3.1 Individual as an autonomous being, forced to be free

The French Constitutional Council in its decision bears on the DDHC of 1789, which considers the human to be a carrier of rights inherent to her person, anterior and superior to the state:

Thus the Council refers to an individual who is primarily free to exercise her natural rights. This ‘French republican theory’ individual exists prior to her choice of lifestyle, values and politics; these are but external expressions of an inner self (Scott, Reference Scott2007, p. 127). The Declaration considers the individual abstractly, not in the particular circumstances of real life. The disregarding of particularistic cultural determinations corresponds to the disregarding of any substate community affiliation, or rejection of ‘communalism’. Communautarisme refers to ‘the closing of ethnically defined communities on themselves, … and a refusal of integration. Communalism threatens the process of direct communication between the state and citizens that underlies French political philosophy’ (Bowen, Reference Bowen2010, p. 156). The condemnation of communalism can be traced back to debates held after the 1789 Revolution and, at the time, it was not directed at religious communities. Intermediate corporate bodies were abolished, as they were accused of separating citizens, giving them illusions of superiority, constraining them and claiming authority independently from the state (Bowen, Reference Bowen2010, p. 161). On the contrary, blindness towards intermediate (between state and citizen) forms of affiliation was melded to the concern to assure equality of treatment between individuals who are naturally diverse and to create a common space among very different men and women (Rosanvallon, Reference Rosanvallon2004, pp. 121–124).

The difficulty with this legal fiction is due to the dissension between its apparent descriptive posture (‘this is how the individual is for the law’) and its strong normativity (‘this is how the individual has to be by law’). So for example, in point 4 of the decision, the Council considers the objectives pursued by the legislator as follows:

One cannot avoid recalling Rousseau's statement: ‘… whoever refuses to obey the general will shall be constrained to do so by the whole body; which means nothing else than that he shall be forced to be free’ (Rousseau, Reference Rousseau, Crocker and Dunn2002, p. 166). So an individual who chooses to cover her face is making a choice against her own liberty and equality and can be forced not to make that choice. Liberty and equality are given here an objective meaning. The tension between subjective and objective understanding has been conceptualised with reference to human dignity: according to the subjective understanding, dignity is coextensive with freedom of choice and cannot logically be violated by the individual herself, who instead defines what dignity means to her; the objective version, in contrast, introduces external standards. Both in FranceFootnote ²¹ and at the European level,Footnote ²² the subjective understanding of dignity prevails; therefore it is not applicable to this case (Rapport d'Information Raoult, p. 177; Mathieu, Reference Mathieu2010; Dieu, Reference Dieu2010). Nevertheless, with this decision, the Council introduces an objective conception of other fundamental rights, namely liberty and equality. Some commentators discuss the ‘rupture’ and maybe even ‘evolution’ (Dieu, Reference Dieu2010) of the French conception of the principle of equality, as this ‘paternalistic’ (Hunter-Henin, Reference Hunter-Henin2012, pp. 624–628) version leads to a negation of personal autonomy and free will.

To summarise, the free and autonomous individual of the ‘republican theory’ to which the Council refers is, paradoxically, limited in her freedom of choice. Finally, she finds herself to be under the influence of the (state) society. The point of departure was the individual conceived as freed by community fetters but, at the end of the line, we see her actually being restricted by this very image. As will be shown next, defining the conception of the individual is fraught with risks for any legal text, and therefore it is understandable that the German decision attempts to leave such a definition as open as possible.

3.2 Individual as community-determined, whichever community

In the decision under scrutiny here, the First Senate of the Federal Constitutional Court focuses strongly on the individual. For example the judgment recognises, at §96 and §110, that an imperative religious precept of covering in the public space is an issue of personal identity as protected by the right of free development of one's personality (Article 2, para. 1 GG) in connection with human dignity (Article 1, para. 1 GG).Footnote ²³ Moreover, the centrality of the individual can be inferred from the clear distinction that is made between civil servants and public administration (§104, §107, §112)Footnote ²⁴ (Theilen, Reference Theilen2015; Schwabe, Reference Schwabe2015). In addition to this, when discussing the freedom of religion (§86), the Court refers explicitly also to the singular person entitled with fundamental rights instead of only to the religious community as it used to doFootnote ²⁵ (Rusteberg, Reference Rusteberg2015, p. 640; Ladeur, Reference Ladeur2015, p. 634; Sacksofsky, Reference Sacksofsky2015, p. 803). As a result, in this judgment, the individual is important not only as a fundamental rights bearer (as the obvious focus for a decision on a constitutional complaint), but also as she is explicitly singled out from her work and religious community.

