III. Religious Pluralism in Canada: a Fact since 1774
A. From the Treaty of Paris (1763) to the Confederation (1867)
Eleven years after the Treaty of Paris had given a legal status to the conquest of New France by the British, the Québec Act organized the multicultural colony. The most obvious aspect of it was religious pluralism which resulted from a negotiation between the parties. We are in the very particular perspective where religion is considered as a component of culture. This initial postulate is decisive regarding the continuity from religious identity to citizenship that is recognized in liberalism, where the State must have a neutral bearing while the citizens need not. The Republican Rule takes the opposite discontinuist stand where religion is not a component of culture, therefore it has no place in the construction of individual or national citizenship, and should not be brought into the public sphere as a source of norms.
As Micheline Milot has shown, the Québec Act produced an arrangement more tolerant than that which prevailed in England at the time, where the King was separately head of two churches (the Anglican and the Presbyterian); in Canada, neither the Anglican, nor the Roman Catholic Churches held any direct political office: here in the colony, without theoretical debates, the State became de facto neutral , blind to an illegal religion (Roman Catholicism, repressed through fines and imprisonment in the United Kingdom). The Bill of Test by which all those invested with a public office had to solemnly reject transubstantiation, the Pope’s authority (and other elements of Roman Catholic theology) was also abolished in the colony by the same Act of 1774. Consequently, in the streets of London, George III’s carriage was met with riots and he was accused of “Papism” by the mob. As a result, while Irish Catholic elected representatives could not sit in the Commons of London until the Catholic Emancipation Bill of 1829 , they did in the assemblies of Upper and Lower Canada , at the same period.
It is most unusual to grant more freedom to the colony than to mainland subjects . The reason for this show of tolerance was that the British Crown feared its new French subjects would be attracted by the movements of independence developing south of the border . Besides, the British army and navy were busy in Europe fighting in the Seven Years War (1756-1763) and had few spare troops to leave in the conquered territory here. This neutrality, then, was a pragmatic solution: the Bishop of Québec was not averse to accepting the position of paid Superintendent of the Cult which was offered to him personally (and not as bishop).
The arrangement worked and, despite direct encouragements to secede and an American military invasion, the colony remained loyal to the British Crown. There were even some episodes of anti-clericalism but the Catholic high clergy was not able to have the Voltairian polemist Fleury Mesplet and his Republican sympathizers expelled from the colony . Half a century later, Canadian public opinion was struck by the excommunication of the leaders of the 1837-1838 Rebellion of the Patriots who were fighting to establish Québec as an independent secular republic with responsible government . The principle of a strict separation between State and Churches appears in Louis-Joseph Papineau’s Constitution which was proclaimed but, of course, never implemented. The bishop’s answer was for Catholics to stay faithful to a Protestant king and pray for him. A political party emerged in the Canadian Union after the rebellion was crushed and its leaders hanged or exiled to Australia: it was a republican secularist party called “Les Rouges” (the Reds). It promoted annexation of Québec (the former Lower Canada) to the Republic of the United States of America. Heirs to Fleury Mesplet’s lobby and to Papineau’s party, Les Rouges were supported by the intellectuals and by the liberal merchants. Most of them –notably the free-thinking leaders and activists who were members of the Institut Canadien-- were excommunicated by the ultramontane archbishop of Montréal (1840-1885) Ignace Bourget.
As we have seen, the first phase of neutrality of the State did not develop here against Churches or a Church in particular, but rather through a plurality of religious authorities forced to abstain from direct political power. In the second brief insurrectional period (from the American Revolution of 1776 to the crushing of the Patriots’ Rebellion and the Union regime of 1840), there were episodes of anti-clerical polemical literature, newspapers, movements and public debates very similar to what was going on in France. This called for an articulate, conscious and systematic secularism in the name of modern free thinking: it promoted an egalitarian ideal. The same political and intellectual secularist climate reappeared between 1900 and 1939, in Québec, again limited to the urban elite in direct contact with France.
B. The British North America Act of 1867
If we turn to the BNAA of 1867, the act that established the Confederation of Canada, we read in section One that the country is founded on the principle which recognizes the supremacy of God and the primacy of law. This same formulation was maintained in the Constitution of 1982 . The unspecified theism it asserts differs from the unified civic religion of the Americans. But it does not simply ignore beliefs as private matters, it mentions them as public facts. Section 93 explicitly protected the right to have denominational schools for Catholic and Protestant faiths in Ontario and in Québec .
It excludes any association of the State, its institutions and its agencies with a particular religious denomination. This is the continued neutrality that had prevailed between 1774 and 1867. The four original provinces kept their separate status with their specific proportion of Quebeckers, Irish people and Acadians of Catholic descent, the Anglicans and the Scottish Presbyterians, plus a limited number of Jews. There were aboriginal minorities in the founding provinces: most had converted to the branch of Christianity represented by the missionaries who came to them. But outside the provinces, in the North-Western Territories which covered the largest area of the country, the majority of the natives still belonged to traditional religions.
In the terms of Will Kymlicka’s theory of multicultural citizenship , right from the British Conquest, Canada had the features of a polyethnic and of a multinational society. The conquered territory had never been brought under a unitary rule. In the constitution, Québec’s protected linguistic and religious collective rights (ignoring Durham’s recommendation to force the assimilation of the French minority), the aboriginal peoples and English Canada all constituted a system of differentiated and unequal citizenship . So much different that the Registered Indians and the “Eskimos” (as they were called) were granted semi-citizenship under a tutor-State --deprived of voting rights-- which amounted to a denial of citizenship in our present terms.
Between 1867 and 1914, the Federal Government was concerned about territories beyond Ontario being too sparsely populated. To confirm Canadian sovereignty, large groups were invited to settle in these areas. Federal agents were instructed to negotiate agreements with European rural groups with agricultural expertise who had the choice between Australia, the American Western prairies and Western Canada. Several of these organized communities felt oppressed or persecuted for their archaic forms of organic religion. Whole communities of radical Christian churches such as: the Hutterites, the Mennonites, later the Doukhobors eventually settled here, while some Amish groups were persuaded to leave the United States for Canada. They all wished to live in isolation, away from the corruption of worldly Modern societies.
