Citizenship as the Democratic Foundation for the Anti-Burqa Statute. Reflections on Death to the World and Voluntary Incarceration

First published in French as ‘La citoyenneté, fondement démocratique pour la loi anti-burqa. Réflexions sur la mort au monde et l’incarcération volontaire’ (2012) 7, Jus Politcium.

Abstract: 

Wearing the full-face veil can be interpreted as a voluntary confinement, a voluntary incarceration or a “death to the world”. Under the “Ancien Régime”, this “death to the world” lived by Christian contemplative’s friars was considered by contemporary lawyers as a “civil death”. Nowadays this regime is closed to the one of missing persons (article 122 of the civil code).

In February 1790, French revolution prohibited the perpetual vows in the name of the individual freedom of disengaging. In 1792, the assembly prohibited any religious costumes, even within convents, using the argument that, from the friar’s perspective, “the sacred act of religious profession prevails over social contract”. According to this established doctrine, to be in the citizen’s community suppose to be not, in the same time, “death to the world”. At least in the public space, considered as a “co-citizenship” space, since this withdrawal from the world is, by definition, a freedom in the private space.

This interpretation suggests that the prohibition of wearing the full-face veil should be based on republican and democratic citizenship (article 1 of the constitution) instead of an ‘immaterial public policy’, legally fragile.

Fulltext: 

The argument that convinced France’s Conseil constitutionnel not to censure the statute prohibiting people from covering their faces in public places was the argument that the legislature fairly reconciled the contradictory requirements of upholding certain freedoms (arts 4, 5 and 10 of the Declaration of Human Rights, 3rd subsection of the Preamble of 1946) and public policy, including in its immaterial dimension.[1]

This ‘immaterial public policy’ (or ‘social public policy’[2]) explicitly includes ‘the minimum requirements for living together in society’[3] (referred to elsewhere as the ‘minimum bedrock of mutual requirements and essential guarantees for living together in society’[4]). The difficulty is that this concept of immaterial public policy sounds like an appeal to authority that fails to provide all the requisite certainty of the law in so sensitive an area. The minimum requirements for living together as a society – or perhaps for present-day French society – can cover almost everything and anything. Denys de Béchillon has pointed out that ‘public policy redefined in this way simply has no content or, to be more exact, […] it is a holdall’.[5] This is why the Conseil d’Etat considered there was no ‘incontrovertible legal basis’[6] for a statute imposing a general and absolute ban.[7] These ‘requirements’, on the other hand, convey what are without any doubt deep-rooted political, in the non partisan sense of the word, or ‘societal’ convictions: convictions that feature in the resolution of article 34-1 adopted unanimously in May 2010,[8] evoking the hypothesis of ‘violence or pressure’ to which women are subjected and not the hypothesis of a free choice. Obviously, the fact that these are the unanimous views of French National Assembly members does not strip them of their character as convictions; they do not suddenly take on the character of legal norms that are binding on the legislative body.

The Conseil d’Etat, which once boldly brandished the idea of human dignity, identified the difficulty. This new conception of public policy is legally rather fragile because it has never been thought through in doctrine and because it has never been enshrined in legal systems akin to that of France.[9] However, the fact that other legal systems had not taken up the idea and that legal doctrine had not defended it would not be decisive if, at bottom, it did not contain some seed of extremely prejudicial legal uncertainty. This is why the Conseil d’Etat abstained from ‘recommending so far-reaching a change to our system of rules, the contours of which are difficult to ascertain in advance with respect to all of its potential applications’.[10]

The Conseil constitutionnel did not share the Conseil d’Etat’s qualms. It held that the legislature was right in thinking that the ‘practices [of concealing one’s face in public places] may constitute a danger for public security and disregard the minimum requirements for living together in society’ and, that being so, it had ‘adopted provisions that ensure a conciliation that is not manifestly disproportionate between the safeguarding of public policy and the guaranteeing of constitutionally protected rights’.[11]

The question here is not to discuss the outcome of this decision but to present a legal line of argument that was not raised but that seems fruitful, operative and part of a centuries-old French tradition, although in appearance the problem facing French society and the legislature is a new one. This line of argument rests on a broader and at the same time restored conception of citizenship.

The idea of ‘minimum requirements for living together in society’, in its relationship with certain practices such as the wearing of a veil or of dress with religious and cultural connotations as a sign of membership of some group is worth delving into. To do this, it may be helpful to exhume ideas aired in other ages. The many debates over the last decade or so about clothing, dress or signs manifesting a religious affiliation[12] had already been heard two centuries ago in a very different context. The actors of the time developed arguments that are in no way obsolete. Legal consequences were once drawn from the free will to preserve oneself from the world so as to live piously, just as laws were passed in France to prohibit the wearing of religious dress in the name of freedom. Even if the purview of the 2010 statute avoids the question of the full veil, preferring instead that of concealing one’s face in public places, it is not absurd to consider that that does not dispense with looking into the issue of practices presented by those who engage in them as being of a religious character.

The reflection here proposes to recall the legal consequences derived under the Ancien Régime from the perpetual commitments of Roman Catholic clergy, namely civil death. A civil death that was chosen and not imposed – if it is accepted, as it must be, that those commitments were freely entered into unless proved otherwise – which was merely the legal extension of ‘death to the world’. Special attention must be paid to the will expressed by the clergy to quit this world for another, that is, to prefer to the minimum requirements of living together in society, in the ‘century’ (terrestrial life), the requirements of another society – neither terrestrial, nor celestial – but fenced off from the world, a separation materialised by a physical barrier, a voluntary incarceration that could only be circumvented by occasional ‘parlours’, where more often than not those speaking together were separated by a screen.[13] It was a voluntary cloistering, experienced and conceived of from a double standpoint. It was a free individual choice to leave this world but also a liberation from this world.

It must be examined why in 1790 the Revolutionaries – in the name of their conception of individual freedom but also in the name of their conception of citizenship – banned perpetual vows (that is, making a commitment without being able to ‘uncommit’ or to ‘disengage’), which consequently put an end to the legal system of civil death of the clergy. (It was to remain for people sentenced in absentia, certain banishments and indeed it remains today in the very approximate form of ‘orders to presume absence’ under article 122 of the Civil Code).[14] In order to draw all the consequences of this prohibition of perpetual vows and to eliminate any society that might constitute a corporation, a ‘state within the state’, on the fringes of and in opposition to the democratic society of citizens it was out to construct, the 1792 Assembly also banned the clergy from wearing any distinctive dress, including within monasteries, on the ground that such garb was a rejection of society and citizenship. The great speech of the constitutional bishop Torné which ended with a session during which some of the constitutional clergy publicly doffed their crucifixes and skullcaps, comical as it was, was merely the continuation of radical thinking about the 1792 Revolutionaries’ conceptions of the ‘minimum requirements for living together in society’.

These two regimes do not truly shape France today because in the case of the civil death of the clergy, denominational law invades civil law whereas in the case of the ban on wearing religious dress including within cloisters, civil law disregards freedom of religion and private life. In both instances, they are regimes in which religion and state are not separated.[15] However, these two systems can further our thinking on how to reconcile membership of earthly society, and a democratic society at that, with the freedom left to everyone to withdraw from the world for reasons of piety. Acceptance of ‘terrestrial’ society, of ‘non-death’ of ‘living in the world’ in the public space was to be regarded as a component part of citizenship under the rule of a constitution in which the people was sovereign. This approach made it possible to justify the prohibition on wearing the full veil or hiding one’s face in the public space – should the idea be deemed judicious or legitimate – based on a positive conception of citizenship in a democratic society rather than on some quite uncertain ‘immaterial public policy’. If a political community affords its members the opportunity to vote[16] and thereby to take part in life together, it might be suggested that those who choose to be dead to this society, to this political community, can only do so in the private arena and not in the public arena. From that point on, the minimum requirements for living together in society would not be attached to the fragile concept of immaterial public policy but to the supplemented idea of citizenship arising out of article 1 of the Constitution.

1 – DEATH TO THE WORLD

Although it is contemplated here to liken the wearing of the full veil by certain Muslim women to the voluntary confinement of Christian nuns, this approximation can only be conceived of externally. There can be no question of likening the motivations of the two categories of people. From the perspective of the right to freedom, because it is impossible to measure with any certainty the deep-seated intentions of either category involved, it would be baneful to want to compare them by characterising them. Conversely, it is feasible to take up an outside viewpoint to observe deeds (faces rendered invisible) and words (the unfettered will to lead a pure life sheltered from the turpitude and lewdness of this world).

A. Freedom and Liberation

The development that follows is based on a line of argument that is widespread both among women who intend to wear a veil[17] and among members of the regular clergy: wearing the veil or the habit is a form of freedom as much as it is a liberation. An individual freedom to wear different dress than the majority of the population, by personal choice, that choice being generally driven by the will to comply with precepts or a rule that is presented as religious in character. A liberation, an enfranchisement from a world in which it is impossible to live virtuously, an impious, licentious and concupiscent world from which one must be separated. The requirement of freedom is therefore both a choice to save oneself from the world and a choice of a life free from the eyes, the sin and the troubles of the ‘herebelow’: one is a freedom of autonomy of a rather liberal stamp (the power to choose things that concern oneself) and the other is a freedom of enfranchisement (escaping from physical and moral constraint that an impious world brings to bear, in short, escaping from slavery).

