit associates with ‘positive freedom’. ¹²⁴ It is anti-perfectionist, or at least non-perfectionist. It is also distinct from ancient and Rousseauist accounts of republican freedom, as the individual’s participation in sovereignty, or collective authorship of the ‘General Will’. It also rejects any perfectionist account according to which citizens must adopt authentically free choices, achieving a state of independence and detachment from external influence, and the ends or identities to which they might otherwise feel inescapably bound. ¹²⁵ While laïcité is animated in a certain optic by the rationale of non-domination, certain of its historical strands, as outlined, are born of a thicker, emancipatory commitment to Enlightenment and self-mastery, reflecting the Rousseauist influences in France’s history of thought. While something akin to a rationale of freedom as non-domination tacitly animates the prevailing discourses on Islamic dress, the thicker, ‘comprehensive’ account of republican liberty is also evident both in the historical emancipatory conception of laïcité, and in the contemporary presumption that religious liberty protects solely those practices that the state deems freely chosen. Religious liberty is thus equated not merely with the background conditions necessary to enable the exercise of religious choice, but with the empowerment of citizens by the state so as to enable them to achieve autonomy and independence in its exercise. The burqa polemic sees religious freedom circumscribed within those choices the state deems legitimate as the product of autonomous deliberation, and indeed, as doctrinally authentic.

Thus, we see in the burqa and hijab polemics echoes of the critique of the classically liberal doctrine of non-interference, held to be inadequate for victims of patriarchal and clerical domination, and also, in part, a re-emergence of the emancipatory spirit underlying the illiberal anti-congregational laws of the late 19th century. ¹²⁶ Just as the imperative of inculcating republican virtues in child-citizens was held to override liberal rights of conscience and expression, the right to practise radical variants of religion is today rejected both by virtue of the symbolic offence against national values represented by the burqa, and the assumption that it is unlikely to be freely adopted. Again, the recurrent theme is that of the perennially fragile republican polity reasserting control over a chaotic, particularist social order which otherwise threatens to disrupt it. Yet it is incongruous that laïcité has recently become so closely associated with gender equality. French women were granted the franchise at a comparatively late point, ¹²⁷ partly because the republican elite of the late 19th and early 20th centuries – the strongest proponents of laïcité – doubted whether women possessed the independence of thought necessary to participate in the exercise of national sovereignty free from clerical influence. ¹²⁸ Moreover, it is overlooked that the nativist dimensions of the current discourse echo anticlerical republicans’ depiction of Roman Catholicism as a foreign presence in the pre-1905 debates, as well as the attempts, before the 1905 compromise, to create a ‘French Catholicism’ subject to state supervision and control. ¹²⁹

How may laïcité’s relationship to gender emancipation be understood through the contemporary theoretical debates on the liberal and neo-republican accounts of freedom? While political liberalism avoids a totalizing account of freedom by seeking to abstract the social contract from any ‘comprehensive’ doctrine, the alternative neo-republican premise is often argued to represent a more expansive conception that seeks to alleviate those forms of oppression, in private and intimate contexts, that are tacitly legitimated under the liberal banner of consent. Maynor has attempted to identify a fundamental incompatibility between Rawls’s political liberalism and the republican politics of non-domination – because the latter is a ‘comprehensive’ doctrine, given the ‘necessary values and virtues’ it must promote. ¹³⁰ Thus, neo-republicanism claims to represent a more adequate and morally compelling conception of freedom across ‘private’ as well as public spheres, in its attentiveness to disparate power relations. Given that the neo-republican state would, in order to realize freedom as non-domination, have to assume an interventionist, transformative role for citizens’ lives, and private relationships, Maynor suggests that it will ‘affect the whole of an individual’s life’ ¹³¹ – and therefore transgress the limits of Rawlsian justice. Republican non-domination would extend to the inculcation of habits, virtues and attitudes:

… civic virtue and citizenship play important roles in securing the conditions of non-domination … republican citizenship not only educates future citizens in the ways of politics and government, but also teaches them the necessary civic virtues and civility that help individuals not to dominate others. ¹³²