The judgment ventures to define the conception of a human being of the liberal constitutional state and explicitly opts for an open characterisation of the individual: that is to say, one that leaves its content as undefined as possible:

So the question about the subjective or objective understanding of human dignity, which in the German context has been formulated by Böckenförde (Reference Böckenförde, Böckenförde and Spaemann1987, p. 14), is answered in the subjective sense – that is, the individual is bestowed with the responsibility of choosing for herself how to develop her personality (Klein, Reference Klein2015, p. 467). If one decides to avoid social contacts and become isolated, this choice is protected by the negative freedom of opinion and the general rights of the personality (Beaucamp & Beaucamp, Reference Beaucamp and Beaucamp2015, p. 182). Such is the conception of the individual as entailed in the text. But where does it originate from?

Historically, in the German territories, the collectivist representation of the individual has been more influential (Böckenförde, Reference Böckenförde2001, p. 8). Later on, in the Basic Law, the image of the individual developed as a sort of hybrid: in its first draft, Article 1, para. 1 declared the state to be ‘there for human will, not the human for the State's will’. Hence, it apparently leaned towards a Rousseauian conception of individual – but which could also be understood as a reaction to the just defeated Nazi regime. The final version of Article 1 GG actually refers to human dignity. A definition of the image of the individual has been formulated by the Federal Constitutional Court in a 1954 decisionFootnote ²⁷: ‘The image of the human contained in the Basic Law does not refer to an isolated individual; rather the Basic Law has solved the tension between individual and society in the sense of the community-relatedness and boundedness of the person, without thereby encroaching his own intrinsic value’ (§29).

According to the classic comment by renowned constitutionalist Günther Dürig (Reference Dürig2003, p. 24), the Court found a balance between the human being as an autonomous individual and the Aristotelian conception of collective, political humanity.

Overall, in German law, the legal understanding of the human is very heterogeneous, depending on the branch of law considered (Häberle, Reference Häberle2008). Space is given for various developments and concretisations, and this openness is not a fortuity, but a political statement, as the liberal democratic order of the constitutional state entails the normative negation of any prescribed integral human image (p. 63). This openness is found in the decision considered here as well. The Senate puts emphasis on the individual taken singularly, separated from the societal context, and recognises that, through the exercise of her rights and freedoms, the person inevitably manifests her choices connected to societal and religious belonging. In this way, the judgment recognises that the individual is under the ascendancy of the community but does not impose a certain predominant societal conception.

To sum up, the ‘typically French’ autonomous individual ends up being constrained by the Constitutional Council more than the ‘(partially) community determined German’ by the Federal Constitutional Court. Such a statement on the extent of the autonomy of the individual recognised in the two texts would remain incomplete if the kind of national bond implied was not put under scrutiny. This leads us to the next chapter: after having pondered on the conception of the individual in the two texts, the following addresses the meaning of societal belonging.

4.1 Civic nationalism, moralised

The two decisions compared here do not approach the issue directly, but both make reference to life in society and to the presence of foreign practices in public spaces. In this sense, they both reveal something about the conception of ‘belonging’ in the respective societies, and their assertions are diametrically opposed. Concerning French society, the Constitutional Council acknowledges the legislator's concern that:

In this manner, it states that the full-face veil is not only against liberty and equality, but also against fraternity, as it casts off the others and contests head on ‘our conception of living together’ (Rapport d'Information Raoult, p. 87). Also in the explanatory memorandum accompanying the Bill as it was discussed in the French parliament, the wearing of a full-face veil is defined as a ‘sectarian manifestation of a rejection of the values of the Republic’Footnote ²⁹ that brings with it ‘a symbolic and dehumanizing violence, at odds with the social fabric’.Footnote ³⁰ In other words, there is a certain social fabric whose texture is defined negatively by placing it in opposition to the Islamic practice.

