Saturday, March 27, 2010

The Wisdom of Solon

According to Le Figaro, the Conseil d'État has argued in a still-secret report commissioned by François Fillon that any attempt to outlaw the burqa in general would constitute an atteinte à la dignité humaine. They rely on the concept of "consent," as elucidated by Simone Veil in a report on the preamble to the Constitution: "No one can decide a priori what is valuable (digne) for an adult." This principle would not, however, preclude banning the burqa in specific situations for specific reasons, such as security.

It is courageous of the CE to propose this view in the face of President Sarkozy's declaration just a few days ago, in the wake of the disastrous election results, that the burqa would be "outlawed," pure and simple, a surenchère on his previous declaration that it was "not welcome" in France. The CE further notes, as I have pointed out here before, that any law against the burqa would be subject to review by the European Court of Justice, which would probably disapprove.

Perhaps the most interesting comment comes at the end of the article, where one of the "Sages" speculates on a change in the government's position: "«Lorsqu'ils nous ont sollicités, ils voulaient enterrer l'interdiction générale», croit savoir un Sage. Or, depuis, Nicolas Sarkozy a annoncé qu'il déposerait un projet de loi."



cyrano said...

It's only a nuance but if I understood the Figaro article correctly, I am not sure the commission is saying that "any attempt to outlaw the burqa in general would constitute an atteinte à la dignité humaine." What they are saying is that the human dignity argument cannot be evoked as a legal basis for the ban when there is consent. It's starting to look like a case of Catch 22...

Finally, you're right : the pity is that it will ultimately depend on Sarko and Copé's political whims of the moment.

Paul Stephan said...

Surely you mean the Human Rights Court in Strasbourg, and not the European Court of Justice in Luxembourg. Although the ECJ has given the treaties constituting the EU a human rights dimension, most of the heavy lifting remains the task of Strasbourg, and the previous jurisprudence involving Turkey's ban occurred there.

Unknown said...

Thanks for the correction. I am perpetually confusing various European institutions.