Constitutional authority the Conseil Constitutionnel has asked MPs to change, before December, part of immigration law allowing what opponents call ‘the offence of solidarity’.
It comes after a legal challenge by Cédric Herrou, a farmer who was given a suspended sentence last year for helping migrants passing through the Roya Valley near the Italian border.
The change is not expected to affect those helping people come into France but will mean it should no longer be an offence to give food and shelter or, for example, transport to apply for asylum at prefectures.
France’s law had also previously been criticised by the Council of Europe and an EU directive issued asking states to only prosecute those profiting financially.
The Conseil Constitutionnel, however based itself on the fact that the constitution says fraternity is one of the Republic’s ‘common ideals’. This principle had reportedly not previously been invoked in a legal decision, unlike ‘equality’ and ‘liberty’.
Mr Herrou said it is not yet clear if his own conviction will be overturned (he is pursuing an appeal), however he said: “This is a fine battle to have won for the Republic, for the real France.
“We have politicians who make use of migration to whip up fear and they think values of fraternity are left-wing and naive. But it’s a value of the French Republic to have solidarity with those less fortunate, whatever their origins, and to be sensitive towards suffering.
“The message is that France is not racist, it’s not closed off. There is a difference between defending a geographical area and defending the country’s values and history, between nationalism and real patriotism.”
He continues to help those asking for his support, often people fleeing wars and dictatorships.
Separately, a court in Nice has dismissed a case against Amnesty International volunteer Martine Landry, 73, for helping two young Guineans enter France. She had simply taken them to French border police to be looked after as unaccompanied minors and no evidence of intentional wrongdoing was found.
What is fraternity and how far should it go?
Two words in France’s motto – liberty and equality – could not be clearer. They are human rights. The third word, fraternity, however, is ambiguous but it plays a crucial role in making French society work.
The Penal Code explains what fraternity means in extreme circumstances. It is a crime not to help a fellow human being in mortal danger if you can do so without risk to yourself. A moving example – in this case a voluntary act rather than an obligation – was the gendarme who volunteered to substitute himself for a hostage in the terrorist attack on a supermarket near Carcassonne.
Recently, France has been debating a more complex dilemma: the case of a troop of soldiers that refused to assist the police in containing the 2015 terrorist attack on the Bataclan theatre. They had to decide between their duty to obey orders and their duty to go to the aid of beleaguered fellow citizens.
Generally speaking, however, unlike liberty and equality, fraternity is mostly not clearly defined in terms of legal obligations and prohibitions; it is a moral injunction, an encouragement to good social behaviour. It insists that Frenchness, on a basic level, consists in being nice to each other, “because we have chosen to live together,” as the test for citizenship puts it.
The literal meaning is the relationship between siblings but its grander sense emerged in the Revolution when it was used as an “all-for-one-and-one-for-all” cry by the have-nots challenging the ancien régime.
Although fraternity has Christian overtones, in France it is considered a secular virtue. It extols cooperation in the common interest, which is still a big theme in modern society, as seen, for example in the social security and health systems. It implicitly demands we are loyal to our own people.
The big question with fraternity is “who are we?” and how far does it extend?
All Europeans are asking themselves how much solidarity they should show towards illegal immigrants, but the French have to wrestle with a niggling public conscience formally stated in their terms of citizenship. Do the human rights to liberty, equality and fraternity end at the frontiers of France?
In domestic politics, France is struggling to resolve the conflict between neoliberalism and the duty of fraternity: how should the state treat the disadvantaged who cannot compete in a free-for-all economy? Should the poor be helped out of compassion, at great expense; or should they be forced to get on their bikes and help themselves?
There are no easy answers, just a difficult balancing act for any reforming government. While some voters will welcome stern treatment of unwanted immigrants and social security scroungers, there is a point where fraternity kicks in and the callousness of politicians and bureaucrats is despised.
Fraternity has to be reinvented by ordinary people day by day.
Curiously, it is not in politically sophisticated Paris where you see fraternity most in action but in the typical small rural commune. Villagers have to cohabit whether they are friend or foe, because they cannot avoid each other. In the end fraternity comes down to symbiosis: co-operation, however reluctant, that benefits everyone.