Islam and Christian–Muslim Relations

ISSN: 0959-6410 (Print) 1469-9311 (Online) Journal homepage: http://www.tandfonline.com/loi/cicm20

Freedom of Expression, Laïcité and Islam in France:

The Tension between Two Different (Universal)
Perspectives

Francesco Alicino

To cite this article: Francesco Alicino (2016) Freedom of Expression, Laïcité and Islam in
France: The Tension between Two Different (Universal) Perspectives, Islam and Christian–Muslim
Relations, 27:1, 51-75, DOI: 10.1080/09596410.2015.1090105

To link to this article: https://doi.org/10.1080/09596410.2015.1090105

Published online: 11 Dec 2015.

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ISLAM AND CHRISTIAN–MUSLIM RELATIONS, 2016
VOL. 27, NO. 1, 51–75
http://dx.doi.org/10.1080/09596410.2015.1090105

Freedom of Expression, Laïcité and Islam in France: The

Tension between Two Different (Universal) Perspectives
Francesco Alicino
Faculty of Law, Università LUM Jean Monnet, Bari, Italy

ABSTRACT ARTICLE HISTORY

In France, freedom of expression is perceived as a sort of liberté Received 24 July 2015
matricielle, a matrix of other fundamental freedoms. As such, it is Accepted 21 August 2015
reflected in many constitutional provisions, including those
KEYWORDS
referring to religion. In addition, the practical exercise of freedom Religion; liberty; freedom of
of expression remains strictly linked with the principle of laïcité, expression; blasphemy;
which is part of the institutional, legal and intellectual history of France; constitution;
the French Republic and has even become the basis of its secularism; Islam
founding “values.” All this, however, also implies an accentuation
of individual freedom of expression, which normally takes
precedence over the protection of religions, sometimes justifying
caricature of divinities, rules, rites and symbols. The legal cases
related to the right to satirical expression are examples of this.
The article underlines the role of freedom of expression in the
light of the principle of laïcité, which normally rejects the
communitarian dimension of religious rights, which may explain
some important aspects of, on the one hand, the evolution of
legislation regarding both hate speech and blasphemy within
French liberal constitutionalism and, on the other, the relationship
between freedom of expression and the secular state. This
approach offers a possibility of better evaluating existing French
law in relation to some religious nomoi groups, specifically, Islamic
organizations. These issues are particularly analysed from two
perspectives: the right to criticize or challenge religions and the
right to satirize. This analysis makes it possible to identify the
legal limits of freedom of expression before and after the 2015
Charlie Hebdo tragedy and highlights the difficulties faced by the
so-called laïcité à la française in dealing with today’s multicultural
societies. The need emerges for a proper balance to be struck
between religious diversity and protection of human rights – not
only the rights of groups to be different, but also the rights of
persons within these groups, which also involves the efforts of
religious denominations to articulate their claims in order to make
them more compatible with constitutional rights, including those
referring to freedom of expression.

1. Introduction
In France, freedom of expression occupies an essential place. It constitutes the concrete
manifestation of freedom of thought, giving individuals the opportunity to define their
identity, articulate their autonomy, and manage relationships with other persons and

CONTACT : Francesco Alicino alicino@lum.it

© 2015 University of Birmingham
52 F. ALICINO

with society as a whole. This explains why freedom of expression represents one of the
most important constitutional liberties – one that contributes to the formation of public
opinion while sustaining pluralism. It is in fact a pillar of a state model based on liberal
constitutionalism, which, in turn, implies a democratic, secular, pluralist legal order
(see, e.g. García de Enterría 1993, 60; Goyard-Fabre 1997, 277; Heushling 2002, 428;
Sartori 2007, 162).
In France, freedom of expression is firmly rooted in the 1789 Declaration of the Rights
of Man and of the Citizen (hereafter the 1789 Declaration), in many constitutional and
legislative provisions, and in jurisprudences, starting with those related to the Conseil
Constitutionnel (Constitutional Council). In practice, freedom of expression implies the
right to express one’s ideas and opinions freely through speech, writing and other
forms of communication, but without deliberately causing harm to the character and/or
reputation of others by false or misleading statements. Freedom of the press and
freedom to satirize are thus part of freedom of expression (see Polin 2000; Josende
2010; Robitaille-Froidure 2011).1
Article 10 of the 1789 Declaration states in particular that “[n]o one shall be disturbed
on account of his opinions, even religious ones, as long as the manifestation of such
opinions does not interfere with the public order as defined by law.” Free communication
of thought is in this case contemplated as a corollary of freedom of opinion, whose limits
are defined, as just said, on the basis of public order. In the light of these rules, one is in a
better position to understand the meaning and implication of Article 11 of the 1789
Declaration, where it is affirmed that:
[t]he free communication of ideas and opinions is one of the most precious human rights.
Every citizen may therefore speak, write, and print freely, if he accepts his own responsibility
for any abuse of this liberty in the cases set by the law.

This confirms the fact that freedom of expression is a fundamental liberty whose exercise
is one of the essential guarantees for other rights. Herein lies the reason why the legislature
regulates its exercise in order to make it more effective, which includes the need to recon-
cile freedom of expression with other rights and principles established by the law of the
state.2
In this sense, freedom of expression is perceived as a sort of liberté matricielle, as a
matrix of other fundamental freedoms and, as such, it is reflected in many constitutional
provisions, including those referring to religion (Mathieu 1995, chron., 211). For example,
the Preamble (Section 5) of the 1946 French Constitution prohibits discrimination in the
workplace when it is based on origins, opinions and/or religious beliefs. Similarly, Article 1
of the 1958 Constitution, after underlining the secular character of the French Republic,
affirms that the state has the duty to recognize and protect freedom of conscience, irre-
spective of one’s belief.3 Freedom of expression, then, entails the right to express a
creed or an agnostic ideology and the right to choose between this or that faith or
this or that school of religious thought (Robert 1994). The affirmation – that is, accep-
tance – of a secular democratic system includes eliminating discrimination between
people on the basis of their religious or non-religious orientation. In short, the pluralist
dimension of liberal constitutionalism leads democracies, including the French one, to
allow the expression and practice of all religious or non-religious ideas (Ahdar and
Leigh 2013, 125–138).
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 53

On the other hand, these rights and freedoms imply that a person should not be forced
to carry out an act that, even if lawful, may deeply shock his/her conscience. For example,
in relation to the termination of pregnancy, the French Constitutional Council has said
that a public hospital must offer women the opportunity to have abortions, but at the
same time health-care workers (doctors or nurses) have the right to refuse to take part
in abortions, because neither the state nor other persons have the power to force
anyone to do something against his/her conscience.4 This is a clear demonstration of
the fact that freedom of conscience implies the right not to renounce a belief, even
though the practical manifestation of this freedom should be balanced with the rights
and freedoms of other individuals as well as respect for public order (Pena 2007, 115).
Thus, by emphasizing the distinction (and at the same time the connection)
between freedom of conscience (through which we can define the sphere of individual
autonomy) and the freedom to express opinions on the basis of a given belief, we are
more able to understand the value and impact of freedom of expression in a constitutional
democracy. This is particularly important in the light of the phenomenon of multicultur-
alism, which has arisen largely due to the arrival of immigrant communities (Bielefeldt
2012).
In practical (i.e. juridical) terms, this all shows that, with the principle of human
dignity, freedom of conscience becomes an inalienable right (Robert 2006, 7). The same
is not the case with freedom of expression, whose application must be limited by other
persons’ rights and various constitutional principles, including those related to public
order (Temperman 2015).
In this connection, we should take into serious consideration the fact that every legal
system affirms its own grammar of the law, through which rights, freedoms and principles
are defined in practice (Cordero 1981, 766). And, as far as the French legal order is con-
cerned, the practical exercise of freedom of expression remains strictly linked with the
principle of laïcité – a principle that is part of the institutional, legal and intellectual
history of the French Republic and, as such, has even taken on the role of the basis of
its founding “values” (Woehrling 1998).
As is widely known, the laïcité à la française (French secularism) is mainly expressed in
terms of a marked neutrality of the state’s law and public institutions, especially in relation
to religious denominations. But it should be also noted that in France this neutrality often
becomes synonymous with tolerance, because it presupposes freedom of conscience in
private and personal life. For the same reason, the principle of laïcité is defined as the
main factor in social cohesion, the pillar of French republicanism. The problem is that,
under the present intense pressure of globalization and immigration, this principle is
no longer self-explanatory (Gaudreault-Desbiens 2014) because, at the beginning of the
twentieth century, France was a predominantly Catholic territory with very small Protes-
tant (1%) and Jewish (0.2%) minority populations. A century later, France is becoming the
European country with the largest Buddhist, Jewish, Muslim and atheist or agnostic com-
munities. Confronted with the awakening of religious identities, and alerted by the fact
that religions are once again emerging as the bearers of ideals and norms different from
those of secular society, some even fear the return of clericalism, if not a challenge to
the secular state (Willaime 2010). From this point of view, Islam may represent a
twofold challenge to the way the principle of laïcité is considered, principally in connection
with freedom of expression.
54 F. ALICINO