It has to be added that this decision has introduced an innovative notion of public order (Levade, Reference Levade2010; Verpeaux, Reference Verpeaux2010). In the third considérant, the Council refers to Articles 5 and 10 DDHC, which enable the legislator to intervene to protect public order. The ‘tryptic’ of safety, tranquillity and salubrity constitutes the ‘material public order’ that, according to constitutional jurisprudence,Footnote ³¹ has to be reconciled with the constitutionally guaranteed freedoms. But, by referring, in the fourth considérant, to the ‘exigencies of life in society’, the Council is actually extending the meaning of the notion. The simple protection of public order would not be enough to justify a general and absolute ban. Public order acquires a more substantial and positive content consisting of a certain number of social values.Footnote ³² What is problematic with this ‘social’ public order is that it may change over time, it could be filled with even more precise and restrictive social rules, and more generally it is an instance of moralisation of the public space (Dieu, Reference Dieu2010; Fatin-Rouge Stéfanini and Philippe, Reference Fatin-Rouge Stéfanini and Philippe2011). Actually, Article 5 DDHC, with its negative phraseology (the legislator is entitled to edict prohibitions only against acts which are harmful to society), was designed to restrict the possibilities of state interference. ‘Ironically’, it now becomes ‘a source of justification for one of the most intrusive pieces of legislation passed in France’ (Hunter-Henin, Reference Hunter-Henin2012, p. 631). The social public order is very close to the objective understanding of fundamental rights mentioned in the previous section, as in both cases a social norm is identified and imposed on the individuals, and personal autonomy yields to social heteronomy (Dieu, Reference Dieu2010). In this way, the political community that constitutes France is not neutral or value-free. On the contrary, it is becoming filled with normative content in an explicit way.

It has to be acknowledged though that, to a certain extent, this is not a complete novelty in French history. It is true that Ernest Renan, in his famous speech at the Sorbonne in 1882, spoke of a ‘daily referendum’ (Renan, Reference Renan1882, p. 27) to characterise the belonging to the French state. He argued that it is not race, language, interests, religion or geography that constitute a nation, but the existence of a common will. However, he also referred to the existence of a common past, of having common ancestors: so, even in Renan's speech, which is usually depicted as foundational for civic nationalism, there are actually elements of ethnicity concealed beneath the surface (Noiriel, Reference Noiriel2007, pp. 19–20). Accordingly, the simplistic ‘Jacobin’ image of France represents only one side of the coin (Birnbaum, Reference Birnbaum1998; Daly, Reference Daly2013, p. 373). In the later part of the nineteenth century, a strong conservative current emerged that stressed the cultural and historic unity of France both against internal minorities and Enlightenment ideas and also external pressures (notably the Prussian annexation of Alsace-Lorraine). This conservative current, a sort of Catholic militant vision of Herderian culturalism (Birnbaum, Reference Birnbaum and Dieckhoff2004, pp. 262–280), has been described as a ‘counter-revolutionary clerical monarchism and militarism’ and as a ‘populist, anti-semitic and vernacular ethnic movement, seeking to redefine “France” as an ethnic nation’ (Smith, Reference Smith1986, p. 149). As a consequence, French republicanism developed strongly as a reaction to such political opponents (Birnbaum, Reference Birnbaum and Dieckhoff2004, pp. 277–280). Historians of racism today argue that the discourse on the nation during the III Republic (1870–1940) actually turned on two axes: the civic and the identitarian one (Reynaud-Paligot, Reference Reynaud-Paligot and Laurentin2015), and indeed the stereotypical representation of France as an instance of pure civic nationalism is a superficial simplification.

It is against this historical background that the recent refurbishment of ‘national identity’ has to be read. Starting from the electoral campaign in 2007, Nicolas Sarkozy resorted to arguments about the majority's identity as opposed to the presence of Muslims on the national territory (Noiriel, Reference Noiriel2007, p. 112; Daly, Reference Daly2013, p. 378). Moreover, he established the connection between immigration and national identity, as ‘immigration politics’ would ‘determine the identity of France in 30 years’ (Noiriel, Reference Noiriel2007, pp. 92–99). Such a polarisation of the discourse (French society as opposed to Muslim alien) is to be read also in the logic underlying the decision considered in this paper (Ouald Chaib & Brems, Reference Ouald chaib and Brems2013, pp. 16–17).

