[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Ioanna Tourkochoriti reviews Jeremie Gilbert and David Keane’s “Equality versus fraternity? Rethinking France and its Minorities,” which appears in the current issue of I•CON. The full article is available for free here.]
—Ioanna Tourkochoriti, National University of Ireland Galway
Jeremie Gilbert and David Keane have written a very interesting article on the delicate relationship between the universalist legal culture dominant in France and the impact that this conception has upon minorities. The authors analyze a number of legal rules that are constitutive of the French republican model. Further, they make a very interesting contribution to the relevant literature by arguing that: “France needs a new interpretative approach and that activating fraternity as a constitutional principle offers the legal means by which this could be realized.”
The authors analyze a number of French policies adopted in the name of the constitutional principle of equality, which show that the French Model has led to practices of social exclusion. These policies are motivated by a conception of the role of the government as not allowed to advantage a minority group. For instance, the collection of statistical data on the basis of ethnicity or religion is prohibited and the French legal framework on non-discrimination has been calibrated, the authors argue, to avoid referring to the rights of minorities. According to the French Conseil Constitutionel, the implementation of the European Charter for Regional or Minority Languages would be contrary to the French Constitution as it would challenge the principles of indivisibility of the Republic and of equality of all citizens. The authors discuss the decision of the same Council on affirmative action in access to public higher education. Special measures of recruiting students are accepted in reference to socio-economic criteria defined on a geographical basis for deprived suburban areas provided that there is no reference to “minorities.” In other words, affirmative action is accepted in France provided that it is defined in reference to socio-economic criteria and not on grounds of origin, race or religion. As the authors note, United Nations treaty bodies have called for France to reconsider these policies and to adopt some form of minority rights-based approach.
The authors also discuss the historical development of the republican model of integration. Their narrative focuses on the rejection of cultural identities and of communitarianism as a whole in reference to race, religion or other collective grounds. The principle of equality dictates that the state consider citizens as individuals and not as members of groups. Special measures founded on ethnicity, race or other grounds would lead to a weakening of the “living together” philosophy as understood in France.
A reference to the sociopolitical needs that the French Republican model served at the moment of its creation would have helped the reader understand its significance and would have provided a stronger argument in favor of a new understanding of the principle. The conception of the citizen in an abstract and universal sense during the French Revolution served the purpose of doing away with legal privileges as well as social stratification. The French Revolution was a political and a social revolution at the same time. It aimed at reconstituting society and institutions. In this sense, the reference to abstract principles played an important role. Differences were to be done away with as the generality of the law and of its rights and duties would assure equality between all citizens. Nevertheless, this conception of the republican model may need some updates today to respond to new social problems within French society. Although the authors make a compelling point, this point could have been strengthened had they focused on the social needs before and after the revolution. Understanding the emergence of the model would help point out why it is inadequate today to meet new social needs.
In addition, an element that is important to better understand the reluctance of the French legal order to recognize “race” is the principled rejection of the very concept of “race.” The French legal order refuses to make even positive distinctions on the basis of race as it is considered to be an empty concept. To work around the difficulties that come up in the absence of statistics in reference to race the French authorities are able to engage in action against discrimination by monitoring the place of birth of a person’s parents. In this way they are able to evaluate whether second generation migrants have been socially integrated or are still experiencing social exclusion and marginalization. Although for philosophical reasons ethnicity, race, or religious affiliation are not acceptable criteria on which to base affirmative action policies, the French government has tried to work around this difficulty by looking at other elements that do not create tension with the philosophical presuppositions that underlie the French Republic. Therefore, affirmative action policies are acceptable in France, but the criteria upon which these policies are based are different from those accepted elsewhere. It is definitely worthwhile to investigate whether this criterion of evaluating social exclusion is effective.
The authors make a constitutional case for the use of the concept of fraternity in an evolutionary approach to the bloc de constitutionnalité. As they note, although fraternity was a principle present during the French Revolution, it has not appeared in the decisions of the Constitutional Court, whereas the concept of solidarity has. The reference to the principle of fraternity could “provide an avenue to the realization of international minority rights standards in France.” They draw on the case law of the Indian Supreme Court in this respect, since that Court has used the concept in its reasoning in order to bring a “social dimension to political democracy through special measures.”