Within the newly developed diversity of French society, and especially during the last
20 years, the presence of Islam as the second most practised faith has raised tensions
between the free exercise of religion and local or French national institutions. Islam is
one of France’s minority cultures that has a robust religious and political character. In
addition, this minority has a strong public voice and these two elements seem to contradict
the ideological representation of French republicanism and the laïcité model, which imply
a strict separation between State and Church (Weil 2009).
Not for nothing is France represented as the supreme example of a nation-state (unitarian,
universalist and egalitarian) in which republicanism sees assimilation as a basis for equality.
Here, citizenship is placed at the centre of theory and practice, shaping a nation-state that is,
in turn, based on republican individualism: those who have made a choice to become French
citizens should assimilate, at least in their public behaviour, the Republic’s principles, which
at the same time aim at reducing the distinctiveness of communities, and the cultural and
religious expression of their participation in public life. All this, however, also implies a
strong emphasis on individual freedom of expression, which normally takes priority over
religions, sometimes justifying the caricaturing of their divinities, rules, rites and symbols.
The Charlie Hebdo debate is a case in point, not only because of the terrorist attacks that
killed 17 people in Paris in January 2015, including an attack on the headquarters of the sati-
rical magazine, but also because, making a point of the special relevance of freedom of
expression (especially when related to satire), the Charlie Hebdo cartoons deliberately
intended to ridicule religions, including Islamic organizations (Favret-Saada 2015,
155–195; Fourest 2015, 90–160). A huge discussion emerges here – one whose arguments
have been not only about the right to freely express opinions and ideas, including shocking
and disturbing ones, but also about how to exercise the responsibility that, in a multicultural
society, goes with freedom of expression and the principle of laïcité (Miaille 2015).
The first part of this article underlines the role of freedom of expression in the light of
the principle of laïcité, which normally rejects the communitarian dimension of religious
rights. This approach may explain, on the one hand, some important aspects of the evol-
ution of blasphemy legislation within French constitutionalism and, on the other, the
relationship between freedom of expression and the secular state. But it may also help
us to better evaluate the existing French law in relation to some religious nomoi groups,
specifically Islamic organizations. In particular, these issues will be analysed from two
different perspectives: the right to criticize or challenge religions and the right to satirize.
This will lead to an investigation of the legal limits of freedom of expression before and
after the 2015 Charlie Hebdo tragedy, highlighting at the same time the difficulties
faced by the so-called laïcité à la française in dealing with today’s religious geography.
This gives rise to the need to establish a proper balance between religious diversity and
equal protection of human rights – not only the rights of a group to be different, but
also the rights of individuals within these groups – which also involves the efforts of reli-
gious denominations to articulate their claims in a way that makes them more compatible
with constitutional rights, including those related to freedom of expression.

2. Freedom of expression in the light of French laïcité

Freedom of expression strengthens freedom of religion, providing a legal basis for the con-
crete manifestation of diverse beliefs. In France, however, freedom of expression implies a
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 55

sort of secularization of religious phenomena because religion receives no special legal

protection. On the contrary, religion may be discussed, debated, disapproved of or even
ridiculed. Religious doctrines and their related institutions are human creations regarding
which anyone may freely express his/her opinion.
State law defines the limits of expressing views against religion, but these restrictions are
based not on the need to safeguard specific religious beliefs but on the necessity to protect
other constitutional principles, such as public order and individual rights, including those
related to the religious orientation of the persons concerned. In short, in France there is no
specific legal rule that regulates the protection of religious practice. This may also explain
why the jurisprudence of the French Constitutional Council has often affirmed that
freedom of expression is a fundamental right, capable of validating the possibility of cri-
ticizing religions and, sometimes, justifying caricaturing them. This becomes clearer if we
underline two important normative features of the French legal system in matters of reli-
gious rights. First, in the Criminal Code there is no provision for penalties for blasphemy
or offences against religions such as those found, for example, in the Italian Penal Code.
Second, when it comes to religious phenomena, the legal implications of freedom of
expression underline the most important features of the principle of laïcité (Basdevant-
Gaudemet 2004).
It should be noted that the intention of this principle is to reject the communitarian
perspective that emphasizes the social dimension of human rights, especially those
related to religion (Paris 2006). If the communitarian dimension affirms that, in the
name of religious diversity, a specific community’s claims may overrule the state’s
general law, the principle of laïcité is normally against this approach (Seiler 2002). In
fact, in the history of French constitutionalism, the principle of laïcité has been seen as
being against the influence of religion in public affairs. Moreover, this has been a
victory for the majority of French citizens educated in religion (namely the Catholic
faith), but who want religion to be put in its place, out of public education and public influ-
ence. The principle of laïcité is perceived as protecting individuals from the intrusion of
religious groups, but it also clarifies the fact that, in relationships between individuals, reli-
gious groups and the state, the state appears to protect individuals from any pressure by
religions. Religious choice is in other words a private matter. Normally, state law presents
itself to all as removed from any trace of religious influence (Rivero 1960, 266).
Hence, in relation to freedom of expression, the principle of laïcité is reflected in one of
the most important pillars of the French constitutional tradition, which dates to the 1789
Great Revolution and the Enlightenment movement. This tradition tends to transcend
religious questions and highlight the secular nature of the legal order, its indivisibility
and neutrality (Etienne 1995, 870). On the one hand, France’s constitutional tradition
interprets its secularism as a stark relegation of religion to the private sphere. On the
other, the right of public worship is guaranteed not in the name of religious organizations
(Carbonnier 1969, 366) but in order that people may freely live out their convictions (Fer-
rajoli 2007, vol. 2, 61), including the right to become a member of a religious nomoi
group.5
The limits of religious worship are then based on the safeguarding of individuals’ rights
and public order, which gives the French legislature some justification for approving legis-
lation capable, for example, of intervening against certain religious “sects” (especially those
promoting values that conflict with France’s egalitarian universalism) or “conspicuous”
56 F. ALICINO

religious symbols in public spaces – not only spaces for public services, as affirmed by the
2004 Act banning religious symbols in schools,6 but also generic spaces open to the public
(sidewalks, lane ways, streets, roads, highways and squares, whether rural or urban),7 as
stated in the Act of October 10, 2010, outlawing the full Islamic veil (Dieu 2010; Verpeaux
2010; Barton 2012; Bui-Xuan 2011; Champeil-Desplats 2012).
Now, the problem is that the French secularist assumption that religion is relegated to
the private sphere becomes problematic within the current constitutional legal order
(Jospin 1989; Minot 1990. See also William 1991, 45). This is due not only to the pressure
of increasingly aggressive religious interests, but also to the constitutionalization of reli-
gious freedom which, in order to avoid unreasonable discrimination, should be used to
accommodate religious practices. This explains why problems such as these often
involve conflicts between the specifically French form of secularism and the different
values of strong religions, like Islam. These questions are in fact closely related to both
the identity of the French legal order and the exercise of some human rights, including
the right to freedom of thought, conscience and religion.
This is made more evident by the fact that, under the current French legal system, the
notion of nation-state still influences the concept of fundamental rights and, therefore,
citizens’ equal right to freedom of religion. On the other hand, immigration and today’s
national multicultural society mean that large numbers of people come to France with a
global project and their own identities. They intend to exercise freedom of religion, as
guaranteed by the French Constitution, but they sometimes want to reshape this system
too. Hence, in recent decades France’s society has moved from one with a number of
creeds sharing, more or less, a common religious background to today’s diversity of
beliefs, ethnicities and cultures. Unlike in the past, the classic notion of secularism or
laïcité has thus lost much of its descriptive ability as well as the capacity to govern the
demands and needs of the new religious geography (see Sayah 2006).