Exercising direct jurisdiction in the absence of provincial entities, the Federal Government signed agreements allowing derogations from the general law: reduction of the compulsory years of schooling, suppression of the subject matters considered useless or dangerous for the community, exemption from military service, and until the shock of 9/11, exemption from having one’s photograph on one’s driver’s licence, etc. Here we find another type of semi-citizenship on the grounds of religious observances resulting in semi-apartheid.
Uniformity of legal status which defines justice through impartiality was not thought to be part of the democratic rule. The State did not have the means to enforce a centralist policy which had not succeeded during the Union governments (1840-1867). The federalist structure favoured decentralization. Therefore, the special type of secularism which the Canadian neutrality embodies was not the outcome of a civil war like the French Religious Wars of the XVIth Century, or a gain obtained through some heroic debate on civic freedom. It was just a reasonable, minimalist, pragmatic set of practices accepting extreme religious plurality, from the most archaic and literalist Jewish and Christian conceptions to “liberal” and secularized religious perspectives.
Such religious diversity as Canada presented in 1867 was unknown to the Western European law that engendered Canadian juridical categories, namely the British Criminal and Common law codes, plus the French Code civil of 1804 which Québec had borrowed from the Napoleonic regime . This Civil Code, which was not inherited from accumulated piecemeal jurisprudence, but rather conceived anew as a logical system inspired by Roman law, reflected the categories of a centralized and strong unifying Republican Rule, one that was foreign to liberalism. It is another vector along which the multiculturalist pressures and accommodations tend to appear as nonsensical, abusive or responsible for the erosion of the social fabric. What interests us here is to understand that religious diversity in Canada generated an early awareness of liberty of conscience and of religion plus a favourable prejudice toward a pluralist society regarding other dimensions of life: decentralization and federalism appear as obvious and convenient choices under these circumstances.
C. A Tale of One Law and Two Charters
In 1971, Pierre Elliott Trudeau, having moved away from the centralist model of the [CCF which became, after 1961:] New Democratic Party (and by personal infatuation with the Austrian Friedrich August von Hayek’s liberal doctrine ), had the “Canadian Policy on Multiculturalism” adopted by Parliament without debate. I insist here again on the loss of the deliberative dimension in this radical transformation of the political culture of Canada: one of the many defeats of Public Reason (in the Rawlsian sense) in this country. This policy introduced a new individualist dimension, inspired by American liberalism, where it is understood that the citizen must be protected from the State because the State is abusive by nature .
The 1975 Québec Charte des droits et libertés de la personne which applies to provincial fields of jurisdiction introduced a similar American individualist and anti-State bias, as if individual liberties had been reconquered from an authoritarian Leviathan which has to be watched and checked at all times. Hence the Charter is intended as a much-needed safeguard. But it introduced a dissonance with the republican inspired civil law which had governed the public values for more than a century. According to the cognitivist model , in a democracy, the content of the rules of law must be “consonant” with the dominant culture to be meaningful and accepted. Any regional piece of legislation must be consistent with the global juridical framework. The Québec Charter, although introduced by Quebeckers, goes against the grain.
So did, but on a smaller scale, the Canadian Charter of Rights and Freedoms. It mirrored a kind of American atomistic liberalism more than the spirit of British traditions. But, as pluralism seemed to accomplish the perfection of democratic rule, the Canadian Charter did not meet with any organized opposition when Prime Minister Pierre Trudeau had it accepted along with the 1982 Constitution. Section 27 incorporated multiculturalism among the fundamental principles overruling all legislation past and future. From this moment, classical Canadian nation-building became obsolete. So did Quebec national and historic identity. Ontario’s sense of legal tradition was also rendered obsolete by the Charter, as was demonstrated by the Islamic Courts crisis of 2004-2005.
At first, the Federal Charter seemed to do no more than ascribe a greater legitimacy to individual rights. It looked like adding an emphasis to existing values and implicit obligations. In its authors’ mind, it was not intended to change the direction or “spirit of the laws”. Neither the charter(s), nor the provisions on multiculturalism were supposed to create any new legal obligation. But from another perspective, it is significant that the political discourse on the promotion of Canadian unity took a new turn in parallel with the Charter. Its announced goal was to address the movement for Québec sovereignty after the 1980 referendum. But the boosting of Canadian unity turned out to also take into account the deficit of polity cohesiveness and restore it: it appeared that there was a distinct weakening of the sense of belonging to this country, showing signs such as the so-called “alienation of the Western provinces”, the ever diminishing proportion of Canadians who exercise their right to vote, the high figure of foreigners (landed immigrants) who do not hurry to acquire Canadian citizenship long after the legal time requirement of residence is met, etc.
The aim of the Charter of rights is to guarantee individual rights against the State, even if it can turn into some absurd combination of functions: section 1 of the Constitution affirms the principle of God’s supremacy but subsection 2.a of the same constitution makes it a duty for the State to guarantee the individual choice of atheism or of any established religion.
The neutrality of the Canadian State has been tested through several legal cases. As mentioned above, against the formal opposition of most Churches of different creeds, the federal Minister or Justice (Irwin Cotler) had submitted to the Supreme Court a draft of the Bill on same sex marriage. He claimed that this Charter of Rights did prohibit the State from supporting a particular religious view of marriage. In December 2004, the Supreme Court announced that the Federal Charter guaranteed the recognition of the right to contract a civil marriage for same sex couples. There was no public discussion or debate around such a major question. For those committed to the Republican model, the silence of the House of Commons amounted to another defeat of Public Reason. Here as well, government by the charters and judges seems to satisfy a large segment of the public as a safeguard against alleged arbitrariness and passions .
In 1988, the Parliament of Canada adopted the Law on Multiculturalism which clarified and harmonized the 1971 Policy and the 1982 Charter.
Section 3.1.a. states that multiculturalism means freedom for individuals to maintain, enrich and share their cultural heritage.
Section 3.1.b. recognizes multiculturalism as a fundamental character of Canada.
Section 3.1.e. defines equal treatment in law implementation as the obligation for the Government to acknowledge cultural differences
Section 3.1.d. recognizes as positive the existence of organized cultural communities and promotes the recognition of their contribution to Canadian history.
Section 3.1.f. encourages social, cultural, economic and cultural institutions to adjust to those differences.
Section 3.2.a-f lists the obligations made to all federal agencies to collect detailed information on the cultural communities and to use public funds to promote their development through programmes.