The fact remains that between the undifferentiated moment (not wanting special protection by dress) and the idea of leaving this ‘world’, that one is to be dead to the world (refusal of any contact, even visual contact, with the outside world), one can imagine a welter of situations ranging from the utmost stringency to the utmost proximity with the world. Thus for the regular clergy of the Catholic Church, the utmost stringency is demanded for the contemplative orders (Carmelites, Trappistines, Benedictines, Poor Clares, etc.) who cannot leave the cloisters on any occasion other than absolute emergencies (such as an imminent danger for their lives, etc.)[18] whereas great ‘presence in the world’ is expected of the sisters of congregations providing teaching or care. Thus, for the congregation of ‘Daughters of Charity’ (or ‘Sisters of Saint-Vincent de Paul’) which he created in the mid-seventeenth century, Vincent de Paul asserted, ‘They have ordinarily for monasteries but the houses of the sick; for cells but a rented room; for chapel but the church of their parish, for cloister but the streets of the city or the wards of the hospitals; for cloistering but obedience; for screens but the fear of God and for veil but holy modesty’.[19] Their lives are consecrated and ordered, but their vocation is not contemplation in confinement; it is on the contrary service to the world of the poor and less favoured.[20]

B. Confinement

The criterion for determining the will to be dead to the world is probably not amenable to consensus. One can observe, however, a number of declarations, symbols, practices and rituals which attest, from the point of view of those who remain in the world, a concern to forsake any spoken and/or visual communication with the outside that is not chosen, wanted or authorised.

In this respect, the death to the world of the contemplative monks is particularly emblematic and archetypally radical. A distinction can be made between physical separation and moral allegiance. For the physical side, there is a barrier the imperviousness of which is lessened only by a screen (the parlour) across which the religious might converse with others without those others being able to clearly discern their bodies including their faces and the monastic habit, notably the veil.[21] For what is moral, there is the commitment to give oneself entirely to God by obeying only the law or rule He has dictated directly or indirectly, which may require not being confronted, thanks to reclusion, with the law of men perhaps, and with their morals certainly. There is also the requirement of purity which extends to chastity, absolute poverty, stability and so on.

The voluntary cloistering of the Catholic religious takes place through two ceremonies. The first is the ‘taking of the habit’ (or ‘vesture’), at which time the postulant is received provisionally within the community for a probationary period (novitiate) and dons a monastic habit that is sufficiently different from the dress of full monks or nuns to be told apart.[22] The second is that of perpetual vows in the course of which the novice gives a commitment for all time and becomes professed (i.e. ‘makes profession of religion’).

For women, during the taking of the habit ceremony (for novices) or the perpetual vows ceremony (for the professed), nuns receive a veil which is a symbol both of the ‘spiritual marriage with Christ’[23] and of ‘death to the world’. Bossuet, following a centuries-old tradition, expressed this unequivocally: ‘Daughter, receive this veil […] which is the sign of your separation from the world, beneath which you are to be shrouded for your whole life with Jesus Christ in the tomb of religion and hidden with him in God.[24] Receive this same veil which is the mark of the alliance you have contracted with him: it shall never been taken off you till you see the face of God uncovered in heaven’.[25] The semantic register – separation from the world, shrouding, tomb, sepulchre, and so on – takes up the symbols of physical death but differs from them too. The death in question is a separation from the sinful world of the ‘secular’ people, but it is not yet fully the birth to the celestial world, that which will only be perceptible when ‘the face of God uncovered’ will appear.[26] This text by Bossuet, cited for its strength of expression but the content of which was unanimously accepted, concerns here cloistered nuns[27] – the Ursulines – but who give themselves over to the education of young girls taken into the monastery, while being separated from the cloister reserved for the nuns. Their separation from the world symbolised by this veil that does not hide the face is therefore less radical[28] than that of exclusively contemplative orders who break off all contact. The veil is in this last case duplicated by a screen that hides the face.

Some profession ceremonials include an additional ritual to symbolise death to the world. Again among the Ursulines, after receiving the black veil,[29] the professed kneels on a mat and says ‘Jesus-Christ is my life, death is my gain’. The ‘four professed nuns […] spread the mortuary sheet over her’, during which time the bells ‘are tolled as for the dead’.[30] This ritual was described and interpreted by the eighteenth-century mythologist cleric Antoine Banier: ‘In some of the Daughters’ Monasteries, that sheet was even laid over the new Nun, as it is usually laid over a coffin […] while singing Prayers for the Dying. […] Perhaps too the sheet was laid over the new Nun as it was once laid over Lepers, separating them from commerce with men and who remained beneath the sheet throughout the Mass that was said for them’.[31] The similarity with the mortuary sheet covering a coffin or with the sheet laid over Lepers in the Middle Ages – Lepers on whom a regime similar to civil death was imposed[32] – reflect the idea that the veil covering the face serves as a separation between worlds: the world of the healthy and that of the incurable, the world of the living and that of the dead, the world of citizens and the world of those who profess religion.

This veil reflects a symbolic abandonment of the world. But it is far more the strict enclosure and the screen (which recalls and attenuates that enclosure at one and the same time) which physically materialises the separation between two closed spaces.

The veil worn by Muslim women – hidjab means ‘curtain’, ‘obstacle’ or ‘barrier between one thing and another’[33] – also includes this symbolic dimension of separation between the earthly world of sin[34] and disorder and the holy world of obedience to God.[35] A separation too between women and men, in order to protect women from men but also to protect legitimate wives from the lust of other men. The veil is furthermore a symbol of union and submission to God.[36] Also mentioned is the will to erect a wall to preserve the home of the Prophet that must remain unseen to outsiders and so protect his spouses on whom the sacredness of the messenger of God shines.[37]

The symbolic separation – the hidjab does not hide the face – changes into a physical barrier when the face is hidden behind a screen for the burqa, a slightly translucent cloth or fine opening for the eyes in the case of the niqab. Dissimulation of the whole face does not symbolically set worlds or categories of people against one another, it separates them materially, physically because human communication does not lie entirely in the voice (a look, emotion in an expression, whether or not the corners of the mouth turn up convey information that is just as essential as the tone of voice and the meaning of words). The full veil is not just a sign of ‘reclusion’ or ‘cloistering’ – terms used by Nadine Weibel of the hidjab – it may also be considered as a fact of voluntary ‘reclusion’ or ‘confinement’.

Without need to go into the unfathomable grounds why someone might wish to move away from men and closer to God because these are things that pertain to the freedom of conscience of each individual in a liberal society that separates the legal sphere from those of religion and morality, we can suggest the characterisation of ‘death to the world’ to designate the fact not of symbolically separating from the world, but of erecting a physical barrier with it by voluntary confinement or imprisonment within the enclosure of the convent or the shelter of a full veil. Moreover, that veil cannot be thought of as dress as it is not presented as an adornment to embellish its wearer or a means of attenuating the harshness of climate (protection against the cold, heat or sun). It is plainly designed as a partition for the purpose of hiding and locking oneself away. It is a means of consented confinement.

2 – CITIZENSHIP

The articulation between death to the world and citizenship can be evoked through three particularly apposite moments. Under the Ancien Régime, perpetual vows could be freely entered into but at the price of abdicating one’s standing as a citizen. In 1790 perpetual vows were prohibited and civil death abolished in the name of individual freedom. In 1792, religious dress, including within convents was banned on the ground of radical incompatibility between the sacred act of religious profession and the social contract. Beyond these legal regimes at loggerheads within a system in which church and state were not separated, beyond antagonistic political conceptions, there remains the idea that those who opt to withdraw from the world cannot and must not be counted as citizens.

A. Abdicating One’s Standing as a Citizen

In the Renaissance, the absolute monarchy decided to generalise the regime of civil death of religious. The Edict of Chateaubriand, issued by Francis I in May 1532 extended the regime to the Dauphiné but it was construed as a generalisation to the entire kingdom. The crux of it was that professed religious would be unable to inherit but would be able to devise and bequeath property they had before their profession of religion.[38] This text was drawn up in a century when the kingdom was forming as a truly self-aware political community: the bond of direct subjection to the monarch was tending to overcome the feudal screen and to give rise if not to a ‘nation France’[39] in the nineteenth-century sense at least to a community of subjects who were aware of belonging to a specific group. It was this group, this ‘community of citizens’ that largely approved, if the literature of the time is to be believed, the regime of civil death of the religious. A coherent regime from the internal viewpoint of the religious community because of the vow of poverty, and a regime that was justified from the standpoint of ‘civil society’ because the property owned by the communities exited for good from family estates and more generally from the realm of property available for appropriation.