3. Blasphemy legislations, offences against religions, laïcité

Multiculturalism and immigration have in recent decades contributed to the way relation-
ships are conducted between the state and the religious communities of which immigrants
are part. This process, however, has also complicated the centuries-old tension between
universal principles – launched by the Enlightenment and the 1789 French Great Revolu-
tion – and the religious specificities of many persons and their religious belonging. The
evolution of blasphemy legislation is a prime example.
During the Great Revolution, the 1789 Declaration proclaimed freedom of conscience,
and the 1791 Constitution guaranteed the free exercise of religious belief. In this historical
context, the crime of blasphemy was thus abrogated and, although Catholicism was
regarded as the state religion, this crime was not reintroduced either during Charles X’s
period of restoration (1824–1830) or by the general law of April 20, 1825, on sacrilegious
acts. In practice, the 1825 Act recognized sacrileges committed in churches and with
sacred objects (such as communion wafers) as serious misdemeanours (Duguit 1925, 459).
In addition, offences against public and religious morality had already been established
in the Criminal Code by the Act of May 17, 1819. After modification, this system of crim-
inal sanctions became part of the July 29, 1881, general law regulating freedom of the
press, with a view to its being reinstated in the Criminal Code. Yet, after many years, in
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 57

1994 to be precise, offences against “public decency” – including those against religion –
were still not considered criminal acts by the new penal legislation. In its place, the Crim-
inal Code provided more general normative qualifications, such as those referring to
public sexual indecency.8 So far as public morality is concerned, it is nowadays considered
part of public order, which is significantly related to offences against personal dignity.9
In sum, one of the results of the long process of secularization is that offences against
religion simply disappeared from the criminal law and are no longer considered instru-
ments of public policy as they were in the late eighteenth century, a period characterized
by a tradition of censorship based on religion, namely on the values and rules of Catholi-
cism. Suffice it to remember the Tartuffe affair as well as the prohibition of the Philoso-
phical Dictionary (Dictionnaire philosophique), the novel Madame Bovary, and Charles
Baudelaire’s Fleurs du mal (published in 1857). In fact, in the name of religious views,
many books, opinions and speeches were subject to censorship, which was an important
part of state law (Dusseau 2006. See also Basdevant-Gaudemet 1998, 1988, 298; Leniaud
1988, 428).
For the same reasons, however, during that period both anti-religious criticism and
rejection of censorship – which even now is a powerful tool in the hand of some author-
itarian regimes – developed into instruments supporting political struggles for the secular-
ization of the French Republic and the strict religious neutrality of state law. It is no
coincidence that those struggles have come to be seen as the “secular” characteristics of
the French legal system, which, supporting republicanism, is now diametrically opposed
to the recognition of the communitarian dimension of religious freedom – a dimension
that aims, in contrast, at empowering the specific claims of some denominations, regard-
less of the general law, and at accommodating religious diversity (Poulat 2003, 139). This
gives rise to French judges’ reticence to condemn anti-religious opinions, usually legiti-
mized by both the republican principle of laïcité and the “sacrosanct” freedom of
expression, which includes freedom of the press and freedom to satirize (Haarscher
2008, 139–143).

4. The “sects” and “the most stupid religion in the world”

In 2004, the French Court of Cassation rejected an appeal related to defamation on ethnic
and/or religious grounds. In this case, a Palestinian journalist, Mrs Hawa Raymonda Tawil
– the stepmother of Yasser Arafat – was interviewed (on January 12, 2001) on the public
radio channel France Culture. During the interview, she accused French Jews of engaging
in lobbying in the West aimed at frightening French and Western people through the
media and by constant reference to Islamist terrorism. She also accused French Jews of
being racist. In light of these statements, the organization Avocats sans Frontières began
claiming a right to reply on the same radio station, in order to express their view that
such declarations seriously compromised the Jewish community’s reputation. Both the
judge in chambers (juge des référés) and the Court of Appeal refused to agree to the
request on the basis that the offending statements were only expressions of personal
opinion: given their generality, they did not affect the honour and reputation of the
Jews, said the French judge.10 On March 16, 2004, the Court of Cassation confirmed
this approach.11
58 F. ALICINO

Similarly, when Jehovah’s Witnesses – who number about 130,000 in France – tried to
demonstrate that their organization is a religion and, consequently, that the Parliamentary
Commission’s identification of them as a “sect” was defamatory, they also had to face the
jurisprudence of ordinary courts (Woehrling 1999, 66). In this case, the French judge
affirmed that the sectarian character of a movement is not defined by its (political, reli-
gious, cultural) purpose but by its mode of operation. This was the only definition
adopted by the Parliamentary Commission, which, in the conduct of its investigation con-
cerning religious sects in France, had omitted any reference to the content of the faith or
the shared beliefs of persons concerned.12 Taking into account the fact that the Commis-
sion’s impugned remarks had made no reference to the beliefs of Jehovah’s Witnesses, the
Court dismissed the plaintiffs’ reference to Article 32 (para. 1) of the July 29, 1881, Act
regarding the criminal offence of defamation against a person for his/her membership
of a religious denomination.13 This may be taken as a good demonstration of the fact
that, in matters of religion, the fundamental freedom of expression often implies the
strong secularization of French law and, consequently, the reduction of the public impor-
tance of religious organizations, especially in matters not strictly related to individual
human rights. It also explains why, in this secular context, religion is likely to be discussed
and criticized, and even fiercely challenged, as clearly seen in the judicial cases concerning
Michel Houellebecq’s statements against Islam.
At the beginning of the 2000s, the famous best-selling author was pursued by a number
of Muslim associations for his Islamophobic statement made in an interview with the
French magazine Lire (in September 2001). On this occasion, Houellebecq said that he
thought Islam was the most stupid religion in the world. Although the associations ident-
ified this statement as offence on the basis of Article 33 (para. 3) of the July 29, 1881, Act,
the French Court affirmed that an opinion on Islam does not necessarily amount to an
offence against Muslims. Besides, French judges were not there to make a semantic analy-
sis of Houellebecq’s words; they were there to punish criminal acts. And, after all, a per-
sonal opinion about a creed does not in itself constitute a crime, even though it may offend
people who are members of a religious denomination. In other words, when facing the
compelling interests of religions, the French Court should first of all avoid causing
sudden and excessive detriment to the fundamental freedom of expression.14
It must be noted that a few years before, in 1994, the Court of Cassation had already
rejected an appeal in a matter of discrimination because of membership of a given religion.
In this case, the Court pointed out that citizens had the right to discuss immigration, even
if their opinion was based on religious arguments. Provided that such opinions are voiced
in good faith and without intent to discriminate, a climate of widespread fear and growing
racism could not deprive individuals of their right to freedom of thought and expression.15