This corpus of legislation was voted in the spirit of individualist liberalism and group-differentiated rights before any theoretical reflection by Canadians on their own situation and values had been systematically conducted. It does not mention the State by name, nor its correlative: the citizen. The word integration is absent from the texts. There is no longer any civic entity to be integrated in.
The debate began very late. In fact, legal scholars, sociologists of religion, political theorists and other intellectuals felt concerned post factum. Some attacked the folklorist reduction of the concept of culture as used by the Charter and by the 1988 law:
I Implicit in this approach is the peculiar notion of culture as a commodity: a thing that can be displayed, performed, admired, bought, sold or forgotten. It represents a devaluation of culture, its reduction to bauble and kitsch .
Others considered that these policies were openly illiberal because a group-differentiated citizenship violates the liberal rule of neutrality. The State should limit itself to maintain a fair cultural market place. Other rejected the multicultural stance because it violated the republican absolute equality requirement .
Wayne Norman, Will Kymlicka and Charles Taylor did not agree. They took, each in his way the legitimation task, arguing that, in post-national democratic societies, particularisms, and especially the subjective religious identity, are entitled to receive recognition and legal protection. The private individual and the public individual are the same and, in accordance with the modern imperative of authenticity, society should apply the politics of recognition, in the words of Charles Taylor. What separates individuals from each other (religious rules, dress, family structure, public values inherited from their society of origin, language, etc.) is accentuated. The pressure in favour of Anglo-conformity (as it used to be called colloquially) is made abusive and obsolete.
D. The Notion of Passive Citizenship
Such new rules define an empirical passive citizenship : the differentiated individuals are made comfortable to receive help and protection of their difference and if applicable, through the mediation of the cultural community they are associated with. We can find a major distortion of democratic autonomy when observing that some Arab, Indonesian, Persian or Turkish Canadians find that Muslim organizations speak in their name without checking the subjective faith factor . In this context, the State-subsidized citizen is simply an extension of the “natural” family cell and of the religious beliefs it transferred to him/her. According to this liberal conception, it is legitimate to claim publicly funded denominational schools. It is also legitimate for such a citizen to invoke a religious value in a political debate where there is no self-evident argument to orient a decision : the conception of the public sphere is not that of a conscious separate construct, where political ethics are derived from a distinct political foundation.
Multicultural citizenship, though, seems ill-equipped to engage in public discourse and actively promote a conception of the common good. Let us take the case of religious fundamentalism in a hyper- or late- or post-Modern society like Canada is. The two conceptions of public space are incommensurable. In the Western sense (which includes secular or liberal forms of the three partners in monotheism: Judaism, Christianity, Islam), the citizen does not coincide with the private person: citizenship is a political identity aware of societal needs and ends, separable from private of family beliefs, where the a-rationality or arbitrariness of religious faith , is kept away from the political arena. The Enlightenment heritage of Public Reason offers the minimal condition for the converging debates based on relative values leading to decisions to which all citizens can relate. Relative values here do not mean that citizens must debate as relativists but rather that they will take an immanentist perspective where their religious values can be translated into secular political commitments. This view cannot enter into political discussion with those who recognize only a monolithic identity: that of the believer armed with sacred transcendent values. Where religious dogmas alone constitute the full identity of the believer in the public space, basic law enforcement becomes impossible. Revelation and traditions provide all needed rules. Moreover, such an identity does not move in the direction of citizenship.
If a democracy does not offer and even impose the means to integrate the newcomers with participation and profit into the dominant public values, centrifugal forces will prevail and cause the loss of points of reference. The concept of multicultural citizenship is based on some magical anthropology according to which all the heterogeneous identities will freely add up to a harmonious whole: the civic nation. This is supposed to happen spontaneously, peacefully, without integrative structures, as if any individual could enter into dialectical productive relations with any other individual without mediation. Or as if a post-Modern nation could altogether dispense with relations between the citizens who constitute it and continue to be a nation.
If we consider the immigrants to this country and the “cultural communities” or “minority groups” (the name itself modifies the view), their rights to difference are now “entrenched” into our laws as non-accidental, non-transitory i.e. not conditional to an integration, but inherent and permanent. Integrate to what, in truth? Identity has become self-referential. The general picture is that of a “community of communities” as the famous expression coined by Robert Stanfield and Joe Clark puts it . This last picture of Canadian identities collects ghettos unaffected by the presence of other groups, determined by their respective past and cultivating a subservient ritual memory in place of political debate, completely foreign to the sphere of Public Reason. But one must realise this basic fact: community is not political society and does not lead to it.
The substantive content of historical common values has been removed from the Canadian State, fragmented and transferred to cultural communities of old-and new-comers, all considered on an individual basis . Why should an immigrant be compelled to integrate into another group of immigrants of slightly earlier installation like the English (or the French)? The norm of Anglo-conformity was then rejected as pure violence because of its arbitrariness. A culture-blind conception of justice does not operate with the same epistemology. Brian M. Barry is not prepared to abandon the abstract conception of justice as impartiality, which multiculturalism has done, perhaps naively. Neither are Hérouxvillois.
The dissolving process resulted in the liberal condemnation of “collective rights” as incompatible with democracy in Canada . According to this socio-anthropology, a sophistic discourse came to prevail among some Anglo-Canadians: since all cultures are constitutive of the various identities and equal in value, there is no legitimacy in asking immigrants to renounce their own. This goes beyond cultural relativism: it dissolves the polity itself by rejecting the converging political identity which all citizens must achieve through their common institutions as the base for action: creating a museum, cleaning the air, vaccinating children, defending the territory militarily, conserving landmark architecture, putting a polygamous community to legal order, financing scientific research, building a bridge, operating a prison, checking on the contents of commercially sold foods, making and keeping public space safe, as 9/11 has revealed, etc.
The obligation to reasonable accommodation which became so famous for right and wrong reasons is not a piece of voted legislation. It is a jurisprudential category which emerged in the O’Malley versus Simpson-Sears 1985 case about a work schedule conflicting with religious practice. The Supreme Court ruled that Simpson-Sears could not raise as an objection any administrative inconvenience; it may not invoke anticipated adverse reactions of the customers nor the fear of setting a precedent. Simpson-Sears had to comply with the request on the sole basis of the subjective religious persuasion . Though the imperative accommodation is not meant to generate new law or new institutions nor favour a category of citizens, but only to modify the application of the laws in existence, it affected so deeply the sense of legitimacy that it could paralyze elected office-holders.