It is tempting to overstate this difference between politically liberal and neo-republican thought. Indeed, Rawls’s reply to Okin’s charge of overlooking intra-familial power disparities – that if properly formulated, the basic liberties are sufficient to ensure the ‘equality and independence’ ¹³³ of women within families – again suggests a possibility that the republican critique attributes a dubiously narrow boundary to the Rawlsian ‘political’. Nonetheless, this conception of a deeper and broader projection of republican values has obvious resonance in France’s face-veiling debates. Similarly, it might be argued that laïcité seeks a more interventionist role than political liberalism in moulding both public and private selves, committing to the inculcation in citizens of those civic and political ideals consonant with the republican basis of government, the values of liberty, equality, fraternity and so forth which are expressed and promoted through the exclusion of sectarian divisions from the public sphere, and the public schools in particular (although this rests on a narrow, contentious view of the scope of the ‘political’ in ‘political liberalism’). ¹³⁴ Thus, Laborde notes

… the central importance of education to laïcité. If the republic was to create ‘citizens’ out of ‘believers’, it had to engage in a strong formative project, aimed at the inculcation of the public values of democratic and egalitarian citizenship … so as to lead citizens to endorse a robust public identity capable of transcending more particular … loyalties. ¹³⁵

In this vein, the anti-veiling discourses do echo certain strands of the republican tradition, in particular, Viroli’s description of the tradition as ‘aim[ing] to promote loyalty to the republic amongst citizens, where “republic” is understood as a collection of political and cultural virtues’. ¹³⁶ Indeed, there are intriguing echoes in Viroli’s description whereby ‘[republican citizens] lead a family life based on mutual respect, so that their home resembles a small republic rather than a monarchy’. ¹³⁷

Thus, insofar as laïcité represents a commitment to liberty of conscience, rather than a perfectionist commitment to the triumph of reason, free thought and Enlightenment, it is surprisingly harmonious with the neo-republican premise of liberty as non-domination, given its rejection of both perfectionist and classically liberal accounts of religious freedom. As already touched upon, the neo-republicans – drawing upon Machiavelli, Renaissance Italy and republican Rome– have claimed to offer a distinct and more expansive account of individual freedom in relation to the prevailing liberalisms. If freedom is denied not by the mere fact of external interference in the exercise of choice or will per se, but rather by the capacity of others to arbitrarily interfere in individuals’ choices, ¹³⁸ the idea of protective state intervention, for women subject to the imposition of religious norms, initially makes a great deal of intuitive sense. Freedom as non-domination represents the freedom from ‘the arbitrary, uncheckable power of a dominus or master in one’s life’, ¹³⁹ from the power disparities that lead to the ‘alien control’ of choice. This derives, from an alternative republican history of thought, a challenge to the Benthamite idea that ‘all coercive law, at least initially, takes away liberty’. ¹⁴⁰ It asserts that ‘rights are not pre-political’. ¹⁴¹ In turn, this is echoed in the assumption underpinning the 2004 law that, in order to protect religious liberty, the state should interfere with religious choice at the point of childhood, checking intra-familial and intra-community power relations.

Moreover, Pettit claims that this attentiveness to the ‘invigilation’ and ‘intimidation’ of private choice makes neo-republicanism harmonious with feminist preoccupations. Because it seeks to provide persons with the resources and capacities necessary to resist private arbitrary power – and foreclose the threat of its exercise – it claims to offer a response to the traditional feminist complaint about the liberal delineation of the ‘public’ and ‘private’. Like feminism, neo-republicanism suggests that liberalism is insufficiently attentive to the power relations prevailing in the ‘private sphere’, given its confinement of the principles of justice to the ‘basic structure’ of state institutions, or the ‘domain of the political’. ¹⁴² Maynor points to its failure to seek the projection of the ‘virtues and values’ associated with freedom as non-domination across the private sphere, as values having a ‘regulative role for all of life’, whereas neo-republicanism seeks to lay down ‘the norms of society, not just the norms of politics’ ¹⁴³ (although the narrow construction of political liberalism upon which this characterization is based is strongly contested ¹⁴⁴ ). This extension of republican justice beyond the ‘domain of the political’ is intended to eliminate private arbitrium in private and intimate contexts. ¹⁴⁵