5. No way to avoid criticism or even caricature

These cases demonstrate that, under French law, there is no distinction between religious
and non-religious beliefs. In general, freedom of expression covers the contents of personal
convictions and their related (religious and non/anti-religious) manifestations. Thus, if a
believer decides to express his/her religious creed in public, he/she should be aware that
this lays his/her belief open to diverse reactions, including sharp criticism. This is legiti-
mized by constitutional principles based on democratic pluralism, so that, beyond the
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 59

general provisions regarding defamation, religions in France have no right to immunity

from criticism or even caricature. This is clearly stated in Articles 10 and 11 of the
1789 Declaration as well as in Article 1 of the 1958 Constitution, whose goal is to
ensure respect for all opinions and convictions, including those that reject or challenge
religious beliefs. On the one hand, freedom of expression, as enshrined in the 1789
Declaration, covers all opinions, which excludes special protections for religious beliefs.
On the other, Article 1 of the 1958 Constitution is aimed at respecting all opinions, affirm-
ing at the same time the neutral character of laïcité à la française.
In its famous 2004 decision (November 19) concerning the Treaty establishing a Con-
stitution for Europe, the Constitutional Council stated that, in order to reconcile freedoms
of expression and worship (Articles 10 and 11 of the 1789 Declaration) with the principle
of secularism (Article 1 of the 1958 Constitution), a person cannot rely on his/her religious
beliefs taking precedence over general rules governing relations between the state (its rules,
authorities and institutions) and individuals (their rights and freedoms).16 In religious
matters, freedom of conscience and respect for all beliefs are recognized and protected
in the name of individual rights and not for the safeguarding of religious denominations.
It follows that, in legal terms, it is extremely difficult for an individual to demonstrate that
s/he has been subject to defamation because of his/her membership of a given religion
(Camby 2005).
This conclusion is further reinforced by the fact that, in various legislative texts protect-
ing civil rights, the notion of conscience is characterized by reference to a general trilogy,
based on the notions of “politics,” “religion,” and “trade unions.” In other words, there
exists a voluntary indeterminacy between the notions of opinion, personal conviction
and religious creeds, with the known result that a believer cannot easily claim that the
expression of other persons should be limited in order to protect and safeguard his/her
religious convictions (Gauchet 1998, 128). This logic is quite similar to that affirmed at
European level by the European Court of Human Rights (ECtHR) since the Handyside
case. Here the ECtHR states that “[f]reedom of expression constitutes one of the essential
foundations of a society, one of the basic conditions for its progress and for the develop-
ment of every man.” Freedom of expression is thus applicable not only to information or
ideas that are favourably received or regarded as inoffensive or as a matter of indifference,
but also “to those that offend, shock or disturb the State or any sector of the population.”
Such are the demands of that pluralism, tolerance and broadmindedness “without which
there is no democratic society.”17 This means, among other things, that every formality,
condition, restriction or penalty imposed in this sphere must be proportionate to the legit-
imate aim pursued. And, that being so, combined with the principles of equality and plur-
alism, freedom of expression cannot be easily invoked to protect specific religious beliefs
(Mbongo 2007a, 698–699).
In practice, the Court should decide the issue on a case-by-case basis, distinguishing
between criticisms made in a respectful manner and anti-religious defamations or offences
which, as said, should be condemned for the reason that they conflict with the persons’
(not the communities’) rights. In this area, then, jurisprudence should be based not on
the content of criticisms, but on their intentions. Yet, again, if this is the case, there is
nothing to hinder the conclusion that, in the criteria that define religious offences, the
form and context become more important than the content, as is clearly demonstrated
by the case law concerning religious satire.
60 F. ALICINO

6. Freedom of expression, right to satirize, laïcité

In France, religious satire has emerged from a long tradition that has resisted all uphea-
vals and misfortunes, including forms of censorship that, during the history of French
constitutionalism, have frequently exerted direct and indirect pressure on freedom of
expression. Under the current legal system, protection of the right to (religious or
non-religious) satirical expression is mainly based on certain principles, such as those
referring to freedom of opinion and expression (Articles 10 and 11 of the 1789 Declara-
tion), freedom of the press (as stated in the July 29, 1881, Act) and democratic pluralism
(as affirmed, among others, by Article 34 of the 1958 Constitution, para. 1). So, it seems
extremely difficult to win a case when the contested expressions are defined as modern
manifestations of satire.
It is worth remembering what is affirmed in some judicial decisions related to the
General Alliance against Racism and for the Respect of French and Christian Identity
(GARRFCI), in particular, decisions related to the satirical magazine La Grosse Bertha.
In these cases, the GARRFCI has often invoked Article 24 of the July 29, 1881, Act,
calling for an end to La Grosse Bertha’s articles and cartoons, which it saw as an incitement
to hatred, provocation and violence towards the Catholic Church and its adherents. For
example, on the occasion of promoting the stage show by Robert Hossein and Alain
Decaux entitled Jésus était son nom (his name was Jesus), La Grosse Bertha published a
cartoon of the dying Christ with the caption: Je suce était son nom par Robert Obscène
et Alain Porno, de l’Acadébite. As a result, the GARRFCI initiated a legal action charging
that the cartoon was an instance of the criminal offence of incitement to hatred and vio-
lence. However, the French Tribunal (Tribunal de première instance) held that, despite the
coarse nature of the caption, the drawing could not be considered an incitement to hatred.
The Court of Appeal of Versailles confirmed this judgement, saying that the Tribunal had
correctly analysed the dispute: it was true that the drawing ridiculed the values, symbols,
rituals and religious practices of the Catholic Church, but it was also true that La Grosse
Bertha did not want to incite cultural hatred, nor did they intend to cause violence or dis-
crimination against a specific religion.18 These arguments were echoed in a judgement of
the Court of Cassation, which ended the long judicial struggle: the drawing was a simple
parody, they said; it was not a provocation, nor it was intended to be an incitement to
violence.19
This precedent may help toward a better understand of the more famous matter con-
cerning the cartoons related to Islam insofar as it demonstrates that in the French legal
context there is a strict relationship – of cause and effect – between freedom of expression,
the right to satirize and the principle of laïcité.

7. The right to satirize and the Islamic legal tradition

The case of the cartoons is well known and it can be summarized in a question: can the
Charlie Hebdo cartoons (published in February 2006) caricaturing Muhammad be con-
sidered offensive and demeaning?
It should be first noted that, in reality, the case began in Denmark on September 30,
2005, when Jørn Mikkelsen, one of the editors of Jyllands-Posten, a conservative newspa-
per, discovered that no cartoonist wanted to illustrate his children’s book “Life of
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 61

Muhammad.” He therefore made a public appeal to “all cartoonists of goodwill,” and

received 12 cartoons, which Jyllands-Posten decided to publish (Langer 2014, 4–5, 51–56).
As many know, Islam forbids the representation of the Prophet, in part because of
strong warnings in the Qur’an and other religious texts against idolatry or anything
that could be seen as leading towards it. In addition, some of the cartoons pointed to simi-
larities between Islam and religious terrorism, principally with reference to al-Qaeda. This
gave rise to protests by national and supranational Islamic organizations and some
Muslim-majority countries, which led Danish Prime Minister Anders Fogh Rasmussen
to distance himself from the cartoons and the editor of Jyllands-Posten to apologize for
having caused offence to Muslims.
In contrast, a year later Charlie Hebdo chose to support freedom of expression by pub-
lishing the said cartoons. As a result, the Union of Islamic Organizations of France and the
Great Mosque of Paris complained that the weekly magazine had caused public offence to
a group of persons because of their religious belonging, such offence might have been pun-
ished under French law by six months’ imprisonment and a fine of €22,500.
From a legal point of view, this case is focused on how to achieve the best balance
between two fundamental freedoms: on the one hand, freedom of worship, on the
other, freedom of expression – two freedoms that in a constitutional democracy have to
coexist peacefully, without one suppressing the other. This is even more necessary in a
multicultural context, where there are different religions, cultures and traditions.
However, we should not forget that the aim of achieving this balance is never neutral: it
reflects unexpressed assumptions that affect the practical, legal outcome.
As far as the Charlie Hebdo case is concerned, if we choose to favour the right to satirize –
because, for example, we consider it important for pluralism and the development of social
awareness – then religious experience, like any other experience, must be subject to
freedom of expression. If, on the other hand, we decide to focus our attention on the
favor religionis, in the sense that religion should be granted special protection, satirical
expression would be lawful only in so far as it showed respect towards religious denomi-
nations, which would not only result in the reduction of the role of satire but would also
open the door to penal legislation safeguarding religion and religious nomoi groups
(Colaianni 2008, 3–4). In short, depending on the essential characteristics of a given
legal system, the “balance” would tilt either towards the right to satirize or towards the
favor religionis.
In the eyes of the complainants, the cartoons published by Charlie Hebdo were delib-
erate acts of aggression aimed at hurting Muslim people, their attachment to Islam and the
umma islāmiyya (community of Muslims). It is easy to see that the classical communitar-
ian repertoire would uphold this indictment. It is in effect based on the demand of a social
group and its adherents that general law be overruled in the name of their right to religious
diversity. On the other hand, the principle of laïcité – which emphasizes the neutrality and
indivisibility of state law – gives freedom of expression a peculiar protection, which trans-
lates into a particular safeguard of the right to satirize (Jeantet 2006). These are in fact the
main characteristics of French secularism, which, as we have said, has been opposed to the
communitarian perspective throughout the long history of liberal constitutionalism
(Schlegel 2006).
All this makes the decision of the French judge predictable; not for nothing does it refer
to the principles stated in the 1958 Constitution, which imply freedom of expression and
62 F. ALICINO