E. The Closing Down of Religious Courts in Ontario
It is with these changes in mind that Sayed Mumtaz Ali, a lawyer working for the Ontario Department of Justice, founded the Canadian Institute for Civil Justice, in 1995. He was also at the time the President of the Canadian Society of Muslims. In accordance with the principle of the pluralist neutrality of the Ontarian institutions, Mr. Mumtaz asked that a separate court be established to receive and judge according to “the Shari’a” cases of civil law involving family law, marriage and repudiation laws, child custody and visit rights, inheritance customs, business contracts, etc. Such religious courts already existed for Anglican law, Roman Catholic Canon law, Rabbinical law, Mennonite law. The parties had to agree to submit the case to such tribunals and the decisions were binding, which is to say that these religions (or particular currents of established religions) were accepted as sources of law. That is to say: the moral principles and regulations used by the officer of a given religious cult is transformed into self-validated positive law carrying executive power. This is quite different from a simple private contract insofar at it is accepted as binding within the sphere of civil and administrative law. Moreover, such religious court decisions are considered valid and binding in most countries of origin of the parties, even if later reversed through an appeal to an Ontario civil court .
Such a status formally recognizes that the grounds and criteria applied by these courts are reputedly accepted by the State. It therefore becomes a matter interesting all citizens because it is accepted in their name, as part of their common social contract, not as a private custom among residents of recent immigration. It is of capital importance to stress that neither the provincial State, nor the federal State have produced any tool to regulate how these courts did work: how religious judges were appointed, what theological competence was required to sit as a judge, what number and type of witnesses should attend, how the persons concerned could be heard and defended, whether a review of the judgments should be performed on a regular basis by some independent agency, etc.: all parameters well defined in Canadian and Ontarian laws are left to religious customs. The wahabi XIIth century Shari’a? or that of the Paris Grand Mosque? The Turkish republican Islam? or the Moroccan latest (2004/2005) Family Code? On the ground of the subjective freedom of religion, as confirmed by the Supreme Court of Canada, the State does not provide any training in religious law; it does not examine the laws and customs themselves.
The Minister of Justice in the Ontario New Democrat cabinet, Marion Boyd, authorized the institution of the shari’a courts on a provisional basis with the obligation to review its relevance ten years later. These courts rendered judgments during ten years and came up for review in 2005. As is well known, the protests and objections against the Shari’a courts first came from inside the Muslim group, men and women, and especially from the Association of Iranian Women in Toronto (presided by Homa Arjomand), then in Montréal, also led by the Association des femmes iraniennes de Montréal (presided by Elaheh Machouf), and abroad. In October 2004, Shirin Ebadi, the 2003 Nobel Peace Prize, spoke in Toronto in favour of a strictly secular State for which she is fighting for in Tehran.
Nevertheless, in December 2004, Marion Boyd herself, who had been appointed by a liberal government to conduct the review, submitted her report recommending the Shari’a courts be permanently installed as part of the judiciary system of Ontario. Obviously, it was not a wise decision to ask the author of a provisional legislation to review the implementation of her own project: one could foresee that Marion Boyd was not going to disavow her contribution. I read the Boyd Report: it declares correctly that the Ontario Shari’a courts stand in conformity with the Federal Charter of Rights, with the Federal Law on multiculturalism and with jurisprudence. They are just one more instance of several types of religious courts, some with a century-old tradition. There is no ground on which one could deny the Muslims the right to have their own: a higher court would reverse such a decision for religious discrimination.
But the political turmoil grew louder and more confused. In Québec, the liberal Minister of Justice Jacques Dupuis closed the door on the possibility of such religious tribunals. He simply declared that Québec Civil Code recognized one source of law: the State (as imposed by the tradition of Roman law). A cultural difference. Therefore, where religious groups had organized chambers of Mediation, their decisions remained private and non binding. Two members of the National Assembly (one being a Muslim) presented a motion adopted unanimously to exclude the Shari’a courts that were already illegal and send the motion to all Provincial legislatures in Canada, a step unheard of in the past. Some thing prefiguring Hérouxville’s behaviour code…
We all remember having read in the press that, on September the 8th, 2005, 48 major cities of the world held demonstrations against Shari’a law in Canada: in Paris, in London, in Amsterdam, in The Hague, in Stockholm, in Düsseldorf, in Berlin, in Copenhagen, etc., and also in Vancouver and in Victoria, as well as in Toronto and in Montréal . The Ambassadors of Canada were embarrassed . The Federal Government waited. Then, on September the 11th, 2005, Premier Dalton McGuinty, along with the Minister of justice, Michael Bryant, abruptly closed down all religious courts in Ontario. Without a word of justification, without a rationale which could be used in further legislation, without arguing against the Boyd Report he had found acceptable ten days earlier. Another major defeat for Public Reason.
The next day, some authoritative voices were heard in the media deploring this cold and mute abolition as a partial denial of rights: notably, those of the multiculturalist Charles Taylor, of the mitigated multiculturalist Jean-Claude Leclerc (a Le Devoir senior columnist), and of Amir Khadir, a socialist and avowed atheist (of Iranian origin), then president of L’Union des Forces progressistes. They all mentioned the fear that such religious sentences would continue to be pronounced but go underground, with even less control. Such an anticipation is certainly serious and alarming. But does it follow that religious courts should be maintained?
This either/or reasoning equals to giving in to a threat of violence. I do not recognize it as a democratic dilemma. Why should those who claim to be ruled by an extraterritorial religious law wish to be protected by the territorial law at the same time? All citizens have a duty to rationality, in these matters as in others. Such a regime of differentiated rights was in use in the Ottoman Empire until Mustapha Kemal Atatürk unified and reformed the legal system of Turkey in 1928, under a strict Republican Rule directly borrowed from France in order to create by decree the integrated Modern Turkish nation. Women received the right to vote as soon as 1934 and in 1936, they represented one fourth of the students enrolled in Turkish universities.