Therefore, the question of whether the republican premise of non-domination offers a more plausible account of freedom than political liberalism has an obvious application to gender equality – particularly, in light of Okin’s critique of Rawls’s theory as failing to account for injustices embedded in familial contexts. ¹⁴⁶ On this account – and provisionally assuming some merit in this feminist critique of political liberalism – the neo-republican premise would appear to be more promising for gender equality, given its commitment to project the ‘virtues and values’ associated with freedom as non-domination across private spheres. It would appear, at least in its conception, more receptive to the common feminist preoccupation with oppression in ‘private’ and familial spheres. Moreover, this conception of republican freedom as projected into private spheres resonates with certain dimensions of the laïcité project in contemporary France – especially in the conception of laïcité as denying any powers of tutelage or invigilation of religious choice to favoured clerical interlocutors of the state. ¹⁴⁷

Neo-republicanism exemplifies how an attentiveness to the distorting effect on citizens’ religious freedoms of disparate power relations in private spheres – the rejection of formal values of consent and non-interference – need not be rooted in any ‘comprehensive’, ‘thick’ or perfectionist account of freedom as self-mastery or rational autonomy. It is anti-perfectionist while also eschewing the laissez-faire non-interventionism of classical liberalism. It would likely escape the charges Okin and others level at Rawlsian liberalism, as insufficiently attentive to relationships of domination in families and communities. Similarly, in the more expansive republican account, laïcité will penetrate far into the domains of citizens’ thought, virtue and habit, working a radical transformative effect on citizens’ moral reasoning itself. ¹⁴⁸ Yet the prevailing analysis in this field has sometimes also exaggerated the contrast between political liberalism and (French) republican thought ¹⁴⁹ – overlooking in particular the commonality in their claim to dissociate the terms of citizenship and national identity from ‘comprehensive’ or ‘noninstitutional’ identities. ¹⁵⁰

Non-domination as the disjuncture between constitutional secularism and (women’s) equal religious liberty

Republican non-domination has an obvious bearing on how constitutional secularism is related to gender equality. It might be seen as providing an attractive alternative to the emancipatory excesses of a comprehensive secularism that assumes a ‘regulative role for all of life’, and also to a minimal conservative liberalism confined to the formal equality of rights and ill-equipped to secure equal liberty in private, familial and associational spheres. The degree of resonance of this politics of non-domination with the French laïcité ideal is ambiguous. The dominant French narrative assumes that laïcité will lead to gender emancipation by dissolving any sectarian dimensions of women’s citizenship through a religiously neutral public sphere and a definition of citizenship purged of any sectarian element. At the core of this promise lies a formal equality of rights irrespective of religion, but the salient question is the sufficiency, to equal religious liberty, of this anti-sectarian blindness to religious difference. As noted, the discourse surrounding the 2004 prohibition on religious dress in public schools also emphasized the role of laïcité in extending beyond the formal equality of rights, by securing non-domination of religious choice – being thus portrayed as a more ambitious project of gender emancipation than the liberalisms of the ‘Anglo-Saxon’ world. ¹⁵¹ Although the Anglophone neo-republican scholars have made little impact in France, part of the defence of the 2004 measure, in particular, was that the liberal alternative does too little to generate a robust politics of non-domination that would protect against private as well as state interference in religious choices. ¹⁵² The conception of laïcité animating recent debates on the hijab and burqa is underpinned by the belief that republican politics, though not historically attentive to gender equality, ¹⁵³ may encompass a greater concern for the actual condition of women in society – and the power relations that constrain their choices. Yet while the recent prohibition on face-veiling was supported by the rhetoric of non-domination, it neither provided nor proposed any way of providing women with the actual resources, powers, capacities and opportunities necessary for the exercise of undominated religious choice in these private spheres. Having a more disciplinary hue, the discourse said little about the forms of relational and social capital with which such women might be equipped. While clothed with emancipatory ambition, the salient concern was rather to purge the public sphere of any visible markers of religious difference in order to secure national and social cohesion, with little sense of what broader guarantees and social conditions might be necessary to guarantee women a meaningful ‘right of exit’ over a complete life. The neo-Jacobinist preoccupation with protecting national unity against the expression of particularist identities somewhat sidelined the more recent rights-based orientation of the laïcité project. Therefore, like the liberalism against which it is contrasted, laïcité fails to provide the missing link between constitutional secularism and the meaningful and effective model of equal liberty of conscience that might be assumed to represent the underlying purpose of a norm of state neutrality towards religion. As a purported weapon against gender domination, the form which the laïcité project has recently adopted in fact jars with Pettit’s formulation of republican non-domination as ‘a regime in which people are assured of certain powers and options that might otherwise be unavailable’. ¹⁵⁴