Overall, the kind of ‘life in society’ envisaged in the Council's decision and the moralised version of public order it advances seem to be rather at odds with the civic conception of belonging. Rather, they are inscribable into a rhetoric of national identity, which, as argued, is not totally absent in the French legal tradition.

4.2 Ethnocultural belonging and openness to difference

In the meantime, on the other side of the Rhine, the German society depicted in the judgment text studied here appears to be much less homogeneous. In particular, the Federal Constitutional Court reiterates:

So, in the German society as it is represented in this text, there is no right to be sheltered from the confrontation with foreign manifestations of faith, ritual deeds and religious symbols (§116). More broadly, the decision records the high diffusion of the Islamic veil in German society (§100, §116), which is described as religiously pluralistic (§105). This is reaffirmed also by the dissenting judges (§11, §17), even though they differentiate between societal everyday encounters and repeated influential confrontation at school.

Besides these general statements, in the decision, the Senate searches for practical concordance (balancing among constitutionally protected rights) among freedom of religion and the fundamental rights of third parties and societal values with a constitutional status (Sachs, Reference Sachs2015, p. 572). Without going into the details, the outcome of the court's reasoning is that the rights of the third parties yield to the rights of the one. Hence, fundamentally, the evaluation leads to antithetical results as in the French decision, which considers the rights of third parties to be successfully opposable to the religious freedom of the individual. In other words, the German state–societal bond seems to be less constraining.

This could be justified by referring to the historical disconnection between ethnocultural nation-membership and formal state-membership (Brubaker, Reference Brubaker1992, p. 51). The various pre-unitary German principalities were religiously and culturally heterogeneous, and the overarching Empire provided a mythical rather than realistic conception of the German nation (Benz, Reference Benz2008, p. 32). Also, the Constitution of 1871 was not the achievement of popular sovereignty, but of ‘state’ sovereignty, where the state – functioning as a negotiation system among executives under the hegemony of Prussia – was conceptually separated from the citizens (p. 48). It is only during the Wilhelmine era (1890–1918) that a more ethnonational politics emerged, and the 1913 German Imperial and State Citizenship Law nationalised and ethnicised citizenship regulation (Brubaker, Reference Brubaker1992, p. 114). This was then distorted and radicalised with the ethnoracial restructuring of citizenship undertaken by the Nazis (p. 166).

The catastrophes of World War II mark an important discontinuity in the history of the German national self-understanding (Gerdes & Faist, Reference Gerdes and Faist2006, p. 319). Still, the citizenship law maintained a certain ethnonational inflection, which was characterised by expansiveness towards ethnic Germans expulsed from Eastern Europe and the Soviet Union and restrictiveness towards non-German immigrants (Brubaker, Reference Brubaker1992, p. 170). This is manifested particularly clearly with the Gastarbeiter politicFootnote ³⁴: cultural diversity was necessary, their integration by definition excluded and naturalisation an exception. Germany has for a long time refused to consider itself as a country of immigration, which has led to the lack of a viable assimilationist tradition (p. 176). Rather, it has followed a policy of ‘benign differentialism’ (p. 178): even though access to citizenship is restricted, everyday encounters with differences are not excluded. This is restated by the Senate in the decision considered here as well.

Albeit, it has to be remembered that the Senate declares unconstitutional the provision that establishes a preference for Christian-occidental values: with the exception of the Berlin and the Bremen Laws, all other Länder statutes favoured the Christian-occidental majority (Baer & Wrase, Reference Baer and Wrase2005). Party political discourses in the legislative processes made use of the notion of German national identity in opposition to an invented Islamic threat. Through the headscarf debates, both poles have been constructed around a confrontational dichotomy in order to avoid difficulties in actually defining German national identity and to address inherent inconsistencies and contradictions within approaches to immigration and citizenship law (Sinclair, Reference Sinclair2012, p. 29).