Independently of the economic issues involved in civil death,[40] it is its political and legal justification that should hold our attention. It ought to be made clear that this regime did not apply to professed religious alone. It was also used, under the old law, in two other rather different instances. (1) Civil law could be a sanction for those failing to appear before the courts (after five years) or further to certain life sentences (banishment, galleys, prison, etc.).[41] The convict remained alive as a physical person while the legal person was dead. The sanction evolved over time but survived the Revolution: it was not abolished until the statute of 31 May 1854.[42] (2) The exclusion of Lepers in the Middle Ages was also regarded as ‘death to the world’ or ‘secular death’, although it would be overhasty to approximate the many regimes[43] applicable to these sufferers to ‘civil death’.[44]

For theological doctrine, especially that of Saint Ambrose of Milan,[45] three types of death can be identified. Mors naturaliter is physical death, mors poenaliter is being deprived of all rights because of a criminal conviction, and lastly[46] mors spiritualiter is leaving the secular world to live religiously: ‘For the death that He died, He died to sin once for all; but the life that He lives, He lives to God’ (Paul, Letter to the Romans, VI, 10). The Church Fathers proposed to account for the life of the religious who were dead to the world by comparing it to that of the angels, to that of foreigners who did not try to settle, or to that of Adam before original sin. The idea is invariably to emphasise the person’s detachment from property, from land, from the political community and from the ‘worldly’ institutions governing it.[47] There is no question of being in a position of hostility towards the secular world but simply of escaping from it, leaving it and so freeing oneself from it.

This death to the world of the religious inherits from the legal regime of the Roman dedicatio the consequences for the estate being the opening of the succession for the benefit of the community to which one belongs. In the north of France, in lands of customary law, this rule of dedicatio was contested from the thirteenth century onwards on the ground that family estates had to be maintained intact, that fiefs had a military character which was incompatible with the monastic conditions and that while the Church inherited from individuals, no one ever inherited from the Church. Eighteenth-century legal doctrine – represented on this subject essentially by Richer – approved of civil death because it was a removal from ‘civil society’: consequently, whoever was in this condition ‘can no longer engage in any trade nor partake in any rights of citizens’. The fact of the matter was that ‘he is dead to the world, he is dead to society’.[48] Whoever devotes themselves to the religious conditions ‘waives all advantages of civil life’ and consequently ‘abdicates the capacity of citizen, and all the worldly advantages ensuing therefrom’.[49] The enunciation of perpetual vows caused the opening of the succession of the future professed for the benefit of his heirs in ordinary law. The professed was stripped of all his other ‘civil rights’ (family rights, obviously, rights in contract and tort, etc.). The rule of poverty of the religious implying he should be deprived of all his assets was attenuated, however, by the recognised and regulated existence of personal property known as ‘peculium’.

Richer gives two main reasons for the introduction of civil death for religious. The first was that it is a contract with God which is not without consequences on another contract, entered into with the public: the former was so exclusive that it leads to a breach of the latter, an ‘abdication’ of the ‘civil being’.[50] Richer speaks of a ‘contract with respect to the public’ which was soon to be referred to as the ‘social contract’. The second reason, mentioned above, was economic. While the order could inherit indefinitely without anyone inheriting from them ‘it would happen over the course of time that all the property in the kingdom would have been swallowed up by the monasteries’.[51] The tone is quite cutting. It is important to allow those who wish to profess religion the freedom to do so, but there is no question of sliding into any theocracy: civil society, which is regulated economically, has to stand by its own logic and organisation.

Ultimately, in this mid-eighteenth century, which was prey to much doubting about the role of the Church,[52] Richer’s position attests to great firmness:[53] one cannot be both in the world and outside the world. If one chooses to leave it, one must forego the capacity of citizen, that is, the exercise of ‘civil’ rights which are attached to it. Citizenship as conceived by Richer was not modern citizenship in the sense of the exercise of political rights in a regime recognising the sovereignty of the people or the nation. Yet, it designates clearly membership of the political community (i.e. the polis). From this perspective, the identical status of the banished convict who has escaped capital punishment, the contumax and the professed enlightens strikingly the idea of exteriority and ‘foreigness’ relative to the political community. Even if citizenship under the Ancien Régime does not entail any political right, given the nature of the regime, its importance should not be minimised as a sign of membership of the group of subjects of the monarch, but also the group of subjects of law, who as such were holders of civil rights.[54]

B. Civil Death of Perpetual Vows

The Revolutionaries contemplated prohibiting perpetual vows in 1789.[55] More specifically, they planned no longer to grant them any legal value, leaving them to the religious sphere. In the name of the ecclesiastical committee, on 17 December Treilhard defended the idea that one should both refrain from ‘using civil authority to maintain the outside effect of vows’ and leave ‘the refuges of the cloister to religious jealous of dying under their rule’; ‘It is to fulfil this double object that we shall propose leaving all religious complete freedom to leave their cloister or to entomb themselves there’.[56] The purpose was, in other words, to return perpetual vows and that part of canon law to the private sphere of individual freedom,[57] and so to abolish civil death in future by disregarding (and therefore not allowing) perpetual vows from the perspective of civil law. In returning to the world – a singular resurrection – the religious having fled their cloister would be compensated for the injury done by their ‘civil death’. The fact was that ‘dead to society, religious no longer have any property, any succession to claim or expect; you cannot give them a second life without raising alarm and disorder in all families; they can only continue therefore with your succour’.[58]

Treilhard’s proposal was not discussed until February 1790. From the outset, François de Bonal, bishop of Clermont, objected firmly that the state, armed with civil law, could not both interfere in the law of the Church by allowing the professed to break their vows and pretend to observe the Church’s liberties by authorising the maintenance of those who so wished in cloisters. Either perpetual vows should be prohibited generally and absolutely and, on that basis, congregations abolished,[59] or both should be authorised and perpetual vows taken seriously. The hypothesis of a separation of Church and State was not contemplated, and the two authorities had to work together.[60]

Yet the Revolutionaries did not break with a tradition, which was strengthened with modernity, which consisted in considering that being ‘dead to the world’ supposed abdicating one’s citizenship. This point being established, the divergence bore on the consequence that ought to be drawn from it. Should civil law recognise the will to abdicate one’s citizenship? Yes for the Ancien Régime monarchy; no for the Revolutionaries. On what basis might one refuse to recognise the right to abdicate one’s citizenship, that is, to commit ‘civil suicide’?[61] In the name of a conception of freedom different from that of the Ancien Régime, namely that there is no true freedom if one can bind oneself without being able to unbind oneself and that one cannot accept within the state a body that refuses to its confederates the rights of man as declared in 1789.[62] Because monastic vows are perpetual and without remission, they should be proscribed by civil law[63] and those who took them under the Ancien Régime should be ‘enfranchised’, ‘liberated’ from the yoke of the regular orders.[64]

A fresh objection was raised by François de Bonal: ‘if one abolished [perpetual vows] as contrary to the rights of man, it would be a contradiction, because the greatest and the finest usage one can make of one’s freedom, is to choose the kind of life which is most pleasing; it is to voluntarily sacrifice it to the maker of one’s being; and never shall the most subtle of philosophers manage to persuade me that one is truly free when one does not even have the right to enslave oneself to Him to whom one owes everything’. To escape from this rut, the Revolution barely had any choice but to abolish the regular religious orders if the system of national religion were maintained or to separate from the Church by sovereignly disregarding vows made in private spaces within religions that were considered to be associations.[65] It was to choose the first branch of the alternative[66] in the statute of 13 and 19 February 1790.[67] But already a major difficulty broke out, the extensions of which shall be examined under the Legislative Assembly: the profession of religion presupposed a contract which was incompatible with the social contract. The idea that these two contracts might coexist because they pertained to separate things was not contemplated in the system of ‘national’,[68] non separated religion. The profession of religion was even presented as a sort of alternative to the social contract. In point of fact, the idea was not absent from the Ancien Régime doctrine. When Richer emphasised that the professed renounced his ‘natural freedom’[69] (of the state of nature), he added that he had the choice between two contracts proposing two ways of being in society: citizenship of the political community or the cloister of the religious community.

The debate and statute of 1790 led to the abolition of civil death and the possibility for the professed who so wished to give up their vows and ‘resurrect’ in the world by joining the category of citizens (a pension was paid to compensate the effects of civil death they had chosen or been subjected to). The contemplative orders were abolished but not eradicated because the state left those who wanted to continue with their vows the freedom to keep their edifices on certain conditions.

These provisions concerned essentially the contemplative orders, which were thought useless and liberticidal, the Revolutionaries choosing to maintain the status quo with regard to charitable and teaching congregations because they were not averred useless and harmful.[70] The members of these congregations were dead to the world through their religious vows but not really so given their membership of the community of citizens. From the point of view of citizenship, death to the world in full presupposes confinement. By virtue of the 1790 statute, the state no longer recognised perpetual vows, it therefore abolished the consequences in civil law (civil death) but did not prevent them and did not prohibit religious who wanted to remain confined from doing so outside of the visible public space,[71] which remained as under the Ancien Régime, largely ‘reserved’ to full citizens.

C. The General and Absolute Prohibition of Religious Dress

The difficulties of applying the Civil Constitution of the Clergy,[72] which required of all ecclesiastics an oath of loyalty, for the least strained relations between the Catholic Church and the Revolution. During the year 1792, there were many on both sides who thought of each other as enemies.