The formal equality of liberal rights under constitutional secularism – translated as the refusal of the state to recognize any sectarian distinctions or enforce any religious precepts – is insufficient, in itself, as a guarantee of women’s equal religious liberty, given the relations of domination that may distort, intimidate and ‘invigilate’ religious choices that are perfectly ‘free’ in formal terms. The vice common to this laïcité and the liberalism against which it too often juxtaposed is the prevailing assumption that the constitutional neutrality of the state with regard to religion – that is, its non-intervention in religion coupled with its protection of religious choice from coercion – is itself adequate to secure equal religious liberty, without attending to the relationships of domination, in the private spheres, that may distort its exercise. This represents a discrepancy between the promise of constitutional secularism, as the formal state neutrality towards religion, and the deeper goal of equal liberty of conscience which might be said to represent its underlying legitimation – because in this context, neither the religious neutrality of state action nor the aggressive and exclusionary projection of secular values in the public square provide the actual goods and resources necessary to women’s effective exercise of liberty of conscience in private and intimate spheres. The perfectionist and emancipatory tendencies within French secularism would seek to emancipate religious women in spite of their own choices, which are deemed to be not authentically free, whereas neo-republicanism instead requires the legal structures and frameworks facilitating the exercise of those religious choices made by women as well as all such potential choices. Similarly, the additional vice in the ‘New Republican’ interpretation of laïcité is the rather naïve belief that legislating against ‘ostentatious’ religious displays perceived repugnant to gender equality will in itself emancipate victims of oppression, whether supposed or real. ¹⁵⁵ The exhortation to purge the symbols of radical religion from public space – while itself doing violence to the historically liberal ethos of laïcité ¹⁵⁶ – is wholly barren of and oblivious to any concern for the resources, powers and capacities that women might need in order to effectively exercise religious choice, free from its ‘inviligation’ and ‘intimidation’ as well as its coercion – resources that might underpin an effective ‘right of exit’, not only from a religion and between religions, but from particular practices and beliefs within these. As Lovett notes, the question of whether a practice such as veiling involves domination ‘depends on whether, and to what extent, the practice creates or maintains relationships of dependency, imbalances of power, opportunities for wielding that power arbitrarily, and so forth’. ¹⁵⁷ While I do not seek to describe extensively here what these ‘powers and resources’ might be, they are likely to have a broad social and economic dimension ¹⁵⁸ which itself partly explains the greater rhetorical attraction of a grandiose, exhortatory, valour-laden stand against the symbols of gender inequality in the public square. ¹⁵⁹ Yet it would appear self-evident that the anti-burqa measure is unlikely to provide women with many resources, powers or pathways of exit necessary to overcome the invigilation of their religious choices in the private and familial spheres. Those upon whom it is supposed the veil has been imposed by subtle threats and domination are offered little but the hope that a criminal prohibition on their wearing of the garment will somehow alleviate the source of their oppression, ¹⁶⁰ while those who voluntarily wear it are judged either to have committed a symbolic offence upon national values, or to have adopted a form of religious practice so radical that it could not in fact have been freely or reasonably adopted. Certainly, the rhetoric and rationale surrounding the measure broadly ignored, in particular, the socioeconomic condition of the Muslim women, many of immigrant origin, who were the very subjects of the controversy – this factor of socioeconomic independence being most relevant, perhaps, to their capacity to exercise a plausible and meaningful liberty of conscience. Thus, the measure represents a simulacrum of the idea of non-domination, centred on symbolic posture, sometimes inflated to civilizational struggle – rather than on the minutiae of women’s lives, as the conditions that govern their capacity to freely exercise religious choice. It overlooks, in Pettit’s terms, how citizens’ freedom of religious choice might be ‘a function of their relative powers’. ¹⁶¹

