La´citÚ in the Low Countries? On Headscarves in a Neutral State
The paper compares French and Dutch legal approaches in regulating the use of headscarves in public institutions as examples of divergent liberal legal cultures and national policies towards immigrant minorities. It shows that in France the principle of laïcité or state secularity resulted in a legal prohibition of Islamic headscarves in public schools and other public institutions. In contrast the Dutch legal culture is based on strong notions of tolerance and equality. Muslim women are allowed to a larger degree to wear headscarves in the public sphere, the only exception being a member of the judiciary. The paper advocates an approach of balancing the principles of state neutrality, equality and liberty and to measure a prohibition by using the principles of proportionality and subsidiarity. It proposes a laicity- scale (L-scale) that ranges from the extremes of the private sphere at one end to the judiciary at the other. Such a scale allows differentiation between the case of a female Muslim judge required to abandon her headscarf because her judicial function requires neutrality and the case of a female Muslim teacher in a public school acquainting pupils with cultural and religious diversity by wearing the headscarf as a religious symbol.