Legal Pluralism

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  • Created on: 08-04-15 18:00

Separating state & religious law

Modern liberal democracies have secular legal systems -- idea that the stateis separate from religious institutions and state law is supreme

Secularism has been endorsed with renewed vigour by British politicians

Catalyst -- speech by Archbishop of Canterbury in 2008 -- called for greater tolerance of religion wihtin the English legal system

Implication that in absence of strong secular system society degenerates into chaos

Members of religious minority communities often follow two legal systems

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Statutory accommodation

1753 marriage concessions -- Jews and Quakers

1949 Marriage Act

Adoption and Children Act 2002 - 'special guardianship' offers alternative to full adoptin which is prohibited under Islamic law

Divorce (Religious Marriages) Act 2002 -- makes it possible for judges to request that a couple divorce religiously before a civil divorce is granted

Motor-Cycle Crash Helmets (Religious Exemption) Act 1976 -- Sikhs can wear turban instead of crash helmet

Criminal Justice Act 2003 -- Sikh people exempt from general ban on offensive weapons

Slaughter of Poultry Act 1967 and Slaughterhouse Act 1974 -- Jews and Muslims allowed to slughter animals according to kosher and halal methods

Water Act 1989 -- allows Hindus to scatter the ashes of their dead in English rivers

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Arbitration

Private form of adjudication

Arbitration Act 1996 -- members of religious groups can have their arbitration conducted in religious courts in matters involving civil law

Beth Din (Jewish)

Sharia Councils (Muslim)

Where individuals choose to go to religious courts, the judges will apply religious law and not English law

Each have their own structures and procedures

Limitation -- decisions are still subject to national law if brought before it

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Case law: English common law

Barth (2000)

  • Mrs Bart applied for widow's pension under English law following death of her husband
  • had married in Sikh temple in 1956 which had not been registered at the time
  • court held marriage was valid even though there was no evidence of valid wedding ceremony
  • presumption of marriage which arose from long period of cohabitation
  • presumption existed as a common law principle
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Case law: private contract law

Ali v Ali (2001)

  • before their marriage in UK, Mr Ali had promised his future wife £30,001 as mahr
  • Mr Ali sought to terminate the marriage under English law having pronounced a talaq (Muslim divorce)
  • Mrs Ali petition not ot allow civil divorce unless mahr be paid
  • English law does not recognised mahr payments
  • does not provide much relief to women of working age in short childless marriages
  • BUT Mrs Ali was entitled to £30,000 because common law dictates so as a principle of equity

Note the missing pound

Consistent with basics of English contract law

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Case law: statutory interpretation

R (on the application of Ghai) v Newcastle CC (2010)

  • G wants to be cremated in accordance with his Hindu beliefs
  • Council says not possible under cremation statutes
  • Religion doesn't specifically require open air pyres -- satisfied if traditional fire and sunlight could shine directly on his body as it was cremated
  • Cremation Act 1902 and Cremation (E&W) Regulations 2008 

First instance

  • article 9 was engaged but interference was justified based on public policy concern of public morality
  • G argued article 8 and 14 were engaged but Judge held they were not
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Ghai case (CA)

  • Cremation can only lawfully take place in a structure
  • - which is a building
  • - which has been constructed in a location which satisfied s5
  • - which is 'fitted with appliances for the purpose of burning human remains'
  • - whose 'opening has been notified to the Secretary of State'
  • only issue was whether cremation according with Ghai's beliefs could reasonably be achieved in a structure which is a 'building' within meaning of Act
  • evidence and photos of Ceuta premises -- substantial in extent, solid in structure, relatively permanent in nature -- solid roof, supported on columns without walls
  • doesn't matter if G's belief is universal, orthodox or unusual belief for a Hindu

Argument 1 - 'building' - start with wider meaning adn then consider to waht extent it should be cut down by context

Argument 2 - breach can lead to prosectuion - supports wide meaning of bulding

Argument 3 - purpose of Act to prevent public from seeing cremation -- could easily have stated this but did not; not mentioned as intention when Bill introduced; so not intention 

Give building natural and wide meaning -- G's wishes can be accommodation under the Act

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Limits to legal accommodation (1)

Courts have been reluctant to allow claims on art. 9 grounds

Begum v Denbigh High School

  • B objected to wearing school uniform prescribed by her school
  • school argued it had modest dress in place for girls of all religious backgrounds that B could wear
  • art. 9 involved but it had not been interfered with
  • even if there had been an interference, it would have been justified

Playfoot v Millais School -- art 9 not engaged 

Eweida and Other v UK (2013)

Mba v London Borough of Merton (2013)

R v Welsh Ministers

  • Hindu community objected to slaughtering of Shambo -- had TB -- ordered to be slaughtered under Animal Health Act 1981
  • art 9 involved and interference with that right had taken place but interference was justified
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Limits to legal accommodation (2)

Ayelet Shachar -- too much legal accommodation is harmful for the members of religious communities

  • tolerance necessary but dangerous if taken too far
  • harmful practices can be enforced in name of 'religion' particularly against vulnerable groups
  • government shoudl retain ultimate control over arbitration courts

Abdullah An-Na'im -- too much legal accommodation is detrimental for state legal system as a whole

  • tolerance neccessary but too much accommodatio is dangerous for legitimacy and authority of the state
  • make state vulnerable to claims that it is discriminating against particular groups of people
  • Islamic principles should only be incorporated as a matter of secular law through a process of 'civic' reasoning
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David Edge article

Little need/reason to make any major changes to present legal status quo -- already accommodates most necessary things effectively

Exception = English legal system should recognise Muslim marriages -- by not doing so it leaves Muslims in a complicated position, especially where they want to divorce -- particular problems for vulnerable group of women and children

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Arguments

Arbitration provisions broadly adequate

Need for further statutory accommodation in specific areas in order to protect vulnerable groups, such as in the area of Muslim marriage

Ad hoc approach of courts, which avoids engaging with the direct issue is unsatisfactory -- new approach should be adopted perhaps through legislation since the courts have been deferring to Parliament

Too much legal accommodation would undermine both the state and the religious law itself

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