Conclusion

There has been growing critique of the excessive emancipatory zeal of the laïcité project. From a Rawlsian standpoint, Kahn suggests stripping laïcité of its ‘comprehensive’ dimensions that see the state arrogate to itself a ‘regulative role for all of life’, including the ‘final ends’ or comprehensive doctrines that citizens espouse. Yet among these ‘comprehensive’ traits of contemporary laïcité he includes the goal of promoting gender equality, ¹⁶² suggesting that laïcité should be confined to the formal equality of rights necessary to secure equal liberty of conscience. Laïcité, then, is merely the ‘dissociation of citizenship from religious affiliation’. ¹⁶³ But in stripping away the emancipatory hue of a ‘comprehensive’ secularism by confining its definition to the formal equality of liberal rights, this would in fact appear to throw the ‘baby’ of equal liberty of conscience out with the ‘bathwater’ of laïcité’s sometimes perfectionist zeal. It is to attribute an unduly narrow frontier of the ‘political’ to political liberalism, which Rawls constructs in terms of the ‘all-purpose means’ necessary to the ‘realisation of moral personality’, ¹⁶⁴ suggesting an extension of equal basic liberties, such as liberty of conscience, beyond the requirement of formal state neutrality towards religion, encompassing instead the ‘opportunities and pathways’ that are necessary in order to enable citizens to exercise their capacity for a conception of the good ‘over a complete life’. ¹⁶⁵ Thus, any dissociation of laïcité from the promotion of gender equality in the private sphere, on the grounds that laïcité is merely an institutional appendage of liberty of conscience, rests on an implausibly narrow conception of liberty of conscience itself. The challenge is to construct a model of constitutional secularism that extends beyond the formal state neutrality and equality of rights and, instead, sustains robust policies of non-domination – without, however, spilling over into an authoritarian emancipatory politics which assumes a regulative role for religious choice itself. There is quite a difference between the state committing itself to a broader conception of the background enabling conditions necessary to the undominated exercise of religious choice, and committing to a comprehensive or perfectionist stance which excludes those religious choices it deems to not be the product of autonomous deliberation. In Sandelean terms, the difference pivots on whether laïcité warrants a public commitment to the creation of private selves ‘unencumbered’ by attachments and ends towards which they might otherwise feel irreversibly bound. ¹⁶⁶ Alternatively, a ‘political’ rather than ‘comprehensive’ laïcité would accommodate a ‘reasonable pluralism’ of conceptions of the good – thus harmonizing the unitary conception of republican citizenship with the fact of religious diversity. There is much of value in the radical laïcité tradition – particularly, we find in it the kernel of ideas common to political liberalism and neo-republicanism alike, that by dissolving the privileged link between state and religion, individuals are guaranteed a fuller sovereignty over their religious commitments, accorded equal standing in the political community irrespective of religious affiliation. Its original radical heritage lies in the denial of powers of tutelage, or invigilation of religious choice, to any privileged clerical interlocutors of the state, through a deterministic politics of difference. In terms of gender equality, however, there has been excessive focus on the symbolic projection of secular values in the public square, and too little on the positive goods and resources necessary to women’s effective exercise of religious choice in ‘private’ spheres. To strip laïcité of its ‘comprehensive’ emancipatory dimensions as an ‘Enlightenment project’, and to confine it to the necessary institutional framework for equal liberty of conscience, itself leaves unresolved the question of what social goods, guarantees and resources are necessary to a plausible conception of equal liberty of conscience, sensitive to citizens’ concrete relational experiences.