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

Abstract

The paper compares French and Dutch legal approaches in regulating the use of headscarves in public institutions as examples of divergent liberal legal cultures and national policies towards immigrant minorities. It shows that in France the principle of laïcité or state secularity resulted in a legal prohibition of Islamic headscarves in public schools and other public institutions. In France vs. the Netherlands At present the countries of the European Union are tending to a common liberal constitution, even though a draft Constitution for Europe has recently been rejected by referendum in France and the Netherlands. 2 According to article 1.2 of the draft, the Union is founded on the values of human dignity, freedom, democracy, equality, the rule of law, as well as on respect for human rights, including the rights of members of minority groups. Although the European member states already have accepted these liberal constitutional values, traditionally they have given shape to them in divergent ways. 3 These differences in legal culture may evoke sharp mutual criticism. Thus, French authorities are in the habit of sneering at Dutch tolerance that they view as excessive in such domains as euthanasia and drugs policy. From their part, many Batavians cannot help smiling when French presidents pose with a theatrical majesty that far surpasses the rather bourgeois ways of the Dutch royal family. Recently, the French Stasi Commission has added policy towards minorities as a new topic to this list of cultural contrasts. According to the Commission, the Dutch policy of forbearance has taken disastrous effects on the integration of ethno-cultural minorities in the Netherlands. 4 As an attractive alternative the Commission recommends the typically French principle of laïcité that centers on a strong secular state. Indeed, the French variant of liberal constitutionalism is presented as a superior model that other European countries would be wise to adopt. This criticism raises the question of what is the best approach in public policy toward minorities, French laïcité or Dutch tolerance? Or, is it possible to construe a rational third way that bridges these differences in European legal cultures? I focus on the proposal to ban Muslim headscarves in public institutes, one of the main issues in the Stasi Report. 2 Part II of the draft, The Charter of Fundamental Rights of the Union, has already been accepted in 2000 in a separate solemn proclamation by the European Parliament, the Council of the European Union, and the European Commission. The Preamble declares: 'The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating ...