Reframing the Universalist Republic
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
| DOI | 10.1177/0964663915573043 |
| Author | Eoin Daly |
| Subject Matter | Articles |
Article
Social & Legal Studies
2015, Vol. 24(4) 531–553
Reframing the
ª The Author(s) 2015
Reprints and permission:
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DOI: 10.1177/0964663915573043
Legal Pluralism in the
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French Periphery
Eoin Daly
National University of Ireland, Galway, Ireland
Abstract
France’s official republican doctrines preclude public recognition of legal pluralism,
whether in the guise of legislative plurality or customary and religious legal orders. This
unusually emphatic rejection of legal pluralism stems from an ideology of abstract uni-
versalism that translates primarily as a formalistic understanding of equality before the
law and thus as a rejection of all identity-based classifications. Equality, in this sense,
requires citizens to be subject to identical laws under a single legislative jurisdiction. Yet
notwithstanding the republican orthodoxy, French constitutional doctrine has been
adapted in recent decades to accommodate various forms of legislative and even jur-
isdictional pluralism in peripheral regions, particularly in the outre-mer (overseas ter-
ritories) but also in some parts of the metropolitan territory. In turn, I will argue that the
abandonment of strict legislative uniformity can be traced to a wider crisis of French
universalism and its conception of rights.
Keywords
France, legal pluralism, religion and law, republicanism
. . . what kind of barbarism is it that citizens must live under different laws?
(Voltaire, 1838: 5)
Corresponding author:
Eoin Daly, National University of Ireland, Galway University Road, Galway, Ireland.
Email: eoin.daly@nuigalway.ie
532
Social & Legal Studies 24(4)
Introduction
Ostensibly, the very concept of legal pluralism – understood simply as the coexistence of
multiple legal orders on a given territory – is anathema to France’s dominant public phi-
losophy. According to the orthodox narrative, republican ‘universalism’ – usually under-
stood as an anti-communalist philosophy – embraces an abstract concept of the citizen
and a unitary concept of the state and thus eschews all identity-based classifications and
distinctions. This translates, in turn, both as an insistence on the uniformity of legislation,
as well as the singularity of legislative power, and as a refusal to recognize either group-
specific cultural rights or non-state legal orders, whether customary or religious. It is
given concrete expression in a trio of interrelated constitutional doctrines that stem from
the same premise, and all which affirm an abstract, anti-differentialist concept of citizen-
ship, for example, la¨ıcit´e – the principle of constitutional secularism – which prohibits
recognition of religious rights; equality before the law, which prohibits group-based
legislative classifications; and the indivisibility of the Republic, which, taken in its
social rather than territorial dimension, prohibits recognition of infra-state commu-
nities or peoples.
Whilst this universalistic concept of citizenship was never extended to subject popu-
lations in the colonial context, the rejection of ‘particularistic’ or group rights within the
metropolitan territory has come to represent an article of faith in contemporary French
republican discourse. However, in recent decades, various centrifugal pressures – partly
in the guise of linguistic, autonomist and regionalist politics – have led to significant
compromises in this republican orthodoxy. Whilst religious and customary law still
remain anathema in republican thinking, the precept of strict legislative uniformity has
been all but abandoned. In this article, I will explore various departures from republican
universalism that have been implemented in what I will roughly term the French periph-
ery – encompassing both the overseas territories that were incorporated within the
Republic following decolonization and parts of the metropolitan territory itself – namely,
Corsica and Alsace-Moselle – whose cultural, historical and linguistic specificities have,
to some extent, been granted official recognition. Accordingly, my aim is twofold. First,
to outline the various modalities and forms of legislative and jurisdictional pluralism in
peripheral regions and territories of the Fifth French Republic and second, to consider
how this deviation from political orthodoxy relates to a wider ‘crisis of universalism’
in French republican thought. My aim is not to develop or illustrate any particular
descriptive theory or account of legal pluralism as such (however, see Bocarejo, 2014;
Melissaris, 2004); my focus is rather on how certain aspects of French republicanism
– the state’s ‘dominant discourse’ (Stychin, 2001) – are given expression in its reaction
to non-state legal orders. Thus, I use legal pluralism in a thin sense to refer to a coexis-
tence, interaction and part-fusion/hybridity of state and non-state legal systems (see gen-
erally Tamanaha, 2008). However, for the purpose of this discussion concerning the
politics of legal pluralism, I leave aside the debate concerning the ‘legal’ nature of
non-state legal orders (see Griffiths, 1986).
