Authors: Roman Zinigrad and Stephen W. Sawyer – American University of Paris
Few frameworks have had an as profound and rapid influence on a branch of legislation as (de)radicalization in France. While the country had an established and even decades-long record of developing mechanisms of counterterrorism and intelligence against violent extremism, the field of (de)radicalisation is comparatively recent. Its novelty however only highlights the depth of its impact. Indeed, in comparison to other countries dealing with similar threats, such as the United States or the United Kingdom, French legislators resisted developing comprehensive, non-security-based reforms addressing political violence until 2013. Triggered initially by a series of highly mediatized and politicized shootings in 2012 targeting French soldiers and a Jewish school committed by a jihadist radical Mohammed Merrah, the jihadist attacks in January and November 2015 gave new urgency to the elaboration of a comprehensive and far-reaching legislative response to radicalisation. The symbolic and political impact of these events provoked a veritable legislative revolution in treating extremist political violence. Since then, France has elaborated an extensive arsenal of counterterrorist efforts and expanded the scope and variety of its deradicalisation measures, directing them, almost exclusively, against jihadist violence and radicalisation.
Take for example the stark contrast between the original legislation in this area dating from the 1980s and the barrage of transformations in the few short years since 2015. The first act that provided a definition for the term “terrorism” was enacted in 1986. It introduced a set of counterterrorist measures and laid the foundations for the contemporary legislative scheme, after a series of attacks claimed by the CSPPA (“Committee of Solidarity with Arab and Middle East Political Prisoners”). The current security framework, on the other hand, set up in July 2021, was framed by the passing of the act on “the prevention of acts of terrorism and intelligence” (Loi n° 2021-998 du 30 juillet 2021 relative à la prévention d’actes de terrorisme et au renseignement). It was immediately followed in August 2021 with one of the most controversial of all other legislative measures, focusing specifically on the area of deradicalization: the law on “reinforcing respect for the principles of the Republic” (Loi n° 2021-1109 du 24 août 2021 confortant le respect des principes de la République).
The stated purpose of this legislation, known informally as the “separatism law” in reference to President Macron’s statement prior to its enactment that France must tackle “Islamist separatism”, is to “provide responses to withdrawal into the community and to the development of radical Islamism by reinforcing respect for republican principles and by modifying the laws concerning religion” (Loi du 24 août 2021 confortant le respect des principes de la République, 2021). The act is the most far-reaching expression yet of the French government’s attitude toward jihadist radicalisation. It is based on the presumption that radicalisation in religious views and practices is the main cause of jihadist violence. Moreover, it is rooted in three underlying premises – all of which have been thoroughly criticised in empirical research: first, strict observance of Islam and extremist violence are situated on the same continuum (i.e., radicalisation is rooted in religion); second, the drift from radical religious opinion to radical action can and should be prevented by weakening the socio-political power of Muslim religious communities and institutions that nurture “separatism” (i.e., deradicalisation must sever the communal ties); and finally, that the most effective means to do so is increasing the weight, visibility and importance of the principle of laïcité (or secularism) – a constitutional principle in the current French republican regime – in the public sphere, in education policy and in government services (i.e., the restriction of religious freedoms as an effective tool of deradicalisation).
In spite of the law’s dubious empirical assumptions and divisiveness, the constitutional review over these measures has been minimal. The French Constitutional Council has recognised the aim of “combating terrorism” as a legitimate government purpose, “which is part of the objective of constitutional value of preventing breaches of public order” (Décision n° 2021-822 DC du 30 juillet 2021). In recent years, the Council has reviewed various legislative reforms concerning surveillance, regulation of online hate speech, deradicalisation, and other matters of national security in connection with extremist violence and terrorism. The Council approved some of the securitisation tools introduced by the parliament but opposed other legislation that was seen as infringing the personal freedoms of individuals suspect in the dissemination of hate speech or in terrorist activity. In a recent decision from August 2021, the Constitutional Council struck down a major part of a legislative reform granting power to monitor persons convicted of terrorism after their release from prison. The ruling concluded that the reform infringes upon freedom of movement, the right to personal privacy, and the right to have a normal family life of the concerned individuals (Decision no. 2020-805 DC of 7 August 2020).
Yet, the general trend in the Council’s case-law is of non-intervention in the ever-increasing number and scope of security and surveillance measures introduced by the state in past years. Thus, in a series of decisions spanning from 2003 to 2015 the Council has approved the gradual expansion of “mechanisms necessary for the development of surveillance of the population with the aim of preventing breaches of public order.” Among the tools deemed constitutional by the Council were systems for the automatic processing of personal data implemented by the national police and gendarmerie, a procedure of requisition of technical connection data, and a system for the systematic reading of license plates, all with the aim of preventing and suppressing terrorism (Décision n° 2003-467 DC du 13 mars 2003; Decision no. 2005-532 DC of January 19, 2006; Decision no. 2015-713 DC of July 23, 2015).
The rapid elaboration of this legislative arsenal, its overreach into areas of human rights, and the relatively weak judicial review highlight the challenges of the (de)radicalisation paradigm. For as one analysis effectively summarizes, this caselaw indicates that “the control of the constitutionality of laws on national defence is taken hostage by the legislator under the approving gaze of a public opinion in search of an alleged fundamental right to security”, which leads to an “ever more increasing consideration of the requirements of defence and security, to the detriment of rights and freedoms.”
 Tore Bjørgo and John Horgan, Leaving Terrorism Behind: Individual and Collective Disengagement (Routledge 2009); Daniel Köhler, ‘Deradicalization’ in Nathan Hall and others (eds), The Routledge International Handbook on Hate Crime (Routledge 2014); Clark McCauley and Sophia Moskalenko, ‘Understanding Political Radicalization: The Two-Pyramids Model’ (2017) 72 American Psychologist 205; Tom Pettinger, ‘De-Radicalization and Counter-Radicalization: Valuable Tools Combating Violent Extremism, or Harmful Methods of Subjugation?’  Journal for Deradicalization 12, 1.
 Karine Roudier, ‘Le Conseil constitutionnel face à l’avènement d’une politique sécuritaire’ (2016) N° 51 Les Nouveaux Cahiers du Conseil constitutionnel 37.