the right to express ideas, including those “that offend, shock, or disturb.” In addition, the
Court also said that in cases like this it should be underlined that, under the pressing pro-
cesses of immigration and globalization, we are now living in legal contexts characterized
by the physical coexistence of many cultures and religious denominations. France is a
secular and pluralistic society, where respect for all beliefs should be associated with
freedom to criticize religions, including Islam. Moreover, the cartoons are not gratuitously
offensive. Rather, they are capable “of supporting the debate about the nature and the
scope of Islamic terrorism.”20
Finally, the Court considered the media context within which the cartoons were pub-
lished. Charlie Hebdo is a satirical magazine, containing many cartoons, which no one is
forced to buy or read. This means that the contents of this publication operate as jokes that
bypass censorship, using irony as an instrument of social and political criticism. Charlie
Hebdo is deliberately provocative, which allows it to give force and substance to
freedom of expression in an openly satirical milieu (Derieux 2007, 10078–10079).
For all these reasons, not surprisingly, the French judge acquitted Charlie Hebdo of the
charges. Under French law, the right to satirize is an integral part of freedom of expression.
This right is strongly guaranteed by the Constitution and must, therefore, prevail over reli-
gious claims (Mbongo 2007b).21 The Court concluded that, although the nature of the car-
toons may be shocking, even insulting, to Muslim sensitivities, the context and the
circumstances of its publication in Charlie Hebdo arose independently of any deliberate
intention to directly and gratuitously offend people of the Muslim faith. The acceptable
limits of freedom of expression had not, therefore, been exceeded.

8. Public order and the rights of other persons

Freedom of expression is strictly related to human rights, which since World War II have
been incorporated into the constitutions of many Western countries. In France, this
process of constitutionalization, as Louis Favoreu (1990) has called it, has involved the
entire legal system, supporting an intensive jurisprudence that has, among other things,
tried to specify the concrete meaning and practice of human rights, including those refer-
ring to freedom of expression. Jurisprudence has in fact tended to reinforce and improve
the exercise of those rights, balancing their scope in relation to various relevant interests
(Tanasescu 2007, 1412). This has also resulted in the limitation of such rights, whose func-
tion should be contextualized in the light of both present-day conditions and the reason-
able application of the principles of equality and non-discrimination. And, as has been
said at the beginning of this essay, among the elements that may justify restrictions on
freedom of expression are the protection of public order and the rights of other individuals
(Böckenförde 2000, 277).
Concerning the protection of public order, attention is particularly focused on crimes
and offences covered by Articles 23 and 24 of the July 29, 1881, Act (regulating the
freedom of the press), which, on November 14, 2014, was significantly modified by an
Act (no. 2014–1353) strengthening the provisions related to the fight against terrorism.
In addition, Article 223–13 of the Criminal Code punishes incitement to suicide (or to
attempt suicide) when this provocation produces concrete effects. Instead, Article 24 of
the 1881 Act punishes incitement to the commission of certain crimes, even when the pro-
vocation produces no concrete effects. It should be noted that, when identifying these
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 63

offences, a judge should verify that the provocative action is serious. One such crime is
identified in the 1881 Act punishing “incitement to discrimination, hatred or violence
against a person or a group of persons because of their origin or their membership or
non-membership of an ethnic group, nation, race or religion.” The 1881 Act does penalize
insult, defamation or incitement to discrimination, hatred or violence against individuals,
but specific religious speech offences do not exist here. The Act refers to general offences
that may be aggravated by particular grounds, as stipulated in the subparagraphs of the
relevant article. Apart from religion, aggravating grounds are ethnicity, nationality, race,
gender, sexual orientation and disability (Bigot 2004, 100–105).
With this as a normative perspective, it becomes very difficult to refer to offences against
religion as elements that may violate public order. This is made more evident by the attitude
of the Constitutional Council, which has stated that the legislature should balance the pur-
poses and the exercise of civil liberties and fundamental freedoms, as guaranteed by the bloc
de constitutionnalité (constitutional block), including the 1958 Constitution, the 1789
Declaration, and the Preamble to the 1946 Constitution, with other principles stated in
certain historical legislative Acts, such as the 1905 Act separating Church and State – one
of the most important legal pillars of the principle of laïcité.22 The arguments of the Consti-
tutional Council are close enough to that of the State Council, which has affirmed that public
order should be defined as comprising four essential elements: public safety, public health,
public peace and respect for human dignity.23 On the basis of these legal components, we
can appreciate the reason why judges rarely assess offences against religious beliefs as con-
stituting violation of public order. Furthermore, since freedom of expression is a supreme
constitutional right, and taking into account the essential components of public order,
which imply the principle of laïcité, judges are extremely wary of declaring as offensive
expressions that challenge or even ridicule religion (Long et al. 2005, 102).
Concerning the balance between freedom of expression and the protection of the rights
and freedoms of others, attention is focused on the right of reply, which generally means
the right to defend oneself against public criticism in the same venue where the criticism
was made. This right is affirmed by Article 7 of the July 13, 1990, no. 90–615, Act (which
amended Article 13 of the aforementioned 1881 Act), and by more general legislation,
starting from the principles set down in Article 1382 of the Civil Code. Respect for repu-
tation, respect for privacy, and the presumption of innocence are in these cases subject to
specific safeguards and so may limit the dissemination of information.24 In this regard, the
French Court of Cassation held that the infringement of these principles gives entitlement
to compensation, regardless of the existence of concrete prejudices towards other persons.
The need to protect these principles may then produce preventive measures, as stipulated
by the judicial authority. Such measures are, however, rare and may in any case only be
imposed in advance if there is serious evidence of actual and potential prejudice.25 For
this reason, the Paris Tribunal de Grande Instance has ruled that the constitutional prin-
ciples referring to freedom of expression prevent a French Court from prohibiting the sale
of a book whose content in relation to the prejudices under consideration remains uncer-
tain (cited in Morange 1990), and this is even clearer in religious matters.
As mentioned above, Article 10 of the 1789 Declaration affirms a restriction on freedom
of expression by making the link between this freedom and the breach of public order.
More generally, Article 4 of the Declaration states that
64 F. ALICINO

[l]iberty consists in the power to do anything that does not injure others; accordingly, the
exercise of the rights of each man has no limits except those that secure the enjoyment of
these same rights to the other members of society. These limits can be determined only by
legislation.