It was in this context that the Legislative Assembly decided to totally eradicate regular religious congregations by evacuating manu militari the convents which remained by maintaining the system of compensatory pensions. This was done by virtue of the decrees of 4 and 7 August 1792. But one question had never been decided, that of the secular congregations, that is, composed of lay and ecclesiastic members, a religious congregation dedicated to teaching (like the Brothers of the Christian Schools, the Oratorians, etc.), charitable, missionary or hospital work. Because they did not make definitive vows, they were neither civilly dead, nor dead to the world spiritually. On the other hand, by force of circumstance, they were very much present in the world, in the public space. Given the extreme hostility between the most ardent Revolutionaries and the reputedly counter-revolutionary ecclesiastics, the Assembly moved towards the general and absolute prohibition of religious dress, except for religious services inside religious buildings.[73] (It was in the same spirit that the Conseil constitutionnel intended to restrict by a reservation of interpretation the field of application of the 2010 statute: the prohibition on concealing one’s face in the public space cannot be extended to ‘places of worship open to the public’.)[74] The debate of 6 April, especially the major speech by Torné, addressed several instructive subjects on the freedom of clothing to be distinguished from that of dress, on the existence of ‘bodies’ within society and its articulation with citizenship and lastly on the question of freedom in private space.

Torné did not contest that anyone might wear what he chose – he spoke of ‘freedom of attire’ or ‘freedom of garb’[75] – but he considered dress (costumes) as ‘the still living signs of extinct corporations’. One should be able to wear any attire because it was an ‘individual freedom’ within the limits of ‘serious considerations of decency, mores and order’. However, dress attested to membership of a corporation; it was a sign, a signifier. If corporations were abolished, one had to prohibit dress, which was the visible trace of them allowing them to survive symbolically. Torné recalled that, from 15 October 1789, the Assembly had abolished the distinctive dress of the assembly members as it meant formerly – in the estates general – membership of a particular order of society. Further to the abolition of perpetual vows, the Assembly had decreed the abolition of monastic dress.[76] But if dress were abolished while leaving people to dress freely, one might see them sporting such dress, which amounted to not abolishing it; therefore, said Torné, dress had to be prohibited. The scope of individual freedom to dress did not prevent the prohibition of garb or dress which were not attire by the public sign they sent out. He argued that in fact dress was never free: either it was the exclusivity of some, or it had to be prohibited for all. He obviously wanted to prohibit as far as possible dress being reserved, because it was a sign of the survival of the division of the nation into bodies, communities and corporations, when ‘a well organised state knows no other corporation than the general corporation of its citizens’.[77] Maximum prohibition but not general prohibition because, precisely, those who served the general corporation had to be distinguishable: these were ‘public functionaries’ who had to be able ‘through a few decorations’ ‘to make distinctive the nature of their authority and ensure them of the respect of the people which has invested them with a part of its powers’. Yet this dress or this sign, laid down by law, attesting to the functionary’s authority could be functional only. From the moment he no longer exercised his functions, ‘the sign of his authority must cease forthwith’, equality was restored of itself ‘in all the intervals where the necessity of breaking it for the public interest ceases’.[78]

Should the minister of the Catholic religion be able to keep his dress outside of the places and times reserved for worship, in other words in the public space? The argument used for the other public functionaries – for ministers of religion could be regarded as public agents under the sway of the Civil Constitution of the Clergy – by virtue of which there was no ground to be distinctive outside of the place and times where the agent was in service and should suffice to argue for a prohibition. But that would be to recognise priests and members of Catholic congregations the quality of public agents by the same token as civil functionaries. Now ‘no religion can characterise itself as the state religion’. Should one consider a cult whose ministers were paid by the state as a national public service whereas they were recognised only ‘by the sectarians of [their] belief and only in the place and at the time when its mysteries are celebrated’? Torné chose to deny them the quality of ‘public functionaries’ preferring that of ‘private functionaries’ (sic). Indeed, ‘the cult the state pays a salary receives from it only the indemnity of domains, which it has taken back to save the state’: this indemnity could not be regarded as a national delegation given to ‘juring priests to exercise Catholic worship which the Constitution neither acknowledges nor disregards’.[79] It was straightforward compensation dictated out of concern for ‘national equity’ to ensure the subsistence of impoverished citizens, impoverishment resulting from all of the clergy’s goods being made available to the state in November 1789.

If these ministers were ordinary citizens, could they wear their ecclesiastical dress in the public space? Torné took the view that any particular association giving itself distinctive signs ‘presents the appearance of a dismemberment of the social body’: ‘How could one suffer the clergy or particular congregations to wear external signs of isolation from the general society without declaring them at the same time outside society’. The idea of removing from ecclesiastics’ membership of society if they kept their distinctive dress, reserved to those who had pronounced perpetual vows under the Ancien Régime and in the 1790 debate, was extended in 1792 to members of the secular clergy in the name of an extremely demanding conception of citizenship. A full or part dress that the nation had not established and which therefore had not been ‘adopted [but] by the private authority of those who so dressed, would it not be an infringement of the unity of the social contract and against the equality of those who had sworn to it?’ ‘The priest, away from the altars, is nothing other than a citizen’, however, nothing should prevent juring ecclesiastics from keeping their dress in the exercise of their ministry, that is, during services. Torné, himself a ‘constitutional bishop’ obviously accepted this.

Except for this hypothesis of the celebration of services, Torné pleaded therefore for a general and absolute prohibition of religious dress – but also of any dress attesting membership of a corporation or a section of the nation – in the public space. This was the locus of citizenship, that is, the place in which the social contract and the equality among citizens that derived from it should be made apparent. In that, Torné did not depart either from the doctrine of the Ancien Régime or from that of 1790. However, he shifted the criterion of membership of the community of citizens. Whereas the former relied on the idea of being ‘dead to the world’ symbolised by voluntary confinement, the latter thought that any priestly dress, because it manifested a rejection of society (more exactly of revolutionised society) should be absolutely proscribed.[80]

The prohibition of religious dress in the public space was one thing, its total eradication as a sign of membership of an abolished corporation was another, which could pass only through a prohibition within cloisters and other private places. ‘I fail to see […] how, having prohibited ecclesiastical and religious dress in society, you might authorise it in the cloister without the grossest inconsequence?’[81] That amounted to a prohibition on withdrawing from the world and, therefore, to thinking of totalitarian citizenship for if any dress attested to withdrawal from society, prohibiting it reflected the ban on withdrawing from it. There could be no question that the cloisters would be ‘so many refuges for monastic will, mysterious to the general will’.

To the objection that cloistered religious did not in any way disturb the lives of citizens of the world because they were not in contact with it, Torné argued that ‘a screen between this dress and the public may well ensure the former is not approached by the latter, but not from its gaze’. This was an odd reversal: just as the cloistered should be preserved from the corrupting gaze of the secular world, Torné’s citizen should be saved in the same way from the sight of religious dress at the risk of being corrupted by it: ‘it is indeed from the public gaze that it is important to remove [dress]’.[82] An odd reversal, but a coherent one because it was at the heart of the logic of withdrawal from the world which can only be analysed in specular fashion: if those who are ‘dead to the world’ must escape from the gaze of the citizens of the secular world, then it is not absurd to think that those citizens must be preserved from the sight of those who have withdrawn from it. The difficulty here is the asymmetry of the requirement. In the case of the cloistered professed, the hypotheses of reciprocal visual aggression was extremely rare: the monk remained in his cloister while the citizen had no reason to go there. Neither were aggressors or aggressed. Torné’s argument, which was largely exaggerated, hid another: convents were reactionary hearths ‘hideous remnants of corporations, so many stumbling blocks of counterrevolution and intolerance’[83] they ought therefore to be eliminated in a pure friend-foe logic.[84] His will to eradicate religious dress including within the cloisters was driven by the will to fight a hypothetical aggressor, striving not to aggress precisely because it was trying to escape from the sight of the world and because citizens could not see it without making a special effort (going to the parlour). This observation is helpful for thinking about the aggressor-aggressed relationship today over the wearing of the full veil because a comparable asymmetry can be seen. The person who hides his or her face intends to be kept from the world (not be seen) while being able to see, whereas the citizen cannot see the person hidden but can be seen by that person. If one takes seriously the idea that it is legitimate to want to be preserved from the world, coherence suggests that it is just as legitimate to want to be preserved from those who want to be preserved from the world. If a boundary there is, it must protect those on both sides. Torné rejected this boundary in the name of totalising or totalitarian citizenship, which led him to confront a new danger: how to secure observance for a statute on the general and absolute prohibition, including in the private space, while having some respect for the freedom of the home?

Torné perceived obviously that to have such a statutory prohibition enforced, the municipal authorities would have to be authorised ‘home visits’ whereas these were ‘forever proscribed by the return of liberty’, that is, since 1789. Such a prohibition would be ‘an inquisitorial statute tending to breach domestic independence’ in disregard of the ‘free Constitution’.[85] But these objections scarcely troubled him. The convents were not ‘private homes’ but ‘public establishments’. If statute could create public establishments (see the decree of 8 October 1790), it could also exercise supervision over them so that law and order were upheld there. Under the Ancien Régime, he added, the government sent commissioners to such ends. Indeed, some ‘domestic disorders […] might have some relationship with public order’.[86] The 1790 decree also organised an ‘interior convent police’ (preventive or administrative police) which was not at all incompatible with the prohibition of home visits (repressive or judicial police) the scope of which could not be extended to public establishments.[87]

But if convents were public establishments created by the legislature which had to be supervised because always suspected of being vestiges of destroyed corporations and sources of counter-revolutionary activity, it would probably be more consequent to abolish them completely.[88] This is what Torné asked for – ‘let us not leave, in the heart of a free nation, monuments to slavery albeit voluntary slavery!’[89] – and was soon to obtain.[90] But that deprived him of the argument of ‘administrative’ police in public establishments and exposed him to that of disregard of the inviolability of the home. Torné therefore had to admit that ‘nothing will prevent [consciences loyal to their vow] from fulfilling it in a private house as in a convent. Confinement shall be all the more meritorious when voluntary and no screen shall compel its observance’. A legally non-existent vow, with no more than a private commitment in a private space. Torné still seems to have thought that if convents were closed and if the possibility of confinement remained only in the private space of the home, religious dress would be nonetheless eradicated: ‘no more difficulty over dress shut up within cloisters; no more criminal laws against this domestic offence; no more municipal supervision over the inside of monasteries; no more claims against this apparent restoration of home visits’. Nothing was less sure. Religious dress could remain in the private space, unless it were considered the home was not an inviolable space.[91] To see through the project of regeneration of the people and to confound the enemies of the Revolution, the Jacobins were soon to adopt the terrible law of suspects (decree of 17 September 1793) which did not offer the least guarantee as to the freedoms proclaimed in 1789.

