How French law makes minorities invisible

French law prohibits the collection of any data based on race, ethnicity or religion. But this leaves minorities vulnerable

The French ‘republican model’ of integration and citizenship has been criticised as being broken (Flickr)

A year after the deadly 2015 terrorist attacks in Paris on 13 November and France is still grappling with its relationship with its minorities.

After it emerged that some of those who carried out the attacks were French nationals, many renewed longstanding criticisms that the outdated French “republican model” of integration and citizenship might be broken. The model’s objective was to achieve the integration of “nationals” – Bretons, Corsicans and others – and viewed from this historical perspective, it has proven to be somewhat successful. Most of these groups now feel “French”, and their cultural heritage and languages are recognised as part of French identity.

But the model was not designed to integrate the diverse range of groups in contemporary France. Instead, it serves to make minorities, and the difficulties they face in French society, almost invisible.

An outdated legal system

The French state’s policy rejects any references to national, racial, ethnic, religious or linguistic minorities. This model is based on the idea that the state should interact with the individual only, not communities or groups, in order to give equal treatment to everyone. “Absolute equality” is seen as the best way to ensure the integration of all citizens, to the benefit of both the state and the citizens themselves.

As a result, French authorities have rejected any form of targeted measures for ethnic, religious or linguistic groups. In practise this has rendered minorities invisible and brought systemic forms of discrimination.

Legally, the constitutional principle of equality has been interpreted as prohibiting the government from collecting data or statistics on the racial, ethnic or religious backgrounds of its citizens, in any context. This means for example that the socioeconomic status of groups across any indicators based on racial, ethnic, religious or other grounds is unknown, and that the national census does not include any questions about race or ethnicity.

A 1978 law regarding “data files, processing and individual liberties” explicitly prohibits the collection and processing of personal data that reveals, directly or indirectly, the racial and ethnic origins, or religion, of any persons.

In practise, there is a dual impact of this prohibition. First, it means that no statistics exist regarding ethnic or religious discrimination, or discrimination on related grounds. Second, it has also been translated by courts and other institutions into rules which prohibit any forms of religious affiliation in the public sphere. It is under this “absolute” approach to equality and neutrality that the wearing of religious symbols has been prohibited.

Despite the lack of data, some groups feel they are being discriminated against, notably Muslims, “black” French and Roma populations.

Relatives of Bouna Traore who died in an incident which sparked the 2005 Paris riots, inaugurate a street sign ten years later (EPA)

The level of discrimination against Muslims or other groups is hard to judge in reality, since, these are invisible in the statistics and official rhetoric of the country. While criminal law prohibits public incitement to hatred, there is a lack of a proper legal system to report and punish hate speech which largely remains unreported.

Following the terrorist attacks of 2015, this lack of hate speech monitoring was addressed by the government which launched a large programme to monitor hate speech.. But in general, there is a lack of data regarding ethnic and religious markers. As a result, anti-discrimination policies refer instead to the “banlieues” (suburbs) or “immigrants”, even when the concerned populations might be third or fourth generation French citizens.

The lack of proper demographic statistics has often led to unofficial numbers filling the gap, such as the claim that there are 5 million Muslims in France. In reality, these figures are often based on the notion that descendants of people who have migrated from the Maghreb and North Africa are Muslims, creating an amalgamation between individual “descendants from immigration” and Muslims. Not only does the rejection of racial, ethnic, religious or linguistic data in the name of equality make minorities invisible, it also entraps them into other categorisations that paradoxically render them outsiders to the French process of equal citizenship.

France needs more ‘fraternity’

The historical weight of the 1789 French revolution and its approach to citizenship cannot be underestimated in today’s political and legal landscape. The “absolute” nature of equality is part of this legacy, with equality seen as the overarching principle in the constitutional edifice. This has been protected and enforced by the Constitutional Court on many occasions. For example, in 1999 the court decided that ratifying the European Charter for Regional or Minority Languages would be unconstitutional on grounds of “absolute equality”, effectively barring the introduction of any form of minority rights into the French legal system.

But we argue that another founding principle, that of fraternity, could be used to counterbalance the negative effects of this strict interpretation of the law regarding equality. Of the three terms in France’s famous constitutional maxim, “Liberty, Equality, Fraternity”, the legal significance of fraternity is the least understood. From a legal perspective, its definition has always been problematic, and as our new research has highlighted, it is unquestionably the “weak link” in the trilogy.

But a more flexible interpretation of the term fraternity may make it possible to recognise minority rights within the French Republican model – without going against the existing bloc de constitutionnalité, which comprises all the fundamental constitutional values of the country. So far, the dominant focus on equality has meant a rejection of data collected on origin, race or religion. Arguably, a focus on fraternity, which is also one of the fundamental constitutional values, could allow a much more flexible and encompassing approach to diversity within the country, and play an important role in diffusing the tensions that have been developing over the last few years.

France is a long way off making this legal connection between fraternity and minority rights. But in India, the supreme court has interpreted fraternity, a term introduced into the preamble of its 1950 Constitution by BR Ambedkar, as engaging minority rights to counteract caste-based discrimination and inequalities. Ambedkar believed that “without fraternity, equality and liberty will be no deeper than coats of paint”.

France needs a new legal approach to its model of republican citizenship that would allow its minorities to feel much more integrated, respected, and protected by the legal system. This has to begin with identifying who those minorities are, on the basis of race, religion, language or related grounds – a message increasingly being relayed by French minority advocacy groups. The dormant constitutional principle of fraternity might hold the legal key to realising such a new departure.

This article first appeared on The Conversation (theconversation.com). Jeremie Gilbert is a professor of international and comparative law, at the University of East London and David Keane is an associate professor in law, at Middlesex University