This explains why conduct is to be punished when it is a matter of discrimination, inci-

tement to hatred or violence, illegal intrusion into personal privacy, or the violation of a
person’s dignity.
Since the end of World War II, however, the pluralistic development of society has led
the French legislator to give some offences a religious dimension. This has resulted, for
example, in the new provisions of the Criminal Code, which state: “[w]here provided
by law, the penalties incurred for a felony or a misdemeanour are increased when the
offence is committed because of the victim’s actual or supposed membership or non-mem-
bership of a given ethnic group, nation, race or religion.” In such cases, the aggravating
circumstances
are established when the offence is preceded, accompanied or followed by written or spoken
words, images, objects or actions of whatever nature which damage the honour or the repu-
tation of the victim, or a group of persons to which the victim belongs, on account of their
actual or supposed membership or non-membership of a given ethnic group, nation, race or
religion.26

Likewise, defamation, insult or incitement

committed in private, to discrimination against or hatred or violence towards a person or a
group of people on account of their origin or their actual or supposed membership or non-
membership of a particular ethnic group, nation, race, or religion shall carry the fine for
fourth-class summary offences.27

This also means that, on the basis of these provisions, someone may be legally prevented
from behaving in a certain manner or expressing opinions against a person or group of
people on account of their religious affiliation.
Nonetheless, even though case law concerning freedom of expression has multiplied in
recent years, it remains difficult to apply and enforce those provisions when related to reli-
gious matters (Derieux 2005). This is essentially due to three factors: first, the very general
nature of the provisions, which do not give precise definitions of offences against religions;
second, the remarkable and increasing importance of freedom of expression, which nor-
mally takes priority over religious claims; third, the principle of laïcité, which aims at redu-
cing the role of religions and religious denominations, especially in public spaces (see
Dignan 1981; Green 1985; Green 2002). And it must be noted that the evolution of
these factors is closely linked with the rapid mutation of French and European religious
geography, which sometimes produces paradoxical and contradictory situations.28

9. Hate speech and laïcité after the Charlie Hebdo tragedy

Increased religious pluralism, fear of religious terrorism, the demand for recognition of
minority identities and, above all, the pressing process of immigration are making their
mark on today’s legal systems. Especially in France, these processes are leading religion to
become one of the fundamental factors that, for example, distinguish “old” and “new”
immigrants (Leveau and Kepel 1988). This is particularly true for one religion – Islam.
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 65

It is not by chance that in recent decades many immigrants who in the past were identified
as “Arabs” are now said to be “Muslims” (Rabah 1998), which proves that Islam has
become one of the most popular modes of thinking about migration and a symbol of
the challenges faced by the French legal order within a changed religious geography
(Debray 2004, 19; Pena-Ruiz 2005, 284).
Since the terrorist attacks in Paris on January 2015 that killed 17 persons, including
nine Charlie Hebdo journalists, a debate has been raging. In particular, the lead editorial
in Charlie Hebdo after the massacre at its Paris offices (in an edition that ran to an aston-
ishing five million copies) raised a thorny, sensitive question, which can be summarized in
the words of the editor in chief, Gérard Biard. After thanking all those who had shown
solidarity with the newspaper, he wondered whether we “are finally going to rid our
[French] political and intellectual vocabulary of the dirty term laïcard intégriste”
(loosely translated, this expression means “die-hard secularist”). Biard particularly chal-
lenged the argument that affirms a sort of moral equivalence between deeply held secular-
ist views and religious totalitarianism.
Irreverent magazines like Charlie Hebdo have been fixtures in Western societies for many
years, and France has a strong tradition of such satirical journalism, which in many respects
is protected by state law and its “secular” constitutionalism. However, in the wake of the
terror attacks, the French authorities began aggressive enforcement of legislation against ter-
rorism, including arrests of people who spoke admiringly about the shootings at Charlie
Hebdo. Not surprisingly, their actions have raised questions of double standards: one for
Charlie Hebdo’s cartoonists, who deliberately deride religion (even though their cartoons
are certain to antagonize Muslims at a time when anti-Muslim feeling is already running
high in France and across much of Europe), and another for those who react by applauding
terrorists. The difference, according to the French authorities that interpret the above-men-
tioned provisions regulating freedom of the press and satire, lies between the right to attack
an idea and the right to attack people or incite hatred.
In fact, as we have seen, the distinction is recognized in the various Acts against hate
speech or incitement to violence that exist in most Western states. Moreover, since
World War II France has implemented legislation that can be used against the rise in
anti-Semitism, and the authorities have actively sought to curb hate speech, such as the
anti-Semitic routines of comedian Dieudonné M’Bala M’Bala. Indeed, his case deserves
mention as an illustration of the random nature of trials for racial abuse or defamation.
For example, during the 2002 presidential elections, Dieudonné gave an interview to a
Lyons newspaper. To the question “[w]hat do you think of the rising anti-Semitism
amongst young beurs [NorthAfricans born in France]?” Dieudonné replied that “racism
was invented by Abraham …
the Chosen People, that’s the beginning of racism. Muslims today are retaliating tit for tat.
For me, Jews and Muslims, it doesn’t exist. So anti-Semitism doesn’t exist, because Jews
don’t exist. These two notions are just as stupid as each other. No one is Jewish or else every-
one is. I don’t understand any of it. In my opinion, Jewish, it’s a sect, a scam. It’s one of the
most serious ones because it was the first. Some Muslims take the same route by reviving con-
cepts like “Holy war.” (Mbongo 2009, 234)

The Court of appeal acquitted Dieudonné, stating that “returned to their original context,
the terms ‘Jewish, it’s a sect, a scam’ are rooted in a theoretical debate on the influence of
66 F. ALICINO

religions and do not constitute an attack on the Jewish community as a human commu-
nity.” For its part, though, the Court of Cassation argued that:
the affirmation “Jewish, it’s a sect, a scam” is one of the most serious ones because it is not
grounded in the free criticism of a religious fact contributing to a debate of general interest,
but constitutes abuse that targets a group of people on the grounds of its origin. The suppres-
sion of this abuse is therefore a necessary breach of freedom of expression in a democratic
society. (Mbongo 2009, 235–236)

Dieudonné was arrested again after he apparently compared himself to the terrorist who
murdered four people at a kosher supermarket in Paris the previous week: “As for me, I
feel I am Charlie Coulibaly,” he said. On that occasion, French Interior Minister Bernard
Cazeneuve called the comment “abject” and asked his officials to investigate whether the
comedian should be prosecuted for breaching a French law that forbids “apology for” or
encouragement of terrorism. And we should not forget that Dieudonné’s stage show had
been banned a year before, because it contained “jokes” mocking the Holocaust; he had
also suggested that a Jewish radio presenter “reminded him of gas chambers” (Hume
2015, 10–28). During his two-decade-long stage career, Dieudonné has collected six con-
victions for hate speech and has paid €65,000 in related fines (Bacchi 2014).
At the same time, though, we should not forget the other side of the coin, represented
by those who expressly reject what is called the “double standard doctrine.” For example,
on the evening of May 5, 2015, Charlie Hebdo received an award at a gala dinner in
New York. On that occasion, almost 150 well-known writers, including the best-selling
novelists Joyce Carol Oates and Peter Carey, wrote a letter protesting against the award.
They said they were sickened by the Paris murders, but also criticized the decision to
honour the magazine, which they said was neither clear nor unarguable. In practice,
they denounced the magazine for mocking a section of the French population that is
already marginalized, embattled and victimized, and causing further humiliation and suf-
fering among France’s Muslims.
From a legal point of view, this state of affairs involves questions related to pluralism,
freedom of expression and the role of religious beliefs in a constitutional democracy.
However, if they are analysed from a different perspective, it may be noted that these ques-
tions are ultimately fuelled by the tension between universal principles of Western consti-
tutionalism and the ethno-cultural-religious specificities of immigrants. This is obvious in
those European states that, in one way or another, continue to appeal to Christian culture
in their process of political and legal decision-making (as, for example, the crucifix debate
has largely shown in Italy and Germany).29 For several reasons, though, this tension is
even clearer in those states that adhere to a more secular tradition that insists on a “stric-
ter” separation between state and Church(es), as both the laïcité à la française and the
United States Non-Establishment Clause normally do.
Among Western states, the USA and France are in fact said to be the only true secular
republics. Three important constitutional principles of the American and French legal
orders mirror one another on the question of the relationship between Church(es) and
state. First, the American Constitution,30 like the 1789 French Declaration,31 ensures
equal access for believers and non-believers alike to public office and positions. Second,
the United States Non-Establishment Clause32 has a counterpart in the above-mentioned
French 1905 Act concerning the separation between Churches and state. Finally, the
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 67

