Eoin Daly

Religious freedom as a function of power relations: dubious claims on pluralism in the denominational schools debate

The decline of religious observance in Irish society has coincided with the strengthening of the exclusionary prerogatives of state-funded denominational schools. The implementation of a ‘Catholics first’ policy in many schools, as underpinned by legislation, suggests that increasing religious diversity in the State has led to an abandonment of the historical acceptance that schools in receipt of public funding would not exclude non-coreligionists. It therefore casts doubt on the viability of individual religious freedom within the long-standing framework of the denominational education model. This stance, as well as the reaffirmed commitment of the Catholic Church to the unimpeded inculcation of religious doctrines in its schools, has been defended with reference to dubious normative invocations of pluralism and religious freedom. This article argues that the conception of pluralism invoked by those defending the denominational education model in its current form fails to command normative legitimacy due to its non-universal, particularist and essentially communitarian scope. It also suggests that this conception is nonetheless broadly resonant with the Constitution, which, it is argued, itself configures religious freedom principles as a function of the power relations between religious groups.

Laïcité, gender equality and the politics of non-domination

The relationship between constitutional secularism and gender equality acquires peculiar dimensions in the context of the laïcité project in republican France – particularly, in the contemporary conflict between a laïcité interpreted as a politics of emancipatory social transformation, and the more minimalist liberal conception prevailing in French law. The dominant narrative in the republican establishment, shared between left and right, has been that laïcité will lead to gender emancipation not only by dissolving any sectarian dimensions of women’s citizenship – that is, by sustaining a religiously neutral public sphere – but also, by preventing the domination as well as the coercion of religious choice in the intimate and private spheres of family and community. In this narrative, laïcité represents a more ambitious project of gender emancipation than that promised by the liberalisms more redolent of the Anglo-American world. The apogee of this expansionary interpretation of constitutional secularism is expressed in the 2004 prohibition on conspicuous markers of religious affiliation in the public schools, and the recent debate on the ‘full’ Islamic veil. This article considers the relationship of laïcité to gender equality through the lens of the broader theoretical debate surrounding the relationship of political liberalism to the politics of non-domination. The elusive challenge is to craft a constitutional secularism that can sustain a viable politics of non-domination – going beyond the formalist voluntarism redolent of classical liberalisms, offering undominated as well as uncoerced religious choice – yet also avoiding an overzealous emancipatory stance that itself assumes a regulative role for women’s religious choices.

Political liberalism and French national identity in the wake of the face-veiling law

Political liberalism suggests state power must be exercised and justified on terms all citizens can reasonably be expected to endorse, independently of their comprehensive identities or worldviews. For Rawls, a democratic community cannot be united by any shared ends or identities other than those connected with the political conception of justice itself. Republican political thought often seems to undermine this ‘liberal principle of legitimacy’ through its stronger demands of social cohesion and participative civic virtue. Conversely, however, it generally seeks to define citizenship independently of any non-political commonalities citizens might be assumed to share. This theoretical tension was reflected in recent French republican discourses on Islam, gender and national identity. Frances recent prohibition on public face-veiling coincided with an officially orchestrated debate on national identity which seemed to challenge the traditional republican conception of national identity as a purely civic and political construct. While couched in republican terminologies, these recent discourses seemed to understand the principle of laicite , or constitutional secularism, as a bulwark for the pre-political dimensions of national identity. Accordingly, this article outlines how these discourses on religion and gender illuminated tensions and contradictions within the prevailing republican account of national identity.

Ostentation and republican civility: Notes from the French face-veiling debates

France’s prohibition on public face-veiling was rationalised partly with reference to ‘fraternity’ – the third prong of the republican motto – as well as liberty and equality. Correspondingly, the voile intégral (‘full veil’) was widely described as transgressing republican standards of civility. Yet counterintuitively, republican civility was not understood, at least primarily, in terms of sociability or expressivity – but rather as requiring discretion, modesty and self-restraint. Therefore, the ‘full veil’ was not portrayed as an austere interpretation of religious modesty, but as precisely the opposite – as an ‘ostentatious’ defiance of republican civility. It was deemed anti-republican not because it was too modest – but rather because it was too flamboyant. In this light, I argue that the law should be understood neither as a coherent republican response to problems of domination in religious life nor, however, should it be seen purely as an expression of ethno-nationalist defensiveness. Rather, it can be understood as an attempt to legislate a republican habitus, that is a set of social mores – and bodily techniques – deemed appropriate in republican society. I use the French example to consider the political function of civility understood not in relation to speech constraints but rather in terms of bodily and linguistic technique.

Legislative form as a justification for legislative supremacy

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. Firstly, I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination.

