La laïcité–the distinctive French approach to the separation of church and state–has been a matter of contentious debate for decades. That debate has become even more heated in the past year as the Macron government has taken steps to regulate the practice of Islam in France. It takes a brave scholar to wade into such a tumultuous controversy.
Patrick Weil has the requisite courage. He also has practical experience that few other scholars can match, having served on the Stasi Commission, which considered the question of the wearing of veils (and other visible manifestations of religious affiliation) in public venues. Even more important, he has been able to gain some distance on the Franco-French view of the subject by virtue of having spent many years dividing his time between France and the United States, where he teaches part of each year at Yale Law School. He is thus uniquely placed to take advantage of the differences between American and French approaches to the separation issue.
Weil’s law school experience serves him well in another respect. From it he has derived a method for studying the question which is not that of the historian or sociologist, though he certainly understands the history and sociology as well as anyone. Rather, he adopts the point of view of the law and seeks to achieve the serenity of the judge, while also adopting the judge’s habit of examining individual instances of application of the law in a particular temporal context.
As Weil reads the crucial Law of 1905 on the separation of church and state, its purpose was twofold: first, to establish the freedom of conscience of individuals, who might choose to believe or not to believe and to accept or reject the tenets of any particular group of believers or non-believers, and second, to establish the sovereignty of the state over all faith groups.
It has often been observed that whereas religious freedom in the United States means first and foremost the protection of religious practice from interference by the state, in France it means first and foremost the protection of individuals from pressures exerted by religious groups. Historically, France had an established church, whose residual power had to be reined in; by contrast, the American constitution forbids the establishment of any church and trusts in religious competition to curb the potential power of any sect.
Weil traces in case law not only how these contrasting goals worked themselves out over the course of the 20th century but also how their clarity of principle could waver in response to shifting social and political contexts. A full review would require more space and time than I have here, but I wanted to signal to readers the existence of this important book, in my view the most clarifying to appear to date on an issue that has been prominent in French politics for nearly 40 years and promises to remain so for some time to come.
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“It has often been observed that whereas religious freedom in the United States means first and foremost the protection of religious practice from interference by the state, in France it means first and foremost the protection of individuals from pressures exerted by religious groups.” Once again, a necessary reminder for many American and French readers including myself!