On April the 29th 2007 , one million Turks answered the call of the opposition CHP secularist party supported by 600 associations and demonstrated in the streets of Istanbul to defend their secular State. The Turkish Army High Commanders had accused Prime Minister Recep Tayyip Erdogan of not clearly defending the secular principles of the Republic. They made it explicit that they would protect the Turkish laïcité actively if needed, as they had demonstrated in the past by military coups in 1960, 1971 and 1980. This comes in the course of a presidential election campaign in which the Minister of Foreign Affairs Abdullah Gül has registered as candidate though he is known to be married to a veiled Muslim. Gül belongs to the governing Party of Justice and Development (AKP) which is openly but indirectly linked to religious movements trying to impose the headscarf and turn to Arabo-Islamic culture .
After 1956, Gamal Abdel Nasser did the same in Egypt as Atatürk’s Turkey had done to abolish differentiated rights (and courts) not only for foreigners, but for minorities (Coptic, Jewish and from more than ten distinct branches of Christianity, some (the self-labelled Syrian-Lebanese) claiming to have resided there since the Crusades… At this cost, he was able to create the Egyptian-Syrian secular nation where all were to be treated as equal citizens of the (short-lived) United Arab Republic . Saddam Hussein’ first ten years in power were a secularist time in Iraq. The Iraqi and Syrian Ba’ath parties were ferociously secular. The case of Tunisia is an extreme: the civil regime in place before the French Rule was staunchly anti-Islamist. Tunisians supported a secular State and still have one.
What I wish to show here is that fundamentalism is (or used to be until 1980) a fringe phenomenon within large Islamic societies, and standard practice in some smaller countries like Saudi Arabia. Several predominantly Muslim countries feel humiliated and driven back to dark ages when a XIIth century version of the Shari’a is invoked, as it is by the Talibans, by the sect of the Lost Imam (of which Iran President Ahmadinejab is a member), or by the Saudi Bedouins. The Canadian Law on Multiculturalism makes an obligation for Canada to document, maintain and subsidize all types of foreign traditions, including religions and including archaic forms of religion which do not recognize the difference between a community and a society .
IV. The Republican Rule: a Paradigm neither Liberal nor Illiberal
It is a paradox to me that, in this country, when it comes to such issues as citizenship, identity, liberal models, public sphere, etc, bibliographies tend to be quite asymmetrical: in his Multicultural Citizenship, Will Kymlicka quotes from 193 source documents, only 6,2% of which are in French. Joseph-Yvon Thériault’s books on democracy, modernity and identity present about the same proportion, but in reverse. There seems to be an invisible barrier here.
As a result, few Anglo-Saxon theorists are familiar with the Republican theory unless they have focused their eyes on it to explain it to liberals or communitarians, as does John R. Bowen’s striking recent essay on Why the French don’t like headscarves. Islam, the State and Public Space . Bowen should be commended for a major breakthrough here and elsewhere. While often in disagreement with them (as I found myself to be), he succeeds in conveying the mute postulates of the French Republican regime. It is not the case with Leigh Oakes and Jane Warren in their recent Language, Citizenship and Identity in Québec which misses the stakes by its unilateral liberal reading, allowing exclusively for blood determinism (ethnic citizenship) or empty procedural social link (civic citizenship). The Republican Rule we are looking at is neither ethnic, nor civic. It is both open to outsiders and substantial. Examined public values, deliberative political choices and historical memory, to name some elements of the republican contract, are certainly not blood given, but they are not formal either. The liberal scale of “either ethnic/or civic” is not the appropriate tool to capture its meaning and measure it. I shall make a détour to briefly show how the basic values of the republican polity came to be first defined in Ancient Attica. Then I shall show how French laïcité is understood and what contradictions it is plagued with in modern times.
In short, the ground on which the Republican Rule operates is as follows. Because it chooses and implements collective actions in a historical time frame, the Republic has the duty to address each citizen directly and encourage the convergence of all individuals toward the common good as defined through public debate. The passage from the status of natural individual to that of a free citizen involves a procedure of uprooting. This produces the necessary emancipation from unexamined beliefs (including religious beliefs and family values). The means to understand and practice the separation between the public and the private spheres are provided to all by the Republic on an equal basis. This gives access to the capacity to shape the present and the future, a capacity which the private individual does not have. It brings about the competence to exercise a right, not just hold it. Hence the importance of the “inclusion” of all in the political realm (politicité). From this standpoint, “exclusion” points to some failure of the Republic, unless it can be established that some individuals or groups rejected the means of emancipation (while others accepted the contract of citizenship and succeeded).
A. An Ancient Source of Secularism: the Athenian Polity
The republican model claims ancient ancestry. Looking at its birth, between 621 and 500 B.C., in Attica, we see the intentional destruction of the archaic Mediterranean ethnic system of the genos which presented itself as natural, immutable, god-given and protected by divine laws like the stars and the seasons which their institutions mirrored. After the fall of the Mycenaean palatial order at the hands of Dorian invaders , three reformers contributed to disqualify, ruin and replace this theocratic model by the secular politeia or city-State. They broke down the old rules and separated Nature from Reason: what happens kata phusin is not what happens kata logon. For my purpose, I shall isolate the sequence of decisions taken and maintained to establish political freedom based on the citizen’s reason and values. The most surprising factor in this development is that a small quarrelsome group of tribes could sit and think together, then maintain the cultural acquisition of each stage when entering the next in order to inaugurate a distinct model: the secular politeia. It is the first case of secularization we have access to, even if indirectly, the magnified actors and events having been put into written testimonies long afterwards. But the assertion of the universal right to speak openly and be protected by courts and assemblies (parresia didona) mark a break with earlier conceptions .
1. Draco’s Reforms 621-620: Athens First Codified Laws
- He implemented the decision to put the laws in writing and make them available as an organized constitutional corpus to all citizens whereas customs had been the secret power tool of the dominant Eupatrids. The Ruler as well as the Ruled are now bound by the same objective Code of laws. Voted laws override family customs. The State is recognized as exercising the monopoly over law and over force (private force being renamed violence or crime). The caste of priests is then stripped of legal authority: individuals are equal before the voted law: this isonomia, a strict and blind impartiality, is what transforms them into citizens. It is the first secular empowerment of citizens in Western history. Before that, men were just beasts or barbarians. They are now Hellenes, all co-responsible for war and peace. Voting never became compulsory, though. But taking part in the legislating process was, so that every citizen would realise how much vulnerable and risky the political order had to be and why it called for constant adjustments and corrections. Imperfect and binding at the same time .