Ritual and Symbolic Power in Rousseau’s Constitutional Thought:

Rousseau’s constitutional writings place a seemingly eccentric emphasis on public ceremony, festival and pageantry as integral aspects of statecraft. The obvious function of such republican rituals is to promote the participative civic dispositions which provide stability for a deliberative politics based on common goods. In some accounts, therefore, Rousseau’s ritualistic constitutionalism has parallels in the mild ceremonial practices of contemporary liberal states. I argue, however, that Rousseau envisages a much broader purpose for republican ritual: not merely to supplement, but to substitute the complex symbolic rituals of liberal society and thus to supplant the need for private sources of aesthetic and symbolic distinction. Accordingly I argue that his politics of “transparency” is informed by an understanding of social practice which, in some respects, closely resembles Pierre Bourdieu’s account of habitus and symbolic power.

Religious Liberty and the Rawlsian Idea of Legitimacy: The French Laïcité Project between Comprehensive and Political Liberalisms

Kahn has argued that the French Laicite project has degenerated, in some of its recent incarnations, into an illiberal public commitment to a ‘comprehensive’ doctrine of enlightened or emancipated autonomy. He suggests it can instead be conceived in a Rawlsian sense, a concept of right derived independently of ‘comprehensive’ conceptions of the good—thus, merely an institutional appendage to liberty of conscience, distinct from any deeper social goal. The attempt at separating out ‘political’ and ‘comprehensive’ secularisms is best viewed through the prism of the headscarved school-goer whom the liberal state deems unfree. Can such a state intervene to ensure the autonomy of its child-citizens with regard to comprehensive doctrines, or is this to impose a conception of the emancipated rational life, freely lived? Is this autonomy of conscience distinguishable from an idea of the good life, a merely ‘political’ guarantee of self-determination—or is this distinction even viable? The figure of the headscarved child-citizen ostensibly challenges the Rawlsian assumption that the state’s claim to neutrality between comprehensive doctrines can transcend or stand outside these doctrines, and represent anything other than an ends-oriented project of liberal emancipation. This arises because, on one view, the state must, in order to guarantee schoolchildren freedom to choose between ways of life, paradoxically first impose such a particular conception, of emancipation or rational autonomy. However, this article suggests that despite its ostensible allure, the dualism of ‘political’ and ‘comprehensive’ secularisms is not the best lens through which to critique the French Laicite project.

Transparency as a justification for legislative supremacy

ABSTRACT While most arguments for legislative supremacy are grounded on a procedural account of democratic equality, others appeal not to the abstract qualities of legislative process but rather to the mystifying or non-transparent nature of judicial review itself. In this paper, I aim to excavate and clarify what we understand by the non-transparent nature of constitutional-rights jurisprudence, compared with legislative decisions concerning rights. Most commonly, critical and Marxist scholars understand judicial review as a mystifying practice in which contrived ‘legal’ modes of reasoning obscure the ideologies, interests or policies that constitute the real grounds of decision. That is to say, judicial reasoning obscures interests that are extraneous or antecedent to law, however, these might be understood. However, drawing on Pierre Bourdieu, I will argue that while judicial review can be understood as a quintessentially esoteric and thus as a dominating practice, its doctrinal artifice is nonetheless irreducible to interests that are antecedent to law itself. Rather, it generates forms of symbolic and social capital that are peculiar to law as a semi-autonomous social ‘field’. Nonetheless, non-transparency of this kind can be understood as an important kind of political domination that can support the argument for legislative supremacy

Fraternalism as a Limitation on Religious Freedom: The Case of S.A.S. v. France

In upholding France’s ban on public face coverings, the European Court of Human Rights accepted that the manifestation of religious beliefs could legitimately be restricted in the interests of ‘vivre ensemble’—literally, ‘living together’—or what I label ‘fraternalism’. I will argue that fraternalism, in the French setting, is closely linked to the idea of a duty of civility in political theory: it is understood as a duty to practice a certain kind of fraternal sociability. This paper relates the Court’s judgment to France’s justificatory, ‘republican’ discourse. It argues that civility must be understood as a habitus—a set of learned orientations and bodily techniques—rather than as a set of discursive or speech constraints. In turn, this demonstrates the danger in the idea of civility (or fraternalism) as limiting religious liberties: far from simply fostering republican virtues, it will reinforce cultural and social power dynamics.

Reframing the Universalist Republic Legal Pluralism in the French Periphery

France’s official republican doctrines preclude public recognition of legal pluralism, whether in the guise of legislative plurality or customary and religious legal orders. This unusually emphatic rejection of legal pluralism stems from an ideology of abstract universalism that translates primarily as a formalistic understanding of equality before the law and thus as a rejection of all identity-based classifications. Equality, in this sense, requires citizens to be subject to identical laws under a single legislative jurisdiction. Yet notwithstanding the republican orthodoxy, French constitutional doctrine has been adapted in recent decades to accommodate various forms of legislative and even jurisdictional pluralism in peripheral regions, particularly in the outre-mer (overseas territories) but also in some parts of the metropolitan territory. In turn, I will argue that the abandonment of strict legislative uniformity can be traced to a wider crisis of French universalism and its conception of rights.