Secularism laws in France ban certain religious practices and symbols from the public space in the name of laïcité—the dynamic interpretation of the constitutional concept of state secularism. Recent secular laws, however, while described by proponents as anti-discriminatory and liberalising, have had a disproportionate impact on Muslim women. This state-sanctioned intolerance of the ‘other’ has a long history in Europe and continues to shape both ‘liberal’ and ‘illiberal’ contemporary states.
In her recent Harney Lecture, Dr Marietta van der Tol, research fellow at Cambridge University, described a continuum of early modern tolerance that still informs attitudes to the ‘other’ but which now include other forms of difference, such a gender diversity and sexual orientation. Historical ideas of community in Europe drew on the fundamental Christian principle of corpus christianum—in which the body of Christ is united with people, the spaces they live in, and their destiny. Attempts to create this unity—which engaged with questions of public order and peace, of loyalty in times of conflict, and of economic benefits—could include a range of attitudes toward those with minority practices.
Matters of visibility, invisibility, and tolerance of the other have thus long existed on a spectrum
At one extreme, absolute conformity was enforced, often enacted through the use—or threat of use—of the sword. In some situations, the presence of the other was tolerated if hidden from view in private spaces, such as minority religious dominations practicing behind closed doors. Slightly more inclusive was auslauf, a German concept that translates as outlet, and allows some activities—for example, the sale of goods, foods and services otherwise outlawed by the predominant religion—if they were conducted outside the main public realm. Finally, the religious other might be granted visible parity in public life. Matters of visibility, invisibility, and tolerance of the other have thus long existed on a spectrum.
According to Dr. van der Tol, many facets of early modern toleration have made their way into the structures of the constitutionalism of today. As intolerance ebbed and flowed before, so now, nations try and use constitutional law to define and contain the other, whether the difference be one of ethnicity, gender, sexual orientation or religion. Further, this othering cannot be neatly delineated between tolerant liberal states and more overbearing illiberal ones. To demonstrate these points, Dr. van der Tol presented four case studies—from France, the Netherlands, Poland, and Hungary—in which both liberal and illiberal states have used their constitutions to define and limit the rights of an other.
France’s policy of laïcité was devised not against religion per se, but rather against the power of the Catholic Church and senior clerics in public life. Indeed, the 1905 law that established the principal was drafted by a committee including religious minorities like Protestants and Jews. More recently, its modern interpretations have primarily been used to legislate against Islam and have resulted in the number of overbearing requirements that speak to institutionalised prejudices. These include a ban on burkas in public spaces in 2010, a subsequent burkini ban in 2016, a ban one abaya in schools in 2023, and even forbidding French athletes from wearing headscarves at the Paris Olympics and Paralympics. In 2014, the European Court of Human Rights approved of the use of the concept of vivre ensemble, or living together, as a justification for limiting the rights of French individuals (in this case, religious face coverings or burqas). Laïcité, derived from utopian literature and the anti-clerical roots of the French revolution, has become entangled with conversations about public order.
It has also given rise to similar debates in other European countries, like the Netherlands. There, the concept of secularism has been used as a ‘guarantee’ of public order, with a burka ban modelled on the French law. This was despite rigorous legislative backlash, a lack of data about public order and instead calls to emotional discomfort with Islam. It was pushed through after the European Court of Human Rights approved the French bill, justified by the idea of the religion’s incompatibility with Dutch national identity. The call to ‘live together’ trumped practical considerations and was brought into law by sheer force of political will.
Despite the supposedly liberal nature of these two Western European democracies, there is a clear, identifiable continuation from their policies to those of ‘illiberal’ democracies like Hungary and Poland
Despite the supposedly liberal nature of these two Western European democracies, there is a clear, identifiable continuation from their policies to those of ‘illiberal’ democracies like Hungary and Poland. In Hungary, the government used constitutional identity as a political instrument; by couching the story of the nation as an ethnically Hungarian one, they established a new constitution that differentiates between Hungarians and ‘nationalities that live with us’. The country’s hybrid-authoritarianist government has weaponised the constitution to exercise control over churches, privileging those with loyalty to the government and entrenching them as a core part of Hungarian nationhood.
The fourth case study, Poland and its pseudo-constitutional declarations, was notable for the initial lack of legislation. With the Law and Justice Party (PiS) using the language of Polish-Catholic identity to encourage anti-LGBTQ+ sentiment, several PiS-run local authorities interpreted constitutional talk of ‘proper family’ and ‘good marriage’ to declare their areas as ‘LGBT-free zones’. This spoke to the early modernist questions of visibility, whether a society could be said to be tolerant and unified if not ‘threatened’ with the prospect of visible difference, and whether such local declarations even counted as laws. The Polish Supreme Court subsequently ruled that, as they would have tangible consequences, such declarations counted as legal rhetoric and pseudo-constitutional language.
For Dr. van der Tol, far-right elements have increasingly co-opted religious freedom, in both liberal and illiberal states. In the early modern period, tolerance was a discretionary power, a privilege granted to others, not an inherent right. Having the right to use the sword but withholding from swinging it differs from contemporary constitutionalism, in which rights can be enshrined but also codified to enable othering. Van der Tol demonstrated that vulnerability to intolerance is not an anomaly but rather a part of the structures of the law across liberal and illiberal societies.