United States Free Exercise of Religion Clause is analogous to Article 1 of the 1958 French
Constitution, which states that the Republic respects all beliefs (Gey 2005).
This textual proximity should not be overstated, however. An example is found in the
strong dichotomy between freedom of religion and freedom of expression, as highlighted
by the French Acts (of 2004 and 2010) banning conspicuous religious signs from both
public school and spaces open to the public. These Acts are predominantly perceived in
the USA as a violation of liberty of conscience and religion (Gunn 2004, 429). Further-
more, several arguments point to the likelihood of a judicial rejection of a hypothetical
American counterpart of the French bans: the role of founding myth played by
freedom of religion in the USA; the state’s absolute duty to protect religion; the status
of special liberty accorded to freedom of expression; and the strong protection of a
person’s right to express his/her faith in public spaces, including primary and secondary
school and universities. These are explicit examples of how in the United States an immi-
grant – whether first, second or third generation – may retain the flavour of his religiosity
while also embracing American ideals. In contrast, in France the principle of laïcité is read
as the state’s duty to impart the knowledge necessary for effective citoyenneté (citizenship)
(Calves 2004). Moreover, the Republic’s law aims at empowering rights from the individ-
uals’ point of view, and not on the basis of religious denominations. As a result, in the
French legal context, the secularism principle is translated into an educational secularism.
For these reasons, in France many believe that, because of the escalating process of
immigration, secularism has been under threat in recent years, especially in the public
sphere and that laïcité à la française therefore needs to be reaffirmed on the basis that
this principle is a common good superior to religion and capable of preserving public
order as well as the neutrality of the public space.33 However, we have seen above that,
unlike in the past, the principle of laïcité is not always able to affirm an acceptable
balance between universal principles of Western constitutionalism and cultural-religious
differences. In other words, the French principle of secularism is no longer able to ensure a
proper balance between religio-cultural rights and the equal protection of individual
human rights (Custos 2006, 398). This is mainly due to new economic and social con-
ditions that are affecting neo-religious nomoi groups, largely composed of Muslim immi-
grants, which also lead the members of these denominations to consider the universal
conceptions of citizenship and the principle of laïcité as instruments for subjecting min-
orities to the law of the majority. In short, within these religious communities, the uni-
formity of human rights, the concept of citizenship, and the secularism principle are
often considered as synonymous with inequality, and their much-publicized universality
as a legal tool to conceal the de facto inequalities (inégalités de fait).

10. Laïcité à la française and the recent changes in religious geography

The problems caused by the relationship between French secularism and some Islamic
nomoi groups might be interpreted as an outward manifestation of deeper and
broader calls for an increase in immigrants’ capacities to express their beliefs in both
public spaces and political arenas. These calls have often seeped through in Islam and
the precepts related to it, which gives them strong religious nuances. It may explain
why many young Muslim immigrants – whether first, second or third generation –
who do not feel represented by values based on French republicanism have decided to
68 F. ALICINO

reaffirm their religious identity, seeing Islam as a means to claim visibility vis-à-vis state
secularism.
Recent research has in effect underlined that religious behaviour is often used as a
means to affirm a different French identity grounded in an assertive Muslim traditional
ethic (Lazreg 2009, 88). This – again – emphasizes the difficulty French secularism has
in facing today’s religious geography. It is as if, instead of affirming harmonious coexis-
tence, the classical legal instruments for implementing the principle of laïcité foster
serious, pressing tensions between secular law and some religious denominations,
namely Muslim ones. From a different perspective, though, this also shows that in
France the paradigm of French secularism is now stressing the state’s role in implementing
human rights and fundamental freedoms, including freedom of expression and freedom of
religion.
In the French legal context, individuals normally acquire freedom, even freedom of reli-
gion, through the state and not from the state. In the name of republican universal prin-
ciples, the state has responsibility for safeguarding public order and individual rights. In
this sense, since the 1789 Revolution and particularly since the Third Republic, the prin-
ciple of laïcité has been used as a mechanism of governance. It has in other words been
used to promote the ideals of the French national-republican tradition, deeply connected
with some universal notions such as citoyenneté and human rights, as clearly stated by the
aforementioned bloc de constitutionnalité (the 1789 Declaration, the 1958 Constitution
and the Preamble to the 1946 Constitution, as well as the 1905 Act on the separation of
State and Churches).
All these principles could in fact be seen as a sort of legislative codification of the French
egalitarian ethos, within which state law aims at treating all citizens alike, refusing to group
them into ethnic or religious categories. This explains, for example, the fact that it is illegal
to collect statistics referring to racial or ethnic origin. Thus, when in 2010 a government
diversity commissioner set up a group of researchers to find the best way to collect infor-
mation in order to measure “diversity,” critics saw this ethnic and religious data as an
assault on the principes fondateurs de notre République, that is the Republic’s secular prin-
ciples (Economist 2009). These reactions cannot, however, remove the fact, which even the
casual tourist may notice, of how multi-ethnic and multi-religious France is. Furthermore,
the reactions show that, since religions are still multiplying in the country today, with a
wide variety of denominations, some traditional legal principles, including those referring
to laïcité à la française, no longer meet the needs of a changed religious geography. In par-
ticular, they do not meet Islam’s needs, especially in the matter of human rights.
Many studies have reported that negative perceptions of Islam and social discrimi-
nation against immigrants in French society are alienating some French Muslims and
are also a factor in the causes of riots. Islam is seen as the biggest challenge to the country’s
secular model in the past 100 years (Weil 2009).

11. Conclusion
In a liberal, democratic legal system, freedom of expression is not only a constitutional
liberty. It is one of the conditions for the existence of a democracy. For this reason,
freedom of expression can be defined as “fundamental,” in the truest sense of the word.
It occupies a special place, allowing the dissemination of opinions and ideas, which is
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 69

also essential to the practical exercise of democratic elections. Like other freedoms and
rights, however, in everyday life freedom of expression embodies specific interests that
compete with others. Moreover, to avoid excessive abstraction with little potential for
profitable use, freedom of expression needs to be accompanied by and balanced with
other rights, including those related to freedom of religion, in its individual and collective
perspectives.
As we have seen, in France freedom of expression is linked to several constitutional
principles, such as those stated by the 1789 Declaration, the 1958 Constitution and the
Preamble to the 1946 Charter, which all explicitly refer to religion and religious liberty.
The same can be said of several provisions affirmed by some legislations, such as the
Act of July 29, 1881, as well as many provisions of the Criminal and Civil Codes. More-
over, in the French legal system the practical application of these provisions should be con-
textualized in the light of the principle of laïcité, which includes (at least) the neutrality of
state law, respect for pluralism, and religious liberty implying freedom of belief and
worship.
It should be noted that the French democratic model tends to align itself with a strong
belief in the importance of individual rights, seeing such rights as inherent in human exist-
ence; a society can only truly realize human rights through a liberal democracy that
emphasizes individuals’ rights. In contrast, under a traditional Islamic model, which rep-
resents the second most widely professed religion in France, the primary purpose of
human rights seems to be collective: individual rights are tied to and stem from the
umma as a whole (Andre and Pratt 2015). However, we may argue that in both contexts
these rights remain inextricably linked to each other. Furthermore, in some ways, we could
say that this dichotomy does not exist in reality. The relation between freedom of
expression, religious liberty and the principles of laïcité is the best example of this
(Khan 2003, 344; Hallaq 1997, 36; Weiss 2006, 22ff.).
Far from being formal abstractions, freedom of expression, freedom of religion and the
principle of French secularism should be interpreted and applied taking into serious
account the need for a proper balance between the neutrality of state law and democratic
pluralism. This reflects the necessity for an equilibrium to be found between the universal
demand for peaceful coexistence and the equal protection of specific religio-cultural rights
– not only the rights of a group to be different, but also the rights of individual persons
within those groups. Since individual rights include equality for all before the (secular)
law, we may then explain the persistent dilemma between equality and diversity that
has constantly characterized the constitutional history of many Western countries, start-
ing with France (Grimm 2013).
The problem is that, under the pressing processes of immigration and globalization,
this dilemma is now facing a lack of consensus on basic liberal constitutionalism,
namely the meaning and scope of freedom of religion, Church-state separation, equal
treatment and the rule of law. Because individuals often adopt their own basic values,
the scope and force of such principles and rights are likely to be affected by competing
and, therefore, contested reasons and worldviews (Troper 2013).
This calls for clear definitions of secular-neutral law that everybody is (and should be)
expected to share, protecting constitutional democracies from the risk of sectarian social
segmentation as well as daily doses of discrimination against minority groups, especially
those made up of immigrants. The said dilemma is actually present in today’s multicultural
70 F. ALICINO

