Contenu du sommaire : Le gardien de la laïcité

The liberally-inspired secularism that was established in France by the law of 1905 has gradually lost its pre-eminence. The visibility of Islam within society initially gave rise to prohibitive legislation, before additional repressive responses were introduced to counter the violence of radical Islam in the wake of the 2015 terror attacks. Judges serve within this troubled context as the guardians of secularism, faithful to the long history in which the liberal heritage of the concept is rooted.

This article examines the historical context in which the concept of secularism has taken shape in France, together with the different 'ages' that have marked its evolution. It shows how the separatism brought about by the 1905 Law on the Separation of the Churches and State has since been replaced by a difficult dialogue between the State and religious bodies. Amid a climate dominated by fear of the other, intellectual debate in France is currently divided between different 'families' which this article delineates. Religious groups are today asked to adhere to the constituent values of our democratic culture, whilst the Council of State, faced with the resulting tremors, seeks to issue judgements that preserve the liberal spirit of the 1905 law in its case law.

Secularism is a principle whose definition and implementation give rise to heated debates. Whereas political currents and media feed tensions and tend to transform this positive principle into a "weapon", judiciary needs regulation. However, the courts seem to be forgotten by the Ministry of Justice as far as those questions are concerned. Is it relevant?

Given some of the characteristics of the young people under the care of the Directorate for the Judicial Protection of Young Persons (PJJ) of the French Ministry for Justice, and the challenges faced by them, issues surrounding secularism and citizenship should be the subject of daily educational work. It is possible, however, that the storm of controversy surrounding secularism, combined with the growing phenomenon of radicalisation, has given rise to certain tensions among the professionals of the PJJ. This article presents different ways in which the Directorate for the Judicial Protection of Young Persons has attempted to provide its professionals with reference points for understanding secularism and with strategies for approaching religion in a more relaxed manner in their educational work.

This article presents the work carried out by the Academic Centre for the Education of New Arrivals and Children from Itinerant or Travelling Families (CASNAV) within the French national education system. Using concrete examples, it sheds light on the teaching of the values of the Republic in specialized classes that form part of this educational approach to assist the integration of non-French-speaking minors.

The principle of secularism has constitutional status, as do some of the principles that have emerged from the 1905 law. The evolution of society has led administrative judges to maintain a balanced interpretation of these principles, even permitting the installation of religious emblems to be tolerated under certain circumstances. On the other hand, judges impose strict compliance with secularism within public services, and especially among the civil servants who are the bearers of the image and values of these services. The beliefs of service users can be taken into consideration, on the condition that they do not disrupt the functioning of the service in question.

By its very essence, secularism falls within the scope of the public institutions. A concept that implies respect for religious beliefs and the equality of all before the law, it is nevertheless by n˚ means a stranger to judicial proceedings. In resolving such disputes, judges rely heavily on the method of proportionality assessment inspired by the European Court of Human Rights, according to which their task is to determine on a case-by-case basis whether or not a restriction imposed upon religious freedom by the principle of secularism is necessary (or not) within a democratic society.

As a state institution and public service, justice is bound by the principles of secularism and neutrality. Do the diversity which characterizes the judicial system impact on the application of these principles within justice ? Amongst these judicial actors, how can a judge be sure to maintain his neutrality in a case dealing with religion ? This study will seek to answer these two questions through a collective reflection at the behest of the research « Mission Law and Justice ».

Secularism is often referred to as a body of constitutional principles. Should it not, however, also be seen as a method that contributes to the elaboration and support, not only of a professional code of conduct, but also of ethics for the judicial professions ? Judicialization is the short-term objective of the law on secularism. In conflictual relationships, its function of neutralization by neutrality is not there to annihilate, but rather to placate and protect individual freedoms, including freedom of conscience. This short-term objective, the results of which are often spectacular in individual cases, should not however diminish the second, longer-term objective of secularism, which is juridification to endeavour to achieve peace, justice, and fraternity. The established case-law of the Council of State with respect to implementation of the 1905 law has testified to this for more than a century, as it works quietly but steadily towards the implementation of a social and political space and time that are inclusive and can be shared by all. Secularism as such has several terms : a short term for biographies, a long term for societies, and a very slow term for a philosophy of the history of relations between religions, law and politics, to which the history of law is witness.

Criminal mediation was defined by the Israeli Supreme Court as "a dialogue between the prosecution [the State] and the accused, in which a judge-mediator is present, in order to narrow the gap toward the signing of a Plea-Bargaining agreement ". Its purpose is the efficiency of justice. This procedure is opposed to the traditional form of criminal mediation which is often related to a victim-offender mediation. In Israel, the supreme Court has expressed its opposition to let the victims be part of this practice. In a judgment, the Court states that the presence of the victim could complicate the mediation and inhibit free discussion between the parties. A few years before then, the Court had expresses its fear to integrate into the traditional judicial discourse, elements of restorative justice as apology.Despite this opposition, criminal mediation practiced in Israel uses a number of elements that seems to be borrowed from inquisitorial justice ; The procedure has several common points as it is informal, non-adversary and confidential. These different characteristics may represent a gateway for the victims of crime to justice. The use of conflict resolution methods that do not exclude the victim, especially in Italy or Arizona in the United States, shows that it is possible to integrate the victim into these new alternatives to the trial. These experiences may inspire the Israeli criminal justice system to integrate the victim in criminal mediation without being afraid to harm its stability and effectiveness.

The prison sentence often affects the convict's family circle? Non-issue or real question? Frédéric Mégret informs us on the theoretical works that could explain this phenomenon. The invisibility of families questions the criminal rationality: if we affect, do we punish ? Families can be seen as an active component of crime, as a passive victim of punishment or as a vehicle for their punishment. The fact of considering the impact of the sentence on families could form the basis of a potential reform, particularly when sentencing, or implementing the execution of the sentence. Families could represent the missing piece of this complex puzzle, a hyphen to better understand how the individual and the social are intertwined. The issue of the convincts' families is an open invitation to rethink the criminal justice systems.

Ahead of a revision of the laws of bioethics, transhumanism is arousing the interest both of the scientific community and of the legislator. From bionic prostheses to brain implants, gene therapy, and even the downloading of consciousness, the transhumanists are relentlessly pushing the natural limits of the human being. As a fervent protector of said being, criminal law is slowly being won over by these rapidly multiplying new technologies, which can be synonymous with both progress and danger.

The concrete application of the law of 15 August 2014, and notably the provisions instituting alternative sentences to imprisonment, clearly demonstrates the difficulty of breaking with a criminal justice system which is increasingly governed by the imperatives of productivity and speed, with all of the consequences associated with this acceleration: decisions taken in an ‘automated' manner, the “de-individualisation” and unsuitability of such decisions, and the impossibility of ‘stepping back' from individual situations for the purposes of closer analysis, particularly in cases of multiple repeat offences. The failure of these alternative sentences, which can be measured in quantitative terms alone, in fact conceals an inability on the part of the judicial system to adopt a means of functioning which is not limited to ‘producing' criminal justice responses without taking account of their impact on defendants and their rehabilitation.