- He abolished private justice and endowed the State with full and exclusive judiciary power, imposing deliberative common public decisions in criminal and civil laws: justice is severed from vengeance.
- He used the model of the agôn, (the Attican codified armed tournament) for his conception of coexistence of the differences. This is the origin of the idea of “public sphere” with an active citizenship.
2. Solon’s Reforms 594-560: Through a coherent constitution, Solon forces the individual’s emancipation from family, from social caste, from traditional values (including private cults).
Draco had imposed his views and values through a ferocious system of enforcement. If it was conserved and maintained after his death, we must think that the Athenians have recognized themselves in them as in a consensus which appeared both just and convenient to many. There is some historical truth in what classical writers like Aristotle tells us retrospectively in his Constitution of Athens (III.2.4). The critical moment comes up with the constitution. Solon did much to “free“ the individual from static blood identity.
- Through a constitution, he implemented a plan under the political sign of dikè, deepening the concept of equal justice: any citizen could enter a case against any other, even within the same family.
- He suppressed collective property and limited patriarchal powers, making women legal subjects in a passive sense: a woman could inherit property and transmit it to future sons, so as not to let an organized family line be destroyed and its property dispersed.
- Observing the social and economic dichotomy between rich land owners and poor indebted serfs, he cancelled all debts for which land or personal body had been engaged as security, and abolished such debt-bondage (by a sort of habeas corpus) thus creating a free peasantry who became the basis of democracy. The State wisely repaid a percentage of personal debts so as not to ruin the nobility.
- He encouraged the production of oil and wine to be exported by merchants who were granted political rights, a recognition of the merits of a bourgeoisie. In fact, Solon’s audacity went as far as to invite artisans and merchants to live and work in this poor region where agriculture oscillated between poverty and scarcity. This class of merchants would soon demand and obtain rights to fight in wars along with the landowners . Their loyalty went to the polity, not to bloodlines.
- He granted minimal rights to the metics (the non citizen artisans), because they were contributing to the common wealth: without being citizens, they could lodge a complaint against one and be paid for their services by a court decision.
- He underlined clarity and universality of rights, with the obligation made to each father to teach his son(s) how to read and write so that he could fully exercise his citizenship.
- He made the social castes opened to new citizens and created a plurality of degrees according to revenue that could be entered and left: not a destiny but a system of support. Active individual contributions to Athens well-being is the principal criterion of civic honour. The general perception is that there are only individual citizens left, all facing their State on an equal basis. A new abstract political identity.
- He rejected “tyranny”, the absolute power which the peasants had offered him.
3. Cleisthenes’ Reforms 550-500, after the Pisistratids and Hippias’ episodes of consolidation:
Here again, the Pisistratids conserved and reinforced Solon’s institutional heritage. Cleisthenes gave an economic and civil regime to Athens where secular, finite human construction is clearly displayed with pride.
- He reformed the social divisions and totally annihilated the remnants of cosmic order in the Athenian polity. Instead of the four aristocratic hereditary tribes (mimicking the four seasons, four elements, four corners of the world, etc.), he defined ten new tribes and proceeded to harmonize all institutions in accordance with the decimal “rational” system, claiming that culture was following a higher metaphysical order, the “logos”.
- He mapped Attica anew and had all citizens register in one of the 100 demes of the territory: one third of the demes for coastal people, one third for the city people and the last third of the demes for the interior. Those corresponded grossly to fishermen, merchants and peasantry.
- There were 500 members in the Assembly (Boulè) who elected 10 strateges, maintaining ten regiments; there were 10 archons, one for each of the territorial tribes. The old sense of belonging to a bloodline and to the duty to serve its honour was by then weakened. Loyalty to the city-State of Athens could prevail. Now the whole territory of Attica was Athenian: it shows the decision to unite very different segments of population and of activities. They shared a symbolic world of abstract tools which are cultural constructs made to facilitate flexible exchange on an open basis. The invention of formal logics could serve egalitarian rational discussion between citizens and deepen the introspective consolidation of the individual. Currency (the drachma) replaced barter. A new Attican alphabet (after the Mycenaean linear was abandoned with the old theocratic palatial culture) was borrowed from the Phoenicians and reworked to accommodate the predominance of Greek vowels. A common system of weights and measures contributed to the objectivity of the world image and to its convertibility. With these, Athenians felt pride for their culture:
Our city of Athens has so far surpassed other men in its wisdom and its power of expression that its pupils have become the teachers of the world. It has caused the name of Hellene to be regarded as no longer a mark of racial origin but of intelligence, so that men are called Hellenes because they have shared our common education rather than that they share in our common ethnic origin .
A strong cultural identity is an open one: it is absurd to associate the defence of culture with exclusion .
- Cleisthenes’ political genius consisted in creating a new identity through separation between private man and citizen. When forming the ten new tribes, he had the three territorial regions represented in each tribe and forced them to govern each in its turn as a team. There was no possibility for private, social or individual differences to prevail. Each tribe being representative of all three regions and interests had to negotiate and define a new socio-political common good for Athens, regardless of particularisms. All Atticans were Athenians with the same status, the same liberties, the same responsibilities. This politeia marks the beginning of the Republican mental space. Of this separation, Sophocles’ character of Antigone is the eloquent witness, protesting to Creon who keeps her from accomplishing her family duty. She understands fully that Creon’s public duty is to defend the reason of State, and she would do the same in his place. Even the gods cannot provide an answer to such an essential conflict. No one is guilty. It is the black hole of reason, the unthinkable: the tragic, which can appear only in such a finite secular context. It later disappeared from the Augustinian City of God.
B. Laïcité
1. As opposed to Religious Plurality
Laïcité differs in principle and in practice from our de facto religious plurality without State commitment to any particular denomination. It is the condition for a specific type of citizenship corresponding to a strong, unitary and substantive status . In this context, citizenship is not of a natural competence but a learnt behaviour, a construct . According to republican doctrine, this active citizenship enables all to enter l’espace citoyen, the polity, and to take part in public life by arguing and persuading. Now the required convergence implies a principle of separation. This separation is the sine qua non condition of civic freedom .