To conclude, the founding idea(l)s concerning the population of the state rooted in nineteenth-century history display big differences between France and Germany. Those have to be contrasted with the more recent political developments and the contemporary stress-factor that is immigration: populistic instrumentalisation of immigration is, somewhat ironically, a transnational phenomenon (Gerdes & Faist, Reference Gerdes and Faist2006, p. 327). This section aims to highlight how, in both countries, belonging to national communities contains both civic and ethnic components. Indeed, these components are present in varying proportions at particular moments in history, which mark the specificity of each national experience (Smith, Reference Smith1986, p. 149). The cultural and historical contextualisations attempted here expose how the two decisions fit respectively in their tradition, or more precisely, how they fit respectively in a certain crease of their tradition. Both traditions contain contradicting elements, and the same principle has received different concretisations at different times, as it is particularly manifest in the case of secularism as well.

5.1 Many laicities

During the legislative procedure in France the principle of laïcité had been left aside: prohibiting the burqa could not be justified in the name of laïcité, as it was for the 2004 Statute on religious symbols at school (Rapport d'Information Raoult, p. 90). First, this is because the setting in that the integral veil was to be prohibited does not only involve state institutions, but also the entirety of the public places of the French territory. Second, it is because the burqa was declared not to be a religious symbol, but rather a political one and prohibiting it would be based on concerns of public order. Third, the principle was dismissed as ineffective, as it would weigh only on the state and not on private persons (pp. 90–94).

Nonetheless, the Constitutional Council referred to Article 10 DDHC, which protects religious freedom, thus confirming the religious significance of the banned practice (Dieu, Reference Dieu2010). Moreover, the Council introduced a reserve of interpretation:

By including this restriction in the ban (it is not applicable in places of worship), the Council revealed the religious object of the law. If the prohibited attire was not religious, there would be no need for an exemption on religious grounds (Joppke & Torpey, Reference Joppke and Torpey2013, p. 47). The Council's judgment resets the prohibition into the dichotomy mentioned at the outset of this section – to what degree are observant practices accepted in the public sphere. In any case, the official rhetoric had not hindered legal scholars from considering the ban as a (however questionable) application of the principle of laicity (Champeil-Desplats, Reference Champeil-desplats2012).

But what does laicity mean? At least two versions of the principle can be differentiated on the basis of the meaning associated to the public/private dichotomy. One requires public and private spheres to be clearly demarcated. Belief (private) and knowledge (public) are rigorously autonomous to one another: religion is limited to a constructed private space and cannot be expressed in the public sphere. Another version of the principle postulates it as personal (in this sense private) belief and religious freedom. This includes the respect of religious practices in private as well as in public life, but it negates the pre-eminence of one specific religion: in particular, the possibility of a state (public) religious institution (Baubérot, Reference Baubérot2012, pp. 48–49; Bowen, Reference Bowen2010, pp. 29–31).

In the seventeenth and eighteenth centuries, the dominant conception in France was Gallicanism, an arrangement of close cooperation between the state and the French Catholic Church, which in turn had autonomy from the Vatican. Thus Catholicism enjoyed a sort of monopolistic position (Baubérot, Reference Baubérot2012, p. 179). According to Ferdinand Buisson, the philosopher and first theoriser of laïcité, the principle was introduced in France with the Revolution and the DDHC through the creation of a State that was independent from the Church, detached from any religion and the recognition of human rights not considered to be given by God (1882, p. 1469). Then Napoléon Bonaparte instituted a complex system of Concordats with the recognised religions, but still the whole of the nineteenth century has been characterised by strong hostilities between two Frances: one deeply Catholic and the other one referring to the values of free thinking (Baubérot, Reference Baubérot2013, p. 37).

The oppositions continued also during the III Republic and, even if the 1882 Statute laicises primary education, thus reducing drastically the political and social influence of the Church(Buisson, Reference Buisson1882, pp. 1469–1470), the horizon of an integral laicity is never attained (Baubérot, Reference Baubérot2013, p. 72). During the parliamentary debates that led to the 1905 Statute on the Separation of the Churches and the State, opinions have been expressed in favour of a public space freed from all religious symbols and clothing (Baubérot, Reference Baubérot2012, pp. 185–188), but the resulting text is actually an attempt to negotiate the end of the conflicts between clericalists and anti-clericalists (Baubérot, Reference Baubérot2013, p. 83). It establishes a clear institutional separation and privatises the religious institutions in the sense that those have to now be organised as associations and, as such, they can act in the public space. The state does not assume any responsibility for private ‘religious needs’, but it guarantees the freedom of conscience and of belief without distinguishing among creeds (p. 87).Footnote ³⁶

