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Communication dans un congrès Année : 2004

The French islamic headscarf Bill in a perspective of sociology of Law.

Résumé

In this paper I propose to confront the abstract vision of the French legislator, according to which it would be an omnipotent law-maker, with a contextualized observation of the production of the Islamic Headscarf Bill (IHB). In other terms it deals with the commonly admitted assumption according to which France, as a typical civil law country would be, a "legicentric" country in which the Legislator is the epicentre of the legal field.
My point in this paper is not to contest that the French Legislator plays a specific and an important role in the production of law. It is rather to discuss the idea that it would consist in a sort of autonomous juridical instance creating the law ex cathedra, in putting it back in the legal field and considering it as one pole of the law-making among others. As I'll try to demonstrate in the core of my paper : 2004 bill can't be understood without referring to the role played by the French administrative Supreme Court (Conseil d'Etat). A sociological analyse of the production of the 2004 IHB makes particularly obvious this tension between the legislator and the Conseil d'Etat. Something else should be stressed : above this tension between these two juridical poles, a struggle between different social and political groups and actors competing for the definition of laicité may be observed. In this perspective law should be analyse not only as a constraint but also as an instrument and resource used by this different actors for some ideological and political purposes.
According to this sociological analyse perspective, the first part of my paper will argue that the IHB is not the very embodiment of French secularism but rather one of its contingent and temporary expression. In this part I'll point that secularism is a very polymorph and contradictory phenomenon and discuss the abstract representation according to which the French legislator would be an omnipotent juridical actor telling the alpha and the omega of the law. I'll remind in particular that the juridical definition Laicité results from a permanent and uncompleted tension between the legislator and the administrative supreme court, the so-called Conseil d'Etat. Consequently I'll will argue that the Conseil d'Etat participates to the law-creation.
In the wake of this argument the second part of my paper will show the dominant role played in the nineties by the Conseil d'Etat in the interpretation of the principle of laicité as far as the Islamic Headscarf at the state school is concerned.
Then in my third part I'll explain why the legislator is to be understood as a political instrument of the government to change the state of the law and how through this legislative action may be interpreted as a mean of the government to demonstrate its political efficiency to shape the social order. In the wake of this argumentation I will show that far from being the result of a sui generis consensus the 2004 Bill has been the result of a political enterprise that implies the construction both of a specific representation of the social order and of a coalition of social and political actors to promote such a representation.
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Dates et versions

halshs-00150704, version 1 (31-05-2007)

Identifiants

  • HAL Id : halshs-00150704 , version 1

Citer

Claire de Galembert. The French islamic headscarf Bill in a perspective of sociology of Law.. Law and justice Beyond borders. Droit et justice par-delà les frontières, 2004, Paris, France. ⟨halshs-00150704⟩
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