From the standpoint of the republican State, family determinations including religious faith, regional customs, national ideologies, etc. are unexamined acquisitions amounting to indoctrination: a restriction to freedom. They connote the private person who is off limits to the State jurisdiction. But those particular features cannot produce a citizen. They are considered dangerous because they lead to fanaticism. In particular, the closing of a community on a shared religion rejecting otherness equals to anti-republican communalism , the plague of the Republic, declared President Chirac in his Address to the nation of January 2004. On public schools and the prohibition of ostentatious religious signs by staff and students, Jacques Chirac asks: what behaviour code would best ensure that, in the schools of the Republic, the emancipation from family and community values would actually take place? His answer is: one condition is the dress code imposed by the law banning all religious signs . He was heard and approved by a large majority . On the other hand, the liberal or neo-liberal will ask: why this intolerant regulation? The school belongs to the parents and should convey their values in all freedom. It was the predominant comment in Québec newspapers when the Stasi/Ferry law was adopted in France. The support for the Republican Rule came from the Mouvement laïque du Québec and from individual analysts. We can see that the republican sensitivity exists but as a weak and puzzled sensitivity. The rest of Canada unanimously condemned the French law for its intolerance. In short, mandatory abstention from displaying religious signs is perceived as intolerant while acceptance of a plurality of religious signs is perceived as democratic. Our interest here is to record the fact that this French law gave a rare opportunity where the republican and the democratic principles collide, showing that they belong to two distinct legal worlds. According to the Republican Rule, Canada is not in any sense a secular State. The fundamental condition for freedom of religion is not fulfilled in a legal framework like ours. The different charters of rights cannot achieve freedom either. They deal with the private individual.
To become a citizen, the individual must separate himself/herself from the intimate realm, the cultural, social, religious idiosyncrasies imprinted by the arbitrary position he/she happens to live in . To exercise a choice, he/she must further be confronted with several sets of values (other religions and absence of religion included), sort out their essential core, learn to compare those doctrines, to alternate between the individual standpoint and that of the common good and to take part in the public debate to transform the inherited culture into a new common project relevant to the present and the future. This collective memory does not imply a cult of the past for the sake of it, nor the conservation of a fixed identity as a sacred essence. The conscious review of the common heritage may result in a revolutionary choice: the Révolution tranquille of the sixties in Québec illustrates the dialectics of memory and identity in a society open to newcomers who wish to join the project and modify it. Freedom means that rejection is always an option but that an ignorant withdrawal is not.
The citizen is not the natural extension of the private individual, and public space is not the extension of private space. What I hold intimately as an ethical position to judge matters in my own life cannot be the axiom of the public or common good. There is a pious naïveté in the persuasion that one can dispense with mediations and apply good intentions to political problems. Those have separate foundations and must be separated because the republic is a debate in action, and because these principles are different in essence: justice is not the extension of charity, tax contributions are not a duty to a larger family. A community cannot become a polity before it has been broken down and recomposed in a way where the common good can be rationally negotiated: that is precisely what Cleisthenes had implemented, to continue Draco and Solon.
In the same way, there is no such thing as the “compassionate conservatism” invoked by the current American Administration. Compassion is a subjective psychological state of empathic feelings for one’s concrete neighbour. Conservatism is an objective system of faceless institutional forces, on a different level of reality. Pretending to combine the two constitutes a) a category mistake, and b) a patronizing political rhetoric, intended to soften the image of closed hereditary privileges.
Why should religious beliefs be kept to the private sphere? If I come to the public debate as a believer with a sacred i.e. unconditional, non-negotiable, transcendent revealed truth in place of political principle, I can only assert it but not translate it into a common goal or action . Therefore, for a democratic debate to exist, there has to be room for a double identity. As a member of the nation, every citizen owes to the others a suspension of situational differences like religious beliefs as absolute values in order to make political discussions possible. Human beings are not naturally compatible: within the Machiavellian framework, we read how the Res Publica makes most of them convergent and compatible under strict constraint. The “Live and let live” liberal motto does not apply to contemporary societies where more than 80% of the population is urban, in close and constant interaction. It may produce consumers; it will not produce citizens. Such a republican theory does not imply that the State is an absolute good. On the contrary, it is to be watched, even scrutinized at all time since its inherent tendency is to accumulate powers and controls . It is the citizen’s task to be vigilant and defend civil society through adequate laws. But it remains true that the citizen is to build his/her political identity within the framework of the State.
This idea of the citizen is an abstract universalist construct has several consequences. The construction process is a State responsibility. Therefore, the public compulsory and free school has to be secular or at least supervised to keep religion strictly out of the curriculum and inspected by the State. In this republican school, the State has the duty of protecting the child’s right not to believe, not even in some civic religion . So religious, gender, economic, social and racial pluralism (mixité) in public space such as schools, hospitals, army or courts of justice is a necessary condition of the exercise of freedom. We can see how, from this external standpoint, our Hassidic or Amish schools are considered as inflicting a denial of citizenship upon a population for whom the State fails to fulfill its duty. “There is no freedom for the ignorant” wrote Condorcet in a typical Enlightenment perspective. There is still much of this persuasion in France today.
When compared to our constitutions of 1867 and 1982, those of 1946 and 1958 in France state as Article One: “La France est une république une, laïque et indivisible (France is a unified, secular and non divisible republic)”. The public schools were first established by the Jules Ferry laws of 1883-1884 as free, secular and mandatory.
In principle, there is no such legal entity as an Arab French citizen, or a black French citizen, or a Jewish French citizen, or a Muslim French citizen. There can only be the French citizen, abstract and therefore unspecified . Far from being totalitarian, this regime constantly points to the public sphere as limited. There is an outside to politics just as there is an outside to religion. In non fundamentalist spirit, the private sphere is off-limits to the State authority just as political sphere is off-limits to religious authority. Whereas our 1988 Law on Multiculturalism makes it a duty for Canadian Government institutions to collect detailed information on the residents’ religion, the assertion of laïcité in Article One of the French Constitution mentioned earlier prohibits the State from inquiring about this intimate region of the private identity . As a result, when violent incidents erupted in the Northern suburbs of Paris in November 2005 , no one had reliable statistics on the number of Muslims among the French population (estimated between five and six millions), nor on the breakdown between sunni, shi’ite, wahabi or the majority of “moderate” Muslims on the national territory. When police cornered a group of young men setting cars on fire during these riots, they cried out: “Our constitution is the Koran!”. This was taken as blasphemy against the Republic and public opinion turned against them.