The Constitutions of 1946 (IV Republic) and 1958 (V Republic) declare France to be laic. Laïcité thus becomes a shared heritage, and the division among the ‘two Frances’ is overcome. The laic self-conception of the political representatives and the intellectuals notwithstanding, rituals and symbolic elements of Christian origin have not disappeared. Moreover, in society, the Catholic Church has a relevant role and is thus publicly visible (Amir-Moazami, Reference Amir-Moazami2007, p. 96). Starting from the late 1970s and early 1980s, the public space changes also due to the increasing visibility of migrants. The Muslim population arriving mainly from ex-colonies (Algeria became independent in 1962) begins to settle down (Baubérot, Reference Baubérot2013, p. 113), and political fights that were previously thematised as workers’ fights are now defined as ‘identitarian’ by the political discourse (Noiriel, Reference Noiriel2007, pp. 60–65).

The contemporary revival of laïcité is oriented to questioning the compatibility of immigrants’ religion with it. Actually, laïcité is today mainly invoked to ostracise ostensible Muslim practices from the landscape of public visibility (Daly, Reference Daly2013, pp. 379–380). This new laicity is structurally different from the previous one: its historical roots are not the religious wars and the Revolution, but the French colonial past; its geopolitics is not connected with the conflict of the two Frances, but with globalisation and the rejection of a Anglo-American liberal societal model; it is not discussed primarily in parliamentary debates, but it has become extremely mediatised; and from historically being a progressive principle, it is becoming a conservative one (Baubérot, Reference Baubérot2013, pp. 119–121).

Overall, even if the courts sometimes still interpret the principle in favour of the rights of the individual (Joppke, Reference Joppke2009, p. 38), the decision studied here is rather in line with the new laicity resulting from the recent shifts in the meaning of the concept (Hunter-Henin, Reference Hunter-Henin2012, pp. 617–623).

5.2 Disputed neutrality

Oscillations of meaning are to be recorded also concerning the presence of religion in the public sphere in Germany. The central principles for this aspect in the judgment are freedom of religion, state neutrality and equal treatment, which are all basic principles inscribed in the constitutional structure (Robbers, Reference Robbers2001). As mentioned above, in the balancing between constitutional rights and values carried out by the First Senate, the positive religious freedom of the teacher headscarf-wearer prevails over the negative religious freedom of the pupils (reasoning concludes at §122). This extensive conception of religious freedom is the result of an erstwhile if very slow(Sacksofsky, Reference Sacksofsky2009, p. 22) historical process: the individual would get an initial beneficium emigrationis in the 1555 Augsburg peace treaty, and the 1648 Westphalia treaty merely recognised the right of toleration for the private exercise – in the sense of not publicly visible – of a religion different from the state one (Dreier, Reference Dreier2011, pp. 76–77). Positive and negative freedom of religion were established only in 1919 with the Weimar Constitution (WRV). Nowadays, it is recognised as being of primordial importance and extensively interpreted to the point that it may have led to a sort of unintentional (not being the result of firm measures on integration policies) multiculturalism (Gerdes & Faist, Reference Gerdes and Faist2006, p. 322).

State neutrality also is the result of a long and conflict-ridden process. The concordat of Worm 1122 is the first document setting forth the division between spiritual and temporal authorities, whose posts and competences become explicitly separated. Nevertheless, in the German territories, one Land's religion would still exists until the eighteenth century (Catholic, Evangelical or Reformed). The state stopped identifying itself with any creed with the Prussian Allgemeines Landrecht in 1794 and, even then, only the three Christian cults recognised by the law of the Reich enjoyed the exercitium religionis publicum – that is, open public presence (Dreier, Reference Dreier2011, pp. 74–77). In the Frankfurt Constitution of 1848/1849, full religious freedom was recognised and all distinctions between excercitium publicum and privatum disappeared. These central elements were overtaken also in the Prussian Constitution 1850, which albeit at the same time also codified the Christian impregnation of the state and the ethical co-ordination of both the Church and the state (pp. 78–80). This asset was then overcome with the WRV, which established also the main lines of the contemporary setting.