Torné’s speech showed it was impossible to adopt a mechanism for a general and absolute prohibition of dress, including in the private space, without seriously compromising ‘the inviolability of the home’. It is true that this text was driven by a revolutionary logic of total victory over the counter-revolutionaries who were supposed to thrive in the ‘juring’ Church and that this logic of total elimination of the enemy did not sit squarely with freedoms.

It was true nonetheless that the doctrine of the Ancien Régime, that of the Revolutionaries of 1789 and that of 1792 considered that death to the world detracted from the number of citizens and that that should necessarily have legal consequences as to the civil effects of religious choices (definitive civil death for the first of those doctrines, the leisure to choose at any time to return to the world for the second, the prohibition on being dead to the world for the third) and as to the subdivision of space (mandatory wearing of religious or corporative dress in the private space and in the public space for the first, abolition without prohibition of religious dress in the public space for the second, general and absolute prohibition of dress, including in the private space for the third).

3 – THE DEMOCRATIC COMBINATION

The reconciliation between the minimum requirements of living together in society and the respect for liberties has been the subject of varied responses. But all are marked by the absence of any separation between worship and the state until the early twentieth century. This explains the encumbrance of the meddling of the state in religious freedom and the liberties of churches,[92] or the excessive or even exclusive scope of a particular religion in the state. Separation provides the opportunity of differentiating two subsets: for the individual in the private sphere, freedom of conscience and freedom of association to engage in worship; for the secular state in the public sphere, complete impartiality and absolute neutrality with regard to religions. This binary partition presents no difficulty if it is considered that the place of liberty is the private sphere and the place of secularism is the public sphere (the state in the broad sense: public buildings and public agents). However, it is not sufficient. It is possible to think of a third space, the ‘public space’[93] which is not part of the public sphere without coinciding with the private sphere. It is proposed here to consider it, by virtue of a three-way partition,[94] as the space in which membership of the political community[95] is exercised – citizenship – which is in no way subjected to the requirement of neutrality but which, however, can encroach upon individual freedom because of minimum requirements of living together in society, namely not to manifest the refusal of the world concretised by a sort of desired extraterritoriality, voluntary incarceration materialised by the screen of the monastic enclosure of the full veil.

This conception of citizenship, which is more comprehensive than the simple political rights exercised in the secrecy of the polling booth in a few seconds every eighteen months or two years, reinvigorates democracy understood as the sovereignty of the people.

A. Public space, the locus of citizenship

The secularism emerging from the 1905 statute may be read in an extremely liberal way as imposing neutrality on public institutions only while leaving complete freedom in a private sphere which might be defined as everything that is not part of the public sphere. This reading has the drawback of not distinguish clearly, with the private sphere in the broad sense, what is part of social life[96] or of living together in society and what is part of private life, of intimacy and the home. Now, social life is associated with communication, otherness, openness, movement, visibility, publicity[97] whereas private life is correlated with protection, preservation, legitimate secrecy and opacity. It is not absurd therefore, to distinguish two components within the private sphere in the broad sense: the private sphere in the narrow sense (private life) and the public space (social life). These two components are not of the same nature: one is a sphere and the other a space. What is part of private life can be readily analysed as a ‘sphere’ with what a sphere has in the way of a sealed boundary between the inside and outside (the enclosure of property, secrecy of correspondence, etc.). Conversely, what is part of public life is conceived of more as a ‘space’ with what a space has in the way of porosity, publicity, permeability (private places giving access to the public, places of open association or of worship but which require a minimum of membership, etc.). The private sphere in the narrow sense is conceived of as solid, sealed (watertight and airtight) whereas the idea of public space is more resistant to being enclosed in any hermetic definition, it is not solid (and is more readily likened to a liquid or gaseous state).

This distinction within the private sphere in the broad sense does not in any way prevent it from being spared any obligation of neutrality and from remaining the sphere of the exercise of freedoms, especially the freedom of religion, taking the greatest account necessary of ‘reasonable accommodation’[98] and promoting ‘secularism of recognition’.[99] Yet the private sphere in the narrow sense and public space are different in that the former is that of the isolated and protected individual, possibly a recluse, and the second that of civil society for which one must ensure collectively exercised individual freedoms (freedom of assembly, freedom of membership of a professional association or trades union, a cultural, social or charitable, non profit and finally religious association). Being part of civil society, being present in the political community in other words being a citizen is incompatible with the attitude of reclusion or confinement because this attitude is inadequate for the public space. Reclusion, voluntary confinement or death to the world as attesting to a will to protect oneself (from the sight of others) must be recognised as individual freedoms which can only be conceived of in the private sphere in the narrow sense. It is suitable, besides, that freedom so protected, even if from sight, should be seriously guaranteed by the protection of the home and of private life. But it is difficult not to waive such protection in civil society. Otherwise, there could be no society but a simple cluster of atoms fearing all contact, if only visual contact, with others.

The will not to have visual contact with others was proposed earlier as a criterion of being dead to the world, hence the screen of the convent parlour. It is a free choice to escape from a minimum of otherness that life in worldly society presupposes, otherness which can hardly be contemplated without seeing the face of the other. Emmanuel Levinas develops the idea in Totalité et infini and then in Ethique et infini that the primary ethical relationship involves the face, a face in its wholeness, and not just the perception of some characteristic or other, like eye colour.[100] Through the face, the other ‘is not a character in a context’, that is, a socially or culturally identifiable character, but ‘the face is meaningful in itself’. From this face, which is primary, a discourse can arise: ‘the face speaks […] in that it is the face that begins and makes possible all discourse’.[101] If we rely on this assertion then a contrario dissimulating the face prohibits discourse but also the very possibility of discourse. It reflects a radical refusal of otherness, of recognition of the other as a fellow-citizen, as an equal in the political community. Dissimulation does not prevent all relations with the other, but it prohibits the coming together of the conditions for a recognitive relation with one’s alter ego in society.[102] The relationship which remains with a person concealing one’s face or who consents to the interposition of the screen of a parlour, if it takes place – because it presupposes an ardent intent or a pre-existing attachment – occurs in the first sense of the relationship of mutual recognition. Levinas considers the relationship with the face as ‘the presupposition of all human relations’. At the very least, it can be conceived, in the public space, as the presupposition of any relations between fellow citizens, that is, as members of the same political community. A presupposition that each must be able to choose or refuse freely in the private sphere.

B. Renewed Citizenship

The citizenship from which whoever chooses to be dead to the world escapes dates from the Ancien Régime and does not include any political right in the modern sense of the term. The ‘civil death’ of the professed deprived him of all his civil rights but not of his political rights because he had none. Nowadays, on the contrary, in French public law, citizenship is ‘the enjoyment and exercise of the right to vote and to be elected in political elections in the context of a political community’[103] and does not concern civil rights in any way. Two definitions which seem to have nothing in common because they describe worlds that everything opposes. Yet both definitions refer back to the idea of political community and to the rights that are attached to membership of that community. The citizen-subject of the Ancien Régime had no political rights but was a member of the political community through enjoyment and exercise of those civil rights, the present-day citizen – not to be confused with the French national with full enjoyment of his civil rights – has political rights which make him a member of the political community. The enjoyment and exercise of political rights probably suffice to define citizenship de lege lata but other current meanings of the word show that this definition can be renewed.

Citizenship made a remarked entrance into the Criminal Code in 2004[104] in the form of a ‘measure’ which looks for all the world like a punishment:[105] the stage de citoyenneté or ‘citizenship placement’ (community service order). As an alternative to prison, the citizenship placement ‘is designed to remind [the convicted offender] of republican values of tolerance and respect for human dignity on which society is based’ (art. 131-5-1). The decree of 27 September 2004 specifies, for minor delinquents, that this placement is designed to make the offender aware of the ‘duties implied by living together in society’.[106] It was therefore the legislature itself which renewed the – centuries-old – approximation between ‘citizenship’ and ‘living together in society’. Moreover, the statute of 11 October 2010 on the prohibition on hiding one’s face in the public space itself refers to this ‘citizenship placement’, as a supplementary measure to the fine.[107] In a learned debate in November 2010, Stéphanie Hennette-Vauchez noted, to deplore it, that the possibility for the courts to ‘sentence’ people to a citizenship placement instead of the fine showed that the women in question ‘are considered a priori to be excluded by the very wearing of the burqa’.[108] The question is what are the people in question excluded from. Excluded or withdrawn voluntarily and freely from the society of citizens as conceived since the French Revolution and even under the Ancien Régime as membership of a political community? There are reasons to think so. Excluded and deprived of the right to live their faith freely, peaceably sheltered from the licentiousness of the world? Not at all, because concealing one’s face out of the pubic space is not prohibited in any way.