For anyone unable or unwilling to separate his/her intimate identity as a believer from his/her civic identity as a secular citizen, both coexisting in the same mind, there is no possibility of inclusion in the republican nation. For instance, the Muslim who assaulted Dr. Clifford Blais in Montréal because the latter had medically assisted his wife in an emergency childbirth, outside his presence (cf. my note no. 27) shows that he cannot see the competent obstetrician as separate from the male, nor the medical intervention apart from the religious prohibition. The fundamentalist of any denomination excludes himself/herself from the republican form of citizenship. But believers, free thinkers, sceptics, agnostics, atheists, dissenters of all persuasions are all equally included in this dialectical process of democratic debate where the common good is the end result of rational public deliberation.
What the State registers and regulates though is the public organized cult, the objective face of religions. The Minister of the Interior, responsible for police and public order, supervises a representative board for each established religion. In this quality of Minister of the Interior, Nicolas Sarkozy created the Conseil français du culte musulman in 2003, under the same law as that which covers the workers’ unions or the political parties (Loi de liberté d’association, 1901). The CFCM, a civil institution, is presided ex officio by the Paris Great Mosque’s Rector; it must include three women and a proportion of elected members from the Muslim confessions represented on the French territory .
In this frame of mind, it is interesting to note that the European Human Rights Court has ruled in accordance with French Public Law that culture does not include religion . A major difference between multiculturalism and republicanism. The legislator observed that among Roman Catholics, for instance, there were four century-old Catholic Chinese communities, organized groups from Macao and Sri Lanka (of Portuguese descent), South American Indians, as well as Spaniards, Italians, French people, Croatians, Scottish, etc. If all these cultures and many more could be associated with Catholicism, this religion was not a specific character of any of them. It is also the case with the Lutheran faith among Norwegians, Alsatians, Prussians, Polish Pomeranians, Americans, Canadians, etc. The same case can be made for Islam with Indonesia, Sudan, Iran, Turkey, the Maghreb with its Berber segment, the United Arab Emirates, half of Black Africa, plus Islam’s growing presence of 11 millions in/alongside Western Europe cultures. Is it that religion transcends culture? No. Some religions transcend some cultures. More accurately: some specific forms within universalist conceptual religions transcend some open cultures. Without these distinctions, the legal system gets paralyzed.
The essential rights found in the Canada and Québec charters of rights, like liberty of conscience, liberty of faith, liberty of religion are all asserted in the European Charter of Rights but they may not generate multijuridicity or differentiated rights . Unlike the Canadian Supreme Court, the European Human Rights Court does not recognize any subjective feeling of religious obligation as an admissible argument. It will only admit the objective concept of a religious obligation, treating it by the same standards as a sociological fact. Therefore, for all signatory countries, the recognized religious authorities are called to court to testify on what constitutes a religious obligation in the case of, for instance, conscientious objection, ritual slaughtering, halal or kosher diet rules, fasting, wearing a kippa or a hidjab/niqâb, etc. These recognized religious authorities also testify on the provisions embodied in their respective religious codes concerning practice in a secular country or where their religion is in a minority situation. In the decision-making procedures, the court considers these advices as guides, not as binding rules. The important fact here is that the court does not follow what the believer’s conscience in good faith feels is compulsory, but receives only what the ministers of the cult considers required from the whole community.
As I have repeatedly stressed, the Supreme Court of Canada ruled to the contrary: in the Syndicat Northcrest c. Amselem ( the “sukka”) decision, our Court made it definite that an individual who argues on the grounds of liberty of religion does not have to establish the objective validity of his/her beliefs by invoking opinions of other believers in the same religion. Canadian Courts are forbidden to question the compulsory character of the religious obligation presented. Liberty of religion, wrote the Supreme Court, includes objective and personal conceptions, beliefs, obligations, precepts, commands, customs or rituals of religious nature as interpreted by the believer. After the Executive Board of the condominium had suggested substituting a sukka at the ground level instead of on the terrace of this luxury apartment building (and this substitute sukka having been approved by the rabbi), the court ruled in favour of the believer who erected the temporary sukka on his terrace, despite the hazardous electrical wiring, though he had signed the condominium regulation prohibiting all structures of any kind on the same terrace. Again, the only limitation is that the exercise of the right must not clash with someone else’s freedom nor disrupt public order .
Now, it is a fact that on matters of secularism such as this one, contemporary Québec courts tend to rule in the direction of the Republican Rule still present as a spectre in its Code civil, the rationale being that the arbitrary and absolute nature of (revealed) dogmas and (sacred) rituals should be kept in the private sphere and not be allowed to generate sub-systems of laws through religious courts, or in the Civil Service, in fact wherever citizens act as representatives of the (secular) State: public schools , army, police, hospitals, postal service, revenue offices, tourism agencies, public museums, prisons, state-operated ferries, etc. This propensity stems from the Roman law axiom that the State is the sole source of law.
Accordingly, over the last three years, upon complaints submitted by individual city councillors, ten Québec municipalities were ordered by courts to cancel the traditional prayer opening the agenda of their meetings, even where it had been reformulated in a non denominational wording. Every challenge of the prayer has been successful. Unlike the United States of America, Québec does not legally recognize the category of a civic religion. But, the case of the crucifix on the wall of the Assemblée Nationale, highly visible just above the president’s seat, is a more sensitive issue… At the opening of the electoral campaign, in February 2007, the new leader of the Parti Québécois André Boisclair declared that, in the post-Modern multicultural society we live in, this religious symbol should be removed. But the next day, having assessed the negative effect of this idea on the polls, he back-tracked.
2. Limits and Contradictions of Republican Practice of Laïcité in France
In my judgment, there is an incommensurable distance between the liberal question: “How is respect for the persons best guaranteed?” and the republican question: “How do we, as a body of citizens, receive and transform our common civilization?” Whether either of the two implements its programme is another story. Secularism is not a theorem with purely logical consequences. Neither is French Laïcité.
(…) Laïci
Weimar ou l’hyperinflation du sens. Portraits et exils