Nowadays, Article 140 GG, with its reference to Article 137, para. 1 WRV, forbids the existence of a state Church. Besides, the principle of neutrality is not explicitly stated, but is derived from the combination of the individual freedom of religion and conscience (guaranteed in Article 4 GG and in Article 140 GG combined with Article 136, paras. 1 and 4, Article 137, para. 1 WRV) with the principle of equality (as expressed by Article 3, para. 3 and Article 33, para. 3 GG) (Ganz, Reference Ganz2008, p. 41). This leaves space for different concretisations (Heinig, Reference Heinig2009). Among the two possible models of a stricter division vs. a more encompassing cooperative stance, Germany has definitely tended towards the second (Kokott, Reference Kokott2005, p. 346), and a change of direction would require a new interpretation of the principle (Sacksofsky, Reference Sacksofsky2009, p. 33). This was also the position of the Second Senate's majority in the 2003 Ludin decision, which, at §43, stated that overall state neutrality has to be understood as open neutrality, but that, in the particular case of schooling, the Land legislatures could find a different ‘appropriate compromise’ (§47). In so doing, it opened up the possibility for the Länder to opt for a more ‘laicist’ conception (Baer & Wrase, Reference Baer and Wrase2005, p. 244), provided that they would do so by guaranteeing equality of treatment among members of different religious communities (§71). As is known, most Länder passed statutes that forbade headscarves but not Christian symbols, or they introduced a preference for ‘Christian-Western’ values, which led to serious constitutionality doubts among scholars (Baer & Wrase, Reference Baer and Wrase2005, pp. 249–251) and to discordant interpretations.Footnote ³⁷

In regard to the decision considered here, the First Senate restricts the discretion previously accorded to the Länder and re-establishes a more pluralist understanding of neutrality (Traub, Reference Traub2015, p. 1340). This is defined as follows:

Moreover, the judgment reiterates that the state cannot identify with any particular religion or acquire any religious or conscience content (§110), and it has to avoid also taking part and intervening in creeds affairs and cannot judge nor determine the content of a religion (§86, §110). In addition to these general statements, the Court concretises them in reference to the school sector and qualifies as ‘bekenntnisoffen’ exactly those interdenominational schools that can convey to pupils tolerance towards other religions and worldviews (§111, §115). So the daily confrontation with teachers wearing religious clothing would be balanced by the presence of other teachers wearing different attire: in this way, interdenominational schools mirror the religiously pluralist society (§105, §116).

In this regard, the First Senate clearly puts an end to the partly contradicting local tribunals’ interpretations of various statutes forbidding headscarves and privileging Christianity. It rejects policies that would have had certain forms of religious exercise pushed into the private sphere and reasserts neutrality as not meaning state indifference towards religion, but rather that the state can permit religious activities in its sphere and offer them a forum. Clearly, this text entails a new strong (re-)statement of the significance of neutrality in the German context.

To summarise, the French decision seems to assume a stricter (even for French standards) conception of laicity, which tends to erase the religious from public spaces. This, thus, favours negative religious freedom, while the German one reasserts a cooperation model that is more indulgent towards positive freedom of exercise. Nevertheless, the contextualisation of the two texts allows some similarities to emerge: first, the degree of religiosity permitted in the public space has been variating over time. For both countries, it can be said that there is no fixed constitutional understanding of the neutrality principle to be derived from the provisions concerning the division between state and Church (Ganz, Reference Ganz2008, p. 44). Second, the very concepts of laïcité and state neutrality have been developed in historical contexts that were radically different from the present one, as the state was facing mainly well-established and already institutionalised Christian creeds (Sacksofsky, Reference Sacksofsky2009, p. 12; Baubérot, Reference Baubérot2012, p. 183). Therefore, old understandings of the terms are unfit to deal with contemporary challenges of religious pluralism, especially in a context where religious cases are actually intertwined with migration, integration and other socio-economic issues. This is related more broadly also with the question of national identity: for both countries, the degree of religiosity allowed in the public sphere is discussed in connection with (or against) the development of a religious and cultural pluralistic identity. The third commonality is that, even in a synchronic perspective, different meanings are given to the principle by different institutional actors (Joppke, Reference Joppke2007, p. 315; Henkes and Kneip, Reference Henkes and Kneip2010, pp. 612–613).