The fraternity principle has been at the root of the French conception of the role of the government, even when there has been no explicit reference to it. The negation of differences takes place in the name of belonging to the neutral category of the universal citizen whose rights are to be protected independently of one’s membership in a social or other group. This has at times led to unintended consequences where the French state has expressed state paternalism and limited liberties unreasonably, as the case of the burqa ban shows.
Nevertheless, the authors are making a very important contribution to the relevant debates. There is great potential in a new creative use of the concept of fraternity. It could play a very important role in crystalizing within French public consciousness that respect for minorities is not an element that disintegrates the social bond but rather one that promotes it further. In other words, if concrete political and social needs have led to one understanding of the concept of republicanism, this does not mean that this conception is still pertinent to resolve the contemporary social problems that France faces.
Furthermore, the reference to the individuality of the citizen who is to be protected reflects a permanent characteristic of the French constitutional order: the distrust towards conglomerates of interests, or in other words to associations. This has its origins in Rousseau’s conception of the general will that must be served by the state. Collective interests constitute powerful counterweights in the search of the general will and are thus not to be trusted. Associations are of course legal in France today. Nevertheless, the distrust towards the idea of minorities as implying special obligations for the state can be traced back to this conception of the general will. In this respect, a fresh understanding of the concept of fraternity like the one proposed by the authors of this study could provide the missing link. If citizens are bound through fraternity, then these bonds are not necessarily dissipated when the state employs action that promotes the interests of one minority group over another.
In this respect, Jeremie Gilbert and David Keane have made an important contribution by focusing on the underexplored potential of the discourse of fraternity. In France positive action of the state is not to be defined in reference to what would define a “minority” such as race, religion etc., but it is to be defined in reference to socioeconomic criteria. The reference to the concept of fraternity could help expand these acceptable criteria for positive action of the state, thus providing an even more robust foundation for state action in this area.
Suggested citation: Ioanna Tourkochoriti, Article Review: Ioanna Tourkochoriti on Jeremie Gilbert and David Keane’s “Equality versus fraternity? Rethinking France and its Minorities,” Int’l J. Const. L. Blog, Feb. 21, 2017, at: http://www.iconnectblog.com/2017/02/article-review-ioanna-tourkochoriti-on-jeremie-gilbert-and-david-keanes-equality-versus-fraternity-rethinking-france-and-its-minorities/
 Loi Informatique et Libertés, Law No. 78-17, Jan. 6, 1978, Conseil Constitutionnel [CC] [Constitutional Court], decision No. 2007-557 DC, Nov. 15, 2007.
 Conseil Constitutionnel [CC] [Constitutional Court], Decision No. 99-412 DC, June 15, 1999.
 Conseil Constitutionnel [CC] [Constitutional Court], Decision No. 2001-450 DC, July 11, 2001.
 Conseil Constitutionnel, Les discriminations positives dans la jurisprudence du Conseil constitutionnel (Sept. 2004), available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/pdf/Conseil/positives.pdf.
 Jeremie Gilbert and David Keane cite in this respect the “Veil Report”: Comité de reflexion sur la Préambule de la Constitution, Rapport au Président de la République, (Dec. 2008), at 66, available at http://www.laicite-republique.org/IMG/pdf/Rapport_Veil.pdf .
 As François Furet has shown in Penser La Révolution Française, (Gallimard 1985).
 See Pierre Andre Taguieff, La Force du préjugé. Essai sur le racisme et ses doubles, (Paris, Gallimard, “Tel”, 1990).
 See Report of the French Defenseur des Droits, at http://www.defenseurdesdroits.fr/sites/default/files/atoms/files/ddd_etu_20140201_barometreoit_presentation.pdf.
 See Eoin Daly, “Fraternalism as a Limitation on Religious Freedom: The Case of S.A.S. v. France”, 11 Religion and Human Rights 140 (2016), at http://booksandjournals.brillonline.com/content/journals/10.1163/18710328-12341302, and Ioanna Tourkochoriti, The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the U.S.A., 20 Wm. & Mary Bill Rts. J. 799 (2012), at http://scholarship.law.wm.edu/wmborj/vol20/iss3/4.