There are reasons to think that the Conseil constitutionnel could have taken up this idea of ‘citizenship’ to appreciate whether the statute complied with the Constitution rather than drawing on the idea of ‘public policy’ in its evanescent ‘immaterial’ dimension.

Indeed, article 1 of the Constitution offers a resource that can be regarded as sufficient for thinking about this renewed and restored citizenship, that which designates membership of the ‘indivisible, secular, democratic Republic’. The republic so characterised is conceived of as a political community composed of citizens who hold national sovereignty (‘democratic’), a political community overarching individual groups or associations (‘indivisible’), whose freedom of religion, without distinction, is respected (‘secular’). Because it ‘respects all beliefs’ and notably the choice to reject the world of citizens and withdraw from it by voluntary confinement, it cannot prohibit concealing one’s face except in the public space.[109] This citizenship, increased by the reaffirmation of the ‘minimum requirements for living together in society’ now laid down in criminal law, would seem to offer a positive, optimistic and unstrained foundation for the obligation not to refuse the world so as to be able to move within it. A foundation which, moreover, would seem to revitalise the concept of democracy.




[1] That is, independently of its ‘material’ components of public order, health and safety.

[2] The expression ‘ordre public social’ is from French member of parliament Jean-Paul Garraud in his Rapport n° 2648 enregistré à la Présidence de l’Assemblée nationale le 23 juin 2010 fait au nom de la commission des lois […] sur le projet de loi (n° 2520), interdisant la dissimulation du visage dans l’espace public, p. 28.

[3] Décision n° 613 DC du 7 octobre 2010. See the Commentary in Cahiers du Conseil constitutionnel – Cahier n° 30, 2010, p. 5.

[4] Conseil d’Etat, Section du rapport et des études, Etude relative aux possibilités juridiques d’interdiction du port du voile intégral, Rapport adopté par l’assemblée générale plénière du Conseil d’Etat le jeudi 25 mars 2010, p. 26.

[5] He adds: ‘Make no mistake about it, the lawmaker’s power to set out an order of proprieties in French society – for that is what this is about – could cover virtually any restriction of freedoms the lawmaker might see fit to impose’. Denys de Béchillon, ‘Voile intégral : éloge du Conseil d’Etat en théoricien des droits fondamentaux’ (2010) 26, 3, RFDA, p. 467.

[6] Conseil d’Etat, Etude relative aux possibilités juridiques d’interdiction du port du voile intégral.

[7] Béchillon worries about the ‘potential magnitude of such a redefinition of public policy’ (‘Voile intégral’).

[8] In the resolution of 11 May 2010 on the attachment to observance of republican values in the face of the development of radical practices infringing them, the National Assembly unanimously, ‘1. considers that radical practices detracting from dignity and equality between men and women, among which the wearing of the full veil, are contrary to the values of the Republic; 2. asserts that no one can invoke the exercise of the freedom of speech, opinion or belief to free themselves from common rules out of disregard for the values, rights and duties that are the foundation of society; 3. solemnly reaffirms its attachment to observance of the principles of dignity, freedom, equality and fraternity among human beings; 4. wishes the fight against discrimination and the promotion of equality between men and women to be a priority of the public policies on equal opportunity, especially within the national education system’ and ‘5. thinks it necessary for all requisite means to be implemented to ensure the effective protection of women subjected to violence or pressure and in particular who are forced to wear a full veil’.

[9] Conseil d’Etat, Etude relative aux possibilités juridiques d’interdiction du port du voile intégral, p. 27.

[10] Conseil d’Etat, Etude relative aux possibilités juridiques d’interdiction du port du voile intégral, p. 28.

[11] Déc. n° 613 DC du 7 octobre 2010.

[12] See especially the statute of 15 March 2004. See also the recent ECHR case law (Case of Lautsi and Others v. Italy, 18 March 2011, Application no. 30814/06) – which surprised many commentators.

[13] So much so that the word ‘screen’ (grille) was used for the actual ‘parlour’ (parloir) in old writings.

[14] ‘When ten years have elapsed since the order to presume absence, either in the form laid down in article 112 or on the occasion of one of the legal procedures provided for by articles 217 and 219, 1426 and 1429, absence may be declared by the tribunal de grande instance (‘high court’) upon application from any interested party or from the prosecution service.

The same shall apply when, in the absence of such a finding, the person has failed to appear at their official place or residence or habitual address, without news being had of them for more than twenty years.’

[15] ‘Before Constantine had put the Christian religion on the throne, monastic profession could have no influence over civil effects and over the capacity of those who embraced it. Society could not recognise undertakings that were contracted only as a consequence of a religion that the state did not recognise. We would not recognise the vows pronounced in France, according to Muslim rites, by a society of sectators of Mohammed’. François Richer, Traité de la mort civile (Paris, Durand, 1755) p. 663.

[16] It sometimes requires it, as with mandatory voting (Belgium).

[17] A full veil or otherwise at this point in the reasoning.

[18] See the Inter coetera instruction of the Sacred Congregation of Religious on the confinement of monks of 25 March 1956, subsequently made more flexible by Vatican II. The 1983 Code of Canon Law sets out in canon 667: ‘§1. In all houses, cloister adapted to the character and mission of the institute is to be observed according to the determinations of proper law, with some part of a religious house always reserved to the members alone. §2. A stricter discipline of cloister must be observed in monasteries ordered to contemplative life […]’. However, wide freedom is left to each religious order in interpreting these provisions, especially in terms of greater strictness. 

[19] Cited by Etienne-Antoine de Boulogne, Panégyrique de S. Vincent de Paul, fondateur des prêtres de la mission et des filles de la charité (Louvain, Van Linthout and Vand Den Zande, 1822, p. 66 (note).

[20] Besides, the vows they make are not perpetual but annually renewable.

[21] The biblical basis for the wearing of the veil among Christians can be found in the obscure and ambiguous passage of Paul’s First Letter to the Corinthians (11, 2-16); I commend you because you remember me in everything and maintain the traditions just as I handed them on to you. But I want you to understand that Christ is the head of every man, and the husband is the head of his wife, and God is the head of Christ. Any man who prays or prophesies with something on his head disgraces his head, but any woman who prays or prophesies with her head unveiled disgraces her head – it is one and the same thing as having her head shaved. For if a woman will not veil herself, then she should cut off her hair; but if it is disgraceful for a woman to have her hair cut off or to be shaved, she should wear a veil. […] Judge for yourselves; is it proper for a woman to pray to God with her head unveiled? Does not nature itself teach you that if a man wears long hair, it is degrading to him, but if a woman has long hair, it is her glory? For her hair is given to her for a covering.’

[22] For women, it may be a white veil in contrast to the black veil worn by cloistered nuns. For Antoine Banier, the black of the ‘mothers’ is like that of women who cover themselves when they go to church whereas the white of the ‘novices’ is like that of young girls. Histoire générale des cérémonies, mœurs et coutumes de tous les peuples du monde (Paris, Rollin, 1741) p. 366.

[23] Nubere means both ‘to veil’ and ’to marry’ (but for women only). For nuns one also speaks of the image of the ‘nuptial veil’.

[24] A direct reference to Paul’s Letter to the Colossians, III, 3 (‘For you have died, and your life is hid with Christ in God’).

[25] Œuvres de Bossuet (Versailles, Lebel, 1816) t. XIV, p. 564 (The publisher specifies, though, that in actual fact ‘these words are taken from the manuscript of an Ursuline nun of Meaux, who wrote down, after the ceremony, the various speeches Bossuet made to her at her profession’, ibid.). Bossuet clarifies things in his Première exhortation aux Ursulines de Meaux: ‘Think of yourselves as dead to the world, and that it is likewise dead for you. From the instant your are shrouded in the sepulchre of religion, separating you from the world, you must have died to all that is sensitive, by mortification and total renunciation of all that is mortal and earthly. Therefore make Jesus Christ live in you now through his grace: breathe for him alone: act through his spirit alone, and be utterly possessed by it: die every day to your own spirit and to your judgment, submitting it to obedience: die to your desires and to your senses; die to yourselves; snuff out the slightest movement of concupiscence, the instant it arises in you. […] If you do not die this mystic death, take care that some dangerous remains of the corruption of this unhappy world does not dry up and destroy in your souls.’ Œuvres de Bossuet, t. XIV, pp. 463-464.

[26] The un-veiling – ‘the face of God uncovered’ – which is the ultimate encounter between the nun and God, is a mutual unveiling because both uncover themselves.

[27] The Ursulines have as their mission the education of young girls, who are received in the enclosure of the monastery. However, they lived confined from 1612 onwards. The monastery therefore includes a cloister for the nuns and accommodation for the young girls. The only time they are in contact is in principle during lessons (See Règles de Saint Augustin des religieuses de Sainte Ursule de la congrégation de Bordeaux (Vannes, Lamarzelle, 1839) chap. VI, ‘De la Clôture’, p. 33).

