Secularism as a Shield: A Comparative study of the Role of Laïcité and Related Secular Policy Regimes as Mechanisms Through Which the Expression of Islam is Restricted in Europe

Abstract

The secular policy regime of laïcité, rooted in the French tradition of church-state separation enshrined within the country’s constitution, has been used more and more widely within European polities not just as an ideal of state neutrality but as a legislative mechanism that has been particularly hostile towards the expression of Islam within European states. This paper will provide a comparative examination of secular policy regimes in France, Germany, Belgium, and the Netherlands, focusing on how concepts such as neutrality, equality between genders, and social cohesion have been used as discursive mechanisms by which Muslims are restricted from wearing the hijab/niqab, constructing minarets, and performing other expressions of their Islamic beliefs. Employing a jurisprudential understanding of Islamic texts including classical fiqh, the Quran, and the Prophet’s Sunnah along with contemporary scholarship about Islamic teachings, this paper concludes that these restrictions infringe on the fundamental Islamic right of hurriyyat al-din (religious freedom), thus engaging in structural Islamophobia. This paper examines how secular concepts are employed to control the Muslim body through the use of theoretical discourse drawn from Western legal theory, European Court of Human Rights' case law, and postcolonial critical legal analysis. The concluding remarks of this paper will propose an Islamic paradigm of civic engagement grounded in the Qur'anic principle of diversity and the legal theory of fiqh al-aqalliyyat.