contexts, where even human rights and fundamental freedoms may be instrumentalized by
the majority, refusing inclusive policies towards minorities under the guise of uniform state
law. However, because the accommodation of religious rules also depends on denomina-
tions, the solution to the dilemma turns on the efforts of religious groups to articulate
their claims in such a way as to make them more compatible with non-negotiable consti-
tutional rights and fundamental freedoms (Cartabia 2012, 261). From here the crucial ques-
tion arises of whether the machinery of French constitutionalism (and, more generally,
Western constitutionalism) is able to recognize and accommodate specific cultural-reli-
gious diversities without sacrificing respect for and protection of individuals’ rights.
Now, to better comprehend this question, it is necessary to analyse the set of inter-
actions that may take place between religious groups (their specificities), the state (its com-
petences) and individuals (their fundamental rights). Similarly, we cannot understand the
multiculturalism paradox if we do not understand the overlapping affiliation that exists
between secular law, religio-cultural groups and individuals who are, at the same time,
human beings, citizens of a state and, maybe, members of a religion. By recognizing
this wider network of forces and influences, we may begin to take into serious account
the state’s attempts to encourage collaboration with minority – often marginalized – com-
munities and better protection of human rights, including those concerned with the free
movement of ideas and opinions.

Disclosure statement
No potential conflict of interest was reported by the author.

Notes
1. See also European Court of Human Rights (ECtHR) Grand Chamber, Morice vs France, no.
29369/10, April 3, 2015.
2. Conseil constitutionnel, Decision October 11, 1984, no. 84–181.
3. “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the
equality of all citizens before the law, without distinction of origin, race or religion. It shall
respect all beliefs.”
4. Conseil constitutionnel, Decision June 27, 2001, no. 2001–4446. See also Conseil constitutionnel,
Decision January 15, 1975, no. 74–54.
5. On the notion of “nomoi groups,” see Shachar (2000, 394). See also Benhabib (2002, 120).
6. Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de
signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées
publics.
7. According to the 2010 Act, no one may wear any article of clothing that covers the face, in any
public place, on any part of the French Republic’s territory, including the mainland and the
overseas departments. This applies to all people in transit, tourists, visitors, residents and citi-
zens, regardless of age, gender or nationality. A public place in this instance is defined as public
routes, any place open to the public, and any place offering public services. This applies, for
example, to all side walks, lane ways, streets, roads, highways, and squares, whether rural or
urban. See Ferrari (2012, 324); Vrielink, Brems, and Ouald-Chaib (2012); Alidadi (2013,
91); Mancini (2013, 25) and Zempi and Chakraborti (2014, 34–47).
8. See, for example, Article 222(32) of the French Penal Code: L’exhibition sexuelle imposée à la
vue d’autrui dans un lieu accessible aux regards du public est punie d’un an d’emprisonnement et
 ISLAM AND CHRISTIAN-MUSLIM RELATIONS 71

de 15000 euros d’amende (sexual exhibition imposed on the sight of others persons in a place
open to the public is punishable by one year imprisonment and a fine of €15,000).
9. The French Penal Code, Section V, Articles 225(1)–225(25).
10. Cour d’Appel, 14ème Chambre, October 15, 2001.
11. Cassation Criminelle, Association Avocats sans frontière c. Raymonda X., March 16, 2004.
12. See Commission d’enquête sur les sectes a été constituée (11 juillet 1995) prés l’Assemblée natio-
nale, en adoptant à l’unanimité (29 juin 1995) la proposition de résolution présentée par
M. Jacques Guyard et les membres du groupe socialiste. See also M. Jacques Guyard’s Report,
Commission d’enquête sur les sectes, December 22, 1995.
13. Cour d’Appel de Versailles (8ème Chambre), November 3, 1998. See also Cour de Cassation
(Cass. crim.), ass. X c. Z et Alii, December 14, 1999.
14. Tribunal correctionnel de Paris (17ème Chambre), October 22, 2002.
15. Cassation crim., ASTI c. M. Bassi, May 17, 1994.
16. Conseil constitutionnel, Décision 19 novembre 2004, n. 2004–505 DC, Considérant n. 18.
17. ECtHR, Handyside v. UK. n. 5493/72, December 7, 1976.
18. Cour d’Appel de Versailles, AGRIF c. J-C. Godefroy, March 18, 1998.
19. Cassation civ. (2ème Chambre), AGRIF c. J-C. Godefroy, March 8, 2001.
20. Tribunal correctionnel de Paris, March 22, 2007.
21. See also Tribunal de Grande Instance de Paris, ordonnance de référé du 10 mars 2005 ; Cassa-
tion civ. (1er Chambre), Sté GIP c. Associacion Croyances et Liberté et autres, November 14,
2006.
22. Conseil constitutionnel, Decision no. 94–352, January 18, 1995. In fact, the constitutional block
doctrine originated in France in the late 1970s to designate all rules that are binding on the
legislature. See Favoreu (1982, 1988, 1991, 25–45); de Gaudemont, Lascombe, and Vanden-
driessche (2013, 2964) and Mélin-Soucramanien (2014, 10–18).
23. Conseil d’État, Commune de Morsang-sur-orge et Ville d’Aix-en-Provence, October 27, 1995.
See also Tribunal administratif de Bordeaux, United international Picture, December 13,
1990. On this, see Durand-Prinborgne (1990, 20); Koubi (1990) and Rivero (1990).
24. Tribunal de Grande Instance de Paris, Association Croyance et Liberté c. Marithé François
Gibaud et autres, March 10, 2005.
25. See Cassation civ., November 15, 1996, published in Bulletin civile 378, 1996.
26. Code pénal, Article 132–76.
27. Code pénal, Articles R. 624–3, R. R. 624–4, R. 624–7 (Decree no. 2005–284 of March 2015). See
also Section 14 of the Act no. 90–615 of July 13, 1990, punishing all racist, anti-Semitic and
xenophobic acts (amendment to Section 6 of the Act no. 82–652 of July 29, 1982): “[t]he
Act allows associations working to counter racial and religious discrimination to exercise
the right of reply in the audio-visual sector.” And, of course, see also the above-mentioned
Act of July 29, 1881, on the freedom of the press, in particular Articles 24, 33, 34, and 48, as
modified by Act no. 72–546 of July 1, 1972.
28. See, for example, Cassation crim., September 15, 2007, in Bulletin d’information 667, p. 91. See
Cour d’Appel de Paris, September 28, 1995, Droit pénal, 1996, comm. 37.
29. See on this Alicino (2011, 170–195).
30. See in particular Article VI.3.
31. See in particular Article 6.
32. First Amendment of the US Constitution.
33. See, for example, Jacques Chirac, “Discours relatif au respect du principe de laïcité dans la
république palais de l’Élysée mercredi 17 décembre 2003.” http://ospitiweb.indire.it/adi/
Laicismo/Laica_frChirac.htm (accessed July 15, 2015).

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