[28] Even so the postulant (or future novice) undertakes to ‘hate and leave the world, as Jesus Christ said, by renouncing […] the freedom of [her] own will, which is what one professes in this dress’. La manière de procéder à la vêture et profession d’une ou plusieurs religieuses de Sainte Ursule de l’ordre de Saint Augustin (Toulouse, Laroque, 1713) p. 6.

[29] Therefore the second ceremony of perpetual vows.

[30] La manière de procéder à la vêture et profession, p. 46.

[31] Banier, Histoire générale des cérémonies, mœurs et coutumes, p. 367 (emphasis added).

[32] See below.

[33] On this point see Nadine B. Weibel, Par-delà le voile : femmes d’Islam en Europe (Paris, Complexe, 2000) p. 33.

[34] See Surat 17, Ayat 45: ‘And when you recite the Qur’an, We put between you and those who do not believe in the Hereafter a concealed veil [hidjab].

[35] Weibel, Par-delà le voile, p. 62.

[36] For Nadine Weible the veil serves five purposes: (1) The unconditional submission of the believer to God, which corroborates to some extent the vow of obedience made by the professed Christian. (2) Separation to save the wearer from the possible lustful urges of others; (3) Identification marking sexual, religious and cultural specificity. It is a will to identify with a minority in Europe but this function is not found in states where a large majority of the population is Muslim. (4) Contestation, that is, the rejection of assimilation in the West, which does not mean a rejection of integration. (5) Instrumentalisation, because teenage girls use the veil either to reassure their parents while enjoying greater freedom of movement, or more strategically with a view to marriage counting that men will be more likely to marry women of ‘good morals’, while they will just have fun with others. Weibel, Par-delà le voile, pp. 76 ff.

[37] According to the interpretation proposed notably by two Iranian academics, Chahla Chafiq and Farhad Khosrokhavar, Femmes sous le voile. Face à la loi islamique (Paris, Editions du Félin, 1995) pp. 42 ff. This is a commentary on Surat XXXIII, ayat 53 ‘And when you ask [his wives] for something, ask them from behind a veil (hidjab may also be translated by ‘curtain’, ‘partition’, ‘wall’ etc.). That is purer for your hearts and their hearts.’

[38] Isambert et alii, Recueil des anciennes lois françaises… (Paris, 1828) vol. 12, p. 559. This text was confirmed by the ordinances of Orleans of 1560 and Blois of 1579.

[39] See Colette Beaune, Naissance de la nation France (Paris, Gallimard, 1985).

[40] The first Council of Orleans in 511 provided that an individual could not enter religion without royal consent because for the king this was a ‘lost’ subject. That at any rate is the explanation given by Richer, Traité de la mort civile, p. 573.

[41] Book 1 of Part 2 of Richer’s Traité de la mort civile (pp. 17 ff) deals with ‘sentences that bring about civil death’.

[42] Articles 1 and 5 of which are still in force.

[43] They differed by region, period and sources of law (canon law, royal legislation, custom, leprosy statutes). See Françoise Bériac, Histoire des lépreux au Moyen Age. Une société d’exclus (Paris, Imago, 1988).

[44] The decline and then disappearance of the disease from France in the sixteenth century ipso facto made the legal regime of lepers irrelevant as a legal issue.

[45] See in Migne’s Patrologia latina, t. XVI (Paris, 1845), Sancti Ambrosii, Opera omnia, De Fide Ressurectionis, liber II, 36 col. 1324.

[46] Ambrose puts this form of death first.

[47] Territory, political community and institutions are the components of the state for internationalists.

[48] See ‘Mort civile’ in Claude-Joseph de Ferrière, Dictionnaire de droit et de pratique contenant l’explication des termes du droit, d’ordonnances, de coutumes et de pratique, 4th edn (Paris, Joseph Saugrin, 1758) t. II, p. 227.

[49] Richer, Traité de la mort civile, p. 677 (emphasis added).

[50] ‘The first is that the vow of poverty that religious utter in making their profession is a contract not only with respect to God but also with respect to the public. This contract contains a solemn abdication of their civil being on their part; and an undertaking with respect to the world, with which they thenceforth break all intercourse, to give up its temporal advantages’ (Richer, Traité de la mort civile, p. 677, emphasis added).

[51] Richer, Traité de la mort civile, p. 677.

[52] The movement of reticence towards the regular orders requiring perpetual vows intensified up until the Revolution, with preference going to the secular teaching (e.g. the brothers of the Christian schools), hospital or charitable (e.g. the sisters of charity) orders. Generally, monastic orders were on the decline in the second half of the eighteenth century and struggled to recruit novices. Treilhard wrote in his report of 17 December 1789: ‘Humility and detachment from worldly things have degenerated almost everywhere into a habit of laziness and idleness which presently make burdensome establishments that are most edifying in their principle. Everywhere the lukewarm and slack spirit has penetrated, which finishes by corrupting everything; the veneration of peoples for its institutions has therefore converted, to say no more, into a feeling of coldness and indifference; public opinion, markedly pronounced, has produced disgust in the cloister, and the sighs of pious coenobites, fired by divine love, are all too often stifled by the moaning of religious who regret freedom of which no enjoyment today makes good the loss’ (Archives parlementaires, t. X, p. 625).

[53] The monarchy too proved very firm as attested by this excerpt from the celebrated decision of the Council of 24 May 1766: ‘It is for spiritual authority to examine and approve religious institutes in the order of religion, and […] it alone can commute vows, dispense from them or release from them in the inner self; but […] temporal power is entitled to declare abusive and not validly given vows which are not made in accordance with canon and civil rules, and to admit or not admit religious orders, according to whether they be useful or dangerous in the state, even to exclude those that might be established there against the said rules, or that might become detrimental to the public peace’ (in Durand de Maillane, Les libertés de l’Eglise gallicane prouvées et commentés (Lyon, Bruyset Ponthus, 1771) t. V, p. 156).

[54] Richer reviews the various orders for which civil death is not applicable. These were generally orders in which those who undertook to remain in the world, such as the brothers and sisters of the Third Order (now call the Franciscan secular order), as part of the Franciscan galaxy, but who remained in their houses and with their families ‘cannot be regarded as civilly dead: they do not contract any tie that might remove from them their capacity as citizens’ (Richer, Traité de la mort civile, p. 703).

[55] They began by suspending them on 28 October 1789 (decree sanctioned on 3 November) further to protests from sisters of the Immaculate Conception in Paris complaining that novices were being forced to make perpetual vows. The context was, it should be recalled, one of clear disaffection for the regular orders which were having difficulties recruiting.

[56] Archives parlementaires, t. X, p. 625.

[57] The private sphere as to the choice of leaving convents the running of which remained a public matter because the Church and State were not separated. ‘The religious who will remain in the cloister, decide to do so only by laudable love, a keen love for the rule they have embraced: it is fair to enter into their spirit; and it is to favour their pious intentions that the Committee propose to you to gather them in sufficient number to ensure exact observance of this rule which they cherish and to fix preferences in the countryside and small towns so as to call them back, as far as can be done, to their first institution’ (Treilhard, Rapport, emphasis added).

[58] Treilhard, Rapport, emphasis added. The decree was to allow religious to renounce their perpetual vows and to leave the convents but, in order to receive compensation, they had to remain under the authority of the bishop in consideration for the secular ecclesiastical service rendered.

[59] ‘Your Committee, gentlemen, by appearing to keep religious orders, invites you nonetheless equivalently to destroy them’ (Archives parlementaires, t. XI, p. 545).

[60] ‘That the sovereign authority may, out of higher considerations, declare that it desires to condescend to the weakness of religious who complain of their fate, to loosen in respect of them the hold of the civil statute which concentrates them in their cloister, and to favour even the success of their recourse to spiritual power, I do not contest: such conduct may involve grounds of wise piety, done to determine the unanimity of votes; but what I do no believe legitimate in the use of that authority is that it breaks down only the barriers that it has not erected; it is that, without the support of the Church, it grants liberty to men who have freely committed themselves, under the seal of religion, to live and die in the cloister, and whom it has promised to contain there in all the terms of their undertaking; it is that it allows them to take off the livery of their condition and to depart from the practice of their rule, before the power, which alone, in the spiritual order, has the power to bind and unbind on Earth, has spoken’ (Archives parlementaires, t. XI, p. 545).

[61] The expression is from the elder Garat (Archives parlementaires, t. XI, p. 589).

[62] For Barnave, on 12 February 1790 ‘it is quite certain that a profession that deprives men of the rights you have recognised is incompatible with the rights [of man]. […] Religious orders are contrary to public policy; being subject to independent heads, they are outside of society, they are contrary to society… Compelled to duties that nature has not prescribed, that nature reproves, are they not, by nature itself, led to violate them? Is respect for religion not then attacked? It is a very great political evil. As for political education, it must be done by men who enjoy the rights of the citizen, who love them to make them loved […]’ (Archives parlementaires, t. XI, p. 580).

[63] The civil authority’s disregard for perpetual vows was to be raised to the level of a constitutional rule in the 1791 preamble: ‘The law no longer recognises either religious vows nor any other commitment contrary to natural rights or to the Constitution’.

[64] ‘At a time when eyes are turned towards freedom, we are far from proposing to you to admit vows in perpetuity that the inconstancy of spirits and the instability of things cannot possibly contain’ (Treilhard, Rapport).