The first part of the article describes France’s universalistic orthodoxy and its consti-
tutional expressions as well as its corresponding rejection of legal pluralism. The second
part describes departures from these orthodox doctrines under the Fifth Republic, with a
Daly
533
focus on the recognition and accommodation of legal pluralism. Finally, the third part
considers the implications of legislative and jurisdictional pluralism for the broader crisis
of French universalism.
The Republican Orthodoxy
In French political discourse, it is a truism that the republican character of the state pre-
cludes the recognition of cultural or religious rights, understood as group-specific
claims. This is often expressed in the terminology of republican universalism. Pecu-
liarly, in France, universalism is a nationally specific idiom, yet simultaneously, a grand-
iose claim of Enlightenment philosophy. From the late 19th century, an intellectual
consensus took root, which held both that the universal human rights of the 1789 declara-
tion were to be realized through a republican state and, conversely, that the Republic’s
institutions incarnated ‘truths that were of universal application’. French public philoso-
phy, then, became ‘neo-Kantian’ (Jennings, 2011: 145, 147).
In the French tradition, republican universalism embraces an understanding of political
community as being constituted independently of ‘pre-political’ identities and particular-
isms and as assuming no organic unity – whether ethnic, cultural or religious – among cit-
izens. The citizen is understood as an abstract moral agent, ‘beyond all cultural
determinants’ (Schnapper, 1994: 49), emancipated because he/she is decontextualized
from his/her origins, shorn of contingent features and attachments and liberated from the
tutelage of any intermediary social group (Laborde, 2011: 137; Stychin, 2001: 351). It
refers to an understanding, then, in which citizenship is abstracted from any communal
identity and in which political unity is based instead on the shared ‘general will’ and the
intersubjective political identity of the citizenry. Political community, in short, is consti-
tuted without reference to anything external or prior to the political, that is, it is grounded,
according to a French leitmotif, in the vouloir vivre ensemble – literally, ‘the will to live
together’ rather than a ‘blood and soil’ ethnos. The universalist ideal, then, was aimed not
only at eliminating discriminations and classifications based on culture, race and religion
but also, more comprehensively, at founding a new concept of the polity as being defined
by shared institutions and political ideas rather than any organic identity. In turn, the opti-
mistic premise of revolutionary ideology was that abstract republican ideas – liberty, equal-
ity, fraternity and so forth – could be endorsed and exercised by citizens independently of
their non-political or private identities (Nicolet, 2000). Thus from the early revolutionary
republic, the assumption was that an ‘open citizenship’ could be extended to people of
diverse religious and cultural affiliations who would embrace republican principles, ‘as the
French nation was reborn, shorn of privilege, [it] was thought capable of infinite enlarge-
ment and of embracing the inhabitants of the entire earth’ (Jennings, 2011: 145).
This republican universalism is often juxtaposed against an alternative conservative
tradition, represented by Burke and Maistre in particular, which privileges the organic
and particularistic basis of political community above the abstract notion espoused by
the revolutionaries – one which, in French discourse, was often attributed to German
political thought (Lemaire, 2010; Kritzman, 1995). In the 19th century, Ernest Renan’s
influential voluntarist conception of nationalism sustained this tradition in the face of
romantic nationalism, affirming an understanding of political unity as the product of a
534
Social & Legal Studies 24(4)
subjective and contingent social contract rather than as ‘the sociological expression of a
pre-existing volkgeist’ (Kritzman, 1995: 6; Renan, 1882).
In concrete terms, republican universalism is understood chiefly as a rejection of eth-
nic and religious particularism and, correspondingly, as precluding differentiated or
group-specific rights, especially cultural or religious rights. It is juxtaposed, in short,
with...
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