[65] Richer had clearly perceived the problem when a state has a state religion. See note 15 above (Richer, Traité de la mort civile, p. 663).

[66] In the debate of 12 February Barnave proposed abolishing all congregations.

[67] ‘The National Assembly decrees as constitutional articles: (1) That the law shall no longer recognise solemn monastic vows of persons of either sex; declares as a consequence that the regular orders and congregations in which such vows are made are and shall remain abolished in France, without it being possible to establish similar ones in future; (2) That all individuals of either sex, being in monasteries and religious houses may leave them by making their declaration before the municipality of the place, and their lot shall be provided for forthwith by a suitable pension’. See also note 64 above.

[68] It was debated on 13 February 1790 whether Catholicism should be declared the ‘national’ or ‘state’ religion. The argument, supported by Dupont de Nemours, and which won out, was that it went without saying and did not go better for being said (Archives parlementaires, t. XI, p. 589 ff.).

[69] Richer, Traité de la mort civile, p. 633. Elsewhere he wrote ‘The profession of religion is a yoke that lasts as long as the life of he who has imposed it on himself, it strips him forever of the quality of citizen; he who has committed himself has divested himself not only of all his goods but of his own freedom’. Hence the importance of the freedom with which each makes the commitment. ‘This is why canon and civil laws are joined to provide all possible precautions’ (p. 607).

[70] Art. 3 of the statute of 13–19 February 1790, ‘The National Assembly moreover declares that nothing shall be changed as of now with regard to the houses tasked with public education and of establishment of charity until it has finally come to a decision on this matter’.

[71] This space cannot be regarded as ‘private’ because the Church remained a public service with a special property regime.

[72] Statute of 12 July–24 August 1790.

[73] ‘The dress of ecclesiastics, religious and lay congregations is abolished and prohibited for both sexes; however, the ministers of all Religions may keep theirs during the exercise of their functions within the arrondissement where they exercise’ (statute of 18 August 1792).

[74] Decision no 2010-613 DC of 7 October 2010, Loi interdisant la dissimulation du visage dans l’espace public.

[75] ‘Liberté du vêtement’, ‘liberté des habits’, Archives parlementaires, t. XLI, p. 241.

[76] ‘The particular dress of religious orders remains abolished and consequently each religious shall be free to dress as he sees fit’ (Decree of 8 October 1790, art. 23).

[77] Archives parlementaires, t. XLI, p. 240.

[78] Ibid.

[79] Archives parlementaires, t. XLI, p. 241.

[80] ‘The abolition of all religious corporations necessarily entails the abolition of their dress’ (ibid.).

[81] Archives parlementaires, t. XLI, p. 243.

[82] Archives parlementaires, t. XLI, p. 244.

[83] Archives parlementaires, t. XLI, p. 241.

[84] A logic which appears unequivocally: ‘Is it to death, to true death that you have meant to condemn religious corporations or to mere asphyxia, that is, to a certain appearance of death, which even so leaves in the heart a remnant of life capable, by certain processes, of spreading again through all the limbs? If you have sought to extinguish irrevocably and without reserve associations incompatible with a free Constitution, why should you leave lying around within monasteries dying remains, which present to the public a few still quick limbs, a still beating heart, a gradual weakening and all the appearances of a lengthy and painful agony? Do you wish to leave to the enemies of our Constitution the hope, which friendship conserves around the bed of the dying, of a crisis that might yet save them? Do you wish to nurture in them the uncivic expectation that these bodies, merely asphyxiated by our decrees, shall be brought back to life by some miraculous counter-revolution’ (Archives parlementaires, t. XLI, p. 243, emphasis added).

[85] Archives parlementaires, t. XLI, p. 244.

[86] Torné had in mind ‘those monastic dungeons into which the barbarism of confinement thrust the unfortunate with the cruel farewell: Go in peace, go down alive into the vengeful tomb of cloistering authority’ (ibid.).

[87] Besides, he added, protection of the home had public order and interest as its limit: ‘who would dare contest the police had the right to watch that the citizen’s home should not be either the seat of public disorder, nor infringement of a statute on family rules, nor the meeting place of the factious, nor a refuge for the accused? Yes, all manner of secret deeds which within families would necessarily call for solitude would come to compromise public order or interest, or which would be offences against a domiciliary statute of a municipality mindful of its duties; and if municipal supervision can penetrate into domestic refuges to enforce the law there, what further right might it not have to supervise the inside of a public establishment which, existing through the law alone, can only continue through the law and through the attention of the police to supervise the internal regime?’ Archives parlementaires, t. XLI, p. 245.

[88] ‘Any measure tending to respect the vow of confinement and to provide means to accomplish it would be an unconstitutional measure, because you would be favouring de facto a vow that de iure you must disregard’ Archives parlementaires, t. XLI, p. 246.

[89] Archives parlementaires, t. XLI, p. 246.

[90] He achieved satisfaction on 28 April. The decrees of total eradication date from 4 August for regular congregations and from 18 August 1792 for secular congregations.

[91] Denys de Béchillon spots this difficulty: ‘One fails to see how so imperious a public policy or so intransigent a concept of the dignity of women could no longer hold sway once behind the doors of the family home. If it is contrary to French mores to veil one’s face and if this state of mores is to be made law, it should apply everywhere, and not just in the street. If one thinks it permissible in law to reduce the space of private autonomy, it is not coherent to attribute the status of a sanctuary to the  – private – space of the home. Particularly because it is the prime place of social reproduction and where girls are most exposed to the risk of constraint. It is indeed there, therefore, that a model can be imposed on them that infringes their dignity – this time in all the senses of the word, including the ‘right’ one. (‘Voile intégral’)

[92] Especially the celebrated liberties of the Gallican Church.

[93] See on the novelty of this legal category Olivia Bui-Xuan, ‘L’espace public. L’émergence d’une nouvelle catégorie juridique ? Réflexions sur la loi interdisant la dissimulation du visage dans l’espace public’ (2011) 3, RFDA, pp. 551-559.

[94] This is not a set forming the intersection – in a mathematical model – between the two (private and public) spheres, but indeed a separate space. This three-way partition was proposed by the High Council on Integration in its Avis relatif à l’expression religieuse dans les espaces publics de la République presented to the Prime Minister in March 2010 but using different names (it is true this opinion was given before statute took up the expression ‘public space’), namely first ‘the public space in which the principles of secularity and neutrality apply stringently’ secondly ‘the civil space comprising juridically the public domain of circulation and private businesses open to the public and users, [and which] is a shared place visible to others in which public liberties are fully exercised, but within the bounds of the exercise of freedom of others and the observance of public policy’ and third ‘private space which is, for the most part, that of the home’ (Recommandations, p. 7).

[95] This lies within Habermas’ conception of public space as the locus of political debate in that this debate need not necessarily take place. However, we come close to it by considering that this debate should be made possible. See Jürgen Habermas, The Structural Transformation of the Public Sphere. An Inquiry into a Category of Bourgeois Society (1962) English translation (Cambridge, Polity, 1989); L’espace public, Archéologie de la publicité comme dimension constitutive de la société bourgeoise (1962) French translation (Paris, Payot, 1978).

[96] The bill prohibiting dissimulation of the face in public presented by Michèle Alliot-Marie referred to ‘all places open to social life’ (recorded by the office of the speaker of the National Assembly on 19 May 2010, p. 5, emphasis added).

[97] For Marcel Moritz, the public space is ‘a space where outdoor advertising can be seen from a public thoroughfare, independently of any characterisation of this space in terms of being state-owned land’ (Marcel Moritz, Les communes et la publicité commercial extérieure. Pour une valorisation environnementale et économique de l’espace public (Paris, LGDJ, ‘collection des thèses’ 32, 2009) p. 24.

[98] In the sense of Gérard Bouchard and Charles Taylor in 2008 as part of the Consultation Commission on Accommodation Practices Related to Cultural Differences in Québec (Gérard Bouchard, Charles Taylor, Building the Future: A Time for Reconciliation.

[99] Philippe Portier, ‘L’Etat et la religion en France. Vers une laïcité de reconnaissance ?’ (2010) 364 Regards sur l’actualité (Paris, La documentation française) pp. 35 ff.

[100] Emmanuel Levinas, Ethique et infini (Paris, Poche, Biblio essais, 1982) p. 79.

[101] Levinas, Ethique et infini, p. 82.

[102] ‘There is in the appearance of a face a command, as if a master were speaking to me. However, at the same time, the face of others is denuded; it is the pauper for whom I can do everything and to whom I owe everything. And myself, whoever I may be, but as ‘first person’, I am he who finds the resources to answer that call’, Levinas, Ethique et infini, p. 82.

[103] Anne-Sophie Michon-Traversac, La citoyenneté en droit public français (Paris, LGDJ, 2009) p. 601.

[104] Statute 2004-204 of 9 March 2004 adapting justice to changes in criminality.

[105] The privatisation of civic rights provided for by article 131-26 of the Criminal Code may, however, be approximated to it.

[106] Art. R131-35 of the Criminal Code (emphasis added).

[107] Art. 3 of the statute.

[108] Debate organised by UMR 7074 of the CNRS ‘Centre de théorie et analyse du droit’, 16 November 2010, at the Ecole normale supérieure, Ulm, D., 2011, p. 1168.

[109] And a fortiori in spaces where secularism, that is, neutrality, applies.

 

Issue: 
2015